Exhibit 4.53
PREFERRED MEMBERSHIP INTEREST PURCHASE AGREEMENT
by and among
GREYHOUND FUNDING, LLC,
as Issuer
PARK AVENUE RECEIVABLES CORPORATION,
THE CHASE MANHATTAN BANK,
as Funding Agent for the benefit of
PARCO and the APA Bank,
and
PHH VEHICLE MANAGEMENT SERVICES LLC
(Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests)
Dated as of June 30, 1999
TABLE OF CONTENTS
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THIS PREFERRED MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of
June 30, 1999 (as amended, supplemented or otherwise modified and in effect from
time to time, this "Agreement"), is by and among GREYHOUND FUNDING, LLC, a
special purpose limited liability company established under the laws of Delaware
(the "Issuer"), PARK AVENUE RECEIVABLES CORPORATION, a Delaware corporation
(together with its successors and assigns, "PARCO"), THE CHASE MANHATTAN BANK, a
New York banking corporation (together with its successors and assigns,
"Chase"), as funding agent for the benefit of PARCO and the APA Bank from time
to time (together with its successors and assigns in such capacity, the "Funding
Agent"), CHASE (the "APA Bank"), and PHH VEHICLE MANAGEMENT SERVICES LLC
("VMS"), as administrator (together with its successors and assigns in such
capacity, the "Administrator").
W I T N E S S E T H :
WHEREAS, the Issuer intends to issue its Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests pursuant to the LLC Agreement; and
WHEREAS, on the terms and conditions set forth in this Agreement,
PARCO has agreed to buy and the Issuer has agreed to sell the Series 1999-1
Preferred Membership Interests;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Capitalized terms used herein (includ-ing in the preamble and recitals
hereof) and not defined herein shall have the meanings set forth in, or
incor-porated by reference into, the LLC Agreement, as amended and supplemented
by the Action adopted by the Managers on June 30, 1999 with respect to the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests (the "Action"), and the Indenture,
as applicable. Additionally, the following terms shall have the following
meanings for all purposes of this Agreement:
"Adjusted LIBO Rate" is defined in the Action.
"Agreement" is defined in the preamble hereto.
"Alternate Base Rate" is defined in the Action.
"Amortization Event" is defined in the Series 1999-1 Supplement.
"APA Bank" is defined in the preamble hereto.
"Applicable Law" means all applicable laws, statutes, treaties,
rules, codes, ordinances, regulations, certificates, orders, interpretations,
licenses and permits of any
Governmental Authority from time to time in effect, and judgments, decrees,
injunctions, writs, orders or like action of any court, arbitrator or other
administrative, judicial or quasi-judicial tribunal or agency of competent
jurisdiction (including laws specifically mandating compliance by property
owners).
"Administrator indemnified person" is defined in 6.1(b).
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated
as of June 30, 1999, by and among PARCO, the Funding Agent and the APA Bank, as
the same may from time to time be amended, supplemented or otherwise modified
and in effect.
"Base Indenture" means the Base Indenture, dated as of June 30,
1999, between the Issuer and the Indenture Trustee.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the Series 1999-1 Closing Date, (b) any change in law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Series 1999-1 Closing Date or (c) compliance by PARCO or the
APA Bank with any request, guideline or directive (whether or not having the
force of law) of any Governmental Authority made or issued after the Series
1999-1 Closing Date.
"Claim" is defined in Section 6.1.
"Commercial Paper" means the short-term promissory notes of PARCO.
"Commitment" is defined in the Asset Purchase Agreement.
"Company indemnified person" is defined in Section 6.1(a).
"CP Conduit" means any commercial paper conduit who acquires by
assignment all or a portion of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests.
"Eurodollar Period" is defined in the Action.
"Eurodollar Tranche" is defined in the Action.
"Excluded Taxes " means, with respect to any Company indemnified
person or Administrator indemnified person, (a) income or franchise taxes
imposed on (or measured by) its net income by the United States of America or by
any other Governmental Authority as a result of a present or former connection
between the jurisdiction of such Governmental Authority imposing such tax on the
Funding Agent, PARCO, the APA Bank or any other such recipient (except a
connection arising solely from such Company indemnified person's or
Administrator Indemnified person's having executed, delivered or performed its
obligations hereunder, receiving a payment hereunder or in respect of its Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests) and (b) any branch
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profits tax imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Issuer is located.
"Fee Letter" means the Fee Letter, dated as of June 30, 1999, by and
among the Issuer and the Funding Agent, on behalf of PARCO and the APA Bank, as
the same may from time to time be amended, supplemented or otherwise modified
and in effect.
"Funding Agent" is defined in the preamble.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Indenture" means the Base Indenture, dated as of June 30, 1999,
between the Issuer and the Indenture Trustee, as supplemented by the Series
1999-1 Supplement, as the same may from time to time be amended, further
supplemented or otherwise modified and in effect.
"Indenture Trustee" means the party named as such in the Indenture
until a successor replaces it in accordance with the applicable provisions of
the Indenture and thereafter means the successor serving thereunder.
"Lease Rate Cap Event" is defined in the Series 1999-1 Supplement.
"LLC Agreement" means the Limited Liability Agreement, dated as of
June 30, 1999, of the Issuer, as amended, modified or supplemented from time to
time in accordance with its terms.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., and its successors
and assigns.
"Other Costs" is defined in Section 6.6(b).
"Other Transferor" means any Person, other than the Issuer, that has
entered into a purchase agreement, transfer agreement, loan agreement or funding
agreement with PARCO.
"PARCO" is defined in the preamble hereto.
"PARCO Wind-Down Event" means the occurrence of any of the following
events:
(i) an Amortization Event or Potential Amortization Event (other
than an Amortization Event arising as a result of the
occurrence of a Lease Rate Cap Event) shall have been declared
or automatically occurred;
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(ii) the providers of PARCO's program liquidity and/or letter of
credit facilities shall have given notice that an event of
default has occurred and is continuing under their respective
agreements with PARCO;
(iii) on the fifth Business Day prior to the Scheduled Commitment
Termination Date, the Commitment has not been extended for at
least 364 days;
(iv) PARCO has notified its Funding Agent that it is unable or
unwilling to issue Commercial Paper in order to fund its
Series 1999-1 Preferred Membership Interests; or
(v) its Commercial Paper shall no longer be rated at least A-1 and
P-1 by Standard & Poor's and Moody's, respectively.
"Potential Amortization Event" is defined in the Series 1999-1
Supplement.
"Rating Agency" means either Moody's or S&P.
"Requirements of Law" means, with respect to any Person or any of
its property, the certificate of incor-poration or articles of association and
by-laws or other organizational or governing documents of such Person or any of
its property, and any law, treaty, rule or regula-tion, or determination of any
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject, whether ▇▇▇▇▇-al, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and retail in-stallment
sales acts).
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., and its successors and assigns.
