EXHIBIT 10.7
MANAGEMENT AGREEMENT
MANAGEMENT AGREEMENT ("Management Agreement"), dated as of June 30,
1999, between Greyhound Funding LLC, a limited liability company organized
under the laws of the State of Delaware (the "Issuer"), PHH Vehicle
Management Services LLC, a limited liability company organized under the laws
of the State of Delaware, as administrator of the Issuer (the
"Administrator") and GLOBAL SECURITIZATION SERVICES, LLC, a limited liability
company organized under the laws of the State of Delaware (the "Manager").
All capitalized terms used herein and not otherwise defined herein
shall have the respective meanings assigned to such terms in Schedule 1 to
the Base Indenture dated as of June 30, 1999, between the Issuer and The
Chase Manhattan Bank, as Indenture Trustee (as amended, modified or supple-
mented from time to time in accordance with its terms, the "Base Indenture").
PRELIMINARY STATEMENT
The Issuer has requested that the Manager provide assistance to the
Issuer and perform various services for the Issuer and the Issuer desires to
avail itself of the experience, advice and assistance of the Manager and to
have the Manager perform certain services for the Issuer, and the Manager is
willing to furnish such services on the terms and conditions herein set
forth.
The parties hereto agree as follows:
1. Management Services.
The Manager hereby agrees to provide the following corporate
management services to the Issuer:
(a) designate individuals who are directors, officers or employees
of the Manager and who are available to serve, from time to time, as
managers of the Issuer;
(b) upon request by the managers of the Issuer, designate
individuals who are directors, officers or employees of the Manager to
serve, from time to time, as officers of the Issuer;
(c) through directors, officers and employees of the Manager who
are managers or officers of the Issuer:
(i) furnish the Issuer with ordinary clerical and bookkeeping
services;
(ii) take such actions on behalf of the Issuer, as are
necessary or desirable for the Issuer to remain organized in its
jurisdiction of its registration as a limited liability company and
qualified (in those foreign jurisdictions in which it becomes
qualified) and to carry out its business, including, without
limitation, the performance of all the responsibilities of the
Issuer under every agreement to which the Issuer is a party;
(iii) manage the issuance, delivery (other than for
book-entry notes) and maturity schedule of the Issuer's medium term
notes;
(iv) manage the issuance, delivery and maturity schedule of
the Issuer's variable funding notes;
(v) manage the issuance, delivery of the Issuer's preferred
membership interests and the declaration of dividends on and
redemption of the Issuer's preferred membership interests;
(vi) maintain the general ledger of the Issuer, and prepare on
a timely basis the financial statements and tax returns of the
Issuer, subject to year-end audit, in accordance with generally
accepted accounting principles; provide to each of the Rating
Agencies within 90 days of the year-end of the Issuer, a copy of
the financial statements of the Issuer which have been subject to a
year-end audit and prepared in accordance with generally accepted
accounting principles;
(vii) direct the auditing staff of the Issuer's
independent accountants to facilitate the timely completion of the
year-end audit review;
(viii) perform those obligations of the Issuer under each
of the Transaction Documents to which the Issuer is a party which
the Administrator is not obligated to perform under the
Administration Agreement;
(ix) enforce each and every right of the Issuer under each of
the Transaction Documents to which the Issuer is a party;
(x) provide, or cause to be provided, notice to the Indenture
Trustee and each of the Rating Agencies in the event that:
(A) any action, suit or proceeding is pending against
the Issuer;
(B) any amendment is made to the Issuer's Limited
Liability Company Agreement (the "LLC Agreement"), dated as of
June 30, 1999, with Raven Funding LLC, a Delaware limited
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liability company, as the common member thereof ( the "Common
Member");
in each of the above instances, such notice shall be provided by
the Manager within 30 days of the Manager's obtaining knowledge of
such event; and
(xi) defend, at the direction of the Issuer's managers, any
action, suit or proceeding to cause a substantive consolidation of
the assets and liabilities of the Issuer with the Common Member,
VMS or any other Person.
(d) provide office space and such reasonable ancillary services as
may be necessary to carry out its obligations under Sections l(a)
through (c) hereof, including telecopying, duplicating and word
processing services;
(e) provide such other services as are incidental to the foregoing
or as the Issuer and the Manager may agree; and
(f) provide notice to each of Moody's and S&P in the event that
any Independent Manager (as defined in the LLC Agreement) is removed or
appointed.
In providing the services under this Section 1 and as otherwise
provided under this Management Agreement, the Manager will not knowingly take
any actions on behalf of the Issuer which would cause the Issuer to be in
violation of any federal law of the United States of America or any law of
any state, territory or domicile of the United States or the LLC Agreement.
