TRANSFER AGREEMENT
BETWEEN
RAVEN FUNDING LLC,
AS TRANSFEROR
AND
GREYHOUND FUNDING, LLC,
AS TRANSFEREE
DATED AS OF JUNE 30, 1999
TRANSFER AGREEMENT
This Transfer Agreement (the "Agreement") is made as of June 30,
1999, between GREYHOUND FUNDING, LLC, a Delaware limited liability company (the
"Issuer"), and RAVEN FUNDING LLC, a Delaware limited liability company ("SPV").
R E C I T A L S :
SPV owns all of the Common Membership Interests in the Issuer.
On the terms and subject to the conditions set forth herein, SPV
desires to transfer the Initial Transferred Assets to the Issuer on the Initial
Closing Date, in the form of a contribution to the capital of the Issuer.
Following the Initial Closing Date, on the terms and subject to the
conditions set forth herein, SPV desires from time to time to transfer to the
Issuer any interest that the SPV acquires in Additional Transferred Assets and,
in consideration for such transfer, the Issuer is willing to make a payment to
SPV on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the other good
and valuable consideration and the mutual terms and covenants herein contained,
the parties hereto agree as follows:
Capitalized terms used in the above recitals and in this Agreement, and not
defined in this Agreement, shall have the respective meanings assigned to them
in the Definitions List attached to the Base Indenture, dated as of the date
hereof, between the Issuer and The Chase Manhattan Bank, as indenture trustee,
as the same may be amended, supplemented or otherwise modified from time to
time, exclusive of Indenture Supplements creating a new Series of Investor Notes
(the "Base Indenture").
(a) Unless otherwise specified therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto or thereto. Additionally, the following terms
shall have the following meanings for all purposes of this Agreement:
"Additional Transferred Assets" means, in respect of a Lease SUBI
Allocation Event, the following assets:
(a) the beneficial interest in the Additional Units allocated
to the Lease SUBI Portfolio on such date and any Unit Leases, Unit
Vehicles and Related Rights associated therewith;
(b) the Origination Trust Documents, as such agreements are
applicable to the Additional Units referred to in clause (a) and any
Unit Leases, Unit Vehicles and Related Rights associated therewith;
(c) all payments and distributions under the foregoing of
whatever kind or character and whether in cash or other property, at
any time made or distributable to SPV thereunder or in respect
thereof, whether due or to become due, including, without
limitation, the immediate and continuing right of SPV to receive and
collect all amounts payable to the holder of the Lease SUBI
Certificate and all of SPV's rights, remedies, powers, interests and
privileges under the foregoing (whether arising pursuant to the
terms thereof or otherwise available to SPV), including, without
limitation, the right to enforce the foregoing, to give or withhold
any and all consents, requests, notices, directions, approvals or
waivers thereunder and all amounts due and to become due thereunder,
whether payable as indemnities or damages for breach thereof; and
(d) any proceeds and products of the foregoing.
"Initial Transferred Assets" means the following assets:
(a) the Lease SUBI, the Lease SUBI Certificate and the beneficial
interest in the Initial Units allocated to the Lease SUBI Portfolio on the
Initial Closing Date and any Unit Leases, Unit Vehicles and Related Rights
associated therewith;
(b) the Fleet Receivable SUBI Certificate and the beneficial
interest in the Fleet Receivables and the Origination Trust's rights under
the Receivables Purchase Agreement from time to time allocated to the
Fleet Receivable SUBI and represented by the Fleet Receivable SUBI
Certificate;
(c) the Origination Trust Documents, as such agreements are
applicable to the Initial Units and the Fleet Receivable SUBI Certificate
and the other Origination Trust Assets referred to in clauses (a) and (b);
(d) the Series 1999-1 Lease Rate Cap, dated the Initial Closing
Date, between SPV and an Eligible Counterparty;
(e) all payments and distributions under the foregoing of whatever
kind or character and whether in cash or other property, at any time made
or distributable to SPV thereunder or in respect thereof, whether due or
to become due, including, without limitation, the immediate and continuing
right of SPV to receive and collect all amounts payable to the holder of
the Lease SUBI Certificate and the Fleet Receivable SUBI
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Certificate and all of SPV's rights, remedies, powers, interests and
privileges under the foregoing (whether arising pursuant to the terms
thereof or otherwise available to SPV), including, without limitation, the
right to enforce the foregoing, to give or withhold any and all consents,
requests, notices, directions, approvals or waivers thereunder and all
amounts due and to become due thereunder, whether payable as indemnities
or damages for breach thereof; and
(f) any proceeds and products of the foregoing.
"Lease SUBI Allocation Event" means that Additional Units have been
allocated to the Lease SUBI Portfolio pursuant to the Lease SUBI
Supplement.
"Existing Notes" means the collective reference to the promissory
note of PHH Vehicle Management Services, LLC, dated June 10, 1999, in the
principal amount of $72,799,409.54 payable to the order of The Chase
Manhattan Bank, the promissory note of TRAC Funding, Inc., dated June 10,
1999, in the principal amount of $382,682,411.75 payable to the order of
The Chase Manhattan Bank and the promissory note of TRAC Funding II, Inc.,
dated June 10, 1999, in the principal amount of $458,678,286.94 payable to
the order of The Chase Manhattan Bank.
