EXHIBIT 10.5
AMENDMENT NO. 1
DATED AS OF OCTOBER 28, 1999
TO
TRANSFER AGREEMENT
BETWEEN
RAVEN FUNDING LLC,
AS TRANSFEROR
AND
GREYHOUND FUNDING LLC,
AS TRANSFEREE
DATED AS OF JUNE 30, 1999
Table of Contents
Page
SECTION 1: CERTAIN DEFINED TERMS . . . . . . . . . . . . . . . . . . . 1
SECTION 2: AMENDMENT TO ARTICLE I OF TRANSFER AGREEMENT . . . . . . . 1
SECTION 3: AMENDMENT TO ARTICLE III OF TRANSFER AGREEMENT . . . . . . 2
SECTION 4: REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . 4
Section 4.1 Affirmation of Representations and Warranties 4
Section 4.2 Due Authorization . . . . . . . . . . . . . . 4
Section 4.3 Binding Effect . . . . . . . . . . . . . . . . 4
Section 4.4 No Consent . . . . . . . . . . . . . . . . . . 5
SECTION 5: CONDITIONS PRECEDENT . . . . . . . . . . . . . . . . . . . 5
SECTION 6: MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 5
Section 6.1 Duplicate Originals. . . . . . . . . . . . . . 5
Section 6.2 Ratification and Effect. . . . . . . . . . . . 5
Section 6.3 GOVERNING LAW . . . . . . . . . . . . . . . . 5
Section 6.4 Headings . . . . . . . . . . . . . . . . . . 5
Section 6.5 Counterparts . . . . . . . . . . . . . . . . 5
Section 6.6 Severability of Provisions . . . . . . . . . 5
-i-
AMENDMENT, dated as of October 28, 1999 ("Amendment"), to
TRANSFER AGREEMENT, dated as of June 30, 1999, between GREYHOUND FUNDING
LLC, a special purpose, limited liability company established under the
laws of Delaware (the "Issuer"), and RAVEN FUNDING LLC, a special
purpose, limited liability company established under the laws of Delaware
("SPV").
W I T N E S S E T H:
WHEREAS, the Issuer and SPV are parties to a Transfer
Agreement, dated as of June 30, 1999 (the "Transfer Agreement");
WHEREAS, the Issuer and SPV desire to amend certain terms of
the Transfer Agreement; and
WHEREAS, the Issuer and SPV have duly authorized the execution
and delivery of this 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
Transfer 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 Transfer
Agreement, as the same may be amended, supplemented or otherwise modified
from time to time.
SECTION 2: AMENDMENT TO ARTICLE I OF TRANSFER AGREEMENT
Article I of the Transfer Agreement is hereby amended by
adding the following new defined term in alphabetical order:
"'Material Adverse Effect' means, with respect to any
occurrence, event or condition:
(i) a material adverse effect on SPV's title to the SUBI
Certificates or the beneficial interest in the Sold Units or Fleet
Receivables represented thereby;
(ii) a material adverse effect on the ability of the
Origination Trust to perform its obligations under the Transaction
Documents to which it is a party; or
(iii) a material adverse effect on the validity or
enforceability of the Transaction Documents to which the
Origination Trust is a party."
SECTION 3: AMENDMENT TO ARTICLE III OF TRANSFER AGREEMENT
Article III of the Transfer Agreement is hereby amended by
adding the following Section 3.3 to the end of said Article:
"SECTION 3.3 Representations and Warranties Regarding
Origination Trust. SPV hereby represents and warrants to the
Issuer as of the date hereof and as of each Transferred Asset
Closing Date, that:
(a) Existence and Power.
The Origination Trust (a) is a statutory business trust
duly formed, validly existing and in good standing under the
laws of the State of Delaware, (b) is duly qualified to do
business as a foreign business trust and in good standing
under the laws of each jurisdiction where the character of its
property, the nature of its business or the performance of its
obligations make such qualification necessary, and (c) has all
powers and all governmental licenses, authorizations, consents
and approvals required to carry on its business as now
conducted and for purposes of the transactions contemplated by
the Transaction Documents.
(b) Governmental Authorization.
The execution, delivery and performance by the
Origination Trust of the Transaction Documents to which it is
a party (a) was and is within the Origination Trust's power
and has been duly authorized by all necessary action, (b)
requires no action by or in respect of, or filing with, any
governmental body, agency or official which has not been
obtained and (c) does not contravene, or constitute a default
under, any Requirement of Law or any provision of its
certificate of trust or the Origination Trust Documents or
result in the creation or imposition of any Lien on any of the
properties of the Origination Trust, except for Liens created
by the Origination Trust Documents. Each of the Transaction
Documents to which the Origination Trust is a party has been
duly executed and delivered by or on behalf of the Origination
Trust.
(c) Binding Effect.
Each Transaction Document to which the Origination Trust
is a party is a legal, valid and binding obligation of the
Origination Trust enforceable against the Origination Trust in
accordance with its terms (except as such enforceability may
be limited by bankruptcy, insolvency, fraudulent conveyance,
-2-
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).
(d) Litigation.
There is no action, suit or proceeding pending against
or, to the knowledge of SPV, threatened against or affecting
the Origination Trust before any court or arbitrator or any
Governmental Authority that could have a Material Adverse
Effect.
(e) No ERISA Plan.
The Origination Trust has not established and does not
maintain or contribute to any Pension Plan that is covered by
Title IV of ERISA and will not do so prior to the termination
of this Agreement.
(f) Tax Filings and Expenses.
The Origination Trust has filed all federal, state and
local tax returns and all other tax returns which, to the
knowledge of SPV, are required to be filed (whether
informational returns or not), and has paid all taxes due, if
any, pursuant to said returns or pursuant to any assessment
received by the Origination Trust, except such taxes, if any,
as are being contested in good faith and for which adequate
reserves have been set aside on its books. The Origination
Trust has paid all fees and expenses required to be paid by
it in connection with the conduct of its business, the
maintenance of its existence and its qualification as a
foreign limited liability company authorized to do business in
each State in which it is required to so qualify.
(g) Investment Company Act.
The Origination Trust is not, and is not controlled by,
an "investment company" within the meaning of, and is not
required to register as an "investment company" under, the
Investment Company Act.
(h) 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, delivery or performance of any of the
Origination Trust's obligations under any Transaction Document
other than such consents, approvals, authorizations,
registrations, declarations or filings as shall have been
-3-
obtained by the Origination Trust prior to the Initial Closing
Date.
(i) Chief Executive Office.
The Origination Trust's principal place of business and
chief executive office and the office where it keeps its
records is c/o Wilmington Trust Company, 0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxx, XX 00000."
(j) SUBI Certificates.
The SUBI Certificates have been duly executed and
delivered by Wilmington Trust Company in accordance with the
Origination Trust Agreement, have been duly issued in
accordance with the Origination Trust Agreement and are
entitled to the benefits afforded by the Origination Trust
Agreement.
SECTION 4: REPRESENTATIONS AND WARRANTIES
In order to induce the Issuer to agree to this Amendment, SPV
hereby represents and warrants, as follows, for the benefit of the
Issuer, as of the date hereof:
Section 4.1 Affirmation of Representations and Warranties.
Each representation and warranty of SPV set forth in the Transfer
Agreement and in each other Transaction Document to which it is a party
is true and correct as of the date of this 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 4.2 Due Authorization.
The execution, delivery and performance by SPV of this
Amendment (a) is within SPV's power, has been duly authorized by all
necessary action, (b) requires no action by or in respect of, or filing
with, any governmental body, agency or official which has not been
obtained and (c) 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 SPV or of any law
or governmental regulation, rule, contract, agreement, judgment,
injunction, order, decree or other instrument bindng upon SPV or any of
its properties or result in the creation or imposition of any Lien on any
its properties except for Liens created by the Transfer Agreement or the
other Transaction Documents. This Amendment has been executed and
delivered by a duly authorized officer of SPV.
Section 4.3 Binding Effect.
This Amendment is a legal, valid and binding obligation of SPV
enforceable against SPV in accordance with its terms (except as such
-4-
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 4.4 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 Amendment or for the performance of any of
SPV's obligations hereunder other than such consents, approvals,
authorizations, registrations, declarations or filings as were obtained
by SPV prior to the date hereof.
SECTION 5: CONDITIONS PRECEDENT
This Amendment shall become effective and shall be binding on
each of the parties hereto upon the effectiveness of Supplemental
Indenture No. 1, dated as of October 28, 1999, to the Base Indenture.
SECTION 6: MISCELLANEOUS
Section 6.1 Duplicate Originals.
The parties may sign any number of copies of this Amendment.
One signed copy is enough to prove this Amendment.
Section 6.2 Ratification and Effect.
The Transfer Agreement, as amended and supplemented by this
Amendment No. 1, 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 6.3 GOVERNING LAW. THIS AMENDMENT AND THE RIGHTS
AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY,
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK.
Section 6.4 Headings. The various headings in this
Amendment are for purposes of reference only and shall not affect the
meaning or interpretation of any provision of this Amendment.
Section 6.5 Counterparts. This 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.
-5-
Section 6.6 Severability of Provisions. If any one or more
of the covenants, agreement, provisions or terms of this 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 Amendment and shall in no way affect the validity or
enforceability of the other provisions of this Amendment.
-6-
IN WITNESS WHEREOF, the Issuer and SPV have caused this
Amendment No. 1 to be duly executed by their respective duly authorized
officers as of the day and year first written above.
GREYHOUND FUNDING LLC
By: /s/ Xxxx Xxxx
-------------------------------
Name: Xxxx Xxxx
Title: Manager
RAVEN FUNDING LLC
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Manager
-7-
Exhibit 10.5
TRANSFER AGREEMENT
BETWEEN
RAVEN FUNDING LLC,
AS TRANSFEROR
AND
GREYHOUND FUNDING, LLC,
AS TRANSFEREE
DATED AS OF JUNE 30, 1999
-1-
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . 1
SECTION 1.1 Certain Defined Terms . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions . . . . . . . . . 1
ARTICLE II
TRANSFER OF TRANSFERRED ASSETS . . . . . . . . 4
SECTION 2.1 Initial Contribution . . . . . . . . . . . . . 4
SECTION 2.3 Additional Transferred Asset Closings;
Payment . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . 5
SECTION 3.1 Representations and Warranties Regarding
Transferred Assets . . . . . . . . . . . . . . . . . 5
SECTION 3.2 Representations and Warranties Regarding
SPV . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
CONDITIONS TO TRANSFER . . . . . . . . . . 8
SECTION 4.1 Conditions Precedent to Effectiveness of
Agreement . . . . . . . . . . . . . . .. . . . 8
SECTION 4.2 Conditions to Obligation of the Issuer to
make a Transferred Asset Payment . . . . . . . 9
ARTICLE V
TRANSFER TERMINATION EVENTS . . . . . . . . . 10
ARTICLE VI
COVENANTS OF SPV . . . . . . . . . . . . 11
Section 6.1 Conduct of Business and Maintenance of
Existence . . . . . . . . . . . . . . . . . . 11
Section 6.2 Compliance with Laws . . . . . . . . . . . . . 11
Section 6.3 Inspection of Property, Books and Records . . . 12
Section 6.4 Compliance with Transaction Documents . . . . . 12
Section 6.5 Notice of Defaults . . . . . . . . . . . . . . 13
Section 6.6 Notice of Material Proceedings . . . . . . . . 13
Section 6.7 Further Requests . . . . . . . . . . . . . . . 13
Section 6.8 Annual Opinion of Counsel . . . . . . . . . . . 13
Section 6.9 Liens . . . . . . . . . . . . . . . . . . . . . 13
Section 6.10 Other Indebtedness . . . . . . . . . . . . . . 14
Section 6.11 Mergers . . . . . . . . . . . . . . . . . . . 14
Section 6.12 Acquisition of Assets . . . . . . . . . . . . 14
Section 6.13 Distributions. . . . . . . . . . . . . . . . . 14
Section 6.14 Organizational Documents . . . . . . . . . . . 14
Section 6.15 Investments . . . . . . . . . . . . . . . . . 14
Section 6.16 No Other Agreements . . . . . . . . . . . . . 14
Section 6.17 Other Business . . . . . . . . . . . . . . . . 14
-i-
Section 6.18 Maintenance of Separate Existence . . . . . . 15
Section 6.19 No ERISA Plan . . . . . . . . . . . . . . . . 17
ARTICLE VII
ADDITIONAL AGREEMENTS . . . . . . . . . . 17
SECTION 7.1 Initial UCC Filings . . . . . . . . . . . . . . 17
SECTION 7.2 Computer Files Marked . . . . . . . . . . . . . 18
SECTION 7.3 Protection of Title . . . . . . . . . . . . . . 18
SECTION 7.4 Repurchase Events . . . . . . . . . . . . . . . 18
ARTICLE VIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . 19
SECTION 8.1 Amendment . . . . . . . . . . . . . . . . . . . 19
SECTION 8.2 Survival . . . . . . . . . . . . . . . . . . . 20
SECTION 8.3 Notices . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.4 GOVERNING LAW . . . . . . . . . . . . . . . . . 20
SECTION 8.5 Waivers . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.6 Headings . . . . . . . . . . . . . . . . . . . 21
SECTION 8.7 Counterparts . . . . . . . . . . . . . . . . . 21
SECTION 8.8 Severability of Provisions . . . . . . . . . . 21
SECTION 8.9 Assignment . . . . . . . . . . . . . . . . . . 21
SECTION 8.10 Further Assurances. . . . . . . . . . . . . . . 21
SECTION 8.11 No third-Party Beneficiaries. . . . . . . . . . 21
SECTION 8.12 Merger and Integration. . . . . . . . . . . . . 21
SECTION 8.13 Authority of the Administrator. . . . . . . . . 21
SECTION 8.15 No Petition Covenants . . . . . . . . . . . . . 22
SECTION 8.15 SUBIs . . . . . . . . . . . . . . . . . . . . 22
Exhibit A Form of Initial Assignment
Exhibit B Form of Additional Assignment
-ii-
TRANSFER AGREEMENT
This Transfer Agreement (the "Agreement") is made as of June
30, 1999, between GREYHOUND FUNDING, LLC, a Delaware limited liability
company (the "Issuer"), and RAVEN FUNDING LLC, a Delaware limited
liability company ("SPV").
R E C I T A L S :
SPV owns all of the Common Membership Interests in the Issuer.
On the terms and subject to the conditions set forth herein,
SPV desires to transfer the Initial Transferred Assets to the Issuer on
the Initial Closing Date, in the form of a contribution to the capital of
the Issuer.
Following the Initial Closing Date, on the terms and subject
to the conditions set forth herein, SPV desires from time to time to
transfer to the Issuer any interest that the SPV acquires in Additional
Transferred Assets and, in consideration for such transfer, the Issuer is
willing to make a payment to SPV on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the other
good and valuable consideration and the mutual terms and covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. Capitalized terms used in
the above recitals and in this Agreement, and not defined in this
Agreement, shall have the respective meanings assigned to them in the
Definitions List attached to the Base Indenture, dated as of the date
hereof, between the Issuer and The Chase Manhattan Bank, as indenture
trustee, as the same may be amended, supplemented or otherwise modified
from time to time, exclusive of Indenture Supplements creating a new
Series of Investor Notes (the "Base Indenture").