2. Compensation.
The Administrator agrees to pay to the Manager, in consideration of
the Manager's performance of the services described in Section 1 hereof, a
fee agreed upon by the Manager and the Company from time to time (the
"Management Fee"). The Management Fee shall be payable by the Administrator
in arrears on each Payment Date with respect to the immediately preceding
Monthly Period, beginning on August 9, 1999. If this Agreement is terminated
on any date other than the last day of a Monthly Period, the Management Fee
payable with respect to the Monthly Period during which the termination
occurs will be prorated based on the actual number of days this Agreement was
in effect during such Month Period.
The Administrator agrees to reimburse the Manager for out-of-pocket
expenses (including fees and expenses of counsel) paid or incurred by the
Manager in connection with the administration of this Agreement (including,
without limitation, all reasonable fees and expenses of counsel in connection
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with the negotiation, preparation and execution of this Agreement, any other
agreements, instruments or documents referred to herein or relating hereto,
such as the Transaction Documents, or to the Issuer, and any amendments or
modifications hereof or thereof) or the performance by any of its directors,
officers or employees of any duties as managers or officers of the Issuer.
All such expenses shall be payable to the Manager upon written demand.
3. Term.
This Agreement may be terminated upon not less than ninety (90)
days' prior written notice of termination given by either the Issuer or the
Manager to the other party hereto and to each of the Rating Agencies;
provided, however, that this Agreement shall not be terminated unless a
successor manager has been approved by the Issuer; provided, however, that if
the Manager has elected to terminate, a successor manager must be approved by
the Issuer within six months of the Manager's providing notice to the Issuer
of such election to terminate. Notwithstanding termination of this Agreement,
the Issuer shall remain liable for all reimbursable unpaid fees and expenses
incurred by the Manager prior to such termination.
4. The Manager's Liability.
The Manager and its directors, officers and employees who serve as
managers and officers of the Issuer assume no liability for anything other
than to render or stand ready to render the services specifically called for
herein, and neither the Manager nor any of its directors, officers, employees
or subsidiaries or Persons controlling, controlled by or under common control
or affiliated with the Manager shall be responsible for any action of the
Issuer under any of the agreements, instruments, or documents to which the
Issuer is a party. Neither the Manager nor any director, officer or employee
of the Manager who serves as a manager or officer of the Issuer shall be
liable for or shall have any obligation with regard to any of the
liabilities, whether direct or indirect, absolute or contingent, of the
Issuer in connection with such agreements, instruments or documents. The
directors, officers and employees of the Manager who serve as managers and
officers of the Issuer shall act in accordance with the standards of conduct
imposed on officers, managers and directors under Delaware law.
Notwithstanding anything to the contrary contained in this Section 4, the
Manager hereby agrees that if it or any of its officers, employees, directors
or agents shall fail to observe any of its obligations under this Management
Agreement and as a result of such failure the Issuer incurs (whether as a
result of any action so taken or omitted to be taken in violation of terms
hereof) any costs, expenses, actions, suits, judgments, demands, damages,
losses or liabilities (including, without limitation, reasonable attorneys'
fees and expenses) (collectively, the "Indemnified Expenses"), then the
Manager shall indemnify and hold harmless the Issuer for such Indemnified
Expenses; provided, however, that the Manager shall only be liable for any
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such Indemnified Expense to the extent arising in connection with, or as a
result of, its or its officers', employees', directors' or agents' gross
negligence or willful misconduct. The indemnities set forth in the preceding
sentence shall survive the termination of this Management Agreement.
5. Indemnity.
The Administrator shall pay and shall protect, indemnify and save
harmless the Manager and the Manager's directors, officers, employees and
agents, the Issuer's managers or officers who are directors, officers or
employees of the Manager and all Persons controlling, controlled by or under
common control or otherwise affiliated with the Manager (each of the
foregoing, an "Indemnified Person") from and against any and all losses,
liabilities (including liabilities for penalties), actions, suits, judgments,
demands, damages, costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) of any nature (including, without
limitation, under any Federal, state or foreign securities laws, rules or
regulations) arising from or relating to the transactions contemplated hereby
or by any of the agreements, instruments and documents to which the Issuer
may be a party, whether now existing or hereafter arising (all of the
foregoing being collectively referred to as "Indemnified Amounts"); provided,
however, that the Administrator shall have no obligation to indemnify any
Indemnified Person hereunder in respect of Indemnified Amounts to the extent
resulting from negligence or willful misconduct on the part of such Indemni-
fied Person. If any action, suit or proceeding arising from any of the
foregoing is brought against any Indemnified Person, the Administrator will
resist and defend such action, suit or proceeding or cause the same to be
resisted and defended by its counsel (which counsel shall be reasonably
satisfactory to the affected Indemnified Person or Persons) and shall pay all
costs of defense as incurred unless it is finally determined by a court of
competent jurisdiction that such Indemnified Person is not entitled to
indemnification hereunder. Each Indemnified Person shall notify the
Administrator of any claims for which such Indemnified Person may seek
indemnification hereunder, as soon as practicable after such Indemnified
Person has actual notice of such claim; provided, however, that the failure
or delay by such Indemnified Person to give such notice shall not relieve the
Administrator of its obligations hereunder except to the extent that such
failure or delay results in additional cost to the Issuer.
