EXHIBIT 10.9
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-