"Potential Transfer Termination Event" means any occurrence or event
which, with the giving of notice, the passage of time or both, would
constitute a Transfer Termination Event.
"Series 1999-1 Indenture Supplement" means the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Supplement to the Base Indenture, dated as of the Initial
Closing Date, among the Issuer, the Administrator, The Chase Manhattan
Bank, as Funding Agent, APA Bank and Indenture Trustee, and Park Avenue
Receivables Corporation, as Initial Purchaser.
"Transfer Termination Event" is defined in Article X.
"Transferred Assets" means the Initial Transferred Assets together
with any Additional Transferred Assets.
"Trust Assets" is defined in the Origination Trust Agreement.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto, accounting terms not defined in Section 1.1, and
accounting terms partly defined in Section 1.1, to the extent not defined, shall
have the respective meanings given to them under GAAP. To the extent that the
definitions of accounting terms are inconsistent with the meanings of such terms
under GAAP, the definitions contained herein shall control.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular
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provision of this Agreement, and Section, subsection, Schedule and Exhibit
references are to Sections, subsections, Schedules and Exhibits to this
Agreement, unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
On the Initial Closing Date, subject to the terms and conditions set forth
herein, SPV shall assign, transfer, set over and otherwise convey to the Issuer,
as a contribution to the capital of the Issuer, all the right, title and
interest of SPV in and to the Initial Transferred Assets, by executing and
delivering to the Issuer an assignment, substantially in the form of Exhibit A
(the "Initial Assignment"). In connection with the Initial Assignment, effective
with the transfer of the Initial Transferred Assets to the Issuer hereunder, the
Issuer hereby assumes all of the obligations under the Existing Notes.
SECTION 2.2 Subsequent Transfers. On each date following the Initial
Closing Date when a Lease SUBI Allocation Event occurs, subject to the
satisfaction of the terms and conditions set forth herein, SPV shall sell,
assign, transfer, set over and otherwise convey to the Issuer all of SPV's
right, title and interest in, to and under the Additional Transferred Assets, by
executing and delivering to the Issuer an assignment, substantially in the form
of Exhibit B (an "Additional Assignment").
The consummation of each transfer contemplated by Section 2.2 shall take place
on the related date of such transfer (the "Additional Closing Date" and,
together with the Initial Closing Date, the "Transferred Asset Closing Dates").
In consideration of the transfer of Additional Transferred Assets to
the Issuer on each Additional Closing Date and subject to the terms and
conditions set forth herein, the Issuer shall pay to SPV an amount (the
"Transferred Asset Payment") equal to the amount available therefor on such
Additional Closing Date under the Indenture.
SECTION 2.4 Security Interest in the Transferred Assets. The parties
to this Agreement intend that the transactions contemplated by Sections 2.1 and
2.2 shall be, and shall be treated as, absolute assignments, transfers and
conveyances by SPV of the Transferred Assets and not as a lending transaction.
If this Agreement does not constitute a valid assignment, transfer and
conveyance of all right, title and interest of SPV in, to and under the
Transferred Assets despite the intent of the parties hereto, SPV hereby grants a
first priority "security interest" (as defined in the UCC as in effect in the
State of New York) in the Transferred Assets and all proceeds thereof to the
Issuer and the parties agree that this Agreement shall constitute a security
agreement under the UCC in effect in New York.
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The foregoing assignments, transfers and conveyances pursuant to
this Article II do not constitute and are not intended to result in the creation
of any obligation of the Issuer other than the Issuer's obligations to SPV under
this Agreement and do not constitute and are not intended to result in the
assumption by the Issuer of any obligation of SPV or any other Person in
connection with the Transferred Assets or any agreement or instrument relating
thereto, including any obligation to any Obligor under any Lease Agreement or
Fleet Service Contract.
As of each Transferred Asset Closing Date, SPV hereby represents and warrants to
the Issuer that none of the Transferred Assets transferred by SPV on such date
has been sold, transferred, assigned or pledged by SPV to any Person other than
the Issuer. Immediately prior to the transfer and assignment contemplated
herein, SPV had good title to such Transferred Assets free and clear of all
Liens and, immediately upon the transfer thereof hereunder, the Issuer will have
good title to such Transferred Assets, free and clear of all Liens, and the
transfer of such Transferred Assets by SPV to the Issuer has been perfected
under the UCC.
SPV hereby represents and warrants to the Issuer as of the date hereof and as of
each Transferred Asset Closing Date, that:
(a) Existence and Power.
SPV (a) is a special purpose limited liability company duly formed,
validly existing and in good standing under the laws of the State of Delaware,
(b) is duly qualified to do business as a foreign limited liability company and
in good standing under the laws of each jurisdiction where the character of its
property, the nature of its business or the performance of its obligations make
such qualification necessary, and (c) has all powers and all governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted and for purposes of the transactions contemplated by
this Agreement and the other Transaction Documents.
(b) Governmental Authorization.
The execution, delivery and performance by SPV of this Agreement and
the other Transaction Documents to which it is a party (a) is within SPV's
power, has been duly authorized by all necessary action, (b) requires no action
by or in respect of, or filing with, any governmental body, agency or official
which has not been obtained and (c) does not contravene, or constitute a default
under, any Requirement of Law or any provision of its certificate of formation
or the limited liability company agreement of the SPV or result in the creation
or imposition of any Lien on any of the properties of the SPV, except for Liens
created by this Agreement. This Agreement and each of the other Transaction
Documents to which SPV is a party has been executed and delivered by a duly
authorized officer of SPV.