SECTION 1.2 Other Definitional Provisions. (a) Unless
otherwise specified therein, all terms defined in this Agreement shall
have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto or thereto. Additionally, the
following terms shall have the following meanings for all purposes of
this Agreement:
"Additional Transferred Assets" means, in respect of a Lease
SUBI Allocation Event, the following assets:
(a) the beneficial interest in the Additional Units
allocated to the Lease SUBI Portfolio on such date and any
Unit Leases, Unit Vehicles and Related Rights associated
therewith;
(b) the Origination Trust Documents, as such agreements
are applicable to the Additional Units referred to in clause
(a) and any Unit Leases, Unit Vehicles and Related Rights
associated therewith;
(c) all payments and distributions under the foregoing of
whatever kind or character and whether in cash or other
property, at any time made or distributable to SPV thereunder
or in respect thereof, whether due or to become due,
including, without limitation, the immediate and continuing
right of SPV to receive and collect all amounts payable to the
holder of the Lease SUBI Certificate and all of SPV's rights,
remedies, powers, interests and privileges under the foregoing
(whether arising pursuant to the terms thereof or otherwise
available to SPV), including, without limitation, the right to
enforce the foregoing, to give or withhold any and all
consents, requests, notices, directions, approvals or waivers
thereunder and all amounts due and to become due thereunder,
whether payable as indemnities or damages for breach thereof;
and
(d) any proceeds and products of the foregoing.
"Initial Transferred Assets" means the following assets:
(a) the Lease SUBI, the Lease SUBI Certificate and the
beneficial interest in the Initial Units allocated to the Lease
SUBI Portfolio on the Initial Closing Date and any Unit Leases,
Unit Vehicles and Related Rights associated therewith;
(b) the Fleet Receivable SUBI Certificate and the beneficial
interest in the Fleet Receivables and the Origination Trust's
rights under the Receivables Purchase Agreement from time to time
allocated to the Fleet Receivable SUBI and represented by the Fleet
Receivable SUBI Certificate;
(c) the Origination Trust Documents, as such agreements are
applicable to the Initial Units and the Fleet Receivable SUBI
Certificate and the other Origination Trust Assets referred to in
clauses (a) and (b);
(d) the Series 1999-1 Lease Rate Cap, dated the Initial
Closing Date, between SPV and an Eligible Counterparty;
(e) all payments and distributions under the foregoing of
whatever kind or character and whether in cash or other property,
at any time made or distributable to SPV thereunder or in respect
thereof, whether due or to become due, including, without
limitation, the immediate and continuing right of SPV to receive
and collect all amounts payable to the holder of the Lease SUBI
-2-
Certificate and the Fleet Receivable SUBI Certificate and all of
SPV's rights, remedies, powers, interests and privileges under the
foregoing (whether arising pursuant to the terms thereof or
otherwise available to SPV), including, without limitation, the
right to enforce the foregoing, to give or withhold any and all
consents, requests, notices, directions, approvals or waivers
thereunder and all amounts due and to become due thereunder,
whether payable as indemnities or damages for breach thereof; and
(f) any proceeds and products of the foregoing.
"Lease SUBI Allocation Event" means that Additional Units have
been allocated to the Lease SUBI Portfolio pursuant to the Lease
SUBI Supplement.
"Existing Notes" means the collective reference to the
promissory note of PHH Vehicle Management Services, LLC, dated June
10, 1999, in the principal amount of $72,799,409.54 payable to the
order of The Chase Manhattan Bank, the promissory note of TRAC
Funding, Inc., dated June 10, 1999, in the principal amount of
$382,682,411.75 payable to the order of The Chase Manhattan Bank
and the promissory note of TRAC Funding II, Inc., dated June 10,
1999, in the principal amount of $458,678,286.94 payable to the
order of The Chase Manhattan Bank.
"Potential Transfer Termination Event" means any occurrence or
event which, with the giving of notice, the passage of time or
both, would constitute a Transfer Termination Event.
"Series 1999-1 Indenture Supplement" means the Series 0000-0
Xxxxxxxxx Supplement to the Base Indenture, dated as of the Initial
Closing Date, among the Issuer, the Administrator, The Chase
Manhattan Bank, as Funding Agent, APA Bank and Indenture Trustee,
and Park Avenue Receivables Corporation, as Initial Purchaser.
"Transfer Termination Event" is defined in Article X.
"Transferred Assets" means the Initial Transferred Assets
together with any Additional Transferred Assets.
"Trust Assets" is defined in the Origination Trust Agreement.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in
Section 1.1, and accounting terms partly defined in Section 1.1, to the
extent not defined, shall have the respective meanings given to them
under GAAP. To the extent that the definitions of accounting terms are
inconsistent with the meanings of such terms under GAAP, the definitions
contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement, and
-3-
Section, subsection, Schedule and Exhibit references are to Sections,
subsections, Schedules and Exhibits to this Agreement, unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
ARTICLE II
TRANSFER OF TRANSFERRED ASSETS
SECTION 2.1 Initial Contribution. On the Initial Closing
Date, subject to the terms and conditions set forth herein, SPV shall
assign, transfer, set over and otherwise convey to the Issuer, as a
contribution to the capital of the Issuer, all the right, title and
interest of SPV in and to the Initial Transferred Assets, by executing
and delivering to the Issuer an assignment, substantially in the form of
Exhibit A (the "Initial Assignment"). In connection with the Initial
Assignment, effective with the transfer of the Initial Transferred Assets
to the Issuer hereunder, the Issuer hereby assumes all of the obligations
under the Existing Notes.
SECTION 2.2 Subsequent Transfers. On each date following the
Initial Closing Date when a Lease SUBI Allocation Event occurs, subject
to the satisfaction of the terms and conditions set forth herein, SPV
shall sell, assign, transfer, set over and otherwise convey to the Issuer
all of SPV's right, title and interest in, to and under the Additional
Transferred Assets, by executing and delivering to the Issuer an
assignment, substantially in the form of Exhibit B (an "Additional
Assignment").
SECTION 2.3 Additional Transferred Asset Closings; Payment.
The consummation of each transfer contemplated by Section 2.2 shall take
place on the related date of such transfer (the "Additional Closing Date"
and, together with the Initial Closing Date, the "Transferred Asset
Closing Dates").
In consideration of the transfer of Additional Transferred
Assets to the Issuer on each Additional Closing Date and subject to the
terms and conditions set forth herein, the Issuer shall pay to SPV an
amount (the "Transferred Asset Payment") equal to the amount available
therefor on such Additional Closing Date under the Indenture.
SECTION 2.4 Security Interest in the Transferred Assets. The
parties to this Agreement intend that the transactions contemplated by
Sections 2.1 and 2.2 shall be, and shall be treated as, absolute
assignments, transfers and conveyances by SPV of the Transferred Assets
and not as a lending transaction. If this Agreement does not constitute
a valid assignment, transfer and conveyance of all right, title and
interest of SPV in, to and under the Transferred Assets despite the
intent of the parties hereto, SPV hereby grants a first priority
"security interest" (as defined in the UCC as in effect in the State of
New York) in the Transferred Assets and all proceeds thereof to the
-4-
Issuer and the parties agree that this Agreement shall constitute a
security agreement under the UCC in effect in New York.
The foregoing assignments, transfers and conveyances pursuant
to this Article II do not constitute and are not intended to result in
the creation of any obligation of the Issuer other than the Issuer's
obligations to SPV under this Agreement and do not constitute and are not
intended to result in the assumption by the Issuer of any obligation of
SPV or any other Person in connection with the Transferred Assets or any
agreement or instrument relating thereto, including any obligation to any
Obligor under any Lease Agreement or Fleet Service Contract.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties Regarding
Transferred Assets. As of each Transferred Asset Closing Date, SPV
hereby represents and warrants to the Issuer that none of the Transferred
Assets transferred by SPV on such date has been sold, transferred,
assigned or pledged by SPV to any Person other than the Issuer.
Immediately prior to the transfer and assignment contemplated herein, SPV
had good title to such Transferred Assets free and clear of all Liens
and, immediately upon the transfer thereof hereunder, the Issuer will
have good title to such Transferred Assets, free and clear of all Liens,
and the transfer of such Transferred Assets by SPV to the Issuer has been
perfected under the UCC.
SECTION 3.2 Representations and Warranties Regarding SPV.
SPV hereby represents and warrants to the Issuer as of the date hereof
and as of each Transferred Asset Closing Date, that:
(a) Existence and Power.
SPV (a) is a special purpose limited liability company duly
formed, validly existing and in good standing under the laws of the State
of Delaware, (b) is duly qualified to do business as a foreign limited
liability company and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its
business or the performance of its obligations make such qualification
necessary, and (c) has all powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business
as now conducted and for purposes of the transactions contemplated by
this Agreement and the other Transaction Documents.
(b) Governmental Authorization.
The execution, delivery and performance by SPV of this
Agreement and the other Transaction Documents to which it is a party (a)
is within SPV's power, has been duly authorized by all necessary action,
(b) requires no action by or in respect of, or filing with, any
governmental body, agency or official which has not been obtained and (c)
does not contravene, or constitute a default under, any Requirement of
-5-
Law or any provision of its certificate of formation or the limited
liability company agreement of the SPV or result in the creation or
imposition of any Lien on any of the properties of the SPV, except for
Liens created by this Agreement. This Agreement and each of the other
Transaction Documents to which SPV is a party has been executed and
delivered by a duly authorized officer of SPV.
(c) Binding Effect.
This Agreement and each other Transaction Document to which
SPV is a party is a legal, valid and binding obligation of SPV
enforceable against SPV 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).
(d) Litigation.
There is no action, suit or proceeding pending against or, to
the knowledge of SPV, threatened against or affecting SPV before any
court or arbitrator or any Governmental Authority that could materially
adversely affect the financial position, results of operations, business,
properties, performance, prospects or condition (financial or otherwise)
of SPV or which in any manner draws into question the validity or
enforceability of this Agreement or any other Transaction Document to
which SPV is a party or may be bound or the ability of SPV to perform its
obligations hereunder or thereunder.
(e) No ERISA Plan.
SPV has not established and does not maintain or contribute to
any Pension Plan that is covered by Title IV of ERISA and will not do so
prior to the termination of this Agreement.
(f) Tax Filings and Expenses.
SPV has filed all federal, state and local tax returns and all
other tax returns which, to the knowledge of SPV, are required to be
filed (whether informational returns or not), and has paid all taxes due,
if any, pursuant to said returns or pursuant to any assessment received
by SPV, except such taxes, if any, as are being contested in good faith
and for which adequate reserves have been set aside on its books. SPV
has paid all fees and expenses required to be paid by it in connection
with the conduct of its business, the maintenance of its existence and
its qualification as a foreign limited liability company authorized to do
business in each State in which it is required to so qualify.
-6-
(g) Investment Company Act.
SPV is not, and is not controlled by, an "investment company"
within the meaning of, and is not required to register as an "investment
company" under, the Investment Company Act of 1940.
(h) Margin Stock.
SPV is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
(i) 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 Agreement or for the performance of any of
SPV's obligations hereunder or thereunder or under any other Transaction
Document other than such consents, approvals, authorizations,
registrations, declarations or filings as shall have been obtained by the
SPV prior to the Initial Closing Date.
(j) Solvency.
Both before and after giving effect to the transactions
contemplated by this Agreement and the other Transaction Documents, SPV
is solvent within the meaning of the Bankruptcy Code and SPV is not the
subject of any voluntary or involuntary case or proceeding seeking
liquidation, reorganization or other relief with respect to itself or its
debts under any bankruptcy or insolvency law and no Insolvency Event has
occurred with respect to SPV.
(k) Security Interests.
(i) Each of the SUBI Certificates has been duly registered in
the name of the Issuer and all other action necessary (including the
filing of UCC-1 financing statements) to protect and perfect the Issuer's
ownership interest in the Transferred Assets now in existence and
hereafter acquired or created has been duly and effectively taken.
(ii) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing SPV as
debtor covering all or any part of the Transferred Assets is on file or
of record in any jurisdiction, except such as may have been filed,
recorded or made by SPV in favor of the Issuer in connection with this
Agreement.
(iii) All action necessary to perfect the Issuer's
ownership interest in the Transferred Assets has been duly taken.
(iv) Except for a change made pursuant to Section 7.3(c),
SPV's principal place of business and chief executive office shall be at:
000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 and the place where its
-7-
records concerning the Transferred Assets are kept is at: c/o Wilmington
Trust Company, as Custodian, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. SPV does not transact, and has not transacted, business under any
other name.
(v) All authorizations in this Agreement for the Issuer to
endorse checks, instruments and securities and to execute financing
statements, continuation statements, security agreements, and other
instruments with respect to the Transferred Assets are powers coupled
with an interest and are irrevocable.
(l) Binding Effect of Certain Agreements.
Each of the Origination Trust Documents is in full force and
effect and there are no outstanding events of default or termination
events thereunder nor have events occurred which, with the giving of
notice, the passage of time or both, would constitute such an event of
default or termination event.
(m) Non-Existence of Other Agreements.
(i) SPV is not a party to any contract or agreement of any
kind or nature and SPV is not subject to any obligations or liabilities
of any kind or nature in favor of any third party, including, without
limitation, Contingent Obligations.
(ii) SPV has not engaged in any activities since its
formation (other than those incidental to its formation and other
appropriate actions including the execution of the Transaction Documents
to which it is a party and the performance of the activities referred to
in or contemplated by such agreements).
(n) Compliance with Contractual Obligations and Laws.
SPV is not (i) in violation of its limited liability company
agreement, (ii) in violation of any Requirement of Law to which it or its
property or assets may be subject or (iii) in violation of any
Contractual Obligation with respect to SPV.
(o) Other Representations.
All representations and warranties of SPV made in each
Transaction Document to which it is a party are true and correct and are
repeated herein as though fully set forth herein.
ARTICLE IV
CONDITIONS TO TRANSFER
SECTION 4.1 Conditions Precedent to Effectiveness of
Agreement. This Agreement shall become effective upon the satisfaction
of the following conditions:
-8-
(a) Agreement. The Issuer and the SPV shall have duly
executed and delivered this Agreement.
(b) Indenture Supplement. The Effective Date under the
Series 0000-0 Xxxxxxxxx Supplement, dated as of the date hereof, to
the Base Indenture shall have occurred.
(c) Certificate of Formation. The Issuer shall have received
a true and complete copy of the certificate of formation of SPV,
certified as a true and correct copy thereof by the Secretary of
State of the State of Delaware, and a true and complete copy of the
limited liability company agreement of SPV, certified as a true and
correct copy thereof by the Secretary or an Assistant Secretary (or
equivalent thereof) of SPV.
(d) Resolutions. The Issuer shall have received copies of
duly adopted resolutions of the Managers of SPV as in effect on the
Effective Date and in form and substance reasonably satisfactory to
the Issuer authorizing the execution, delivery and performance of
this Agreement, the documents to be delivered by SPV hereunder and
the transactions contemplated hereby and thereby, certified by the
Secretary or an Assistant Secretary (or equivalent thereof) of SPV.
(e) Incumbency Certificate. The Issuer shall have received a
certificate as to the incumbency and signature of the officers of
SPV authorized to sign this Agreement, on behalf of SPV, together
with evidence of the incumbency of such Secretary or Assistant
Secretary, certified by the Secretary or Assistant Secretary of
SPV.
(f) Assignment. SPV shall have executed and delivered to the
Issuer the Initial Assignment.
(g) Representations and Warranties. The Issuer shall have
received a certificate of an Authorized Officer of SPV to the
effect that all representations and warranties of SPV contained in
Sections 3.1 and 3.2, or in any certificate delivered in connection
with this Agreement, are true and correct and with the same force
and effect as though such representations and warranties had been
made as of such date (other than those representations and
warranties made as of an earlier date specified therein, in which
case such representations and warranties are true and correct as of
such earlier date).
