Exhibit 4.54
ADMINISTRATION AGREEMENT
This ADMINISTRATION AGREEMENT, dated as of June 30, 1999 (this
"Agreement"), is by and among GREYHOUND FUNDING LLC, a Delaware limited
liability company (the "Issuer"), RAVEN FUNDING LLC, a Delaware limited
liability company ("SPV "), PHH VEHICLE MANAGEMENT SERVICES, LLC, a Delaware
limited liability company, as administrator (the "Administrator"), and THE CHASE
MANHATTAN BANK, an New York banking corporation, not in its individual capacity
but solely as Indenture Trustee (the "Indenture Trustee" under the Base
Indenture (as defined herein)).
WHEREAS, each of the Issuer and SPV has entered into the Transaction
Documents to which it is a party.
WHEREAS, each of the Issuer and SPV desires to have the
Administrator perform certain of its duties under the Transaction Documents and
to provide such additional services consistent with the terms of this Agreement
and the Transaction Documents as the Issuer or SPV, as the case may be, may from
time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and SPV
on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
1. Definitions and Usage. Unless specified herein, capitalized terms
used herein (including the preamble and recitals hereto) shall have the meaning
assigned to such terms in the Definitions List attached as Schedule 1 to the
Base Indenture, dated as of June 30, 1999 (the "Base Indenture"), between the
Issuer, and the Indenture Trustee.
2. Duties of the Administrator. (a) Certain Duties with Respect to
the Indenture. The Administrator agrees to perform all its duties as
Administrator under the Base Indenture and each Indenture Supplement. In
addition, the Administrator agrees to perform the following duties on behalf of
the Issuer under the Base Indenture:
(A) to cause the Note Register to be kept and to give the Indenture
Trustee notice of any appointment of a new Note Registrar and the
location, or change in location, of the Transfer Agent and Registrar and
the office or offices where Notes may be surrendered for registration of
transfer or exchange (Section 2.4 of the Base Indenture);
(B) to prepare and deliver to the Indenture Trustee an Issuer
Request with respect to funds remaining unclaimed for two years after the
related payment was due under the circumstances described in Section
2.6(c) (Section 2.6(c) of the Base Indenture);
(C) to furnish to the Indenture Trustee at least seven Business Days
before each Payment Date and at such other time as the Indenture Trustee
may request in writing, a list of the names and addresses of Investor
Noteholders of each Series of Investor Notes (Section 2.8 of the Base
Indenture);
(D) to prepare Definitive Notes and arrange the delivery thereof
(Section 2.11 of the Base Indenture);
(E) to prepare, obtain or file the instruments, opinions and
certificates and other documents required for the release of collateral
(Section 3.2(b) of the Base Indenture);
(F) to deliver to the Indenture Trustee copies of each of the
reports, statements, certificates and other materials delivered to the
Issuer by the Servicer and referred to in Section 4.1(a) (Section 4.1(a)
of the Base Indenture);
(G) to deliver to the Indenture Trustee, in accordance with Section
4.1(a)(vi) of the Base Indenture, a copy of the additional information
regarding the financial position, results of operations or business of the
Origination Trust or VMS delivered to the Issuer pursuant to the
Origination Trust Documents (Section 4.1(a)(vi) of the Base Indenture);
(H) to prepare and deliver to the Indenture Trustee or the Paying
Agent written instructions to make withdrawals and payments from the
Collection Account and any Series Accounts specified in the Base Indenture
or in an Indenture Supplement (Sections 4.1(b) and 5.4(b) of the Base
Indenture);
(I) to deliver to any Investor Noteholder and any prospective
purchaser of Investor Notes the information required by Rule 144A(d)(4) of
the Securities Act (Section 4.3 of the Base Indenture);
(J) to deliver to the Indenture Trustee or the Paying Agent and the
Rating Agencies the Monthly Settlement Statement with respect to each
Series of Investor Notes (Section 4.4 of the Base Indenture);
(K) to deliver to the Indenture Trustee or the Paying Agent a copy
of the annual financial statements of the Issuer (Section 4.4(b) of the
Base Indenture);
(L) to prepare and deliver to the Indenture Trustee and the Paying
Agent the Annual Noteholders' Tax Statement required to be delivered to
Investor Noteholders (Section 4.4(c) of the Base Indenture);
(M) to prepare and deliver to the Indenture Trustee written
instructions with respect to the investment of funds on deposit in the
Collection Account and the liquidation of such investments as required or
permitted (Section 5.1(c) of the Base Indenture);