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(c) Binding Effect.
This Agreement and each other Transaction Document to which SPV is a
party is a legal, valid and binding obligation of SPV enforceable against SPV in
accordance with its terms (except as such enforceability may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws affecting creditors' rights generally or by general equitable
principles, whether considered in a proceeding at law or in equity and by an
implied covenant of good faith and fair dealing).
(d) Litigation.
There is no action, suit or proceeding pending against or, to the
knowledge of SPV, threatened against or affecting SPV before any court or
arbitrator or any Governmental Authority that could materially adversely affect
the financial position, results of operations, business, properties,
performance, prospects or condition (financial or otherwise) of SPV or which in
any manner draws into question the validity or enforceability of this Agreement
or any other Transaction Document to which SPV is a party or may be bound or the
ability of SPV to perform its obligations hereunder or thereunder.
(e) No ERISA Plan.
SPV has not established and does not maintain or contribute to any
Pension Plan that is covered by Title IV of ERISA and will not do so prior to
the termination of this Agreement.
(f) Tax Filings and Expenses.
SPV has filed all federal, state and local tax returns and all other
tax returns which, to the knowledge of SPV, are required to be filed (whether
informational returns or not), and has paid all taxes due, if any, pursuant to
said returns or pursuant to any assessment received by SPV, except such taxes,
if any, as are being contested in good faith and for which adequate reserves
have been set aside on its books. SPV has paid all fees and expenses required to
be paid by it in connection with the conduct of its business, the maintenance of
its existence and its qualification as a foreign limited liability company
authorized to do business in each State in which it is required to so qualify.
(g) Investment Company Act.
SPV is not, and is not controlled by, an "investment company" within
the meaning of, and is not required to register as an "investment company"
under, the Investment Company Act of 1940.
(h) Margin Stock.
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SPV is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
(i) No Consent.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the valid execution and delivery of
this Agreement or for the performance of any of SPV's obligations hereunder or
thereunder or under any other Transaction Document other than such consents,
approvals, authorizations, registrations, declarations or filings as shall have
been obtained by the SPV prior to the Initial Closing Date.
(j) Solvency.
Both before and after giving effect to the transactions contemplated
by this Agreement and the other Transaction Documents, SPV is solvent within the
meaning of the Bankruptcy Code and SPV is not the subject of any voluntary or
involuntary case or proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy or insolvency
law and no Insolvency Event has occurred with respect to SPV.
(k) Security Interests.
(i) Each of the SUBI Certificates has been duly registered in the
name of the Issuer and all other action necessary (including the filing of UCC-1
financing statements) to protect and perfect the Issuer's ownership interest in
the Transferred Assets now in existence and hereafter acquired or created has
been duly and effectively taken.
(ii) No security agreement, financing statement, equivalent security
or lien instrument or continuation statement listing SPV as debtor covering all
or any part of the Transferred Assets is on file or of record in any
jurisdiction, except such as may have been filed, recorded or made by SPV in
favor of the Issuer in connection with this Agreement.
(iii) All action necessary to perfect the Issuer's ownership
interest in the Transferred Assets has been duly taken.
(iv) Except for a change made pursuant to Section 7.3(c), SPV's
principal place of business and chief executive office shall be at: ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ and the place where its records
concerning the Transferred Assets are kept is at: c/o Wilmington Trust Company,
as Custodian, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. SPV does not
transact, and has not transacted, business under any other name.
(v) All authorizations in this Agreement for the Issuer to endorse
checks, instruments and securities and to execute financing statements,
continuation statements, security agreements, and other instruments with respect
to the Transferred Assets are powers coupled with an interest and are
irrevocable.
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(l) Binding Effect of Certain Agreements.
Each of the Origination Trust Documents is in full force and effect
and there are no outstanding events of default or termination events thereunder
nor have events occurred which, with the giving of notice, the passage of time
or both, would constitute such an event of default or termination event.
(m) Non-Existence of Other Agreements.
(i) SPV is not a party to any contract or agreement of any kind or
nature and SPV is not subject to any obligations or liabilities of any kind or
nature in favor of any third party, including, without limitation, Contingent
Obligations.
(ii) SPV has not engaged in any activities since its formation
(other than those incidental to its formation and other appropriate actions
including the execution of the Transaction Documents to which it is a party and
the performance of the activities referred to in or contemplated by such
agreements).
(n) Compliance with Contractual Obligations and Laws.
SPV is not (i) in violation of its limited liability company
agreement, (ii) in violation of any Requirement of Law to which it or its
property or assets may be subject or (iii) in violation of any Contractual
Obligation with respect to SPV.
(o) Other Representations.
All representations and warranties of SPV made in each Transaction
Document to which it is a party are true and correct and are repeated herein as
though fully set forth herein.
This Agreement shall become effective upon the satisfaction of the following
conditions:
(a) Agreement. The Issuer and the SPV shall have duly executed and
delivered this Agreement.
(b) Indenture Supplement. The Effective Date under the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇ Supplement, dated as of the date hereof, to the Base Indenture
shall have occurred.