"Scheduled Commitment Termination Date" is defined in the Asset
Purchase Agreement.
"Series 1999-1 Closing Date" means June 30, 1999.
"Series 1999-1 Preferred Membership Interests" means the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests issued by the Issuer pursuant to the LLC
Agreement, as supplemented by the Action, on the Series 1999-1 Closing Date.
"Series 1999-1 Supplement" means the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Supplement, dated as of June 30, 1999, to the Base Indenture, as the same may
from time to time be amended, supplemented or otherwise modified and in effect.
"Taxes" is defined in Section 6.2(a).
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"U.S. Person" means any Person that would be considered a "United
States person" under Section 7701(a)(30) of the Internal Revenue Code of 1986,
as amended.
"VMS" is defined in the preamble hereto.
(a) All terms defined in this Agreement shall have the defined meanings
when used in any certificate or other document made or delivered pursuant hereto
unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.1 hereof, and accounting terms partially defined in Section 1.1 hereof to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, 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 Section,
subsection, Schedule, Exhibit and Appendix references contained in this
Agreement are references to Sections, subsections, Schedules, Exhibits and the
Appendix in or to this Agreement unless otherwise specified.
(a) The closing of the purchase and sale of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests shall take place at the New York, New York offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ on the Series 1999-1 Closing Date.
(b) On the Series 1999-1 Closing Date, the Issuer agrees to issue
and sell to PARCO a Preferred Membership Certificate, registered in the name of
the Funding Agent on behalf of and for the benefit of PARCO and the APA Bank,
representing the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests, having an
aggregate stated liquidation preference of $235,960,108, substantially in the
form of Exhibit A (the "Series 1999-1 Preferred Membership Certificate"), for a
purchase price of $235,960,108. Without limiting any other provision of this
Agreement, the obligation of PARCO to purchase the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests on the Series 1999-1 Closing Date is subject to the
satisfaction (or waiver by the Funding Agent in its sole discretion) of the
conditions precedent set forth in Article III.
(c) On the Series 1999-1 Closing Date, the Issuer will deliver to
the Funding Agent, on behalf of PARCO, the Series 1999-1 Preferred Membership
Certificate, duly issued- in accordance with the provisions of the LLC
Agreement.
; Notice of Waivers. (a) On any day following a PARCO Wind-Down Event on which
the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests are assigned by PARCO to the
APA Bank pursuant to the Asset Purchase Agreement, the Funding Agent shall
notify the Issuer of any such assignment and the purchase price therefor.
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(b) Upon an assignment described in Section 2.2(a), the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests shall be owned by the APA Bank and the
Series 1999-1 Preferred Membership Certificate shall be held by the Funding
Agent solely for the benefit of the APA Bank.
The obligation of PARCO to purchase and pay for the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests on the Series 1999-1 Closing Date is subject to the
satisfac-tion of the conditions set forth in this Section 3.1 (any or all of
which (except with respect to an Amortization Event, which may be waived only
with the consent of the APA Bank) may be waived by the Funding Agent in its sole
discretion).
(a) Officer's Certificate of the Issuer. The Funding Agent shall
have received a certificate, dated the Series 1999-1 Closing Date, of the
Chairman of the Managers to the effect that:
(i) Performance by the Issuer. All the terms, covenants,
agreements and conditions of this Agreement and the Transaction Documents to
which it is a party to be complied with and performed by the Issuer at or before
the Series 1999-1 Closing Date shall have been complied with and performed;
(ii) Representations and Warranties. Each of the
representations and warran-ties of the Issuer made in this Agreement and
the Transaction Documents shall be true and correct as of the Series
1999-1 Closing Date (except to the extent they expressly relate to an
earlier time); and
(iii) No Amortization Event. On the Series 1999-1 Closing Date
and, after giving effect to the purchase of Series 1999-1 Preferred
Membership Interests contemplated herein-, no Amortization Event or
Potential Amortization Event shall occur or have occurred.
(b) Officer's Certificate of VMS. The Funding Agent shall have
received a certificate, dated the Series 1999-1 Closing Date of a duly
authorized officer of VMS to the effect that:
(i) Performance by VMS. All the terms, covenants, agreements
and conditions of this Agreement and the Transaction Documents to which
VMS is a party to be complied with and performed by VMS at or before the
Series 1999-1 Closing Date shall have been complied with and performed;
and
(ii) Representations and Warranties. Each of the
representations and warran-ties of VMS made in this Agreement and the
Transaction Documents shall be true and correct as of the Series 1999-1
Closing Date (except to the extent they expressly relate to an earlier).
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(c) Legal Proceedings. The Funding Agent shall have received copies
of the resolutions of the Managers of the Issuer and the managers of VMS, in
form and substance satisfactory to the Funding Agent, authorizing the execution,
delivery and performance of this Agreement and the Transaction Documents to
which it is a party, certified by the Chairman of the Managers of the Issuer, in
the case of the Issuer, or a duly authorized officer of VMS, in the case of VMS,
as of the Series 1999-1 Closing Date, which certificate shall (a) state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded as of the date of such certificate and (b) include an incumbency
certificate of the Issuer and VMS, as applicable. All corporate proceedings and
other legal matters incident to the authorization, form and validity of this
Agreement and the Transaction Documents and all other legal matters relating to
this Agreement, the Transaction Documents and the transactions contemplated
hereby and thereby shall be satisfactory to the Funding Agent in all respects.
(d) Transaction Documents. The Funding Agent shall have received (i)
counter-parts of this Agreement duly executed by the parties hereto and (ii)
executed copies of the Transaction Documents.
(e) Other Documents. The Funding Agent shall have received copies of
each of the other documents and all certificates delivered to Chase, as funding
agent, pursuant to the Series 1999-1 Supplement on the Series 1999-1 Closing
Date in connection with the issuance of the Series 1999-1 Investor Notes.
(f) Opinions of Counsel to the Issuer, SPV and VMS. The Funding
Agent shall have received (i) the opinions of counsel delivered to Chase, as
funding agent, pursuant to the Series 1999-1 Supplement on the Series 1999-1
Closing Date in connection with the issuance of the Series 1999-1 Investor
Notes, each addressed to PARCO and the Funding Agent and dated the Series 1999-1
Closing Date and (ii) opinions of counsel to the Issuer and VMS as to the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests and this Agreement and as to such other
matters as the Funding Agent and its counsel may reasonably request, dated as of
the Series 1999-1 Closing Date, and satisfactory in form and substance to the
Funding Agent and its counsel, subject to customary assumptions and
qualifications.
(g) No Actions or Proceedings . No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, the transactions
contemplated by this Agreement or the Transaction Documents.
(h) Approvals and Consents. All consents, approvals, permits,
orders, authorizatio-ns, waivers, exceptions, variances, exemptions or licenses
of, or registrations, declarations or filings with, any Governmental Authority
required under any Requirements of Law have been obtained or made in connection
with the execution, delivery and performance of this Agreement and the
Transaction Documents by the parties hereto and thereto.