SECTION 4.2 Conditions to Obligation of the Issuer to make a
Transferred Asset Payment. The obligation of the Issuer to make a
Transferred Asset Payment on any Additional Closing Date and of SPV to
transfer the related Additional Transferred Assets to the Issuer
hereunder on any Additional Closing Date is subject to the satisfaction
of the following conditions:
(a) all representations and warranties of SPV contained in
this Agreement and in the other Transaction Documents shall be true
-9-
and correct in all material respects with the same force and effect
as though such representations and warranties had been made on and
as of such day (other than those representations and warranties
made as of an earlier date specified therein, in which case such
representations and warranties are true and correct as of such
earlier date);
(b) SPV shall have executed and delivered to the Issuer
an Additional Assignment conveying such Additional Transferred
Assets to the Issuer; and
(c) no Transfer Termination Event shall have occurred and be
continuing.
ARTICLE V
TRANSFER TERMINATION EVENTS
If any one of the following events shall occur and be
continuing:
(i) an Insolvency Event shall occur with respect to SPV, the
Origination Trust, ARAC or VMS;
(ii) failure on the part of SPV to observe or perform in any
material respect any covenants or agreements of SPV set forth
herein, which failure continues unremedied for a period of 30 days
after there shall have been given, by registered or certified mail,
to SPV by the Issuer or the Indenture Trustee, written notice
specifying such default and requiring it to be remedied;
(iii) any representation or warranty made by SPV in this
Agreement shall prove to have been incorrect in any material
respect when made, which continues to be incorrect in any material
respect for a period of 30 days after there shall have been given,
by registered or certified mail, to the SPV by the Indenture
Trustee or the Issuer, written notice thereof;
(iv) the Issuer shall for any reason cease to have a valid
and perfected first priority ownership interest in the Transferred
Assets or any of VMS, SPV or any Affiliate of either thereof shall
so assert;
(v) there shall have been filed against ARAC, VMS, the
Origination Trust or SPV (i) a notice of federal tax Lien from the
Internal Revenue Service, (ii) a notice of Lien from the PBGC under
Section 412(n) of the Internal Revenue Code or Section 302(f) of
ERISA for a failure to make a required installment or other payment
to a plan to which either of such sections applies or (iii) a
notice of any other Lien the existence of which could reasonably be
expected to have a material adverse effect on the business,
operations or financial condition of such Person, and, in each
case, 40 days shall have elapsed without such notice having been
-10-
effectively withdrawn or such Lien having been released or
discharged;
(vi) one or more judgments or decrees shall be entered
against SPV involving in the aggregate a liability (not paid or
fully covered by insurance) of $100,000 or more and such judgments
or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof;
(vii) the Transfer Agreement or any other Transaction Document
shall cease, for any reason, to be in full force and effect (other
than in accordance with its terms);
(viii) an Amortization Event with respect to each Series of
Investor Notes Outstanding shall occur and be continuing; or
(ix) a Receivable Purchase Termination Event shall occur and
be continuing;
then, in the case of any event described in clause (i) above, a "Transfer
Termination Event" will be deemed to have occurred without notice or
other action by any Person and, in the case of any of the other events
described above, the Issuer may declare, by delivering written notice
thereof to SPV, that a "Transfer Termination Event" has occurred. If a
Transfer Termination Event has occurred, no Additional Transferred Assets
shall be transferred to the Issuer hereunder.
ARTICLE VI
COVENANTS OF SPV
Section 6.1 Conduct of Business and Maintenance of Existence.
SPV will keep in full effect its existence, rights and
franchises as a limited liability company under the laws of the State of
Delaware and will obtain and preserve its 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 this Agreement and any instrument or agreement included
in the Transferred Assets.
Section 6.2 Compliance with Laws.
SPV will comply in all respects with all Requirements of Law
and all applicable laws, ordinances, rules, regulations, and requirements
of Governmental Authorities (including, without limitation, ERISA and the
rules and regulations thereunder) except where the necessity of
compliance therewith is contested in good faith by appropriate
proceedings and where such noncompliance would not materially and
adversely affect the condition, financial or otherwise, operations,
performance, properties or prospects of SPV or its ability to carry out
-11-
the transactions contemplated in this Agreement and each other
Transaction Document; provided, however, such noncompliance will not
result in a Lien (other than a Permitted Lien) on any asset of SPV.
Section 6.3 Inspection of Property, Books and Records.
SPV will keep proper books of record and account in which
full, true and correct entries shall be made of all dealings and
transactions in relation to the Transferred Assets and its business
activities in accordance with GAAP; and will permit the Issuer and the
Indenture Trustee to visit and inspect any of its properties, to examine
and make abstracts from any of its books and records and to discuss its
affairs, finances and accounts with its officers, directors, employees
and independent public accountants, all at such reasonable times upon
reasonable notice and as often as may reasonably be requested.
Section 6.4 Compliance with Transaction Documents.
(a) SPV will not take any action and will use its best
efforts not to permit any action to be taken by others that would release
any Person from any of such Person's covenants or obligations under any
instrument or agreement included in the Transferred Assets or that would
result in the amendment, hypothecation, subordination, termination or
discharge of, or impair the validity or effectiveness of, any such
instrument or agreement, except as expressly provided in this Agreement,
any other Transaction Document or such other instrument or agreement.
(b) Promptly upon becoming aware of any default under any
Transaction Document, SPV shall give the Issuer, the Indenture Trustee
and the Rating Agencies notice thereof.
(c) SPV will punctually perform and observe all of its
obligations and agreements contained in this Agreement, the other
Transaction Documents and in the instruments and agreements included in
the Transferred Assets, including but not limited to preparing (or
causing to be prepared) and filing (or causing to be filed) all UCC
financing statements and continuation statements required to be filed by
the terms of this Agreement in accordance with and within the time
periods provided for herein.
(d) Without derogating from the absolute nature of the
assignment granted to the Issuer under this Agreement or the rights of
the Issuer hereunder, SPV agrees that, unless such action is specifically
permitted hereunder or under the other Transaction Documents, it will
not, without the prior written consent of the Issuer (or its assignees or
pledgees), amend, modify, waive, supplement, terminate or surrender, or
agree to any amendment, modification, supplement, termination, waiver or
surrender of, the terms of any of the Transferred Assets, including any
of the Transaction Documents included in the Transferred Assets, or waive
timely performance or observance by the Origination Trust, VMS or the
Servicer under the Origination Trust Documents.
-12-
Section 6.5 Notice of Defaults.
Promptly upon becoming aware of any Potential Termination
Event, SPV shall give the Issuer, the Indenture Trustee and the Rating
Agencies notice thereof, together with an Officer's Certificate, setting
forth the details thereof and any action with respect thereto taken or
contemplated to be taken by SPV.
Section 6.6 Notice of Material Proceedings.
Promptly upon becoming aware thereof, SPV shall give the
Issuer, the Indenture Trustee and the Rating Agencies written notice of
the commencement or existence of any proceeding by or before 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 SPV or the ability of SPV to perform its obligations under
this Agreement or under any other Transaction Document to which it is a
party.
Section 6.7 Further Requests.
SPV will promptly furnish to the Issuer, the Indenture Trustee
and the Rating Agencies such other information as, and in such form as,
the Issuer, the Indenture Trustee or the Rating Agencies may reasonably
request in connection with the transactions contemplated hereby.
Section 6.8 Annual Opinion of Counsel.
On or before March 31 of each calendar year, commencing with
March 31, 2000, SPV shall furnish to the Issuer and the Indenture Trustee
an Opinion of Counsel either stating that, in the opinion of such
counsel, such action has been taken with respect to the recording,
filing, re-recording and refiling of this Agreement, the Assignments and
any other requisite documents and with respect to the execution and
filing of any financing statements and continuation statements as are
necessary to maintain the Issuer's perfected ownership interest in the
Transferred Assets assigned by this Agreement and the Assignments and
reciting the details of such action or stating that in the opinion of
such counsel no such action is necessary to maintain the perfection of
such ownership interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Agreement and the
Assignment and any other requisite documents and the execution and filing
of any financing statements and continuation statements that will, in the
opinion of such counsel, be required to maintain the perfection of the
Issuer's ownership interest in the Transferred Assets until March 31 in
the following calendar year.
Section 6.9 Liens.
Except for the conveyances hereby, SPV will not sell, pledge,
assign or transfer Transferred Assets to any other Person, or grant,
create, incur, assume or suffer to exist any Lien thereon (except
-13-
Permitted Liens) and SPV shall defend the right, title and interest of
the Issuer in, to and under all Transferred Assets against all claims of
third parties (other than Permitted Liens) claiming through or under SPV.
Section 6.10 Other Indebtedness.
SPV will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness.
Section 6.11 Mergers.
SPV will not merge or consolidate with or into any other
Person.
Section 6.12 Acquisition of Assets.
SPV will not acquire, by long-term or operating lease or
otherwise, any assets except in accordance with the terms of the
Transaction Documents.
Section 6.13 Distributions.
SPV will not declare or pay any distributions on any of its
limited liability company interests or make any purchase, redemption or
other acquisition of, any of its limited liability company interests
other than in accordance with the Delaware Limited Liability Company Act,
as amended.
Section 6.14 Organizational Documents.
SPV will not amend its limited liability company agreement
unless, prior to such amendment, each Rating Agency confirms that after
such amendment the Rating Agency Condition with respect to each Series
of Investor Notes Outstanding and each series of Preferred Membership
Interests will be met.
Section 6.15 Investments.
SPV will not make, incur, or suffer to exist any loan,
advance, extension of credit or other investment in any Person other than
in accordance with the Transaction Documents.
Section 6.16 No Other Agreements.
SPV will not enter into or be a party to any agreement or
instrument other than any Transaction Document or documents and
agreements incidental thereto.
-14-
Section 6.17 Other Business.
SPV will not engage in any business or enterprise or enter
into any transaction other than those contemplated by the Transaction
Documents and other activities related to or incidental to any of the
foregoing.
Section 6.18 Maintenance of Separate Existence.
SPV will do all things necessary to continue to be readily
distinguishable from VMS, ARAC and the Affiliates of each of the
foregoing and maintain its existence separate and apart from that of VMS,
ARAC and the Affiliates of each of the foregoing, including, without
limitation:
(1) practicing and adhering to organizational formalities,
such as maintaining appropriate books and records;
(2) observing all organizational formalities in connection
with all dealings between itself and VMS, ARAC and the Affiliates
of each of the foregoing or any other unaffiliated entity;
(3) observing all procedures required by its certificate of
formation and its limited liability company agreement and the laws
of the State of Delaware;
(4) acting solely in its name and through its duly authorized
officers or agents in the conduct of its businesses;
(5) managing its business and affairs by or under the
direction of its managers;
(6) ensuring that its Authorized Officers duly authorize all
of its actions;
(7) ensuring the receipt of proper authorization, when
necessary, in accordance with the terms of its limited liability
company agreement for its actions;
(8) owning or leasing (including through shared arrangements
with Affiliates) all office furniture and equipment necessary to
operate its business;
(9) maintaining at least one manager who is an Independent
Manager;
(10) not (A) having or incurring any indebtedness to VMS, ARAC
or any Affiliates of VMS or ARAC; (B) guaranteeing or otherwise
becoming liable for any obligations of VMS, ARAC or any Affiliates
of VMS or ARAC; (C) having obligations guaranteed by VMS, ARAC or
any Affiliates of VMS or ARAC; (D) holding itself out as
responsible for debts of VMS, ARAC or any Affiliates of VMS or ARAC
or for decisions or actions with respect to the affairs of VMS,
-15-
ARAC or any Affiliates of VMS or ARAC; (E) operating or purporting
to operate as an integrated, single economic unit with respect to
VMS or ARAC or any Affiliates of VMS or ARAC or any other
unaffiliated entity; (F) seeking to obtain credit or incur any
obligation to any third party based upon the assets of VMS or ARAC
or any Affiliates of VMS or ARAC or any other unaffiliated entity;
(G) induce any such third party to reasonably rely on the
creditworthiness of VMS or ARAC or any Affiliates of VMS or ARAC or
any other unaffiliated entity; and (H) being directly or indirectly
named as a direct or contingent beneficiary or loss payee on any
insurance policy of VMS, ARAC or any Affiliates of VMS or ARAC
other than as required by the Transaction Documents with respect to
insurance on the Leased Vehicles;
(11) other than as provided in the Transaction Documents,
maintaining its deposit and other bank accounts and all of its
assets separate from those of any other Person;
(12) maintaining its financial records separate and apart from
those of any other Person;
(13) not suggesting in any way, within its financial
statements, that its assets are available to pay the claims of
creditors of VMS, ARAC, any Affiliates of VMS or ARAC or any other
affiliated or unaffiliated entity;
(14) compensating all its employees, officers, consultants and
agents 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;
(15) maintaining office space separate and apart from that of
VMS or ARAC or any Affiliates of VMS or ARAC (even if such office
space is subleased from or is on or near premises occupied by VMS,
ARAC or any Affiliates of VMS or ARAC) and a telephone number
separate and apart from that of VMS or ARAC or any Affiliates of
VMS or ARAC;
(16) conducting all oral and written communications,
including, without limitation, letters, invoices, purchase orders,
contracts, statements, and applications solely in its own name;
(17) having separate stationery from VMS, ARAC, any Affiliates
of VMS or ARAC or any other unaffiliated entity;
(18) accounting for and managing all of its liabilities
separately from those of VMS, ARAC or any Affiliates of VMS or
ARAC;
(19) allocating, on an arm's length basis, all shared
corporate operating services, leases and expenses, including,
without limitation, those associated with the services of shared
consultants and agents and shared computer and other office
-16-
equipment and software; and otherwise maintaining an arm's-length
relationship with each of VMS, ARAC, any Affiliates of VMS or ARAC
or any other unaffiliated entity;
(20) refraining from filing or otherwise initiating or
supporting the filing of a motion in any bankruptcy or other
insolvency proceeding involving VMS, ARAC or any Affiliate of VMS
or ARAC to substantively consolidate VMS, ARAC or any Affiliate of
VMS or ARAC with SPV;
(21) remaining solvent; and
(22) conducting all of its business (whether written or oral)
solely in its own name so as not to mislead others as to the
identity of each of the Issuer, SPV, VMS, ARAC and any Affiliates
of VMS or ARAC.
Section 6.19 No ERISA Plan.
SPV will not establish or maintain or contribute to any
Pension Plan that is covered by Title IV of ERISA.
Section 6.20 Minimum Net Worth.
SPV will maintain a minimum net worth equal to at least 4% of
the Aggregate Lease Balance.
Section 6.21 Issuance of Additional Securities.
SPV will not issue its membership interests to any Person
other than to VMS.
Section 6.22 Origination Trust Beneficial Interests.
(a) Until the Commitment Amount (as defined in the Series
1999-1 Indenture Supplement) is reduced to $700,000,000 or less, SPV will
not direct VMS, as the UTI Trustee, to issue any additional special units
of beneficial interest in the Origination Trust (other than the UTI and
the SUBIs) without the consent of the Issuer.