(c) Certificate of Formation. The Issuer shall have received a true
and complete copy of the certificate of formation of SPV, certified as a
true and correct copy
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thereof by the Secretary of State of the State of Delaware, and a true and
complete copy of the limited liability company agreement of SPV, certified
as a true and correct copy thereof by the Secretary or an Assistant
Secretary (or equivalent thereof) of SPV.
(d) Resolutions. The Issuer shall have received copies of duly
adopted resolutions of the Managers of SPV as in effect on the Effective
Date and in form and substance reasonably satisfactory to the Issuer
authorizing the execution, delivery and performance of this Agreement, the
documents to be delivered by SPV hereunder and the transactions
contemplated hereby and thereby, certified by the Secretary or an
Assistant Secretary (or equivalent thereof) of SPV.
(e) Incumbency Certificate. The Issuer shall have received a
certificate as to the incumbency and signature of the officers of SPV
authorized to sign this Agreement, on behalf of SPV, together with
evidence of the incumbency of such Secretary or Assistant Secretary,
certified by the Secretary or Assistant Secretary of SPV.
(f) Assignment. SPV shall have executed and delivered to the Issuer
the Initial Assignment.
(g) Representations and Warranties. The Issuer shall have received a
certificate of an Authorized Officer of SPV to the effect that all
representations and warranties of SPV contained in Sections 3.1 and 3.2,
or in any certificate delivered in connection with this Agreement, are
true and correct and with the same force and effect as though such
representations and warranties had been made as of such date (other than
those representations and warranties made as of an earlier date specified
therein, in which case such representations and warranties are true and
correct as of such earlier date).
The obligation of the Issuer to make a Transferred Asset Payment on any
Additional Closing Date and of SPV to transfer the related Additional
Transferred Assets to the Issuer hereunder on any Additional Closing Date is
subject to the satisfaction of the following conditions:
(a) all representations and warranties of SPV contained in this
Agreement and in the other Transaction Documents shall be true and correct
in all material respects with the same force and effect as though such
representations and warranties had been made on and as of such day (other
than those representations and warranties made as of an earlier date
specified therein, in which case such representations and warranties are
true and correct as of such earlier date);
(b) SPV shall have executed and delivered to the Issuer an
Additional Assignment conveying such Additional Transferred Assets to the
Issuer; and
(c) no Transfer Termination Event shall have occurred and be
continuing.
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If any one of the following events shall occur and be continuing:
(i) an Insolvency Event shall occur with respect to SPV, the
Origination Trust, ARAC or VMS;
(ii) failure on the part of SPV to observe or perform in any
material respect any covenants or agreements of SPV set forth herein,
which failure continues unremedied for a period of 30 days after there
shall have been given, by registered or certified mail, to SPV by the
Issuer or the Indenture Trustee, written notice specifying such default
and requiring it to be remedied;
(iii) any representation or warranty made by SPV in this Agreement
shall prove to have been incorrect in any material respect when made,
which continues to be incorrect in any material respect for a period of 30
days after there shall have been given, by registered or certified mail,
to the SPV by the Indenture Trustee or the Issuer, written notice thereof;
(iv) the Issuer shall for any reason cease to have a valid and
perfected first priority ownership interest in the Transferred Assets or
any of VMS, SPV or any Affiliate of either thereof shall so assert;
(v) there shall have been filed against ARAC, VMS, the Origination
Trust or SPV (i) a notice of federal tax Lien from the
Internal Revenue Service, (ii) a notice of Lien from the PBGC
under Section 412(n) of the Internal Revenue Code or Section
302(f) of ERISA for a failure to make a required installment
or other payment to a plan to which either of such sections
applies or (iii) a notice of any other Lien the existence of
which could reasonably be expected to have a material adverse
effect on the business, operations or financial condition of
such Person, and, in each case, 40 days shall have elapsed
without such notice having been effectively withdrawn or such
Lien having been released or discharged;
(vi) one or more judgments or decrees shall be entered against SPV
involving in the aggregate a liability (not paid or fully covered by
insurance) of $100,000 or more and such judgments or decrees shall not
have been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof;
(vii) the Transfer Agreement or any other Transaction Document shall
cease, for any reason, to be in full force and effect (other than in
accordance with its terms);
(viii) an Amortization Event with respect to each Series of Investor
Notes Outstanding shall occur and be continuing; or
(ix) a Receivable Purchase Termination Event shall occur and be
continuing;
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then, in the case of any event described in clause (i) above, a "Transfer
Termination Event" will be deemed to have occurred without notice or other
action by any Person and, in the case of any of the other events described
above, the Issuer may declare, by delivering written notice thereof to SPV, that
a "Transfer Termination Event" has occurred. If a Transfer Termination Event has
occurred, no Additional Transferred Assets shall be transferred to the Issuer
hereunder.
SPV will keep in full effect its existence, rights and franchises as
a limited liability company under the laws of the State of Delaware and will
obtain and preserve its qualification to do business in each jurisdiction in
which the failure to so qualify would have a material adverse effect on the
business and operations of SPV or which qualification shall be necessary to
protect the validity and enforceability of this Agreement and any instrument or
agreement included in the Transferred Assets.