(i) Officer's Certificates. The Funding Agent shall have received an
officer's certificate from each of the Issuer and VMS, in form and substance
reasonably satisfactory to the
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Funding Agent and its counsel, dated as of the Series 1999-1 Closing Date,
certifying as to the satisfaction of the conditions set forth in Sections 3.1(g)
and (h) as they relate to the Issuer and VMS, as applicable.
(j) Other Documents. The Issuer and VMS shall have furnished to the
Funding Agent such other information, certificates, documents and opinions of
counsel as the Funding Agent may reasonably request in connection with the
transactions con-templated by this Agreement and the Transaction Documents.
(k) Fees. The Funding Agent shall have received all fees required to
be paid to the Funding Agent, the APA Bank or PARCO pursuant to the Fee Letter
on or prior to the Series 1999-1 Closing Date.
(l) Rating Confirmation Letters. The Funding Agent shall have
received copies of letters from each of the Rating Agencies confirming the
ratings assigned by each of them to PARCO's Commercial Paper.
As of the Series 1999-1 Closing Date, the Issuer hereby makes the
following representations and warranties to PARCO, the APA Bank and the Funding
Agent, on which PARCO, the APA Bank and the Funding Agent shall rely for all
purposes of this Agreement and the Transac-tion Documents:
(a) Reaffirmation. The Issuer repeats and reaffirms to PARCO, the
APA Bank and the Funding Agent each and every of its representations and
warranties contained in the Transaction Documents and represents and warrants
that such represen-tations are true and correct as of the Series 1999-1 Closing
Date (unless such representations and warranties specifically refer to an
earlier date).
(b) Existence and Power. The Issuer (i) is a special purpose limited
liability company duly formed, validly existing and in good standing under the
laws of the State of Delaware, (ii) 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 (iii)
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.
(c) Governmental Authorization. The execution, delivery and
performance by the Issuer of this Agreement (i) is within the Issuer 's power,
has been duly authorized by all necessary action, (ii) requires no action by or
in respect of, or filing with, any governmental body, agency or official which
has not been obtained and (iii) does not contravene, or constitute a default
under, any Requirement of Law or any provision of its certificate of formation
or the LLC Agreement or result in the creation or imposition of any Lien on any
of the Issuer Assets, except
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for Liens created by the Indenture or the other Transaction Documents. This
Agreement has been executed and delivered by a duly authorized officer of the
Issuer.
(d) Binding Effect. This Agreement is a legal, valid and binding
obligation of the Issuer enforceable against the Issuer 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).
(e) Litigation. There is no action, suit or proceeding pending
against or, to the knowledge of the Issuer, threatened against or affecting the
Issuer before any court or arbitrator or any Governmental Authority which in any
manner draws into question the validity or enforceability of this Agreement or
the ability of the Issuer to perform its obligations hereunder.
(f) 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 the Issuer's
obligations hereunder other than such consents, approvals, authorizations,
registrations, declarations or filings as shall have been obtained by the Issuer
prior to the Series 1999-1 Closing Date or as contemplated in Section 7.13 of
the Indenture.
(g) Series 1999-1 Preferred Membership Interests. The Series 1999-1
Preferred Membership Interests have been duly and validly authorized and issued
under the LLC Agreement and the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Certificate
has been duly executed by the Issuer and has been validly issued under the LLC
Agreement.
As of the Series 1999-1 Closing Date, VMS hereby makes the following
representations and warranties to PARCO, the APA Bank and the Funding Agent, on
which PARCO, the APA Bank and the Funding Agent shall rely for all purposes of
this Agreement and the Transac-tion Documents:
(a) Reaffirmation. VMS repeats and reaffirms to PARCO, the APA Bank
and the Funding Agent its representations and warranties contained in the
Transaction Documents and represents and warrants that such representations and
warranties are true and correct as of the Series 1999-1 Closing Date (unless
such representations and warranties specifically refer to an earlier date).
(b) Organization and Power. VMS 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. The
Administrator 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.
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(c) Authorization, Execution and Validity. The Administrator has
duly authorized, executed and delivered this Agreement and (assuming the due
authorization, execution and delivery by each other party thereto) this
Agreement constitute the legal, valid and binding obligations of VMS,
enforceable against VMS 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 general and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(d) No Conflict. The execution, delivery and performance by VMS of
this Agreement and compliance by VMS with its obligations hereunder do not (i)
require any approval of the shareholders of VMS of any approval or consent of
any trustee or holder of any indebtedness or obligation of VMS, other than such
consents and approvals as have been obtained, (ii) contravene any Applicable
Law, (iii) breach or contravene VMS's limited liability company agreement, or
(iv) contravene or result in any breach of or creation of any Lien (other than
pursuant to the Transaction Documents) upon any property of VMS under any
indenture, mortgage, loan agreement, lease or other agreement or instrument to
which VMS is a party or by which VMS or any of its properties is bound.
(e) Litigation. There are no actions, suits or proceedings pending
or, to the knowledge of VMS, threatened against VMS, before any Governmental
Authority which individually or in the aggregate would impair the ability of VMS
to perform its obligations under this Agreement or which question the validity
of this Agreement or any action taken or to be taken pursuant hereto or thereto.
VMS is not in default with respect to any order of any Governmental Authority,
the default under which would adversely affect the ability of VMS to perform its
obligations under this Agreement.
(f) Consents. No consent, approval or authorization of, or filing,
registration or qualification with, or giving of notice of taking of any other
action with respect to, any Governmental Authority is required in connection
with the execution, delivery and performance by VMS of this Agreement, or the
performance by VMS of the transactions contemplated hereby, 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.
The Issuer and VMS hereby, in addition to their obligations hereunder,
agree to:
(a) Performance. Perform on a timely basis each of its respective
covenants and agreements under, and comply with each of the respective terms and
provisions applicable to it in, the Transaction Documents (which terms and
provisions are incorporated by reference herein) and this Agreement;
(b) Information. Furnish, or cause to be furnished by VMS, to PARCO,
the Funding Agent and the APA Bank:
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(i) such information, documents, records or reports respecting
the Issuer, the SPV, the Origination Trust or VMS as the Funding Agent may
from time to time reasonably request;
(ii) such publicly available information, documents, records
or reports respecting the Issuer, the SPV, the Origination Trust or VMS or
the condition or operatio-ns, financial or otherwise, of the Issuer, the
SPV, the Origination Trust or VMS as the Funding Agent may from time to
time reasonably request;
(iii) copies of all notices to or from the Rating Agency with
respect to the Transaction Docume-nts; and
(iv) copies of all notices, opinions, certificates, statements
and reports from time to time furnished to or by the Issuer or VMS
pursuant to the Transaction Documents.