(b) Until the Commitment Amount is reduced to $700,000,000 or
less, SPV will not sell, pledge, assign or transfer the UTI to any other
Person, or grant, create, incur, assume or suffer to exist any Lien
thereon (except Permitted Liens) without the consent of the Issuer.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1 Initial UCC Filings. On or prior to the Initial
Closing Date, SPV shall record and file, at its own expense, a UCC-1
financing statement in each jurisdiction in which it is required by
-17-
applicable law, executed by SPV as debtor, naming the Issuer as secured
party, naming as collateral the Transferred Assets to be assigned and
conveyed hereunder from time to time, meeting the requirements of the
laws of each such jurisdiction and in such manner as is necessary to
perfect under the UCC the transfer, assignment and conveyance to Issuer
of the Transferred Assets (to the extent such transfer, assignment and
conveyance may be perfected under the UCC). SPV shall deliver a
file-stamped copy, or other evidence satisfactory to the Issuer of such
filing, to the Issuer on or prior to the Initial Closing Date.
SECTION 7.2 Computer Files Marked. SPV shall, at its own
expense, on or prior to each Transferred Asset Closing Date, indicate in
its computer files created in connection with the Transferred Assets for
such Transferred Asset Date that such Transferred Assets have been
transferred, assigned and conveyed to the Issuer pursuant to this
Agreement.
SECTION 7.3 Protection of Title.
(a) SPV shall execute and file such financing statements, and
cause to be executed and filed such continuation and other statements,
all in such manner and in such places as may be required by law fully to
perfect and preserve the transfer, assignment and conveyance hereunder to
the Issuer of the Transferred Assets and in the proceeds thereof SPV
shall deliver (or cause to be delivered) to the Issuer file-stamped
copies of, or filing receipts for, any document filed as provided above,
as soon as available following such filing.
(b) SPV shall not change its name, identity or corporate
structure in any manner that would, could or might make any financing
statement or continuation statement filed by SPV in accordance with
Section 7.1 or 7.3(a) seriously misleading within the meaning of Section
9-402(7) of the UCC, unless it shall have given the Issuer and the
Indenture Trustee at least 60 days prior written notice thereof and shall
file such financing statements or amendments as may be necessary to
continue the perfection of the Issuer's interest in all Transferred
Assets sold, transferred, conveyed and assigned hereunder.
(c) SPV shall give the Issuer and the Indenture Trustee at
least 60 days prior written notice of any relocation of its principal
executive office if, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new
financing statement. SPV shall at all times maintain its principal
executive office within the United States of America.
SECTION 7.4 Repurchase Events. SPV hereby covenants and
agrees with the Issuer that in the event of (i) a breach of any of SPV's
representations and warranties contained in Section 3.1 with respect to
any Transferred Asset or (ii) a breach by SPV of Section 6.9 hereof with
respect to any Transferred Asset, in each case which breach has a
material adverse effect on the Issuer's interest in such Transferred
Asset, SPV will repurchase such Transferred Asset from the Issuer as of
-18-
the last day of the Monthly Period during which SPV discovered or
received notice of such breach, by delivery to the Issuer for deposit in
the Collection Account an amount equal to (a) in the case of a repurchase
of a Master Lease Agreement, the aggregate Lease Balance of all Leases
under such Master Lease Agreement as of such day plus, in the case of a
Closed-End Lease, the aggregate Net Book Value of the Leased Vehicles
subject to such Master Lease Agreement as of such day, (b) in the case of
a repurchase of a Consumer Lease, the Lease Balance of such Consumer
Lease as of such day plus, in the case of a Closed-End Lease, the Net
Book Value of the Leased Vehicle subject to such Consumer Lease as of
such day, (c) in the case of a Lease, the Lease Balance of such Lease as
of such day plus, in the case of a Closed-End Lease, the Net Book Value
of the Leased Vehicle subject to such Lease as of such day or (d) in the
case of a Fleet Receivable, the Receivable Amount thereof as of the first
day of the next succeeding Monthly Period (the "Repurchase Payment") for
such Transferred Asset. It is understood and agreed that the obligation
of SPV to repurchase any Transferred Asset as to which a breach has
occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against SPV for such breach available to the
Issuer. Simultaneously with any Repurchase Payment with respect to a
Transferred Asset, such Transferred Asset shall immediately and
automatically be sold, assigned, transferred and conveyed by the Issuer
to SPV without any further action by the Issuer or any other Person and
SPV shall cause the UTI Trustee to reallocate such Transferred Asset from
the Lease SUBI Portfolio.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendment. (a) This Agreement may be amended
from time to time by a written amendment duly executed and delivered by
SPV and the Issuer, but without the consent of any other Person, to
correct any inconsistency or cure any ambiguity or errors in this
Agreement only in a manner that would have no adverse effect on any
Investor Noteholder or any Preferred Member.
(b) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by SPV and the Issuer, with the
consent of the Indenture Trustee so long as any Series of Investor Notes
is outstanding.
(c) Prior to the execution of any such amendment or consent, SPV
shall furnish at least five (5) Business Days prior written notification
of the substance of such amendment or consent to each Rating Agency with
respect to each Series of Investor Notes and each series of Preferred
Membership Interests. No later than ten (10) Business Days after the
execution of such amendment or consent, SPV shall furnish a copy of such
amendment or consent to each Rating Agency with respect to each Series of
Investor Notes and each Series of Preferred Membership Interests and the
Indenture Trustee.
-19-
SECTION 8.2 Survival. The representations, warranties and
covenants of SPV and of the Issuer set forth in this Agreement shall
remain in full force and effect and shall survive each Transferred Asset
Closing Date under Article II hereof and any related transfer under the
other Transaction Documents.
SECTION 8.3 Notices. Except where telephonic instructions or
notices are authorized herein to be given, all notices, requests and
demands to or upon the respective parties hereto to be effective shall be
in writing and, unless otherwise expressly provided herein, shall be
deemed to have been duly given or made when delivered by hand or by
overnight courier, or, in the case of telecopy notice, when received,
addressed as follows or to such address or other address as may be
hereafter notified by the respective parties hereto:
SPV: 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
The Issuer: Greyhound 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
in each case,
with a copy to: PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
SECTION 8.4 GOVERNING LAW. THIS AGREEMENT AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK.
SECTION 8.5 Waivers. No failure or delay on the part
of any party in exercising any power, right or remedy under this
Agreement or any Assignment shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy.
-20-
SECTION 8.6 Headings. The various headings in this
Agreement are for purposes of reference only and shall not affect the
meaning or interpretation of any provision of this Agreement.
SECTION 8.7 Counterparts. This Agreement 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 8.8 Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this Agreement
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 Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION 8.9 Assignment. SPV acknowledges that the
Issuer will, pursuant to the Indenture, assign its rights hereunder and
with respect to the Transferred Assets to the Indenture Trustee and SPV
hereby consents to such assignment. Except as provided in the foregoing
sentence or as expressly permitted herein, no party may assign its rights
hereunder without the other party's prior written consent and the prior
written consent of the Indenture Trustee. The party granting any such
consent shall give notice thereof to the Rating Agencies.
SECTION 8.10 Further Assurances. SPV and the Issuer
agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested
by the other more fully to effect the purposes of this Agreement,
including the execution of any financing statements or continuation
statements relating to any Transferred Assets purchased hereunder for
filing under the provisions of the UCC of any applicable jurisdiction.
SECTION 8.11 No Third-Party Beneficiaries. Except as
specifically set forth herein, this Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective successors
and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person shall have any right or obligation hereunder.
SECTION 8.12 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement, the Initial
Assignment, the Additional Assignments and the other Transaction
Documents set forth the entire understanding of the parties relating to
the subject matter hereof, and all prior understandings, written or oral,
are superseded by this Agreement.
SECTION 8.13 Authority of the Administrator. Each of
the parties to this Agreement acknowledges that the Issuer has appointed
the Administrator to act as its agent to the extent set forth in the
Transaction Documents. Unless otherwise instructed by the Issuer, copies
of all notices, requests, demands and other documents to be delivered to
-21-
the Issuer pursuant to the terms hereof shall be delivered to the
Administrator. Unless otherwise instructed by the Issuer, all notices,
requests, demands and other documents to be executed or delivered, and
any action to be taken, by the Issuer pursuant to the terms hereof may be
executed, delivered and/or taken by the Administrator pursuant to the
Administration Agreement.
SECTION 8.14 No Petition Covenants. (a) Each of the
parties hereto, by entering into this Agreement, covenants and agrees
that it will not at any time institute against, or join any other Person
in instituting against, SPV any bankruptcy, reorganization, arrangement,
insolvency, or liquidation or other similar proceedings under any U.S.
Federal or state bankruptcy or similar law. Each of the parties hereto,
by entering into this Agreement, covenants and agrees that it will not at
any time institute against, or join any other Person in instituting
against, the Issuer any bankruptcy, reorganization, arrangement,
insolvency, or liquidation or other similar proceedings under any U.S.
Federal or state bankruptcy or similar law.
(b) Each of the parties hereto, by entering into this
Agreement, hereby covenants and agrees that, prior to the date which is
one year and one day after payment in full of all obligations under each
Securitization, it will not institute against, or join any other Person
in instituting against, the Origination Trust, SPV, any other Special
Purpose Entity, or any general partner or single member of any Special
Purpose Entity that is a partnership or limited liability company,
respectively, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law.
SECTION 8.15 SUBIs.
The Issuer represents, warrants and covenants that (a)
each of the Lease SUBI and the Fleet Receivable SUBI is a separate series
of the Origination Trust as provided in Section 3806(b)(2) of Chapter 38
of Title 12 of the Delaware Code, 12 Del.C. Section 3801 et seq., (b)(i)
the debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to the Lease SUBI, the Lease SUBI
Portfolio or the Fleet Receivable SUBI shall be enforceable against the
Lease SUBI Portfolio or the Fleet Receivable SUBI only, as applicable,
and not against any other SUBI Portfolio (used in this Section as defined
in the Origination Trust Agreement) or the UTI Portfolio and (ii) the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to any other SUBI (used in this Section
as defined in the Origination Trust Agreement), any other SUBI Portfolio,
the UTI or the UTI Portfolio shall be enforceable against such other SUBI
Portfolio or the UTI Portfolio only, as applicable, and not against any
other SUBI Assets, (c) except to the extent required by law, UTI Assets
or SUBI Assets with respect to any SUBI (other than the Lease SUBI and
the Fleet Receivable SUBI) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the
Lease SUBI or Fleet Receivable SUBI, respectively, in respect of such
claim, (d)(i) no creditor or holder of a claim relating to the Lease
-22-
SUBI, the Fleet Receivable SUBI or the Lease Receivable SUBI Portfolio
shall be entitled to maintain any action against or recover any assets
allocated to the UTI or the UTI Portfolio or any other SUBI or the assets
allocated thereto, and (ii) no creditor or holder of a claim relating to
the UTI, the UTI Portfolio or any SUBI other than the Lease SUBI or the
Fleet Receivable SUBI or any SUBI Assets other than the Lease SUBI
Portfolio or the Fleet Receivables shall be entitled to maintain any
action against or recover any assets allocated to the Lease SUBI or the
Fleet Receivable SUBI, and (e) any purchaser, assignee or pledgee of an
interest in the Lease SUBI, the Lease SUBI Certificate, the Fleet
Receivable SUBI, the Lease SUBI Certificate, the Fleet Receivable SUBI
Certificate, any other SUBI, any other SUBI Certificate (used in this
Section as defined in the Origination Trust Agreement), the UTI or the
UTI Certificate must, prior to or contemporaneously with the grant of any
such assignment, pledge or security interest, (i) give to the Origination
Trust a non-petition covenant substantially similar to that set forth in
Section 6.9 of the Origination Trust Agreement, and (ii) execute an
agreement for the benefit of each holder, assignee or pledgee from time
to time of the UTI or UTI Certificate and any other SUBI or SUBI
Certificate to release all claims to the assets of the Origination Trust
allocated to the UTI and each other SUBI Portfolio and in the event that
such release is not given effect, to fully subordinate all claims it may
be deemed to have against the assets of the Origination Trust allocated
to the UTI Portfolio and each other SUBI Portfolio
-23-
IN WITNESS WHEREOF, the parties hereby have executed
this Agreement as of the date 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
-24-
Exhibit A to
Transfer Agreement
FORM OF INITIAL ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the Transfer
Agreement, dated as of June 30, 1999 (the "Transfer Agreement"), between
RAVEN FUNDING LLC, a Delaware limited liability company ("SPV"), and
GREYHOUND FUNDING, LLC, a Delaware limited liability company (the
"Issuer"), SPV does hereby assign, transfer, set over and otherwise
convey unto the Issuer as a capital contribution, without recourse, all
right, title and interest of SPV in, to and under the following assets
(collectively, the "Transferred Assets"):
(a) the Lease SUBI, the Lease SUBI Certificate and the
beneficial interest in the Initial Units allocated to the Lease
SUBI Portfolio on the Initial Closing Date and any Unit Leases,
Unit Vehicles and Related Rights associated therewith;
(b) the Fleet Receivable SUBI Certificate and the
beneficial interest in the Fleet Receivables and the Origination
Trust's rights under the Receivables Purchase Agreement from
time to time allocated to the Fleet Receivable SUBI and
represented by the Fleet Receivable SUBI Certificate;
(c) the Origination Trust Documents, as such agreements
are applicable to the Initial Units and the Fleet Receivable
SUBI Certificate and the other Origination Trust Assets referred
to in clauses (a) and (b);
(d) the Series 1999-1 Lease Rate Cap, dated the Initial
Closing Date, between SPV and an Eligible Counterparty;
(e) all payments and distributions under the foregoing
of whatever kind or character and whether in cash or other
property, at any time made or distributable to SPV thereunder or
in respect thereof, whether due or to become due, including,
without limitation, the immediate and continuing right of SPV to
receive and collect all amounts payable to the holder of the
Lease SUBI Certificate and the Fleet Receivable SUBI Certificate
and all of SPV's rights, remedies, powers, interests and
privileges under the foregoing (whether arising pursuant to the
terms thereof or otherwise available to SPV), including, without
limitation, the right to enforce the foregoing, to give or
withhold any and all consents, requests, notices, directions,
approvals or waivers thereunder and all amounts due and to
become due thereunder, whether payable as indemnities or damages
for breach thereof; and
(f) any proceeds and products of the foregoing.
-1-
The foregoing assignment, transfer and conveyance does
not constitute and is not intended to result in any assumption by Issuer
of any obligation of the undersigned to any other Person in connection
with the Transferred Assets described above or any agreement or
instrument relating to any of them.
The SPV and the Issuer intend that the transactions
contemplated by this assignment shall be treated as an assignment,
transfer and conveyance by SPV of the Transferred Assets and not a
lending transaction. If this Agreement does not constitute a valid
assignment, transfer and conveyance of all right, title and interest of
SPV in, to and under the Transferred Assets despite the intent of the
parties hereto, SPV hereby grants a first priority "security interest"
(as defined in the UCC as in effect in the State of New York) in the
Transferred Assets and all proceeds thereof to the Issuer and the parties
agree that this Agreement shall constitute a security agreement under the
UCC in effect in New York.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Transfer Agreement and is to be governed by the Transfer
Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Transfer Agreement.
-2-
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of June 30, 1999.