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(N) to prepare and deliver to the Indenture Trustee written
instructions with respect to the investment of funds on deposit in the
Gain On Sale Account and the liquidation of such investments as required
or permitted (Section 5.2(b) of the Base Indenture);
(O) to prepare and deliver to the Indenture Trustee written
instructions to withdraw amounts from the Gain On Sale Account (Section
5.2(e) of the Base Indenture);
(P) to maintain an office or agency in the City of New York for
registration of transfer or exchange of Investor Notes (Section 8.2);
(Q) to obtain and preserve the Issuer's qualification to do business
in each jurisdiction in which the failure to so qualify would have a
material adverse effect on the business and operations of the Issuer or
which qualification shall be necessary to protect the validity and
enforceability of the Indenture, the Investor Notes and any instrument or
agreement included in the Issuer Assets (Section 8.4 of the Base
Indenture);
(R) to deliver notice to the Indenture Trustee and the Rating
Agencies of any default under any of the Transaction Documents (Section
8.7(b) of the Base Indenture);
(S) to prepare (for execution by the Issuer) and file all such
supplements and amendments to the Base Indenture and all such UCC
financing statements and continuation statements required to be filed by
the terms of the Indenture and the Transfer Agreement (Sections 8.7(c) and
8.11 of the Base Indenture);
(T) to deliver notice to the Indenture Trustee and the Rating
Agencies of any Potential Amortization Event, Amortization Event,
Potential Termination Event, Termination Event, Event of Default or
Default under any of the Transaction Documents (Section 8.8 of the Base
Indenture);
(U) to deliver notice to the Indenture Trustee and each Rating
Agency of the commencement or existence of any proceeding by or before any
Governmental Authority against or affecting the Issuer which is reasonably
likely to have a material adverse effect on the business, condition
(financial or otherwise), results of operations, properties or performance
of the Issuer or the ability of the Issuer to perform its obligations
under the Indenture or the other Transaction Documents to which it is a
party (Section 8.9 of the Base Indenture);
(V) to deliver to the Indenture Trustee and each Rating Agency, such
information as the Indenture Trustee or such Rating Agency may reasonably
request in connection with the transactions contemplated by the Indenture
(Section 8.10 of the Base Indenture);
(W) to obtain annual Opinions of Counsel in accordance with Section
8.12 of the Indenture (Section 8.12 of the Base Indenture);
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(X) to prepare and deliver notice to Investor Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 10.8 of the Base Indenture);
(Y) to monitor the Issuer's obligations as to the satisfaction and
discharge of the Indenture and the preparation of an Officers' Certificate
and the obtaining of the Opinion of Counsel and the Independent
Certificate relating thereto (Section 11.1 of the Base Indenture);
(Z) to obtain Opinions of Counsel with respect to the execution of
supplemental indentures and the mailing to the Investor Noteholders of
notices with respect to such supplemental indentures (Sections 12.1 and
12.2 of the Base Indenture);
(AA) to prepare all Officers' Certificates, Opinions of Counsel and
Independent Certificates with respect to any requests by the Issuer to the
Indenture Trustee to take any action under the Indenture (Section 13.1(a)
of the Base Indenture);
(BB) to prepare and deliver Officers' Certificates and obtain
Independent Certificates, if necessary, for the release of property from
the lien of the Indenture (Section 13.1(b) of the Base Indenture); and
(CC) to record the Indenture, if applicable (Section 13.15 of the
Base Indenture).
(b) Certain Duties of the Issuer with Respect to the Transfer
Agreement. The Administrator agrees to perform the following duties on behalf of
the Issuer under the Transfer Agreement:
(A) to pay to SPV on each Additional Closing Date from amounts
available under the Indenture the Transferred Asset Payment for such
Additional Closing Date (Section 2.3 of the Transfer Agreement); and
(B) to do and perform, from time to time, any and all acts and to
prepare for execution by the Issuer of any and all further instruments
required or reasonably requested by SPV more fully to effect the purposes
of the Transfer Agreement, including the preparation of any financing
statements or continuation statements relating to any Transferred Assets
purchased thereunder for filing under the provisions of the UCC of any
applicable jurisdiction (Section 8.10 of the Transfer Agreement).
(c) Certain Duties of SPV with Respect to the Transfer Agreement.