(c) Amendments to Transaction Documents. Not terminate, amend,
waive, supplement or otherwise modify the Transaction Documents except in
accordance with the terms thereof and without the prior written consent of the
Funding Agent (acting at the direction of PARCO and the APA Bank).
(d) Fees. In connection with the transactions contemplated hereby
and by the Transaction Documents, the Issuer agrees to pay to the Funding Agent,
for the benefit of the APA Bank, the fees set forth in the Fee Letter in the
manner specified therein. Notwithstanding the foregoing, any payments made by
the Issuer pursuant to this Section 5.1(d) shall be made solely from funds
available therefor pursuant to Section 6.7, shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against the Issuer
to the extent that such funds are insufficient to make such payment.
(a) The Issuer agrees to indemnify and hold harmless the Funding
Agent, PARCO and each APA Bank, each of their respective officers, directors,
agents and employees (each, a "Company indemnified person") from and against any
loss, liability, expense, damage or injury suffered or sustained by (a "Claim")
such Company indemnified person by reason of (i) any acts, omissions or alleged
acts or omissions arising out of, or relating to, activities of the Issuer
pursuant to this Agreement or the other Transaction Documents to which it is a
party, (ii) a breach of any representation or warranty made or deemed made by
the Issuer (or any of its officers) in this Agreement or other Transaction
Document or (iii) a failure by the Issuer to comply with any applicable law or
regulation or to perform its covenants, agreements, duties or obligations
required to be performed or observed by it in accordance with the provisions of
this
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Agreement or the other Transaction Documents, including, but not limited to, any
judgment, award, settlement, reasonable attorneys' fees and other reasonable
costs or expenses incurred in connection with the defense of any actual or
threatened action, proceeding or claim, except to the extent such loss,
liability, expense, damage or injury (A) resulted from the gross negligence, bad
faith or wilful misconduct of such Company indemnified person or its officers,
directors, agents, principals, employees or employers, (B) resulted solely from
a default by an Obligor with respect to any Sold Unit or Fleet Receivable or (C)
include any income or franchise taxes imposed on (or measured by) any Company
indemnified person's net income; provided that any payments made by the Issuer
pursuant to this Section 6.1 shall be made solely from funds available therefor
pursuant to Section 6.7, shall be non-recourse other than with respect to such
funds, and shall not constitute a claim against the Issuer to the extent that
such funds are insufficient to make such payment.
(b) The Administrator agrees to indemnify and hold harmless the
Funding Agent, PARCO and the APA Bank, and each of their respective officers,
directors, agents and employees (each, a "Administrator indemnified person")
from and against any Claim by reason of (i) any acts, omissions or alleged acts
or omissions arising out of, or relating to, activities of the Administrator
pursuant to this Agreement or the other Transaction Documents to which it is a
party, (ii) a breach of any representation or warranty made or deemed made by
the Administrator (or any of its officers) in this Agreement or other
Transaction Document or (iii) a failure by the Administrator to comply with any
applicable law or regulation or to perform its covenants, agreements, duties or
obligations required to be performed or observed by it in accordance with the
provisions of this Agreement or the other Transaction Documents, including, but
not limited to, any judgment, award, settlement, reasonable attorneys' fees and
other reasonable costs or expenses incurred in connection with the defense of
any actual or threatened action, proceeding or claim, except to the extent such
loss, liability, expense, damage or injury (A) resulted from the gross
negligence, bad faith or wilful misconduct of such Administrator indemnified
person or its officers, directors, agents, principals, employees or employers,
(B) resulted solely from a default by an Obligor with respect to any Sold Unit
or Fleet Receivable or (C) include any income or franchise taxes imposed on (or
measured by) any Administrator indemnified person's net income.
(a) If any Change in Law (except with respect to Taxes which shall be
governed by Section 6.3) shall:
(i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, the APA Bank (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or
(ii) impose on the APA Bank or the London interbank market any
other condition affecting the Transaction Documents or the funding of
Eurodollar Tranches by the APA Bank;
and the result of any of the foregoing shall be to increase the cost to the APA
Bank of making, converting into, continuing or maintaining Eurodollar Tranches
(or maintaining its obligation to
-12-
do so under the Asset Purchase Agreement) in respect of the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests or to reduce any amount received or receivable by
the APA Bank in respect of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests
(whether principal, interest or otherwise), then the Issuer will pay to the APA
Bank such additional amount or amounts as will compensate the APA Bank for such
additional costs incurred or reduction suffered.
(b) If the APA Bank determines that any Change in Law regarding
capital requirements has or would have the effect of reducing the rate of return
on the APA Bank's capital or the capital of any corporation controlling the APA
Bank as a consequence of its obligations under the Asset Purchase Agreement in
respect of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests to a level below
that which the APA Bank or such corporation, as applicable, could have achieved
but for such Change in Law (taking into consideration the APA Bank's or such
corporation's policies with respect to capital adequacy), then from time to
time, the Issuer shall pay to the APA Bank such additional amount or amounts as
will compensate the APA Bank for any such reduction suffered.
(c) A certificate of the APA Bank setting forth the amount or
amounts necessary to compensate the APA Bank, as specified in subsections (a)
and (b) of this Section 6.3 shall be delivered to the Issuer (with a copy to the
Funding Agent) and shall be conclusive absent manifest error. The agreements in
this Section shall survive the termination of this Agreement and the payment of
all amounts payable hereunder.
(d) Failure or delay on the part of the APA Bank to demand
compensation pursuant to this Section 6.3 shall not constitute a waiver of the
APA Bank's right to demand such compensation; provided that the Issuer shall not
be required to compensate the APA Bank pursuant to this Section 6.3 for any
increased costs or reductions incurred more than 270 days prior to the date that
the APA Bank notifies the Issuer of the Change in Law giving rise to such
increased costs or reductions and of the APA Bank's intention to claim
compensation therefor; provided further that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 270-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
(a) Any and all payments by or on account of any obligation of the Issuer
hereunder and all payments of Dividends in respect of the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the Issuer
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 6.3) the Funding Agent or the APA Bank receives
an amount equal to the sum that it would have received had no such deductions
been made, (ii) the Issuer shall make such deductions and (iii) the Issuer shall
pay the full amount deducted to the relevant Governmental Authority in
accordance with applicable law.