RAVEN FUNDING LLC
By:___________________________
Name:
Title:
-3-
Exhibit B to
Transfer Agreement
FORM OF ADDITIONAL ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the Transfer
Agreement, dated as of June 30, 1999 (the "Transfer Agreement"), between
Raven Funding LLC, a Delaware limited liability company ("SPV"), and
Greyhound Funding, LLC, a Delaware limited liability company (the
"Issuer"), SPV does hereby sell, assign, transfer, set over and otherwise
convey unto the Issuer, without recourse, all right, title and interest
of SPV in, to and under the following assets (collectively, the
"Transferred Assets"):
(a) the beneficial interest in the Additional Units
allocated to the Lease SUBI Portfolio on the date hereof and any
Unit Leases, Unit Vehicles and Related Rights associated
therewith;
(b) the Origination Trust Documents, as such agreements
are applicable to the Additional Units referred to in clause (a)
and any Unit Leases, Unit Vehicles and Related Rights associated
therewith;
(c) all payments and distributions under the foregoing
of whatever kind or character and whether in cash or other
property, at any time made or distributable to SPV thereunder or
in respect thereof, whether due or to become due, including,
without limitation, the immediate and continuing right of SPV to
receive and collect all amounts payable to the holder of the
Lease SUBI Certificate and all of SPV's rights, remedies,
powers, interests and privileges under the foregoing (whether
arising pursuant to the terms thereof or otherwise available to
SPV), including, without limitation, the right to enforce the
foregoing, to give or withhold any and all consents, requests,
notices, directions, approvals or waivers thereunder and all
amounts due and to become due thereunder, whether payable as
indemnities or damages for breach thereof; and
(d) any proceeds and products of the foregoing.
The foregoing sale, assignment, transfer and conveyance
does not constitute and is not intended to result in any assumption by
Issuer of any obligation of the undersigned to any other Person in
connection with the Transferred Assets described above or any agreement
or instrument relating to any of them.
The SPV and the Issuer intend that the transactions
contemplated by this assignment shall be treated as a sale, assignment,
transfer and conveyance by SPV of the Transferred Assets and not a
-4-
lending transaction. If this Agreement does not constitute a valid sale,
assignment, transfer and conveyance of all right, title and interest of
SPV in, to and under the Transferred Assets despite the intent of the
parties hereto, SPV hereby grants a first priority "security interest"
(as defined in the UCC as in effect in the State of New York) in the
Transferred Assets and all proceeds thereof to the Issuer and the parties
agree that this Agreement shall constitute a security agreement under the
UCC in effect in New York.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Transfer Agreement and is to be governed by the Transfer
Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Transfer Agreement.
-5-
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _____ ___, ___.
RAVEN FUNDING LLC
By:___________________________
Name:
Title:
-6-
Exhibit 10.5
X.X. XXXXXXXX TRUST,
WILMINGTON TRUST COMPANY,
Not in its Individual Capacity
but Solely as SUBI Trustee,
RAVEN FUNDING LLC
and
PHH VEHICLE MANAGEMENT SERVICES LLC
as Servicer
SOLD SUBI SUPPLEMENT 1999-1 TO
SERVICING AGREEMENT
DATED AS OF JUNE 30, 1999
TABLE OF CONTENTS
Page
ARTICLE V
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 5.1. Definitions . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE VI REPRESENTATIONS ANDWARRANTIES OF SERVICER . . . . . . . . . . . . 6
Section 6.1. Organization and Power . . . . . . . . . . . . . . . . 6
Section 6.2. Authorization, Execution and Validity . . . . . . . . 6
Section 6.3. No Conflict . . . . . . . . . . . . . . . . . . . . . 7
Section 6.4. Litigation . . . . . . . . . . . . . . . . . . . . . . 7
Section 6.5. Consents . . . . . . . . . . . . . . . . . . . . . . . 7
Section 6.6. Year 2000 Compliance . . . . . . . . . . . . . . . . . 7
ARTICLE VII SPECIFIC REQUIREMENTS FORADMINISTRATION AND SERVICINGOF THE SOLD
SUBI PORTFOLIO . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 7.1. Servicing Obligations . . . . . . . . . . . . . . . . 8
Section 7.2. Servicer Bound by Servicing Agreement . . . . . . . . 8
Section 7.3. Application of Proceeds . . . . . . . . . . . . . . . 9
Section 7.4. Monthly Servicer Advances . . . . . . . . . . . . . . 9
Section 7.5. Payment of Fees and Expenses . . . . . . . . . . . . . 10
Section 7.6. Servicing Compensation . . . . . . . . . . . . . . . . 10
Section 7.7. Insurance Policies . . . . . . . . . . . . . . . . . . 10
Section 7.8. Corporate Existence: Status; Merger . . . . . . . . . 12
Section 7.9. Indemnification . . . . . . . . . . . . . . . . . . . 12
Section 7.10. Liens . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 7.11. Record Keeping . . . . . . . . . . . . . . . . . . . . 13
Section 7.12. Other Transactions . . . . . . . . . . . . . . . . . . 13
Section 7.13. Amendment of Policies . . . . . . . . . . . . . . . . 13
Section 7.14. Amendment of Leases . . . . . . . . . . . . . . . . . 13
Section 7.15. Servicer Payment in Respect of Certain Leases and Trust
Vehicles. . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
ARTICLE VIII STATEMENTS AND REPORTS . . . . . . . . . . . . . . . . . . . 16
Section 8.1. Reporting by the Servicer . . . . . . . . . . . . . . 16
Section 8.2. Annual Accountants' Reports . . . . . . . . . . . . . 17
Section 8.3. Other Certificates and Notices from Servicer . . . . . 17
Section 8.4. Period End Dates . . . . . . . . . . . . . . . . . . . 18
ARTICLE IX TERMINATION OF SERVICER . . . . . . . . . . . . . . . . . . . . 18
Section 9.1. Termination of Servicer as to Sold SUBI Portfolios . . 18
Section 9.2. No Effect on Other Parties . . . . . . . . . . . . . . 20
ARTICLE X ASSIGNMENT OF SERVICING AGREEMENT RIGHTS . . . . . . . . . . . . 21
Section 10.1. Assignment . . . . . . . . . . . . . . . . . . . . . . 21
-2-
ARTICLE XI MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.1. Termination of Agreement . . . . . . . . . . . . . . . 21
Section 11.2. Amendment . . . . . . . . . . . . . . . . . . . . . . 21
Section 11.3. Governing Law . . . . . . . . . . . . . . . . . . . . 22
Section 11.4. Notices . . . . . . . . . . . . . . . . . . . . . . . 23
Section 11.5. Third Party Beneficiary . . . . . . . . . . . . . . . 23
Section 11.6. Severability . . . . . . . . . . . . . . . . . . . . . 23
Section 11.7. Binding Effect . . . . . . . . . . . . . . . . . . . . 23
Section 11.8. Article and Section Headings . . . . . . . . . . . . . 23
Section 11.9. Execution in Counterparts . . . . . . . . . . . . . . 23
Section 11.10. Further Assurances . . . . . . . . . . . . . . . . . 24
Section 11.11. Limitation of Liability . . . . . . . . . . . . . . . 24
Section 11.12. Series Liabilities . . . . . . . . . . . . . . . . . 24
Section 11.13. No Petition . . . . . . . . . . . . . . . . . . . . . 24
Exhibit A - Form of Servicer Certificate
Exhibit G - Form of Quarterly Compliance Certificate
Schedule X - Period End Dates for 1999
-3-
SOLD SUBI SUPPLEMENT 1999-1 TO
SERVICING AGREEMENT
THIS SOLD SUBI SUPPLEMENT 1999-1 TO SERVICING AGREEMENT (the "Sold SUBI
Servicing Supplement"), dated as of June 30, 1999, is among X.X. XXXXXXXX
TRUST, a Delaware business trust (the "Trust"), WILMINGTON TRUST COMPANY, a
Delaware banking corporation, not in its individual capacity but solely as a
SUBI Trustee (hereinafter, together with its successors and assigns, the
"SUBI Trustee") of the Trust, RAVEN FUNDING LLC, a Delaware limited liability
company ("SPV") and PHH VEHICLE MANAGEMENT SERVICES LLC, a Delaware limited
liability company ("VMS") as Servicer (in such capacity, the "Servicer").
RECITALS
A. SPV, as settlor (in such capacity, the "Settlor") and VMS, as UTI
Trustee, (in such capacity, together with any successor or permitted assign,
the "UTI Trustee") and Wilmington Trust Company, as Delaware Trustee (in such
capacity, together with any successor or permitted assign, the "Delaware
Trustee"; together with the UTI Trustee, the "Trustees") have entered into
that certain Amended and Restated Origination Trust Agreement dated as of
June 30,1999 (as modified, supplemented or amended from time to time, the
"Origination Trust Agreement") pursuant to which the Settlor continued the
Trust for the purpose of acting as agent and nominee owner of various Trust
Assets (as defined in the Origination Trust Agreement) in accordance with the
Origination Trust Agreement.
B. The Trust, the SPV and the Servicer also have entered into that
certain Servicing Agreement dated as of June 30,1999 (as modified,
supplemented or amended from time to time, the "Servicing Agreement"), which
provides, among other things, for the servicing of the Trust Assets by the
Servicer.
C. The Origination Trust Agreement contemplates that, from time to
time the UTI Trustee, on behalf of the Trust and at the direction of the
Initial Beneficiary, will identify and allocate on the Trust's books and
records certain Trust Assets within separate SUBI Portfolios (as defined in
the Origination Trust Agreement) and create and issue to the Initial
Beneficiary separate special units of beneficial interest in the Trust or
"SUBIs" (as defined in the Origination Trust Agreement), the beneficiary or
beneficiaries of which generally will hold undivided beneficial interests in
the related SUBI Portfolios, all as set forth in the Origination Trust
Agreement.
D. Concurrently herewith, the Initial Beneficiary, the UTI Trustee,
the Servicer, the Delaware Trustee and the SUBI Trustee are entering into two
separate SUBI supplements (the "1999-1A SUBI Supplement" and the "1999-1B
SUBI Supplement" to create and issue to SPV three separate SUBI Certificates
-4-
(the "1999-1A SUBI Certificate", the "Class X 1999-1B SUBI Certificate" and
the "Class Y 1999-1B SUBI Certificate; and collectively, the "Sold SUBI
Certificates"). The 1999-1A SUBI Certificate evidences the entire and
exclusive beneficial interest in a separate SUBI consisting of Trust
Vehicles, Leases and related Trust Assets (the "1999-1A SUBI Portfolio") and
the Class X 1999-1B SUBI Certificate and the Class Y 1999-B SUBI Certificate
(collectively referred to as the "1999-1B SUBI Certificates") collectively
evidence the entire and exclusive beneficial interest in a separate SUBI
consisting of an ownership interest in the Fleet Receivables and related
Trust Assets (the "1999-1B SUBI Portfolio"). The 1999-1A SUBI and the 1999-
1B SUBI are referred to herein as the "Sold SUBIs" and the 1999-1A SUBI
Portfolio and the 1999-1B SUBI Portfolio are referred to herein as the "Sold
SUBI Portfolios".
E. Concurrently herewith, SPV is entering into a Transfer Agreement
with Greyhound Funding LLC (the "Issuer") pursuant to which SPV is
transferring all of its right, title and interest in and to the 1999-1A Sold
SUBI, the 1999-1A Sold SUBI Certificate, the portion of the 1999-1B Sold SUBI
represented by the Class X 1999-1B Sold SUBI Certificate and the Class X
1999-1B Sold SUBI Certificate.
F. Issuer will issue (i) debt securities pursuant to an Indenture
between the Issuer and the Chase Manhattan Bank, as indenture trustee (the
"Indenture Trustee") and (ii) preferred membership interests in the Issuer,
pursuant to the LLC Agreement and use the proceeds thereof on the date hereof
to satisfy certain claims on the Trust Assets allocated to the Sold SUBI
Portfolios and to make a distribution to SPV and thereafter will use the
proceeds thereof to fund the acquisition of subsequent additions to the Trust
Assets allocated to the 1999-1A SUBI.
G. The parties hereto desire, pursuant to this Sold SUBI Servicing
Supplement, to supplement the terms of the Servicing Agreement insofar as
they apply to the Sold SUBI Portfolios providing for specific servicing
obligations that will benefit the SPV, as holder of the Class Y 1999-1B SUBI
Certificate, the Issuer, as the holder of the 1999-1A SUBI Certificate and
Class X 1999-1B SUBI Certificate, and the Indenture Trustee, as the pledgee
of the Class X 1999-1B SUBI Certificate and 1999-1A SUBI Certificate.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained and in the Servicing Agreement, the parties hereto
agree to the following supplemental obligations with regard to the Sold SUBI
Portfolio:
-5-
ARTICLE V
DEFINITIONS
Section 5.1. Definitions.
For all purposes of this Sold SUBI Servicing Supplement, except as
otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms used herein shall have
the meanings attributed to them (i) by Schedule 1 to the Indenture, (ii) if
not defined therein, by the Servicing Agreement, (iii) if not defined
therein, by the Origination Trust Agreement, or (iv) if not defined therein,
by the Sold SUBI Supplement, (b) the capitalized terms defined in this Sold
SUBI Servicing Supplement have the meanings assigned to them in this Sold
SUBI Servicing Supplement and include (i) all genders and (ii) the plural as
well as the singular, (c) all references to words such as "herein", "hereof'
and the like shall refer to this Sold SUBI Servicing Supplement as a whole
and not to any particular article or section within this Sold SUBI Servicing
Supplement, (d) the term "include" and all variations thereon shall mean
"include without limitation", and (e) the term "or" shall include "and/or".
ARTICLE VI
REPRESENTATIONS AND
WARRANTIES OF SERVICER
The Servicer represents and warrants to the Trustees, the SPV, the
Issuer and the Indenture Trustee on behalf of the Investor Noteholders as
follows:
Section 6.1. Organization and Power.
Servicer is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has full
power, authority and legal right to carry on its business as now conducted
and to enter into and perform its obligations hereunder and under each of the
other Transaction Documents to which it is a party. The Servicer is
qualified to do business and in good standing in every other jurisdiction
where the failure to do so would have a Material Adverse Effect.
Section 6.2. Authorization, Execution and Validity.
Servicer has duly authorized, executed and delivered this Sold SUBI
Servicing Supplement and the Servicing Agreement and (assuming the due
authorization, execution and delivery by each other party thereto) this Sold
SUBI Servicing Supplement and the Servicing Agreement constitute the legal,
valid and binding obligations of Servicer, enforceable against Servicer in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
affecting the enforcement of creditors', mortgagees' or lessors' rights in
-6-
general and by general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
Section 6.3. No Conflict.
The execution, delivery and performance by Servicer of this Sold SUBI
Servicing Supplement and the Servicing Agreement and compliance by Servicer
with its obligations hereunder and thereunder do not (1) require any approval
of the shareholders of Servicer or any approval or consent of any trustee or
holder of any indebtedness or obligation of Servicer, other than such
consents and approvals as have been obtained, (2) contravene any Applicable
Law, (3) breach or contravene Servicer's limited liability company agreement,
or (4) contravene or result in any breach of or creation of any Lien (other
than pursuant to the Transaction Documents) upon any property of Servicer
under any indenture, mortgage, loan agreement, lease or other agreement or
instrument to which Servicer is a party or by which Servicer or any of its
properties is bound.
Section 6.4. Litigation.
There are no actions, suits or proceedings pending or, to the knowledge
of Servicer, threatened against the Servicer, before any Governmental
Authority which individually or in the aggregate would impair the ability of
Servicer to perform its obligations under this Sold SUBI Servicing Supplement
or the Servicing Agreement or which question the validity of this Sold SUBI
Servicing Supplement or the Servicing Agreement or any action taken or to be
taken pursuant hereto or thereto. Servicer is not in default with respect to
any order of any Governmental Authority, the default under which would
adversely affect the ability of Servicer to perform its obligations under
this Sold SUBI Servicing Supplement or the Servicing Agreement.