The Administrator agrees to perform the following duties on behalf of SPV under
the Transfer Agreement:
(A) to prepare (for execution by SPV) and deliver to the Issuer the
Initial Assignment (Section 2.2(a) of the Base Indenture);
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(B) to prepare (for execution by SPV) and deliver to the Issuer
Additional Assignments (Section 2.2(b) of the Base Indenture);
(C) to obtain and preserve SPV's qualification to do business in
each jurisdiction in which the failure to so qualify would have a material
adverse effect on the business and operations of SPV or which
qualification shall be necessary to protect the validity and
enforceability of the Transfer Agreement and any instrument or agreement
included in the Transferred Assets (Section 6.1 of the Transfer
Agreement);
(D) to prepare (for execution by SPV) and file all such UCC
financing statements and continuation statements required to be filed by
the terms of the Transfer Agreement (Sections 6.4(c), 7.1, 7.3 and 8.10 of
the Transfer Agreement);
(E) to deliver notice to the Issuer, the Indenture Trustee and the
Rating Agencies of any Potential Termination Event (Section 6.5 of the
Transfer Agreement);
(F) to deliver notice to the Issuer, the Indenture Trustee and each
Rating Agency of the commencement or existence of any proceeding by or
before any Governmental Authority against or affecting SPV which is
reasonably likely to have a material adverse effect on the business,
condition (financial or otherwise), results of operations, properties or
performance of SPV or the ability of SPV to perform its obligations under
the Transfer Agreement or the other Transaction Documents to which it is a
party (Section 6.6 of the Transfer Agreement);
(G) to deliver to the Issuer, the Indenture Trustee and each Rating
Agency, such information as the Issuer, the Indenture Trustee or such
Rating Agency may reasonably request in connection with the transactions
contemplated by the Transfer Agreement (Section 6.7 of the Transfer
Agreement); and
(H) to xxxx SPV's computer files, if any, to reflect the transfer of
the Transferred Assets to the Issuer (Section 7.2 of the Transfer
Agreement).
3. Indemnification of Indenture Trustee. The Administrator hereby
agrees to pay to the Indenture Trustee $500 per month pursuant to the Fee
Schedule between the Indenture Trustee and the Administrator. The Indenture
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Administrator agrees to reimburse the Indenture
Trustee for all reasonable out-of-pocket expenses incurred or made by the
Indenture Trustee, including costs of collection, in addition to the
compensation for its services. Such expenses shall include the reasonable
compensation and expenses, disbursements and advances of the Indenture Trustee's
agents, counsel, accountants and experts. The Administrator hereby agrees to
indemnify the Indenture Trustee against any and all loss, liability or expense
(including the reasonable fees of counsel) incurred by it in connection with the
administration of the trust under the Indenture and the performance of its
duties thereunder.
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The Administrator's payment obligations to the Indenture Trustee
pursuant to this Section 3 shall survive the resignation or termination of the
Indenture Trustee and the discharge of the Indenture. When the Indenture Trustee
incurs expenses after the occurrence of a Default specified in Section 8.1(f) of
the Base Indenture with respect to the Issuer, the expenses are intended to
constitute expenses of administration under the Bankruptcy Code or any other
applicable federal or state bankruptcy, insolvency or similar law.
4. Additional Duties; Additional Information. Subject to Section 9
of this Agreement, and in accordance with the directions of the Issuer or SPV,
the Administrator shall administer, perform or supervise the performance of such
other activities in connection with the Issuer Assets and the Transaction
Documents as are not covered by any of the foregoing provisions and as are
expressly requested by the Issuer or SPV, as the case may be, and are reasonably
within the capability of the Administrator. The Administrator shall furnish to
the Issuer or SPV from time to time such additional information regarding the
Issuer Assets and the Transaction Documents as such party shall reasonably
request.
5. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer or SPV at
any time during normal business hours.
6. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement on behalf of the Issuer and, as
reimbursement for its expenses related thereto, the Administrator shall be
entitled to receive a fee for each Monthly Period in an amount equal to 0.01%
per annum of the Required Asset Amount with respect to each Series of Investor
Notes Outstanding on the last day of the immediately preceding Monthly Period
(calculated for the actual number of days elapsed during such period over a
360-day year), payable by the Holders of the Investor Notes of each Series in
accordance with the related Indenture Supplement on each Payment Date. As
compensation for the performance of the Administrator's obligations under this
Agreement on behalf of SPV and, as reimbursement for its expenses related
thereto, the Administrator shall be entitled to receive a fee for each Monthly
Period in an amount equal to $1,000, payable by SPV on each Payment Date only to
the extent of any distributions received by SPV on account of its Common
Membership Interest on such Payment Date.