6. Confidentiality.
The Manager agrees that it will not disclose, without the prior
written consent of the Issuer and the Administrator, the contents of this
Agreement or the business or activities of the Issuer or the Administrator;
provided, that the Manager may disclose any such information (i) to its
employees, auditors, counsel and other advisors who require such information
in connection with providing services to the Manager or to the Issuer, (ii)
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as has become generally available to the public, (iii) as may be required to
comply with any law, order, regulation, ruling or process applicable to the
Manager or the Issuer, (iv) as may be required by a Rating Agency rating the
medium term notes or any commercial paper notes supported by the variable
funding notes of the Issuer or the preferred membership interests of the
Issuer in connection with its granting or maintaining of a rating, (v) to any
permitted successor or assignee in connection with any assignment of the
Manager's duties and obligations hereunder or (vi) in connection with the
enforcement of its rights under this Agreement. This Section 6 shall survive
the termination of this Agreement.
7. Notices.
All notices required under the terms and provisions hereof shall be
in writing, either delivered by hand, by mail (postage prepaid), or by telex,
telecopier or telegram, and any such notice shall be effective when received
at the address specified below:
if to the Issuer:
Greyhound Funding LLC
c/o Global Securitization Services, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
PHH Vehicle Management Services, LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
if to the Administrator:
PHH Vehicle Management Services, LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
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if to the Manager:
Global Securitization Services, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to Standard & Poor's Ratings Group ("S&P"):
Standard & Poor's Ratings Group
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Attention: Asset-Backed Surveillance Group
if to ▇▇▇▇▇'▇ Investors Service, Inc. ("▇▇▇▇▇' s") :
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Tel. No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
or, if to any of the foregoing parties, or their successors, at such other
address as such party or successors may designate from time to time by notice
duly given in accordance with the terms of this Section 7 to the other.
8. No Restrictions.
Nothing in this Agreement shall limit or restrict the right of any
director, officer or employee of the Manager or any director, officer,
employee or partner of any of its subsidiaries or its affiliates to engage in
any other business or to devote his time and attention to the management or
other aspects of any other business, whether of a similar or dissimilar
nature, nor to limit or restrict the right of the Manager or of any of its
affiliates to engage in any other business or to render services of any kind
to any other corporation, firm, individual or association.
9. Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
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10. Entire Agreement.
This Agreement constitutes the entire agreement between the parties
hereto with respect to the matters covered hereby and supersedes all prior
agreements and understandings with respect to such matters between the
parties.
11. Amendment; Successors; Assignment; Counterparts.
(a) Except as set forth in Section 3, the terms of this Agreement
shall not be waived, altered, modified, amended or supplemented in any
manner whatsoever except by a written instrument signed by all parties
hereto and with the approval of S&P and Moody's and the Members of the
Issuer and satisfaction of the Rating Agency Condition with respect to
each Series of Investor Notes Outstanding and each series of Preferred
Membership Interests outstanding.
(b) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors.
(c) This Agreement may not be assigned by any party except with
the prior written consent of the other party hereto and prior written
notice to each of S&P and Moody's and satisfaction of the Rating Agency
Condition with respect to each Series of Investor Notes Outstanding and
each series of Preferred Membership Interests outstanding.
(d) This Agreement may be executed in several counterparts, each
of which shall be deemed an original hereof.
12. No Bankruptcy Petition.
The Manager hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of (i) the latest
maturing Investor Note and all other obligations of the Issuer in respect
thereof and (ii) the redemption of the last series of Preferred Membership
Interests, it will not institute against, or join with any other person in
instituting against, the Issuer, SPV or the Origination Trust any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any Federal or state bankruptcy or similar law. In the
event that the Manager takes action in violation of this Section 12, the
Issuer agrees that it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such a petition or the commencement
of such action and raise the defense that the Manager has agreed in writing
not to take such action and should be estopped and precluded therefrom and
such other defenses, if any, as its counsel advises that it may assert. The
provisions of this Section 12 shall survive the termination of this Agreement
and the resignation or removal of the Manager. Nothing contained herein shall
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preclude participation by the Manager in assertion or defense of its claims
in any such proceeding involving the Issuer.
13. Captions.
The captions in this Agreement are provided solely for convenience
of reference and shall not govern the interpretation of any of the provisions
hereof.
14. No Recourse.
The obligations of the Issuer, the Administrator and the Manager
under this Agreement are solely the corporate obligations of the Issuer, the
Administrator and the Manager, respectively. No recourse shall be had for the
payment of any amount owing hereunder or for the payment of any fee hereunder
or any other obligation or claim arising out of or based upon this Agreement
against any limited liability company interest holder, employee, officer,
Manager or Member of the Issuer, the Administrator or the Manager.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of the day and year above written.
GREYHOUND FUNDING LLC
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
PHH VEHICLE MANAGEMENT SERVICES, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
GLOBAL SECURITIZATION SERVICES, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
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