(b) In addition, the Issuer shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
-13-
(c) The Issuer shall indemnify the Funding Agent and the APA Bank
within the later of 10 days after written demand therefor and the Dividend
Payment Date next following such demand for the full amount of any Indemnified
Taxes or Other Taxes paid by the Funding Agent or the APA Bank on or with
respect to any payment by or on account of any obligation of the Issuer
hereunder or in respect of Dividends on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership
Interests (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section 6.3) and any penalties,
interest and reasonable expenses arising therefrom or with respect thereto,
whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority; provided that no
Person shall be indemnified pursuant to this Section 6.3(c) or required to pay
additional amounts under the proviso of Section 6.3(a) to the extent that the
reason for such indemnification relates to, or arises from, such Person's not
being a U.S. Person. A certificate as to the amount of such payment or liability
delivered to the Issuer by the Funding Agent or the APA Bank shall be conclusive
absent manifest error. Any payments made by the Issuer pursuant to this Section
6.3 shall be made solely from funds available therefor pursuant to Section 6.7,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against the Issuer to the extent that insufficient funds
exist to make such payment. The agreements in this Section shall survive the
termination of this Agreement and the payment of all amounts payable hereunder
and thereunder.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Issuer to a Governmental Authority, the Issuer shall deliver
to the Funding Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Funding Agent.
(e) The Funding Agent and the APA Bank if entitled to an exemption
from or reduction of an Indemnified Tax or Other Tax with respect to payments
made under this Agreement or Dividends on the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership
Interests shall (but with respect to any Indemnified Tax or Other Tax arising
from a Change in Law, only to the extent the Funding Agent or the APA Bank is
legally able to do so) deliver to the Issuer (with a copy to the Funding Agent)
such properly completed and executed documentation prescribed by applicable law
and reasonably requested by the Issuer on the later of (i) 30 Business Days
after such request is made and the applicable forms are provided to the APA Bank
or (ii) 30 Business Days before prescribed by applicable law as will permit such
payments to be made without withholding or with an exemption from or reduction
of Indemnified Taxes or Other Taxes.
(f) If the Funding Agent or the APA Bank receives a refund solely in
respect of Taxes or Other Taxes, it shall pay over such refund to the Issuer to
the extent that it has already received indemnity payments or additional amounts
pursuant to this Section 6.3 with respect to such Taxes or Other Taxes giving
rise to the refund, net of all out-of-pocket expenses and without interest
(other than interest paid by the relevant Governmental Authority with respect to
such refund); provided, however, that the Issuer shall, upon request of the
Funding Agent or the APA Bank, repay such refund (plus interest or other charges
imposed by the relevant
-14-
Governmental Authority) to the Funding Agent or the APA Bank if the Funding
Agent or the APA Bank is required to repay such refund to such Governmental
Authority. Nothing contained herein shall require the Funding Agent or the APA
Bank to make its tax returns (or any other information relating to its taxes
which it deems confidential) available to the Issuer or any other Person.
(g) The Issuer, PARCO, the Funding Agent, the APA Bank and VMS
recognize and agree that the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests shall
be treated as equity in the Issuer and not as debt for U.S. federal income tax
purposes and for relevant state and local income, franchise and similar tax
purposes and that none of the foregoing shall take any position in any tax
return or filing inconsistent with that position.
The Issuer agrees to indemnify the APA Bank and to hold the APA Bank
harmless from any loss or expense which the APA Bank may sustain or incur as a
consequence of (a) default by the Issuer in selecting to convert a portion of
the APA Bank's funding of Series 1999-1 Preferred Membership Interests into a
Eurodollar Tranche or to continue a portion of the APA Bank's funding of the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests in a Eurodollar Tranche after the
Issuer has given irrevocable notice selecting the same, (b) the failure to
redeem any portion of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests on a
Dividend Payment Date after giving a Notice of Redemption with respect thereto
or (c) redeeming the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests prior to the
termination of the Eurodollar Period for a related Eurodollar Tranche. Such
indemnification may include an amount equal to the excess, if any, of (i) the
amount of dividends that which would have accumulated on the amount so redeemed
or not so converted or continued, for the period from the date of such
redemption or of such failure to convert or continue to the last day of the
Eurodollar Period (or in the case of a failure to convert or continue, the
Eurodollar Period that would have commenced on the date of such redemption or of
such failure) in each case at the Adjusted LIBO Rate for such Eurodollar Tranche
over (ii) the amount of dividends (as reasonably determined by the APA Bank)
which would have accumulated on such amount of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market; provided that any
payments made by the Issuer pursuant to this subsection shall be made solely
from funds available therefor pursuant to Section 6.7, shall be non-recourse
other than with respect to such funds, and shall not constitute a claim against
the Issuer to the extent that such funds are insufficient to make such payment.
This covenant shall survive the termination of this Agreement and the Asset
Purchase Agreement and the payment of all amounts payable hereunder and
thereunder. A certificate as to any additional amounts payable pursuant to the
foregoing sentence submitted by the APA Bank to the Issuer shall be conclusive
absent manifest error.
If the APA Bank requests compensation under Section 6.2, or if the
Issuer is required to pay any additional amount to the APA Bank or any
Governmental Authority for the account of the APA Bank pursuant to Section 6.2,
then the APA Bank shall use reasonable efforts to designate a different lending
office for funding or booking its obligations hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or affiliates, if,
in the judgment of the APA Bank, such designation or assignment (i) would
eliminate or reduce amounts payable pursuant to Section 6.2 or 6.3, as the case
may be, in the future and (ii) would
-15-
not subject the APA Bank to any unreimbursed cost or expense and would not
otherwise be disadvantageous to the APA Bank. The Issuer hereby agrees to pay
all reasonable costs and expenses incurred by the APA Bank in connection with
any such designation or assignment.
(a) The Administrator agrees to pay on demand all reasonable costs and
expenses in connection with the preparation, execution, delivery and
administration (including periodic auditing and any requested amendments,
waivers or consents) of this Agreement and the other documents to be delivered
in connection with PARCO's investment in the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership
Interests, including, without limitation, the reasonable fees and out-of-pocket
expenses of its counsel or counsel to the APA Bank with respect thereto and with
respect to advising PARCO, the Funding Agent or the APA Bank as to their
respective rights and remedies under this Agreement and the other Transaction
Documents and all costs and expenses, if any (including reasonable counsel fees
and expenses), in connection with the enforcement of this Agreement and the
other Transaction Documents.
(b) In addition, the Administrator shall pay on demand all other
reasonable out-of-pocket costs and expenses incurred by PARCO or any shareholder
of PARCO ("Other Costs"), including, without limitation, the cost of auditing
PARCO's books by certified public accountants, the cost of rating PARCO's
promissory notes by independent financial rating agencies and the reasonable
fees and out-of-pocket expenses of counsel for such Person or any counsel for
any shareholder of PARCO with respect to (i) advising PARCO or such shareholder
as to its rights and remedies under this Agreement and the other Transaction
Documents, (ii) the enforcement of this Agreement, the other Transaction
Documents and the other documents to be delivered hereunder and thereunder or
(iii) advising PARCO or such shareholder as to matters relating to PARCO's
operations; provided, however, that if PARCO enters into or has entered into
agreements with Other Transferors, the Administrator and such Other Transferors
shall each be liable for such Other Costs ratably in accordance with the usage
under the respective facilities of PARCO to purchase receivables or interests in
receivables (or make loans secured by receivables or interests in receivables)
from the Administrator and each Other Transferor; and provided, further, that if
such Other Costs are attributable to the Administrator and not attributable to
any Other Transferor, the Administrator shall be solely liable for such Other
Costs.