Section 6.5. Consents.
No consent, approval or authorization of, or filing, registration or
qualification with, or giving of notice or taking of any other action with
respect to, any Governmental Authority is required in connection with the
execution, delivery and performance by Servicer of this Sold SUBI Servicing
Supplement or the Servicing Agreement, or the performance by Servicer of the
transactions contemplated hereby or of any of the transactions contemplated
by any of the Servicing Agreement, other than any such consent, approval,
authorization, filing, registration, qualification, notice or action as has
been duly obtained, given or taken and is in full force and effect.
Section 6.6. Year 2000 Compliance.
Servicer has reviewed the areas within its business and operations which
could be adversely affected by, and has developed or is developing a program
-7-
to address on a timely basis, the risk that certain computer applications
used by the Servicer (or any of its material suppliers, customers or vendors)
may be unable to recognize and perform properly date-sensitive functions
involving dates prior to and after December 31, 1999 (the "Year 2000
Problem"). The Year 2000 Problem will not have a Material Adverse Effect on
the interests of the holders of any SUBI Certificate or any pledgee of any
SUBI Certificate.
ARTICLE VII
SPECIFIC REQUIREMENTS FOR
ADMINISTRATION AND SERVICING
OF THE SOLD SUBI PORTFOLIO
Section 7.1. Servicing Obligations.
(a) The Servicer, until terminated pursuant to Section 9.1 shall
service, administer and make collections on the Trust Assets allocated to the
Sold SUBI Portfolios in accordance with terms and provisions of the Servicing
Agreement.
(b) The Servicer shall account to the SUBI Trustee, the Issuer and the
Indenture Trustee with respect to the 1999-1A Sold SUBI Portfolio and the
portion of the 1999-1B Sold SUBI Portfolio represented by the Class X 1999-1B
SUBI Certificate separately from any other Portfolio. The Servicer shall
account to the SUBI Trustee and SPV with respect to the portion of the 1999-
1B SUBI Portfolio, represented by the Class Y 1999-1B Sold SUBI Certificate,
separately from any other Portfolio.
Section 7.2. Servicer Bound by Servicing Agreement.
(a) The Servicer shall continue to be bound by all provisions of the
Servicing Agreement with respect to the Trust Assets allocated to the Sold
SUBI Portfolios, including the provisions of Article II thereof relating to
the administration and servicing of Trust Vehicles, Leases and Fleet
Receivables; and the provisions set forth herein shall operate either as
additions to or modifications of the existing obligations of the Servicer
under the Servicing Agreement, as the context may require. In the event of
any conflict between the provisions of this Sold SUBI Servicing Supplement
and the Servicing Agreement with respect to the Sold SUBIs, the provisions of
this Sold SUBI Servicing Supplement shall prevail.
(b) For purposes of determining the Servicer's obligations with respect
to the servicing of the Sold SUBI Portfolios under this Sold SUBI Servicing
Supplement, general references in the Servicing Agreement to: (i) a SUBI
Portfolio shall be deemed to refer more specifically to a Sold SUBI
Portfolio; (ii) a SUBI Servicing Agreement Supplement shall be deemed to
-8-
refer more specifically to this Sold SUBI Servicing Supplement; and (iii) a
Sold SUBI Supplement shall be deemed to refer more specifically to a Sold
SUBI Supplement relating to one of the Sold SUBI Portfolios.
Section 7.3. Application of Proceeds.
In accordance with Section 2.2(c) of the Servicing Agreement, Servicer
shall pay all Collections received in respect of the Sold SUBIs as follows:
(a) The Servicer shall deposit all Collections received in respect of
to the Sold SUBIs into the Collection Account within two (2) Business Days of
receipt thereof. In addition, at any time when either any Series of Investor
Notes or Preferred Membership Interests is outstanding, if the Servicer
obtains confirmation from each Rating Agency with respect to such Series of
Investor Notes and such series of Preferred Membership Interests, and
provides evidence of such confirmation to the Indenture Trustee and the
Issuer, of the utilization by the Servicer of an alternative remittance
schedule with respect to Collections (including the use of an alternative
remittance schedule pursuant to which the obligations of the Servicer to make
such remittances are secured by a letter of credit satisfactory to such
Rating Agencies), the Servicer may remit such Collections in accordance with
that alternative remittance schedule. Without limiting the generality of the
foregoing, if VMS is the Servicer and (i) shall have the Required Rating or
(ii) the Indenture Trustee and the Issuer otherwise shall have received
written notice from each of the Rating Agencies with respect to each Series
of Investor Notes and each series of Preferred Membership Interests that the
then outstanding rating on each Series of Investor Notes and each Series of
Preferred Membership Interests would not be lowered or withdrawn as a result,
the Servicer may deposit all amounts referred to above for any Monthly Period
into the Collection Account not later than the related Settlement Date;
provided that (i) if a Servicer Termination Event has occurred and is
continuing or (ii) the Servicer has been terminated as such pursuant to
Section 9.1 or (iii) the Servicer ceases to have the Required Rating,
Servicer shall deposit all amounts (including any amounts then being held by
Servicer) into the Collection Account as provided above.
(b) After the payment in full of each Series of Investor Notes and the
redemption in full of each series of Preferred Membership Interests, the
Servicer shall pay all Collections in accordance with the instructions
provided by the Issuer from time to time.
Section 7.4. Monthly Servicer Advances.
On or prior to each Settlement Date, the Servicer shall make a Monthly
Servicer Advance in an amount equal to the amount by which the aggregate
monthly lease payments billed and unpaid under all Unit Leases and all Fleet
Receivables billed and unpaid during the preceding Monthly Period exceeds the
-9-
amount of Collections in respect of such payments during such Monthly Period
provided, however, that the Servicer shall not (a) be required to make any
Monthly Servicer Advance in respect of any Unit Lease or Fleet Receivable
that it reasonably determines, in its sole discretion, is unlikely to be paid
from subsequent Collections on such Unit Lease or Fleet Receivable or (b)
make any Monthly Servicer Advance with respect to any Charged-Off Lease. On
each Settlement Date, the Servicer shall be entitled to be reimbursed in
accordance with the Indenture for amounts previously advanced by the Servicer
hereunder in respect of delinquent monthly lease payments or delinquent Fleet
Receivables out of amounts collected in respect of such delinquent monthly
lease payment or delinquent Fleet Receivables during the immediately
preceding Monthly Period.
Section 7.5. Payment of Fees and Expenses.
Servicer shall pay all expenses incurred in connection with the
administration and servicing of the Sold SUBIs, the Sold Units and the Fleet
Receivables, including, without limitation, expenses incurred by it in
connection with its activities hereunder, including fees and disbursements of
the SUBI Trustee, independent accountants, taxes imposed on Servicer and any
SUBI Trustee or Delaware Trustee indemnity claims, including those arising
under Sections 5.5, 6.8 and 7.1 of the Origination Trust Agreement.
Section 7.6. Servicing Compensation.
Notwithstanding anything to the contrary in Section 2.5 of the Servicing
Agreement, the Servicing Fee with regard to the Sold SUBI Portfolios shall be
calculated and paid on each Settlement Date pursuant to the Indenture.
Section 7.7. Insurance Policies.
(a) So long as the 1999-1A SUBI Certificate is outstanding, the
Servicer shall have in effect, maintain and keep in force for the benefit of
the Origination Trust, or cause the Origination Trust to have in effect,
maintain and keep in force, insurance with respect to the SUBI Trust Assets
against such hazards, in such form and in such amounts as follows:
(i) Contingent and excess automobile liability insurance
policies with Continental Casualty Company (or other
nationally recognized insurance company with a rating of at
least A by A.M. Best), with limits of no less than $1,000,000
per occurrence, covering losses in the event that an Obligor's
primary insurance policy is not collectible at the time of
loss or that a liability claim exceeds the policy limit of the
Lessee primary insurance.
-10-
(ii) Interim automobile liability insurance coverage with
Continental Casualty Company (or other nationally recognized
insurance company with a rating of at least A by A.M. Best),
with limits of no less than $1,000,000 per occurrence,
covering losses (i) prior to the time that an Obligor's
primary insurance becomes effective and (ii) after a Unit
Lease has terminated.
(iii) Umbrella excess liability insurance of not less
than $25,000,000 with an insurer that has a rating of at least
A by A.M. Best. Such coverage shall be on a per occurrence
basis and over and above the coverage provided by the policies
described in paragraphs (i) and (ii) above. The umbrella
excess liability policies shall not restrict coverages as set
forth in paragraphs (i) and (ii) above.
(iv) All policies of insurance required to be maintained
pursuant to this section shall be subject to such deductibles
or retentions as are consistent with industry practices of
prudent automobile and light truck vehicle lease companies or
lessors.
(b) All policies of insurance required to be maintained pursuant to
this section shall name the Origination Trust, SPV and the Issuer as
additional insureds as their interests shall appear (the "Additional
Insured"). Each policy of insurance required under the provisions of this
section shall contain an endorsement by the insurer that any loss shall be
payable in accordance with the terms of such policy notwithstanding any act
or negligence of the Servicer or other insured that might otherwise give rise
to a defense by the insurer to its payment of such loss. Each policy shall
expressly provide that all provisions thereof, except liability for premiums
(which shall be solely a liability of the Servicer) and the limits of the
insurer's liability under the policy shall operate in the same manner as if
there were a separate policy covering each Additional Insured. Each such
policy shall provide that if such insurance is to be canceled, terminated or
materially changed for any reason whatsoever, the insurers (or their
representatives) will promptly notify the Additional Insureds, and any such
cancellation, termination or change shall not be effective until 30 days (10
days for non-payment of premium) after receipt of such notice by the
Additional Insureds.
(c) The Servicer will advise the Additional Insureds in writing
promptly of any default in the payment of any premium and of any other act or
omission on the part of the Servicer which may invalidate or render
unenforceable, in whole or in part, any insurance being maintained pursuant
to this section. The Servicer will deliver to the Additional Insureds,
promptly upon request and in any event within 30 days after the end of each
fiscal year of the Servicer, a certificate signed by an authorized officer of
the Servicer (x) attaching certificates of all insurance policies relating to
-11-
the Sold SUBI Portfolios, and stating that all premiums then due thereon have
been paid and that such policies are in full force and effect and (y) stating
that such insurance policies comply with the requirements of this section.
Section 7.8. Corporate Existence: Status; Merger.
(a) With reference to Section 2.16(a) of the Servicing Agreement, the
Servicer also will obtain and preserve its qualification to do business as a
foreign corporation in each jurisdiction in which such qualification is or
shall be necessary to protect the validity and enforceability of, or to
permit the Servicer to perform its obligations under, this Supplement and the
Servicing Agreement.
(b) With reference to Section 2.16(b) of the Servicing Agreement,
whenever a successor to the Servicer by merger or consolidation is required
to execute and deliver to the SUBI Trustee an agreement as to the assumption
by the successor of the Servicer's obligations under the Servicing Agreement,
such agreement also must contain a similar assumption of the Servicer's
obligations under this Supplement.
Section 7.9. Indemnification.
The Servicer agrees to indemnify, defend and hold harmless the UTI
Holder, the Origination Trust, the Trustees and their respective agents, SPV,
the Issuer and the Indenture Trustee, on behalf of the Investor Noteholders,
for any and all liabilities, losses, damages and expenses that may be
incurred as a result of any negligent act or omission by the Servicer in
connection with its maintenance and custody of the Lease Documents and
Certificates of Title, the servicing of the Sold SUBI Portfolios or any other
activity undertaken or omitted by the Servicer with respect to any Sold SUBI,
this Sold SUBI Servicing Supplement or the Servicing Agreement. The
obligations set forth in this Section 7.9 shall survive the termination of
this Sold SUBI Servicing Supplement, the Servicing Agreement and the
Origination Trust Agreement or the resignation or removal of the Servicer or
any Origination Trustee.
Section 7.10. Liens.
The Servicer will not directly or indirectly create, allow or suffer to
exist any Lien on the Sold SUBI Certificates, the Sold SUBIs, the Sold Units
or any other Trust Assets included in the Sold SUBI Portfolios, other than
Permitted Liens.
-12-
Section 7.11. Record Keeping.
The Servicer shall maintain its computer systems relating to the Sold
Units so that, from and after the time of the allocation of Sold Units to the
1999-1A SUBI Portfolio, the Servicer's master computer records (including any
backup archives) that refer to a Sold Unit shall indicate clearly the
interest of the Issuer therein allocated at the UTI Trustee's direction by
the Origination Trustee to the 1999-1A SUBI Portfolio. The Servicer shall
maintain its computer systems relating to the Fleet Receivables so that, from
and after the time of the allocation of the Fleet Receivables to the 1999-1B
SUBI Portfolio, the Servicer's master computer records (including any backup
archives) that refer to a Fleet Receivable shall indicate clearly the
interests of SPV and the Issuer therein.
Section 7.12. Other Transactions.
If at any time VMS shall propose to sell, grant a security interest in
or otherwise transfer an interest in Origination Trust Assets allocated to
the UTI Interest or any SUBI (other than the Sold SUBIs to any prospective
purchaser, lender or other transferee, the Servicer will not give such
prospective purchaser, lender or other transferee any computer tapes, records
or printouts (including any restored from backup archives) unless, if they
shall refer in any manner whatsoever to any Sold Unit allocated to the 1999-
1A SUBI Portfolio or any Fleet Receivable allocated to the 1999-1B SUBI
Portfolio, such computer tapes, records or printouts shall indicate clearly
that a beneficial interest in such Sold Unit or Fleet Receivable has been
issued to the SPV and, as applicable, sold or pledged by SPV to any other
Person.
Section 7.13. Amendment of Policies.
So long as the 1999-1A SUBI Certificate is outstanding, the Servicer
shall not amend or modify the Policies if such amendment or modification
would have a material adverse effect on the collectibility of amounts owing
in respect of the Leases or on the interests of the holders of the Sold SUBIs
or any assignee or pledgee thereof therein.
Section 7.14. Amendment of Leases.
So long as the 1999-1A SUBI Certificate is outstanding, the Servicer
shall not (i) amend or modify any Lease if such amendment or modification
would (x) decrease any amount payable under such Lease upon the early
termination thereof or reduce any payment due under any such Lease upon the
expiration thereof or (y) extend the final termination date for such Lease if
such Lease would not have been an Eligible Lease at the time it was first
included in the Aggregate Lease Balance had such extension been effected at
such time or (ii) convert the floating interest rate under any Lease to a
-13-
rate which is lower than the greater of (x) the fixed rate into which such
floating rate is converted in accordance with such Lease and (y) one half
of 1% in excess of the PHH Treasury Note Rate on the conversion date.
Section 7.15. Servicer Payment in Respect of Certain Leases and Trust
Vehicles.
(a) In connection with SPV's contribution of certain of the Trust
Assets to the Trust pursuant to the Contribution Agreement and the allocation
of the Trust Assets to the 1999-1A SUBI on the Closing Date, the Servicer
will deliver a certificate of an Authorized Officer, substantially in the
form of Exhibit A, representing and warranting to SPV, the Issuer and the
Indenture Trustee that (i) all of the Master Lease Agreements allocated to
the 1999-1A SUBI on the Initial Closing Date were Eligible Master Leases as
of the Initial Cut-Off Date, (ii) all of the Leases under such Master Lease
Agreements included in the Initial Aggregate Lease Balance were Eligible
Leases as of the Initial Cut-Off Date and (iii) all of the Consumer Leases
allocated to the 1999-1A SUBI on the Initial Closing Date were Eligible
Consumer Leases as of the Initial Cut-Off Date.