7. Use of Subcontractors. The Administrator may contract with other
Persons to assist it in performing its duties under this Agreement, and any
performance of such duties by a Person identified to the Indenture Trustee in an
Officer's Certificate of the Administrator shall be deemed to be action taken by
the Administrator. Any such contract shall not relieve the Administrator of its
liability and responsibility with respect to the duties to which such contract
relates.
8. Transactions with Affiliates. In carrying out the foregoing
duties or any of its other obligations under this Agreement, the Administrator
may enter into transactions or otherwise deal with any of its Affiliates;
provided, however, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and
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the Indenture Trustee and shall be, in the Administrator's opinion, no less
favorable to the parties hereto than would be available from unaffiliated
parties.
9. Indemnification. The Administrator shall indemnify and hold
harmless the Issuer, the Indenture Trustee, the SPV and their respective
directors, officers, agents and employees (collectively, the "Indemnified
Parties") from and against any loss, liability, expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or
omissions arising out of the activities of the Administrator pursuant to this
Agreement, including but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Administrator shall not indemnify any Indemnified
Party if such acts, omissions or alleged acts or omissions constitute bad faith,
negligence or willful misconduct by such Indemnified Party. The indemnity
provided herein shall survive the termination of this Agreement and the removal
of the Administrator.
10. Independence of the Administrator. Unless otherwise provided in
the Transaction Documents, the Administrator shall be an independent contractor
and shall not be subject to the supervision of the Issuer or SPV with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Indenture Trustee, the
Administrator shall have no authority to act for or represent the Indenture
Trustee in any way and shall not otherwise be deemed an agent of the Indenture
Trustee.
11. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and any of the Issuer or SPV as members of any
partnership, joint venture, association, syndicate, unincorporated business or
other separate entity, (ii) shall be construed to impose any liability as such
on any of them or (iii) shall be deemed to confer on any of them any express,
implied or apparent authority to incur any obligation or liability on behalf of
the others.
12. Other Activities of Administrator. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other person or entity even though such person or entity may engage in business
activities similar to those of the parties hereto.
13. Term of Agreement; No Resignation.
(a) This Agreement shall continue in force until the termination of
the Indenture and the LLC Agreement in accordance with their respective terms
and the payment in full of all obligations owing thereunder, upon which event
this Agreement shall automatically terminate.
(b) The Administrator shall not resign from the obligations and
duties imposed hereunder.
14. Notices. Any notice, report or other communication given
hereunder shall be in writing and addressed of follows:
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(a) if to the Issuer, to:
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
(b) if to SPV, to:
Raven Funding LLC
c/o Global Securitization Services, LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
(c) if to the Administrator, to:
PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
(d) If to the Indenture Trustee, to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Capital Markets Fiduciary Services, VMS Auto Lease Backed
Securitization
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, delivered by
overnight courier or hand-delivered to the address of such party as provided
above.
15. Amendments. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Issuer, SPV and the
Administrator with any consents required pursuant to Section 12.2 of the Base
Indenture
16. Successors and Assigns. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer, SPV and the Indenture Trustee and subject to the satisfaction of
the Rating Agency Condition with
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respect to each Series of Outstanding Notes and each series of Preferred
Membership Interests. An assignment with such consent and satisfaction, if
accepted by the assignee, shall bind the Each of the parties hereto acknowledges
that the Issuer has pledged all of its rights under this Agreement to the
Indenture Trustee on behalf of the Investor Noteholders pursuant to the
Indenture and (ii) SPV has pledged all of its rights under this Agreement to the
Issuer pursuant to the Transfer Agreement.
17. Governing Law. This agreement and the rights and obligations of
the parties hereunder shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
18. Heading. The Section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
19. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall be an original, but all of which together
shall constitute but one and the same agreement.
20. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
21. Nonpetition Covenants. The Administrator hereby covenants and
agrees that, prior to the date which is one year and one day after the payment
in full of all of the Investor Notes and the redemption of all series of
Preferred Membership Interests, it will not institute against, or join any other
Person in instituting against, any of the Issuer or SPV any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceeding under the laws of the United States or any state of the
United States. The provisions of this Section 21 shall survive the termination
of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
GREYHOUND FUNDING LLC
By:______________________________________
Name:
Title:
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RAVEN FUNDING LLC
By:______________________________________
Name:
Title:
PHH VEHICLE MANAGEMENT SERVICES, LLC
By:______________________________________
Name:
Title:
THE CHASE MANHATTAN BANK,
as Indenture Trustee
By:______________________________________
Name:
Title:
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