(a) On each Dividend Payment Date before the Series 1999-1 Note
Termination Date, the Issuer shall apply amounts on deposit in the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Member Distribution Account and withdrawn therefrom in accordance with
Section 10.7(a) of the LLC Agreement, after payment of all accumulated and
unpaid Dividends (whether or not earned or declared) on the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests, including any Additional Dividends accrued
thereon, for the following purposes in the following order of priority:
(i) to the Funding Agent, in an amount equal to all fees owing on
such Dividend Payment Date in accordance with Section 5.1(d) and all
unpaid fees owing on any previous Dividend Payment Dates in accordance
with Section 5.1(d); and
-16-
(ii) to the Funding Agent, in any amount equal to any amounts owing
to the Funding Agent or to PARCO or the APA Bank pursuant to Article VI.
(b) On the Series 1999-1 Note Termination Date and on each Dividend
Payment Date thereafter, the Issuer shall apply amounts on deposit in the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Member Distribution Account and withdrawn therefrom in
accordance with Section 10.7(b) of the LLC Agreement, after payment of all
accumulated and unpaid Dividends (whether or not earned or declared) on the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests, including any Additional Dividends
accrued thereon, and any redemption of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership
Interests in accordance with Section 9.2(c)(ii) of the LLC Agreement, for the
following purposes in the following order of priority:
(i) to the Funding Agent, in an amount equal to all fees owing on
such Dividend Payment Date in accordance with Section 5.1(d) and all
unpaid fees owing on any previous Dividend Payment Dates in accordance
with Section 5.1(d); and
(ii) to the Funding Agent, in any amount equal to any amounts owing
to the Funding Agent or to PARCO or the APA Bank pursuant to Article VI.
(c) On the Dividend Payment Date on which the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests are redeemed in full and on each Dividend Payment
Date thereafter until all amounts due and owing hereunder are paid in full, the
Issuer shall apply amounts on deposit in the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Member
Distribution Account and withdrawn therefrom in accordance with Section 10.7(c)
of the LLC Agreement, for the following purposes in the following order of
priority:
(i) to the Funding Agent, in an amount equal to all fees owing on
such Dividend Payment Date in accordance with Section 5.1(d) and all
unpaid fees owing on any previous Dividend Payment Dates in accordance
with Section 5.1(d); and
(ii) to the Funding Agent, in any amount equal to any amounts owing
to the Funding Agent or to PARCO or the APA Bank pursuant to Article VI.
Each of PARCO and the APA Bank hereby irrevocably designates and appoints
the Funding Agent as its agent under this Agreement and each of PARCO and the
APA Bank irrevocably authorizes the Funding Agent, in such capacity, to take
such action on its behalf under the provisions of this Agreement and to exercise
such powers and perform such duties as are expressly delegated to the Funding
Agent by the terms of this Agreement, together with such other powers as are
reasonably incidental thereto. Notwithstanding any provision tothe contrary
elsewhere in this Agreement, the Funding Agent shall not have any duties or
responsibilities except those expressly set forth herein, or any fiduciary
relationship with either PARCO or the APA Bank, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or otherwise exist against the Funding Agent.
-17-
The Funding Agent may execute any of its duties under this Agreement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
(who may be counsel for the Issuer or the Administrator), independent public
accountants and other experts selected by it concerning all matters pertaining
to such duties. The Funding Agent shall not be responsible for the negligence or
misconduct of any agents or attorneys in-fact selected by it with reasonable
care.
Neither the Funding Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates shall be (i) liable for any action
lawfully taken or omitted to be taken by it or such Person under or in
connection with this Agreement (x) with the consent or at the request of either
PARCO or the APA Bank (y) in the absence of its own gross negligence or willful
misconduct or (ii) responsible in any manner to either PARCO or the APA Bank for
any recitals, statements, representations or warranties made by the Issuer, the
Origination Trust, VMS, the Administrator or any officer thereof contained in
this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received by the Funding Agent under or in
connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or for any failure
of any of the Issuer, the OriginationTrust, VMS or the Administrator to perform
its obligations hereunder. The Funding Agent shall not be under any obligation
to either PARCO or the APA Bank to ascertain or to inquire as to the observance
or performance of any of the agreements contained in, or conditions of, this
Agreement or to inspect the properties, books or records of the Issuer or the
Administrator.
. The Funding Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telecopy, telex or teletype message, statement,
order or other document or conversation believed by it to be genuine and correct
and tohave been signed, sent or made by the proper Person or Persons and upon
advice and statements of legal counsel (including, without limitation, counsel
to the Issuer or the Administrator), independent accountants and other experts
selected by the Funding Agent and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of such
counsel, accountants or experts. The Funding Agent shall be fully justified in
failing or refusing to take any action under this Agreement unless it shall
first receive such advice or concurrence of PARCO or the APA Bank, as
applicable, as it deems appropriate or it shall first be indemnified to its
satisfaction by PARCO or the APA Bank, as applicable, against any and all
liability and expense which may be incurred by it by reason of taking or
continuing to take any such action. The Funding Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement in
accordance with a request of PARCO or the APA Bank, as applicable, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon PARCO and the APA Bank, as applicable.
The Funding Agent shall not be deemed to have knowledge or notice of the
occurrence of any Amortization Event or Potential Amortization Event, any Event
of Default or Default, any Termination Event or any Servicer Termination Event
unless the Funding Agent has received notice from PARCO, the APA Bank, the
Issuer, the Administrator, SPV or VMS referring to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests and describing such Amortization Event or Potential
Amortization Event, Event of Default or Default, Termination Event or Servicer
-18-
Termination Event or and stating that such notice is a "notice of an
Amortization Event or Potential Amortization Event," "notice of an Event of
Default or Default," "notice of a Termination Event" or "notice of a Servicer
Termination Event", as the case may be. In the event that the Funding Agent
receives such a notice, the Funding Agent shall give notice thereof to PARCO and
the APA Bank. The Funding Agent shall take such action with respect to such
event as shall be reasonably directed by PARCO and the APA Bank, provided that
unless and until the Funding Agent shall have received such directions, the
Funding Agent may (but shall not be obligated to) take such action, or refrain
from taking such action, with respect to such event as it shall deem advisable
in the best interests of PARCO and the APA Bank. Notwithstanding the foregoing,
in the event that the Funding Agent receives notice from the Issuer of the
occurrence of an event that constitutes a PARCO Wind-Down Event, the Funding
Agent shall give notice thereof to PARCO and the APA Bank within one Business
Day of its receipt of such notice.