(b) At the time of its origination of a new Lease under a Master Lease
Agreement allocated to the 1999-1A SUBI Portfolio pursuant to Section 2.2 of
the Servicing Agreement, the Servicer shall determine whether such Lease is
an Eligible Lease and, if it so determines that a new Lease is an Eligible
Lease and, as a result thereof, increases the Aggregate Lease Balance to
include such Lease, the Servicer shall be deemed to have represented to the
holder of the 1999-1A SUBI Certificate and each assignee or pledgee thereof
that such Lease constitutes an Eligible Lease as of the first date on which
such Lease is included by the Servicer in the Aggregate Lease Balance.
(c) In connection with, and as a condition to, any allocation of a new
Master Lease Agreement to the 1999-1A SUBI Portfolio pursuant to Section
11.2(b) of the 1999-1A Sold SUBI Supplement, the Servicer shall determine
that such Master Lease Agreement is an Eligible Master Lease of the date of
such allocation and deliver to SPV, the Issuer and the Indenture Trustee a
certification of an Authorized Officer in accordance with Section 11.2(d) of
the 1999-1A Sold SUBI Supplement.
(d) In connection with, and as a condition to, any allocation of a new
Consumer Lease to the 1999-1A SUBI Portfolio pursuant to Section 11.2(c) of
the 1999-1A Sold SUBI Supplement, the Servicer shall determine that such
Consumer Lease is an Eligible Consumer Lease as of the date of such
allocation and shall deliver to SPV, the Issuer and the Indenture Trustee a
certification of an Authorized Officer in accordance with Section 11.2(d) of
the 1999-1A Sold SUBI Supplement.
-14-
(e) At the time of any acquisition of a Paid-In-Advance Vehicle, the
Servicer shall be deemed to have represented to the holder of the 1999-1A
SUBI Certificate and each assignee or pledgee thereof that the Master Lease
Agreement under which such Paid-In-Advance Vehicle is being acquired is not
an Ineligible Delinquent Lease.
(f) The certifications of the Servicer described in Sections 7.15(a)
through (e) (each a "Certification") shall survive delivery of the related
Certification. Upon discovery by SPV, the Issuer, the Indenture Trustee or
the Servicer that any such Certification was incorrect when made or deemed
made and such breach of representation and warranty materially and adversely
affects the collectibility of, or the interest of the holder of the 1999-1A
SUBI Certificate, or any assignee or pledgee thereof in, such Master Lease
Agreement, Consumer Lease or Lease, as the case may be, the party discovering
such incorrectness shall give prompt written notice to the others. Within 30
days of its discovery of such breach or notice to such effect to the
Servicer, the Servicer shall cure in all material respects the circumstances
or condition giving rise to such breach. If the Servicer is unable or
unwilling to so cure any such breach, it shall, as the sole remedy for such
breach (i) deposit (or cause to be deposited) into the Collection Account on
the first Settlement Date following such 30-day period an amount equal to the
Aggregate Lease Balance of all Leases under such Master Lease Agreement as of
the last day of the immediately preceding Monthly Period plus, in the case of
a Closed-End Lease, the aggregate Net Book Value of the Leased Vehicles
subject to such Master Lease Agreement as of such day, in the case of a
repurchase of a Master Lease Agreement, the Lease Balance of such Consumer
Lease as of the last day of the immediately preceding Monthly Period plus, in
the case of a Closed-End Lease, the Net Book Value of the Leased Vehicle
subject to such Consumer Lease as of such day, in the case of a repurchase of
a Consumer Lease, the Lease Balance of such Lease as of the last day of the
immediately preceding Monthly Period plus, in the case of a Closed-End Lease,
the Net Book Value of the Leased Vehicle subject to such Lease as of such
day, in the case of a repurchase of a Lease, or the cost of the Paid-In-
Advance Vehicle, in the case of a repurchase of a Paid-In-Advance Vehicle
(which deposit shall constitute the full purchase price in respect of the
purchase of such Master Lease Agreement, such Consumer Lease, such Lease or
such Paid-In-Advance Vehicle, as the case may be), (ii) purchase such Master
Lease Agreement, such Consumer Lease or such Lease and the related Leased
Vehicle or Vehicles or such Paid-In-Advance Vehicles from the Origination
Trust, and (iii) indemnify, defend and hold harmless the holders of any 1999-
A SUBI Certificate (including, without limitation, SPV, the Issuer and the
Indenture Trustee on behalf of the Investor Noteholders) and any subsequent
servicer (if other than the current Servicer) from and against, any and all
loss or liability with respect to or resulting from any such Master Lease,
Consumer Lease, Lease, Leased Vehicle or Paid-In-Advance (including, without
limitation, the reasonable fees and expenses of counsel). At any time
following such repurchase, if requested by the Servicer, the Trust Vehicle or
-15-
Vehicle will be re-titled in the name of the Servicer or its designee (other
than the Trust, the SPV or the Issuer).
(g) The obligations of the Servicer pursuant to this Section 7.15 shall
survive any termination of the Servicer with respect to the Sold SUBI
Portfolio under this Supplement or the Servicing Agreement.
ARTICLE VIII
STATEMENTS AND REPORTS
Section 8.1. Reporting by the Servicer.
(a) The Servicer shall deliver to SPV, the Issuer and the Indenture
Trustee or any subsequent holder or pledgee of the Sold SUBI Certificates all
reports and other documents required to be delivered to the Origination
Trustee pursuant to the Servicing Agreement concurrently with their delivery
to the Origination Trustee.
(b) On each Determination Date, the Servicer shall deliver to the
Origination Trustee, SPV, the Issuer and the Indenture Trustee and each
Rating Agency, a certificate of an Authorized Officer in respect of the
immediately preceding Monthly Period with respect to each Series of Investor
Notes (each a "Settlement Statement") substantially in the form attached to
the related Indenture Supplement.
(c) Prior to 1:00 p.m. (New York City time), on each Deposit Date, the
Servicer shall deliver to the Origination Trustee, SPV, the Issuer and the
Indenture Trustee, a Deposit Report, setting forth the aggregate amount of
Collections deposited in the Collection Account on such Deposit Date.
(d) Within ten Business Days of the last Business Day of each fiscal
quarter of the Issuer, the Servicer shall deliver to the Origination Trustee,
SPV, the Issuer and the Indenture Trustee a copy of a Quarterly Compliance
Certificate of an Authorized Officer, substantially in the form of Exhibit B,
dated as of the end of the preceding fiscal quarter, stating that (i) review
of the activities of the Servicer during the preceding fiscal quarter (or, in
the case of the first such certificate, from the Initial Closing Date) and of
its performance under this Agreement has been under such Authorized Officer's
supervision and (ii) to the best of such Authorized Officer's knowledge,
based on such review, the Servicer has fulfilled all its obligations in all
material respects under this Agreement, throughout such fiscal quarter or, if
there has been a default in any material respect in the fulfillment of any
such obligation, specifying each such default known to such officer and the
nature and status thereof.
-16-
Section 8.2. Annual Accountants' Reports.
The Servicer shall cause Deloitte & Touche LLP or another firm of
nationally recognized independent certified public accountants, who may also
render other services to the Servicer, to deliver to SPV, the Issuer, the
Indenture Trustee, and each Rating Agency on or before March 31 of each year
concerning the 12-month period ended December 31 of the preceding year (or
such other first period since the date of this Sold SUBI Servicing
Supplement), beginning March 31, 2000, (i) a report to the effect that such
firm (A) has reviewed certain documents and records relating to the servicing
of the Trust Assets allocated to the 1999-1A SUBI Portfolio and (B) based on
such review, such firm is of the opinion that the Settlement Statements for
such year were prepared in compliance with this Sold SUBI Servicing
Supplement; except for such exceptions as it believes to be immaterial and
such other exceptions as will be set forth in such firm's report, and (ii) a
report to the effect that such firm has examined the assertion of Servicer's
management as to its compliance with the servicing requirements set forth in
Article II of the Servicing Agreement with respect to such 12-month (or
other) period and that (A) such examination was made in accordance with
standards established by the American Institute of Certified Public
Accountants, and (B) except as described in the report, management's
assertion is fairly stated in all material respects. The report will also
indicate that the firm is independent of the Servicer within the meaning of
the Code of Professional Ethics of the American Institute of Certified Public
Accountants.
Section 8.3. Other Certificates and Notices from Servicer.
(a) The Servicer shall deliver to SPV, the Issuer, the Indenture
Trustee and each Rating Agency promptly after having obtained knowledge
thereof, but in no event later than three Business Days thereafter, an
Officer's Certificate specifying the nature and status of any event which
with the giving of notice or lapse of time, or both, would become a Servicer
Termination Event.
(b) The Servicer shall deliver to SPV, the Issuer, the Indenture
Trustee and each Rating Agency on a quarterly basis, within 45 days following
the end of each quarter, a certificate executed by a duly authorized officer
of the Servicer stating whether or not, if all "employee benefit plans"
subject to Title IV of ERISA which Servicer, or any entity which is a member
of a "Controlled Group", of which the Servicer is also a member, maintains or
sponsors were terminated on the last day of the immediately preceding quarter
or immediately after such date, there would be any unfunded liabilities with
respect to any such plan, its participants or beneficiaries, or the Pension
Benefit Guarantee Corporation.
-17-
Section 8.4. Period End Dates.
The Servicer shall establish the Period End Dates for each calendar
year. The Period End Date will generally be the last Saturday of each
calendar month unless the last Saturday of a calendar month is too close to
the end of such month to permit orderly billing, in which event the Period
End Date shall be the second to last Saturday of the month. The remaining
Period End Dates for calendar year 1999 are set forth on Schedule X. On or
prior to December 1 of each calendar year, commencing December 1, 1999, the
Servicer shall deliver to SPV, the Issuer and the Indenture Trustee a list of
the Period End Dates for the next calendar year and Schedule X shall be
deemed to be amended thereby.
ARTICLE IX
TERMINATION OF SERVICER
Section 9.1. Termination of Servicer as to Sold SUBI Portfolios.
(a) Notwithstanding any statement to the contrary contained in Article
III of the Servicing Agreement, the Servicer may be terminated by the Issuer,
subject to Section 10.1 of this Sold SUBI Servicing Supplement, upon written
notice to the Servicer, with respect to the Sold SUBI Portfolios to the
extent a Servicer Termination Event shall have occurred and be continuing.
As used herein, the term "Servicer Termination Event" shall mean any of the
following acts or occurrences:
(i) The Servicer shall have failed to deposit or
transfer any amounts that are required to be deposited or
transferred related to the Sold SUBIs as provided in Section
7.3 of this Sold SUBI Servicing Supplement, and such failure
continues for two (2) Business Days after the discovery of
such failure by the Servicer or the receipt by the Servicer of
written notice thereof from the Issuer or the Indenture
Trustee;
(ii) The Origination Trustee, the Issuer or the Indenture
Trustee shall not have received the Monthly Report within
three (3) Business Days after the date any such report is due;
(iii) The Servicer shall default in the due
performance and observance of any other provision of this
Agreement, and such default shall have continued for a period
of 30 days after the earlier to occur of (x) written notice
thereof shall have been given to the Servicer, by the Issuer
or the Indenture Trustee or (y) discovery of such failure by
the Servicer;
-18-
(iv) The occurrence of a "Servicer Termination Event"
described in Section 3.1(a) of the Servicing Agreement;
(v) Any representation, warranty or statement of the
Servicer made under the Servicing Agreement or this Agreement
or any certificate, report or other writing delivered pursuant
hereto or thereto relating to the Sold SUBI Portfolio shall
prove to be incorrect in any material respect as of the time
when the same shall have been made and, within 30 days after
the earlier to occur of (x) written notice thereof shall have
been given to the Servicer, by the Issuer or the Indenture
Trustee or (y) discovery of such failure by the Servicer, the
circumstance or condition in respect of which such
representation, warranty or statement was incorrect shall not
have been eliminated or otherwise cured; or
(vi) The Servicer shall have created, either indirectly
or directly, or allowed to suffer to exist, any Lien on the
Sold SUBI Certificates, the Sold SUBIs or any Origination
Trust Assets included in the Sold SUBIs Portfolios, other than
Permitted Liens.
(b) Upon the giving of any such notice of the occurrence of a Servicer
Termination Event to the Servicer, the Issuer, subject to Section 10.1 of
this Sold SUBI Servicing Supplement, may replace the Servicer with a
successor Servicer satisfactory to it and upon the effective date of the
assumption by the successor Servicer of its duties, all rights, powers,
duties and responsibilities of the Servicer with respect to the Sold SUBI
Portfolios under the Servicing Agreement as supplemented by this Sold SUBI
Servicing Supplement, but excluding the obligations set forth in Section
9.1(d) hereof as being retained by the Servicer, shall vest in and be assumed
by, such successor Servicer, and the Issuer and the SUBI Trustee are each
hereby irrevocably authorized and empowered to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, or to direct the Servicer
to deliver, all documents and other instruments (including any notices to
Obligors deemed necessary or advisable by the SUBI Trustee), and to do or
accomplish all other acts or things necessary or appropriate to effect such
vesting and assumption, including, without limitation, (i) directing the
Obligors to remit payments on or in respect of the Sold SUBIs to an account
or address designated by such new Servicer and (ii) directing the Servicer to
deliver and transfer to the successor Servicer (A) all cash amounts
(including all Security Deposits being held by the predecessor Servicer
pursuant to Section 2.4 of the Servicing Agreement) that shall at the time be
held by the predecessor Servicer under the Servicing Agreement and this Sold
SUBI Servicing Supplement or otherwise or shall thereafter be received by it
with respect to the Sold SUBI, and (B) all related Lease Documents,
Certificates of Title and other related items that from time to time come
-19-
into possession of the predecessor Servicer with respect to the Sold Units or
the Fleet Receivables. Further, within 10 Business Days of the receipt by
the Servicer of such direction, the Servicer shall use commercially
reasonable efforts to effect the orderly and efficient transfer of the
servicing of the Sold SUBI Portfolios to the new Servicer, and as promptly as
practicable, the Servicer shall provide to the new Servicer a current
computer tape containing all information from the Servicing Records required
for the proper servicing of the Sold SUBI Portfolios, (including all
origination and servicing information, records and data relating to the Sold
Units or the Fleet Receivables, in a form readily and immediately usable by
such new Servicer) together with documentation containing any and all
information necessary for use of the tape. All reasonable costs and expenses
(including attorney's fees) incurred by the successor Servicer in connection
with the transfer of the servicing of the Sold SUBI Portfolios to the new
Servicer (including the transfer of such Lease Documents and Certificates of
Title) and amending the Servicing Agreement and this Sold SUBI Servicing
Supplement to reflect the succession to successor Servicer shall be paid by
the predecessor Servicer.
(c) Upon the effectiveness of the assumption by the successor Servicer
of its duties pursuant to this Section 9.1, the successor Servicer shall be
the successor in all respects to the Servicer in its capacity as Servicer
under the Servicing Agreement with respect to the Sold SUBI Portfolios, and
shall be subject to all the responsibilities, duties and liabilities relating
thereto, except with respect to the obligations of the predecessor Servicer
that survive its termination as the Servicer as set forth in Section 9.1(d).