SPV will comply in all respects with all Requirements of Law and all
applicable laws, ordinances, rules, regulations, and requirements of
Governmental Authorities (including, without limitation, ERISA and the rules and
regulations thereunder) except where the necessity of compliance therewith is
contested in good faith by appropriate proceedings and where such noncompliance
would not materially and adversely affect the condition, financial or otherwise,
operations, performance, properties or prospects of SPV or its ability to carry
out the transactions contemplated in this Agreement and each other Transaction
Document; provided, however, such noncompliance will not result in a Lien (other
than a Permitted Lien) on any asset of SPV.
SPV will keep proper books of record and account in which full, true
and correct entries shall be made of all dealings and transactions in relation
to the Transferred Assets and its business activities in accordance with GAAP;
and will permit the Issuer and the Indenture Trustee to visit and inspect any of
its properties, to examine and make abstracts from any of its books and records
and to discuss its affairs, finances and accounts with its officers, directors,
employees and independent public accountants, all at such reasonable times upon
reasonable notice and as often as may reasonably be requested.
(a) SPV will not take any action and will use its best efforts not
to permit any action to be taken by others that would release any Person from
any of such Person's covenants or obligations under any instrument or agreement
included in the Transferred Assets or that would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
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validity or effectiveness of, any such instrument or agreement, except as
expressly provided in this Agreement, any other Transaction Document or such
other instrument or agreement.
(b) Promptly upon becoming aware of any default under any
Transaction Document, SPV shall give the Issuer, the Indenture Trustee and the
Rating Agencies notice thereof.
(c) SPV will punctually perform and observe all of its obligations
and agreements contained in this Agreement, the other Transaction Documents and
in the instruments and agreements included in the Transferred Assets, including
but not limited to preparing (or causing to be prepared) and filing (or causing
to be filed) all UCC financing statements and continuation statements required
to be filed by the terms of this Agreement in accordance with and within the
time periods provided for herein.
(d) Without derogating from the absolute nature of the assignment
granted to the Issuer under this Agreement or the rights of the Issuer
hereunder, SPV agrees that, unless such action is specifically permitted
hereunder or under the other Transaction Documents, it will not, without the
prior written consent of the Issuer (or its assignees or pledgees), amend,
modify, waive, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination, waiver or surrender of, the terms of any
of the Transferred Assets, including any of the Transaction Documents included
in the Transferred Assets, or waive timely performance or observance by the
Origination Trust, VMS or the Servicer under the Origination Trust Documents.
Promptly upon becoming aware of any Potential Termination Event, SPV
shall give the Issuer, the Indenture Trustee and the Rating Agencies notice
thereof, together with an Officer's Certificate, setting forth the details
thereof and any action with respect thereto taken or contemplated to be taken by
SPV.
Promptly upon becoming aware thereof, SPV shall give the Issuer, the
Indenture Trustee and the Rating Agencies written notice of the commencement or
existence of any proceeding by or before any Governmental Authority against or
affecting the Issuer which is reasonably likely to have a material adverse
effect on the business, condition (financial or otherwise), results of
operations, properties or performance of SPV or the ability of SPV to perform
its obligations under this Agreement or under any other Transaction Document to
which it is a party.
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SPV will promptly furnish to the Issuer, the Indenture Trustee and
the Rating Agencies such other information as, and in such form as, the Issuer,
the Indenture Trustee or the Rating Agencies may reasonably request in
connection with the transactions contemplated hereby.
On or before March 31 of each calendar year, commencing with March
31, 2000, SPV shall furnish to the Issuer and the Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, re-recording and refiling of
this Agreement, the Assignments and any other requisite documents and with
respect to the execution and filing of any financing statements and continuation
statements as are necessary to maintain the Issuer's perfected ownership
interest in the Transferred Assets assigned by this Agreement and the
Assignments and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain the perfection
of such ownership interest. Such Opinion of Counsel shall also describe the
recording, filing, re-recording and refiling of this Agreement and the
Assignment and any other requisite documents and the execution and filing of any
financing statements and continuation statements that will, in the opinion of
such counsel, be required to maintain the perfection of the Issuer's ownership
interest in the Transferred Assets until March 31 in the following calendar
year.
Except for the conveyances hereby, SPV will not sell, pledge, assign
or transfer Transferred Assets to any other Person, or grant, create, incur,
assume or suffer to exist any Lien thereon (except Permitted Liens) and SPV
shall defend the right, title and interest of the Issuer in, to and under all
Transferred Assets against all claims of third parties (other than Permitted
Liens) claiming through or under SPV.
SPV will not create, assume, incur, suffer to exist or otherwise
become or remain liable in respect of any Indebtedness.
SPV will not merge or consolidate with or into any other Person.
SPV will not acquire, by long-term or operating lease or otherwise,
any assets except in accordance with the terms of the Transaction Documents.
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SPV will not declare or pay any distributions on any of its limited
liability company interests or make any purchase, redemption or other
acquisition of, any of its limited liability company interests other than in
accordance with the Delaware Limited Liability Company Act, as amended.
SPV will not amend its limited liability company agreement unless,
prior to such amendment, each Rating Agency confirms that after such amendment
the Rating Agency Condition with respect to each Series of Investor Notes
Outstanding and each series of Preferred Membership Interests will be met.
SPV will not make, incur, or suffer to exist any loan, advance,
extension of credit or other investment in any Person other than in accordance
with the Transaction Documents.
SPV will not enter into or be a party to any agreement or instrument
other than any Transaction Document or documents and agreements incidental
thereto.