Each of PARCO and the APA Bank expressly acknowledges that neither the
Funding Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates has made any representations or warranties to it
and that no act by the Funding Agent hereinafter taken, including any review of
the affairs of the Issuer, the Origination Trust or VMS, shall be deemed to
constitute any representation or warranty by the Funding Agent to either PARCO
and the APA Bank. Each of PARCO and the APA Bank represents to the Funding Agent
that it has, independently and without reliance upon the Funding Agent or each
other, and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of the Issuer, the
Origination Trust and VMS and made its own decision to enter into this
Agreement. Each of PARCO and the APA Bank also represents that it will,
independently and without reliance upon the Funding Agent or each other, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Agreement, and to make such investigation
as it deems necessary to inform itself as to the business, operations, property,
financial and other condition and creditworthiness of the Issuer, the
Origination Trust and the Administrator. Except for notices, reports and other
documents expressly required to be furnished to PARCO and the APA Bank by the
Funding Agent hereunder, the Funding Agent shall have no duty or responsibility
to provide either PARCO or the APA Bank with any credit or other information
concerning the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of the Issuer, the Origination Trust
or VMS which may come into the possession of the Funding Agent or any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates.
Each of PARCO and the APA Bank agree to indemnify the Funding Agent in its
capacity as such (to the extent not reimbursed by the Issuer and the
Administrator and without limiting the obligation of the Issuer and the
Administrator to do so), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Funding Agent in any way relating to or
arising out of this Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or any
action taken or omitted by the Funding Agent under or in connection with any of
-19-
the foregoing; provided that neither PARCO or the APA Bank shall be liable for
the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the Funding Agent's gross negligence or willful misconduct. The
agreements in this Section shall survive the payment of all amounts payable
hereunder.
The Funding Agent and its Affiliates may make loans to, accept deposits
from and generally engage in any kind of business with the Issuer, VMS or any of
their Affiliates as though the Funding Agent were not the Funding Agent
hereunder.
The Funding Agent may resign as Funding Agent upon 10 days' notice to
PARCO and the APA Bank. If the Funding Agent shall resign as Funding Agent under
this Agreement, then PARCO and the APA Bank shall appoint a successor
administrative agent, which successor administrative agent shall be approved by
the Issuer and the Administrator (which approval shall not be unreasonably
withheld), whereupon such successor administrative agent shall succeed to the
rights, powers and duties of the Funding Agent, and the term "Funding Agent"
shall mean such successor administrative agent effective upon such appointment
and approval, and the former Funding Agent's rights, powers and duties as
Funding Agent shall be terminated, without any other or further act or deed on
the part of such former Funding Agent or any of the parties to this Agreement.
After any retiring Funding Agent's resignation as Funding Agent, the provisions
of this Article VII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Funding Agent under this Agreement.
(a) This Agreement shall continue in full force and effect from the Series
1999-1 Closing Date to the earlier of (i) the first day on which all amounts due
and owing to the Funding Agent, PARCO and the APA Bank under this Agreement and
the Transaction Documents have been indefeasibly paid in full and (ii) the day
on which each of the parties hereto agrees in writing that this Agreement shall
be terminated.
(b) No amendment, supplement, waiver or modification of any
provision of this Agreement or any consent given pursuant to this Agreement
shall in any event be effective unless the same shall be in writing and signed
by the parties hereto, and then such amendment, supplement, waiver, modification
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
All notices and other communications provided for hereunder shall, unless
otherwise stated herein, be in writing (including facsimile, telegraphic, telex
or cable communication) and mailed, facsimiled, telegraphed, cabled or
delivered, as to each party hereto, at its address set forth below or at such
other address as shall be designated by such party in a written notice to the
other party hereto. All such notices and communications shall, when mailed,
facsimiled, telegraphed or cabled, be effective three days after deposit in the
mails, when confirmed by telephone, delivered to the telegraph company or
delivered to the cable company, respectively.
-20-
If to the Issuer:
GREYHOUND FUNDING, LLC
c/o Global Securitization Services, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to PARCO:
PARK AVENUE RECEIVABLES CORPORATION
c/o Global Securitization Services, LLC ▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Funding Agent:
THE CHASE MANHATTAN BANK
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to VMS or the Administrator:
PHH Vehicle Management Services, LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telecopy: (516) 222-
If to the APA Bank:
THE CHASE MANHATTAN BANK
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Each payment to be made hereunder shall be made on the required
payment date in lawful money of the United States and in immediately available
funds, if to PARCO or the APA Bank, at the office of the Funding Agent.
No failure on the part of any party hereto to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
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, PARCO 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.
Each of the parties hereto, by entering into this Agreement, covenants and
agrees that 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.
Capitalized terms used in this Section 8.6 and not otherwise defined herein
shall have the meanings set forth in Schedule 1 to the Base Indenture.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counter-parts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Any provisions of this Agreement
which are prohibit-ed or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisio-ns hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. Each of the
parties hereto hereby waives any right of setoff it may have or to which it may
be entitled under this Agreement from time to time against PARCO or any of their
respective assets.
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(a) Not-with-stand-ing any-thing to the con-trary con-tained herein, the
obli-ga-tions of PARCO under this Agreement are solely the corpo-rate
obliga-tions of PARCO and, in the case of obligations of PARCO other than its
Commercial Paper, shall be pay-able at such time as funds are re-ceived by or
are available to PARCO in excess of funds neces-sary to pay in full all of its
outstanding Commer-cial Paper and, to the extent funds are not avail-able to pay
such obligations, the claims relat-ing there-to shall not constitute a claim
against PARCO but shall continue to ac-crue. Each party hereto agrees that the
pay-ment of any claim (as defined in Section 101 of Title 11 of the Bankruptcy
Code) of any such party against PARCO shall be subor-di-nated to the payment in
full of all of its Com-mer-cial Paper.
No re-course under any obligation, covenant or agree-ment of PARCO
contained in this Agreement shall be had against any incorporator, stockholder,
officer, director, employee or agent of PARCO, Chase, as its adminis-trative
agent, the Funding Agent or any of their Affiliates (solely by virtue of such
capacity) by the en-force-ment of any as-sess-ment or by any legal or equita-ble
proceed-ing, by virtue of any statute or other-wise; it being expressly agreed
and understood that this Agreement is solely a corpora-te obligation of PARCO
individually, and that no person-al liability whatever shall attach to or be
incurred by any incorpo-ra-tor, stock-hold-er, offi-cer, direc-tor, em-ploy-ee
or agent of PARCO, Chase, as its adminis-tra-tive agent, the Funding Agent or
any of its Affiliates (solely by virtue of such capacity) or any of them under
or by reason of any of the obli-ga-tions, cove-nants or agree-ments of PARCO
con-tained in this Agreement, or implied therefrom, and that any and all
personal liabili-ty for breaches by PARCO of any of such obligations, cove-nants
or agree-ments, either at common law or at equity, or by statute, rule or
regulation, of every such incorpora-tor, stock-hold-er, offi-cer, direc-tor,
em-ployee or agent is hereby ex-pressly waived as a condition of and in
consid-er-ation for the execution of this Agree-ment; provided that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of fraudu-lent actions taken or omissions made by
them. The provisions of this Section 8.7 shall survive termination of this
Agreement.