No Servicer shall resign or be relieved of its duties under the Servicing
Agreement, as Servicer of the Sold SUBI Portfolios, until a newly appointed
Servicer for the Sold SUBI Portfolios shall have assumed the responsibilities
and obligations of the terminated Servicer under the Servicing Agreement and
this Sold SUBI Servicing Supplement.
(d) No termination of the Servicer as to the Sold SUBI Portfolios shall
affect the obligations of the Servicer pursuant to Section 7.9 or Section
7.15 (but only to the extent of the Certifications made or deemed made prior
to such termination) of this Sold SUBI Servicing Supplement.
Section 9.2. No Effect on Other Parties.
Upon any termination of the rights and powers of the Servicer with
respect to the Sold SUBI Portfolios pursuant to Section 9.1 hereof, or upon
any appointment of a successor to the Servicer with respect to the Sold SUBI
Portfolios, all the rights, powers, duties and obligations of the Trustees,
the UTI Holder and the Settlor under the Origination Trust Agreement, the
Servicing Agreements, the Sold SUBI Supplements, any other SUBI Supplements,
any other SUBI Servicing Agreement Supplements or any other Trust Document
shall remain unaffected by such termination or appointment and shall remain
-20-
in full force and effect thereafter, except as otherwise expressly provided
herein or therein.
ARTICLE X
ASSIGNMENT OF SERVICING AGREEMENT RIGHTS
Section 10.1. Assignment.
Each party hereto hereby acknowledges and consents to (i) the pledge and
assignment by SPV to the Issuer pursuant to the Transfer Agreement of all of
the SPV's rights under the Servicing Agreement and this Sold SUBI Servicing
Supplement and (ii) the pledge, assignment and grant of a security interest
by the Issuer to the Indenture Trustee for the benefit of the Investor
Noteholders pursuant to the Indenture of all of the Issuer's right, title and
interest in and to the Servicing Agreement and this Sold SUBI Servicing
Supplement.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Termination of Agreement.
(a) If all of the interest in the Sold SUBIs is transferred to the UTI
Holder, then the Servicer, upon the direction of the UTI Holder as provided
in Section 11.4 of each of the Sold SUBI Supplements, shall reallocate all
Sold SUBI Assets to the UTI Portfolio and the respective duties and
obligations of the Servicer and the SUBI Trustee with respect to the Sold
SUBIs created by the Servicing Agreement and this Sold SUBI Servicing
Supplement shall terminate.
(b) Except as provided in this Section 11.1, the respective duties and
obligations of the Servicer and the SUBI Trustee with respect to the Sold
SUBI Portfolios created by the Servicing Agreement and this Sold SUBI
Servicing Supplement shall terminate upon the termination of the Servicing
Agreement pursuant to Section 4.1 thereof (and with the consent of SPV, the
Issuer and the Indenture Trustee in the case of a termination pursuant to
Section 11.1(a) hereof). Upon such a termination, the Servicer shall pay
over to the UTI Holder or any other Person entitled thereto all moneys held
by the Servicer with respect to the Sold SUBI Portfolios pursuant to the
Servicing Agreement and this Sold SUBI Servicing Supplement.
Section 11.2. Amendment.
(a) Notwithstanding Section 4.2 of the Servicing Agreement and subject
to Section 10.1 hereof, the Servicing Agreement, as supplemented by this Sold
-21-
SUBI Servicing Supplement, to the extent that it deals with the Sold SUBI
Portfolios, may be amended from time to time in accordance with this Section
11.2.
(b) Subject to Section 10.1 hereof, the Servicing Agreement and this
Sold SUBI Servicing Supplement may be amended from time to time to the extent
that it relates to the Sold SUBIs by SPV, with the consent of the SUBI
Trustee but without the consent of any other Person, to correct any
inconsistency or cure any ambiguity or errors in the Servicing Agreement or
this Sold SUBI Servicing Supplement in a manner which would have no adverse
effect on any holder of the Sold SUBI Certificates or any pledge or assignee
thereof.
(c) Subject to Section 10.1 hereof, the Servicing Agreement or this
Sold SUBI Servicing Supplement may be amended in any respect from time to
time to the extent that it relates to the Sold SUBIs by SPV, with the consent
of the holder of the Sold SUBI Certificates and any pledgee or assignee
thereof.
(d) Prior to the execution of any such amendment or consent, the
Servicer shall furnish at least five (5) Business Days prior written
notification of the substance of such amendment or consent to each Rating
Agency with respect to each Series of Investor Notes and each series of
Preferred Membership Interests; provided, that the Servicer shall have no
obligation to furnish either Rating Agency with prior written notice of the
substance of any amendment or consent to the Servicing Agreement. No later
than ten (10) Business Days after the execution of any such amendment or
consent, the Servicer shall furnish a copy of such amendment or consent to
each Rating Agency with respect to each Series of Investor Notes and each
series of Preferred Membership Interests, the Issuer and the Indenture
Trustee.
(e) Prior to the execution of any amendment to the Servicing Agreement
or this Sold SUBI Servicing Supplement, the Issuer and the Indenture Trustee
shall be entitled to receive and conclusively rely upon an Opinion of Counsel
stating that the execution of such amendment is authorized or permitted by
the Servicing Agreement or this Sold SUBI Servicing Supplement and that all
conditions precedent to the execution and delivery of such amendment have
been satisfied.
Section 11.3. Governing Law.
THIS SOLD SUBI SERVICING SUPPLEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT EXCLUDING TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL
OTHER CHOICE OF LAW AND CONFLICTS OF LAW RULES).
-22-
Section 11.4. Notices.
The notice provisions of Section 4.4 of the Servicing Agreement shall
apply equally to this Sold SUBI Servicing Supplement.
Section 11.5. Third Party Beneficiary.
SPV and each assignee or pledgee of the SPVs interest in this Sold SUBI
Servicing Agreement is an express third party beneficiary of the obligations
of the parties hereto and may directly enforce the performance of any of such
obligations hereunder.
Section 11.6. Severability.
If one or more of the provisions of this Sold SUBI Servicing Supplement
shall be for any reason whatever held invalid or unenforceable, such
provisions shall be deemed severable from the remaining covenants, agreements
and provisions of this Sold SUBI Servicing Supplement, and such invalidity or
unenforceability shall in no way affect the validity or enforceability of
such remaining covenants, agreements and provisions, or the rights of any
parties hereto. To the extent permitted by law, the parties hereto waive any
provision of law that renders any provision of this Sold SUBI Servicing
Supplement invalid or unenforceable in any respect.
Section 11.7. Binding Effect.
The provisions of the Servicing Agreement and this Sold SUBI Servicing
Supplement, insofar as they relate to the Sold SUBI Portfolios, shall be
binding upon and inure to the benefit of the respective successors and
permitted assigns of the parties hereto, including, but not limited to, SPV,
the Issuer and the Indenture Trustee.
Section 11.8. Article and Section Headings.
The article and section headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.
Section 11.9. Execution in Counterparts.
This Sold SUBI Servicing Supplement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be
an original, but all of which counterparts shall together constitute but one
and the same instrument.
-23-
Section 11.10. Further Assurances.
Each party will do such acts, and execute and deliver to any other party
such additional documents or instruments as may be reasonably requested in
order to effect the purposes of this Sold SUBI Servicing Supplement and to
better assure and confirm unto the requesting party its rights, powers and
remedies hereunder.
Section 11.11. Limitation of Liability.
It is expressly understood and agreed by the parties hereto that (a)
this Sold SUBI Servicing Supplement is executed and delivered by Wilmington
Trust Company, not individually or personally but solely as SUBI Trustee of
the Trust under the Origination Trust Agreement, in the exercise of the
powers and authority conferred and vested in it, (b) nothing herein contained
shall be construed as creating any liability on Wilmington Trust Company,
individually or personally, to perform any covenant either expressed or
implied contained herein, all such liability, if any, being expressly waived
by the parties hereto and by any Person claiming by, through or under the
parties hereto and (c) under no circumstances shall Wilmington Trust Company
be personally liable for the payment of any indebtedness or expenses of the
Trust or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by any party under
the Transaction Documents.
Section 11.12. Series Liabilities.
Each party hereto represents, warrants and covenants that (a) each of
the Sold SUBIs is a separate series of the Origination Trust as provided in
Section 3806(b)(2) of Chapter 38 of Title 12 of the Delaware Code, 12 Del. C.
Section 3801 et seq., (b)(i) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to the Sold SUBIs
or the Sold SUBI Portfolios shall be enforceable against the respective Sold
SUBI Portfolios only, as applicable, and not against any other SUBI Assets or
the UTI Portfolio and (ii) the debts, liabilities, obligations and expenses
incurred, contracted for or otherwise existing with respect to any other
SUBI, any other SUBI portfolio, the UTI or the UTI Portfolio shall be
enforceable against such other SUBI portfolio or the UTI portfolio only, as
applicable, and not against any other SUBI Assets, (c) except to the extent
required by law, UTI Assets or SUBI Assets with respect to any SUBI (other
than the respective Sold SUBIs) shall not be subject to the claims, debts,
liabilities, expenses or obligations arising from or with respect to the Sold
SUBIs, respectively, in respect of such claim, (d)(i) no creditor or holder
of a claim relating to the Sold SUBIs or the Sold SUBI Portfolios shall be
entitled to maintain any action against or recover any assets allocated to
the UTI or the UTI Portfolio or any other SUBI or the assets allocated
thereto, and (ii) no creditor or holder of a claim relating to the UTI, the
UTI Portfolio or any SUBI other than the Sold SUBIs or any SUBI Assets other
than the Sold SUBI Portfolios shall be entitled to maintain any action
-24-
against or recover any assets allocated to the Sold SUBIs, and (e) any
purchaser, assignee or pledgee of an interest in the Sold SUBIs, the Sold
SUBI Certificates, any other SUBI, any other SUBI Certificate, the UTI or the
UTI Certificate must, prior to or contemporaneously with the grant of any
such assignment, pledge or security interest, (i) give to the Origination
Trust a non-petition covenant substantially similar to that set forth in
Section 6.9 of the Origination Trust Agreement, and (ii) execute an agreement
for the benefit of each holder, assignee or pledgee from time to time of the
UTI or UTI Certificate and any other SUBI or Sold SUBI Certificate (as
defined in the Origination Trust Agreement), to release all claims to the
assets of the Origination Trust allocated to the UTI and each other SUBI
Portfolio and in the event that such release is not given effect, to fully
subordinate all claims it may be deemed to have against the assets of the
Origination Trust allocated to the UTI Portfolio and each other SUBI
Portfolio.
Section 11.13. No Petition.
With respect to each Special Purpose Entity, each party hereto agrees
that, prior to the date which is one year and one day after payment in full
of all obligations under each Securitization (i) no party hereto shall
authorize such Special Purpose Entity to commence a voluntary winding-up or
other voluntary case or other proceeding seeking liquidation, reorganization
or other relief with respect to such Special Purpose Entity or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in
effect in any jurisdiction or seeking the appointment of an administrator, a
trustee, receiver, liquidator, custodian or other similar official with
respect to such Special Purpose Entity or any substantial part of its
property or to consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against such Special Purpose Entity, or to make a general
assignment for the benefit of any party hereto or any other creditor of such
Special Purpose Entity, and (ii) none of the parties hereto shall commence or
join with any other Person in commencing any proceeding against such Special
Purpose Entity under any bankruptcy, reorganization, liquidation or
insolvency law or statute now or hereafter in effect in any jurisdiction.
Each of the parties hereto agrees that, prior to the date which is one year
and one day after the payment in full of all obligations under each
Securitization, it will not institute against, or join any other Person in
instituting against, any Special Purpose Entity an action in bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or similar
proceeding under the laws of the United States or any State of the United
States.
[SIGNATURES ON THE FOLLOWING PAGE]
-25-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers duly authorized as of the day and
year first above written.
X.X. XXXXXXXX TRUST
By: Wilmington Trust Company, not in
its individual capacity but solely
as Delaware Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
PHH VEHICLE MANAGEMENT SERVICES LLC
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as SUBI
Trustee
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
-26-
Acknowledged and Agreed:
GREYHOUND FUNDING LLC,
as the Issuer
By: /s/ Xxxxx X. Xxxxx
---------------------------------
Name: Xxxxx X. Xxxxx
Title: Manager
THE CHASE MANHATTAN BANK,
not in its individual capacity but solely
as the Indenture Trustee
By: /s/ Xxxxxxxx Xxxx
---------------------------------
Name: Xxxxxxxx Xxxx
Title: Vice President
RAVEN FUNDING LLC
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
Title: Manager
-27-
Exhibit A to the Sold SUBI
Supplement 1999-1 to Servicing Agreement
FORM OF SERVICER CERTIFICATE
In connection with Raven Funding LLC's ("SPV") contribution of
certain of the Trust Assets to the Origination Trust pursuant to the
Contribution Agreement and the allocation of the Trust Assets to the 1999-1A
SUBI on the Closing Date, the undersigned, in my capacity as a duly elected
Authorized Officer of the PHH Vehicle Management Services LLC, as servicer
under the Sold SUBI Supplement 1999-1 to Servicing Agreement (the
"Servicer"), dated as of June 30, 1999 (the "Sold SUBI Servicing
Supplement"), among X.X. Xxxxxxxx Trust, Wilmington Trust Company, as SUBI
Trustee, SPV and the Servicer, do hereby certify, on behalf of the Servicer
that:
(A) all of the Master Lease Agreements allocated to the 1999-1A
SUBI on the Initial Closing Date were Eligible Master Leases
as of the Initial Cut-off Date;
(B) all of the Leases under such Master Lease Agreements included
in the Initial Aggregate Lease Balance were Eligible Leases as
of the Initial Cut-off Date; and
(C) all of the Consumer Leases allocated to the 1999-1A SUBI on
the Initial Closing Date were Eligible Consumer Leases as of
the Initial Cut-off Date.
This certificate is being delivered to you pursuant to Section
7.15(a) of the Sold SUBI Servicing Supplement.
Capitalized terms used herein but not defined herein shall have the
meanings ascribed to them in the Sold SUBI Servicing Supplement.
-28-
IN WITNESS WHEREOF, I have hereunto signed my name as of this [__]
day of [___], [_____], on behalf of the Servicer, in my capacity as an
Authorized Officer thereof.
PHH VEHICLE MANAGEMENT SERVICES LLC,
as Servicer
By:
-------------------------------
Name:
Title:
-29-
EXHIBIT B TO
SERVICING AGREEMENT
FORM OF QUARTERLY SERVICER'S CERTIFICATE
The undersigned, an Authorized Officer of __________ (the
"Servicer"), as Servicer pursuant to the Servicing Agreement, dated as of
June 30, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Servicing Agreement"), by and among X.X. Xxxxxxxx Trust,
Wilmington Trust Company, as SUBI Trustee, Raven Funding LLC and PHH Vehicle
Management Services LLC, as Servicer (the "Servicer") does hereby certify
that:
(a) A review of the activities of the Servicer [IN THE CASE OF
INITIAL CERTIFICATE - since the Initial Closing Date] [during the preceding
fiscal quarter] and of its performance under the Servicing Agreement Document
was made under my supervision; and
(b) To the best of my knowledge, based on such review, the
Servicer has performed in all material respects its obligations under the
Servicing Agreement throughout the period covered by this certificate [except
as set forth below; describe each material default to occur during such
period, as well as the nature and status thereof]
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate this ____day of _______, ____.
By:
--------------------------
Name:
Title:
-30-
Schedule X
Period End Dates for 1999
July 22
August 19
September 23
October 21
November 18
December 16
-1-