SPV will not engage in any business or enterprise or enter into any
transaction other than those contemplated by the Transaction Documents and other
activities related to or incidental to any of the foregoing.
SPV will do all things necessary to continue to be readily
distinguishable from VMS, ARAC and the Affiliates of each of the foregoing and
maintain its existence separate and apart from that of VMS, ARAC and the
Affiliates of each of the foregoing, including, without limitation:
(1) practicing and adhering to organizational formalities, such as
maintaining appropriate books and records;
(2) observing all organizational formalities in connection with all
dealings between itself and VMS, ARAC and the Affiliates of each of the
foregoing or any other unaffiliated entity;
(3) observing all procedures required by its certificate of
formation and its limited liability company agreement and the laws of the
State of Delaware;
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(4) acting solely in its name and through its duly authorized
officers or agents in the conduct of its businesses;
(5) managing its business and affairs by or under the direction of
its managers;
(6) ensuring that its Authorized Officers duly authorize all of its
actions;
(7) ensuring the receipt of proper authorization, when necessary, in
accordance with the terms of its limited liability company agreement for
its actions;
(8) owning or leasing (including through shared arrangements with
Affiliates) all office furniture and equipment necessary to operate its
business;
(9) maintaining at least one manager who is an Independent Manager;
(10) not (A) having or incurring any indebtedness to VMS, ARAC or
any Affiliates of VMS or ARAC; (B) guaranteeing or otherwise becoming
liable for any obligations of VMS, ARAC or any Affiliates of VMS or ARAC;
(C) having obligations guaranteed by VMS, ARAC or any Affiliates of VMS or
ARAC; (D) holding itself out as responsible for debts of VMS, ARAC or any
Affiliates of VMS or ARAC or for decisions or actions with respect to the
affairs of VMS, ARAC or any Affiliates of VMS or ARAC; (E) operating or
purporting to operate as an integrated, single economic unit with respect
to VMS or ARAC or any Affiliates of VMS or ARAC or any other unaffiliated
entity; (F) seeking to obtain credit or incur any obligation to any third
party based upon the assets of VMS or ARAC or any Affiliates of VMS or
ARAC or any other unaffiliated entity; (G) induce any such third party to
reasonably rely on the creditworthiness of VMS or ARAC or any Affiliates
of VMS or ARAC or any other unaffiliated entity; and (H) being directly or
indirectly named as a direct or contingent beneficiary or loss payee on
any insurance policy of VMS, ARAC or any Affiliates of VMS or ARAC other
than as required by the Transaction Documents with respect to insurance on
the Leased Vehicles;
(11) other than as provided in the Transaction Documents,
maintaining its deposit and other bank accounts and all of its assets
separate from those of any other Person;
(12) maintaining its financial records separate and apart from those
of any other Person;
(13) not suggesting in any way, within its financial statements,
that its assets are available to pay the claims of creditors of VMS, ARAC,
any Affiliates of VMS or ARAC or any other affiliated or unaffiliated
entity;
(14) compensating all its employees, officers, consultants and
agents for services provided to it by such Persons out of its own funds or
reimbursing any of its Affiliates in respect of amounts paid by such
Affiliates for such services;
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(15) maintaining office space separate and apart from that of VMS or
ARAC or any Affiliates of VMS or ARAC (even if such office space is
subleased from or is on or near premises occupied by VMS, ARAC or any
Affiliates of VMS or ARAC) and a telephone number separate and apart from
that of VMS or ARAC or any Affiliates of VMS or ARAC;
(16) conducting all oral and written communications, including,
without limitation, letters, invoices, purchase orders, contracts,
statements, and applications solely in its own name;
(17) having separate stationery from VMS, ARAC, any Affiliates of
VMS or ARAC or any other unaffiliated entity;
(18) accounting for and managing all of its liabilities separately
from those of VMS, ARAC or any Affiliates of VMS or ARAC;
(19) allocating, on an arm's length basis, all shared corporate
operating services, leases and expenses, including, without limitation,
those associated with the services of shared consultants and agents and
shared computer and other office equipment and software; and otherwise
maintaining an arm's-length relationship with each of VMS, ARAC, any
Affiliates of VMS or ARAC or any other unaffiliated entity;
(20) refraining from filing or otherwise initiating or supporting
the filing of a motion in any bankruptcy or other insolvency proceeding
involving VMS, ARAC or any Affiliate of VMS or ARAC to substantively
consolidate VMS, ARAC or any Affiliate of VMS or ARAC with SPV;
(21) remaining solvent; and
(22) conducting all of its business (whether written or oral) solely
in its own name so as not to mislead others as to the identity of each of
the Issuer, SPV, VMS, ARAC and any Affiliates of VMS or ARAC.
SPV will not establish or maintain or contribute to any Pension Plan
that is covered by Title IV of ERISA.
Section 6.20 Minimum Net Worth.
SPV will maintain a minimum net worth equal to at least 4% of the
Aggregate Lease Balance.
Section 6.21 Issuance of Additional Securities.
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SPV will not issue its membership interests to any Person other than
to VMS.
Section 6.22 Origination Trust Beneficial Interests.
(a) Until the Commitment Amount (as defined in the Series 1999-1
Indenture Supplement) is reduced to $700,000,000 or less, SPV will not direct
VMS, as the UTI Trustee, to issue any additional special units of beneficial
interest in the Origination Trust (other than the UTI and the SUBIs) without the
consent of the Issuer.