Notwithstanding any provision of this Agree-ment: (i) the Funding Agent
shall not have any obliga-tions under this Agreement other than those
specif-ically set forth herein, and no implied obli-gations of the Funding Agent
shall be read into this Agreement; and (ii) in no event shall the Funding Agent
be liable under or in connec-tion with this Agreement for indirect, special, or
consequen-tial losses or damages of any kind, including lost prof-its, even if
advised of the possibili-ty thereof and regardless of the form of action by
which such losses or damages may be claimed. Neither the Funding Agent nor any
of its direc-tors, offi-cers, agents or employees shall be liable for any action
taken or omitted to be taken in good faith by it or them under or in connection
with this Agreement, except for its or their own gross negli-gence or willful
miscon-duct. With-out limiting the fore-going, the Funding Agent (a) may consult
with legal counsel (in-cluding counsel for PARCO and the APA Bank), indepen-dent
public accoun-tants and other ex-perts selected by it and shall not be liable
for any action taken or omitted to be taken in good faith by it in accor-dance
with the advice of such counsel, accoun-tants or experts, (b) shall not be
respon-sible to PARCO or the APA Bank for any state-ments, warranties or
representa-tions made in or in connection with this Agreement, the Series 1999-1
Preferred Membership Interests or the other Transaction Documents, (c) shall not
be responsi-ble to PARCO or the APA Bank for the due execu-tion, legality,
validi-ty, en-force-abili-ty,
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genu-ine-ness, suffi-ciency or value of this Agreement, the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests or the other Transaction Documents, (d) shall
incur no liability under or in respect of any of PARCO's Commer-cial Paper or
other obli-ga-tions of PARCO in respect of this Agreement, the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests or the other Transaction Documents and (e) shall
incur no lia-bility under or in respect of this Agree-ment, the Series 1999-1
Preferred Membership Interests or the other Transaction Documents by acting upon
any notice (including notice by tele-phone), consent, certifi-cate or other
instrument or writing (which may be by facsimile) believed by it to be genu-ine
and signed or sent by the proper party or par-ties. Notwith-standing anything
else herein, it is agreed that when the Funding Agent may be required under this
Agree-ment to give notice of any event or condi-tion or to take any action as a
result of the occur-rence of any event or the existence of any condi-tion, the
Funding Agent agrees to give such notice or take such action only to the extent
that it has actual knowl-edge of the occur-rence of such event or the exis-tence
of such condi-tion, and shall incur no liability for any failure to give such
notice or take such action in the absence of such knowl-edge.
All representations, warranties, covenants, guaranties and
indemnifications contained in this Agreement and the Transaction Documents and
in any document, certificate or statement delivered pursuant hereto or in
connection herewith shall survive the sale and transfer of the Series 1999-1
Preferred Membership Interests to PARCO, and shall survive any sale and transfer
of the Series 1999-1 Preferred Membership Interests by PARCO to the APA Bank or
by PARCO to any CP Conduit. Furthermore, the provisions of Article VI and
Sections 7.3, 7.4, 7.7, 8.5, 8.7 of this Agreement shall survive the termination
of this Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, except that the
Issuer may not assign or transfer any of its rights under this Agreement without
the prior written consent of the Funding Agent, PARCO may not assign or transfer
any of its rights under this Indenture Supplement except as set forth in Section
2.3 and in (b) below of this Section 8.10 and the APA Bank may not assign or
transfer any of its rights under this Agreement except as may be required by
applicable bank regulation requirements.
(b) Without limiting the foregoing, PARCO may, from time to time
with the prior written consent of the Issuer, assign all or a portion of this
Series 1999-1 Preferred Membership Interests in accordance with Section 11.3 of
the LLC Agreement and its rights and obligations under this Agreement to a CP
Conduit. Upon such assignment by PARCO to a CP Conduit, (A) such CP Conduit
shall be the owner of the portion of PARCO's Series 1999-1 Preferred Membership
Interests so assigned, (B) the related administrative agent for such CP Conduit
will act as the agent for such CP Conduit hereunder, (C) such CP Conduit and its
liquidity funding bank shall have the benefit of all the rights and protections
provided therefor hereunder, (D) Dividends with respect to that portion of the
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests assigned to such CP Conduit shall
be determined in the manner set forth in the Action on the basis of the interest
rate or discount applicable to Commercial Paper issued by such CP Conduit
(rather than PARCO) and to such CP Conduit's liquidity funding bank and (E) if
requested by the Funding Agent or the administrative agent of such CP Conduit,
the parties will execute and
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deliver such further agreements and documents and take such other actions as the
Funding Agent or such administrative agent may reasonably request to evidence
and give effect to the foregoing.
PARCO and the APA Bank hereby agrees that the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
Membership Interests acquired by it hereunder will be acquired for investment
only and not with a view to any public distribution thereof, and that such
Person will not offer to sell or otherwise dispose of the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Membership Interests (or any interest therein) in violation of any of
the registration requirements of the Securities Act, or any applicable state or
other securities laws or in violation of the LLC Agreement; provided, however,
that Issuer hereby acknowledges and agrees that PARCO may transfer the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership Interests to the APA Bank in accordance with the
Asset Purchase Agreement without complying with the provisions of Section 11.3
of the LLC Agreement. Each of PARCO and the APA Bank acknowledges that it has no
right to require the Issuer to register the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ Membership
Interests under the Securities Act or any other securities law. PARCO and the
APA Bank hereby confirm and agree that in connection with any transfer by it of
an interest in the Series 1999-1 Preferred Membership Interests, such Person has
not engaged and will not engage in a general solicitation or general advertising
including advertisements, articles, notices or other communications published in
any newspaper, magazine or similar media or broadcast over radio or television,
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
PARCO, the Administrator, the Indenture Trustee, the Funding Agent and the
APA Bank hereby 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. ss. 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 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 (used in
this Section as defined in the Origination Trust Agreement), 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 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
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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. Capitalized terms used in this
Section 8.13 and not otherwise defined herein shall have the meanings set forth
in Schedule 1 to the Base Indenture.
IN WITNESS WHEREOF, the parties have caused this Preferred
Membership Interest Purchase Agreement to be executed by their respective
officers thereunto duly authorized, as of the date and year first above written.
PHH VEHICLE MANAGEMENT LLC
By:
Name:
Title:
PARK AVENUE RECEIVABLES
CORPORATION
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as the APA Bank
By:
Name:
Title:
THE CHASE MANHATTAN BANK,
as the Funding Agent
By:
Name:
Title:
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