(b) Until the Commitment Amount is reduced to $700,000,000 or less,
SPV will not sell, pledge, assign or transfer the UTI to any other Person, or
grant, create, incur, assume or suffer to exist any Lien thereon (except
Permitted Liens) without the consent of the Issuer.
On or prior to the Initial Closing Date, SPV shall record and file, at its own
expense, a UCC-1 financing statement in each jurisdiction in which it is
required by applicable law, executed by SPV as debtor, naming the Issuer as
secured party, naming as collateral the Transferred Assets to be assigned and
conveyed hereunder from time to time, meeting the requirements of the laws of
each such jurisdiction and in such manner as is necessary to perfect under the
UCC the transfer, assignment and conveyance to Issuer of the Transferred Assets
(to the extent such transfer, assignment and conveyance may be perfected under
the UCC). SPV shall deliver a file-stamped copy, or other evidence satisfactory
to the Issuer of such filing, to the Issuer on or prior to the Initial Closing
Date.
SPV shall, at its own expense, on or prior to each Transferred Asset Closing
Date, indicate in its computer files created in connection with the Transferred
Assets for such Transferred Asset Date that such Transferred Assets have been
transferred, assigned and conveyed to the Issuer pursuant to this Agreement.
(a) SPV shall execute and file such financing statements, and cause
to be executed and filed such continuation and other statements, all in such
manner and in such places as may be required by law fully to perfect and
preserve the transfer, assignment and conveyance hereunder to the Issuer of the
Transferred Assets and in the proceeds thereof SPV shall deliver (or cause to be
delivered) to the Issuer file-stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such filing.
(b) SPV shall not change its name, identity or corporate structure
in any manner that would, could or might make any financing statement or
continuation statement filed by SPV in accordance with Section 7.1 or 7.3(a)
seriously misleading within the meaning of
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Section 9-402(7) of the UCC, unless it shall have given the Issuer and the
Indenture Trustee at least 60 days prior written notice thereof and shall file
such financing statements or amendments as may be necessary to continue the
perfection of the Issuer's interest in all Transferred Assets sold, transferred,
conveyed and assigned hereunder.
(c) SPV shall give the Issuer and the Indenture Trustee at least 60
days prior written notice of any relocation of its principal executive office
if, as a result of such relocation, the applicable provisions of the UCC would
require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement. SPV shall at all times
maintain its principal executive office within the United States of America.
SPV hereby covenants and agrees with the Issuer that in the event of (i) a
breach of any of SPV's representations and warranties contained in Section 3.1
with respect to any Transferred Asset or (ii) a breach by SPV of Section 6.9
hereof with respect to any Transferred Asset, in each case which breach has a
material adverse effect on the Issuer's interest in such Transferred Asset, SPV
will repurchase such Transferred Asset from the Issuer as of the last day of the
Monthly Period during which SPV discovered or received notice of such breach, by
delivery to the Issuer for deposit in the Collection Account an amount equal to
(a) in the case of a repurchase of a Master Lease Agreement, the aggregate Lease
Balance of all Leases under such Master Lease Agreement as of such day plus, in
the case of a Closed-End Lease, the aggregate Net Book Value of the Leased
Vehicles subject to such Master Lease Agreement as of such day, (b) in the case
of a repurchase of a Consumer Lease, the Lease Balance of such Consumer Lease as
of such day plus, in the case of a Closed-End Lease, the Net Book Value of the
Leased Vehicle subject to such Consumer Lease as of such day, (c) in the case of
a Lease, the Lease Balance of such Lease as of such day plus, in the case of a
Closed-End Lease, the Net Book Value of the Leased Vehicle subject to such Lease
as of such day or (d) in the case of a Fleet Receivable, the Receivable Amount
thereof as of the first day of the next succeeding Monthly Period (the
"Repurchase Payment") for such Transferred Asset. It is understood and agreed
that the obligation of SPV to repurchase any Transferred Asset as to which a
breach has occurred and is continuing shall, if such obligation is fulfilled,
constitute the sole remedy against SPV for such breach available to the Issuer.
Simultaneously with any Repurchase Payment with respect to a Transferred Asset,
such Transferred Asset shall immediately and automatically be sold, assigned,
transferred and conveyed by the Issuer to SPV without any further action by the
Issuer or any other Person and SPV shall cause the UTI Trustee to reallocate
such Transferred Asset from the Lease SUBI Portfolio.
(a) This Agreement may be amended from time to time by a written amendment duly
executed and delivered by SPV and the Issuer, but without the consent of any
other Person, to correct any inconsistency or cure any ambiguity or errors in
this Agreement only in a manner that would have no adverse effect on any
Investor Noteholder or any Preferred Member.
-18-
(b) This Agreement may be amended from time to time by a written amendment
duly executed and delivered by SPV and the Issuer, with the consent of the
Indenture Trustee so long as any Series of Investor Notes is outstanding.
(c) Prior to the execution of any such amendment or consent, SPV shall
furnish at least five (5) Business Days prior written notification of the
substance of such amendment or consent to each Rating Agency with respect to
each Series of Investor Notes and each series of Preferred Membership Interests.
No later than ten (10) Business Days after the execution of such amendment or
consent, SPV shall furnish a copy of such amendment or consent to each Rating
Agency with respect to each Series of Investor Notes and each Series of
Preferred Membership Interests and the Indenture Trustee.
The representations, warranties and covenants of SPV and of the Issuer set forth
in this Agreement shall remain in full force and effect and shall survive each
Transferred Asset Closing Date under Article II hereof and any related transfer
under the other Transaction Documents.
Except where telephonic instructions or notices are authorized herein to be
given, all notices, requests and demands to or upon the respective parties
hereto to be effective shall be in writing and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand or by overnight courier, or, in the case of telecopy notice, when
received, addressed as follows or to such address or other address as may be
hereafter notified by the respective parties hereto:
SPV: Raven Funding LLC
c/o Global Securitization Services, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
The Issuer: Greyhound Funding, LLC
c/o Global Securitization Services, LLC
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
in each case,
with a copy to: PHH Vehicle Management Services, LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
-19-
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS
AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
No failure or delay on the part of any party in exercising any power, right or
remedy under this Agreement or any Assignment shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power, right or remedy
preclude any other or further exercise thereof or the exercise of any other
power, right or remedy.
The various headings in this Agreement are for purposes of reference only and
shall not affect the meaning or interpretation of any provision of this
Agreement.
This Agreement may be executed in two or more counterparts, and by different
parties on separate counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument.
If any one or more of the covenants, agreements, provisions or terms of this
Agreement shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed enforceable to the fullest
extent permitted, and if not so permitted, shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement.
SPV acknowledges that the Issuer will, pursuant to the Indenture, assign its
rights hereunder and with respect to the Transferred Assets to the Indenture
Trustee and SPV hereby consents to such assignment. Except as provided in the
foregoing sentence or as expressly permitted herein, no party may assign its
rights hereunder without the other party's prior written consent and the prior
written consent of the Indenture Trustee. The party granting any such consent
shall give notice thereof to the Rating Agencies.
SPV and the Issuer agree to do and perform, from time to time, any and all acts
and to execute any and all further instruments required or reasonably requested
by the other more fully to effect the purposes of this Agreement, including the
execution of any financing statements or continuation statements relating to any
Transferred Assets purchased hereunder for filing under the provisions of the
UCC of any applicable jurisdiction.
Except as specifically set forth herein, this Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and permitted assigns. Except as otherwise expressly provided in this
Agreement, no other Person shall have any right or obligation hereunder.
Except as specifically stated otherwise herein, this Agreement, the Initial
Assignment, the Additional Assignments and the other Transaction Documents set
forth the entire understanding
-20-
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement.
Each of the parties to this Agreement acknowledges that the Issuer has appointed
the Administrator to act as its agent to the extent set forth in the Transaction
Documents. Unless otherwise instructed by the Issuer, copies of all notices,
requests, demands and other documents to be delivered to the Issuer pursuant to
the terms hereof shall be delivered to the Administrator. Unless otherwise
instructed by the Issuer, all notices, requests, demands and other documents to
be executed or delivered, and any action to be taken, by the Issuer pursuant to
the terms hereof may be executed, delivered and/or taken by the Administrator
pursuant to the Administration Agreement.
(a) Each of the parties hereto, by entering into this Agreement, covenants and
agrees that it will not at any time institute against, or join any other Person
in instituting against, SPV any bankruptcy, reorganization, arrangement,
insolvency, or liquidation or other similar proceedings under any U.S. Federal
or state bankruptcy or similar law. Each of the parties hereto, by entering into
this Agreement, covenants and agrees that it will not at any time institute
against, or join any other Person in instituting against, the Issuer any
bankruptcy, reorganization, arrangement, insolvency, or liquidation or other
similar proceedings under any U.S. Federal or state bankruptcy or similar law.
(b) Each of the parties hereto, by entering into this Agreement, hereby
covenants and agrees that, prior to the date which is one year and one day after
payment in full of all obligations under each Securitization, it will not
institute against, or join any other Person in instituting against, the
Origination Trust, SPV, any other Special Purpose Entity, or any general partner
or single member of any Special Purpose Entity that is a partnership or limited
liability company, respectively, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or
state bankruptcy or similar law.
The Issuer represents, warrants and covenants that (a) each of the Lease
SUBI and the Fleet Receivable SUBI is a separate series of the Origination Trust
as provided in Section 3806(b)(2) of Chapter 38 of Title 12 of the Delaware
Code, 12 Del.C. 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 (used in this Section as
defined in the Origination Trust Agreement) or the UTI Portfolio and (ii) the
debts, liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to any other SUBI (used in this Section as
defined in the Origination Trust Agreement), any other SUBI Portfolio, the UTI
or the UTI Portfolio shall be enforceable against such other SUBI Portfolio or
the UTI Portfolio only, as applicable, and not against any other SUBI Assets,
(c) except to the extent required by law, UTI Assets or SUBI Assets with respect
to any SUBI (other than the Lease SUBI and the Fleet Receivable SUBI) shall not
be subject to the claims, debts, liabilities, expenses or obligations
-21-
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 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
IN WITNESS WHEREOF, the parties hereby have executed this Agreement as of
the date and year first above written.
GREYHOUND FUNDING, LLC
By:
Name:
Title:
RAVEN FUNDING LLC
By:
Name:
Title:
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