Exhibit 10.8
TRANSFER AGREEMENT
BETWEEN
RAVEN FUNDING LLC,
AS TRANSFEROR
AND
GREYHOUND FUNDING, LLC,
AS TRANSFEREE
DATED AS OF JUNE 30, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . 1
SECTION 1.1 Certain Defined Terms . . . . . . . . . . . . . 1
SECTION 1.2 Other Definitional Provisions . . . . . . . . . 1
ARTICLE II
TRANSFER OF TRANSFERRED ASSETS . . . . . . . . 4
SECTION 2.1 Initial Contribution . . . . . . . . . . . . . 4
SECTION 2.2 Subsequent Transfers. . . . . . . . . . . . . . 4
SECTION 2.3 Additional Transferred Asset Closings;
Payment . . . . . . . . . . . . . . . . . . . . 4
SECTION 2.4 Security Interest in the Transferred Assets . . 4
ARTICLE III
REPRESENTATIONS AND WARRANTIES . . . . . . . . 5
SECTION 3.1 Representations and Warranties Regarding
Transferred Assets. . . . . . . . . . . . . . . 5
SECTION 3.2 Representations and Warranties Regarding
SPV . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV
CONDITIONS TO TRANSFER . . . . . . . . . . 8
SECTION 4.1 Conditions Precedent to Effectiveness of
Agreement . . . . . . . . . . . . . . .. . . . 8
SECTION 4.2 Conditions to Obligation of the Issuer to
make a Transferred Asset Payment . . . . . . . 9
ARTICLE V
TRANSFER TERMINATION EVENTS . . . . . . . . . 10
ARTICLE VI
COVENANTS OF SPV . . . . . . . . . . . . 11
Section 6.1 Conduct of Business and Maintenance of
Existence . . . . . . . . . . . . . . . . . . 11
Section 6.2 Compliance with Laws . . . . . . . . . . . . . 11
Section 6.3 Inspection of Property, Books and Records . . . 12
Section 6.4 Compliance with Transaction Documents . . . . . 12
Section 6.5 Notice of Defaults . . . . . . . . . . . . . . 13
Section 6.6 Notice of Material Proceedings . . . . . . . . 13
Section 6.7 Further Requests . . . . . . . . . . . . . . . 13
Section 6.8 Annual Opinion of Counsel . . . . . . . . . . . 13
Section 6.9 Liens . . . . . . . . . . . . . . . . . . . . . 13
Section 6.10 Other Indebtedness . . . . . . . . . . . . . . 14
Section 6.11 Mergers . . . . . . . . . . . . . . . . . . . 14
Section 6.12 Acquisition of Assets . . . . . . . . . . . . 14
Section 6.13 Distributions. . . . . . . . . . . . . . . . . 14
Section 6.14 Organizational Documents . . . . . . . . . . . 14
Section 6.15 Investments . . . . . . . . . . . . . . . . . 14
Section 6.16 No Other Agreements . . . . . . . . . . . . . 14
Section 6.17 Other Business . . . . . . . . . . . . . . . . 14
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Section 6.18 Maintenance of Separate Existence . . . . . . . 15
Section 6.19 No ERISA Plan . . . . . . . . . . . . . . . . 17
Section 6.20 Minimum Net Worth . . . . . . . . . . . . . . . 17
Section 6.21 Issuance of Additional Securities . . . . . . . 17
Section 6.22 Origination Trust Beneficial Interests. . . . . 17
ARTICLE VII
ADDITIONAL AGREEMENTS . . . . . . . . . . 17
SECTION 7.1 Initial UCC Filings . . . . . . . . . . . . . . 17
SECTION 7.2 Computer Files Marked . . . . . . . . . . . . . 18
SECTION 7.3 Protection of Title . . . . . . . . . . . . . . 18
SECTION 7.4 Repurchase Events . . . . . . . . . . . . . . . 18
ARTICLE VIII
MISCELLANEOUS PROVISIONS . . . . . . . . . . 19
SECTION 8.1 Amendment . . . . . . . . . . . . . . . . . . . 19
SECTION 8.2 Survival . . . . . . . . . . . . . . . . . . . 20
SECTION 8.3 Notices . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.4 GOVERNING LAW . . . . . . . . . . . . . . . . . 20
SECTION 8.5 Waivers . . . . . . . . . . . . . . . . . . . . 20
SECTION 8.6 Headings . . . . . . . . . . . . . . . . . . . 21
SECTION 8.7 Counterparts . . . . . . . . . . . . . . . . . 21
SECTION 8.8 Severability of Provisions . . . . . . . . . . 21
SECTION 8.9 Assignment . . . . . . . . . . . . . . . . . . 21
SECTION 8.10 Further Assurances. . . . . . . . . . . . . . . 21
SECTION 8.11 No third-Party Beneficiaries. . . . . . . . . . 21
SECTION 8.12 Merger and Integration. . . . . . . . . . . . . 21
SECTION 8.13 Authority of the Administrator. . . . . . . . . 21
SECTION 8.14 No Petition Covenants . . . . . . . . . . . . . 22
SECTION 8.15 SUBIs . . . . . . . . . . . . . . . . . . . . 22
Exhibit A Form of Initial Assignment
Exhibit B Form of Additional Assignment
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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:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. 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").
SECTION 1.2 Other Definitional Provisions. (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
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Certificate and the Fleet Receivable 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
(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 0000-0
Xxxxxxxxx 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 provision of this Agreement, and
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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.
ARTICLE II
TRANSFER OF TRANSFERRED ASSETS
SECTION 2.1 Initial Contribution. 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").
SECTION 2.3 Additional Transferred Asset Closings; Payment.
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
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Issuer and the parties agree that this Agreement shall constitute a
security agreement under the UCC in effect in New York.
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.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties Regarding
Transferred Assets. 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.
SECTION 3.2 Representations and Warranties Regarding SPV.
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
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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.
(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.
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(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.
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:
000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxx Xxxx 00000 and the place where its
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records concerning the Transferred Assets are kept is at: c/o Wilmington
Trust Company, as Custodian, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, XX
00000. 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.
(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.
ARTICLE IV
CONDITIONS TO TRANSFER
SECTION 4.1 Conditions Precedent to Effectiveness of
Agreement. This Agreement shall become effective upon the satisfaction
of the following conditions:
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(a) Agreement. The Issuer and the SPV shall have duly
executed and delivered this Agreement.
(b) Indenture Supplement. The Effective Date under the
Series 0000-0 Xxxxxxxxx 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 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).
SECTION 4.2 Conditions to Obligation of the Issuer to make a
Transferred Asset Payment. 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
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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.
ARTICLE V
TRANSFER TERMINATION EVENTS
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
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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;
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.
ARTICLE VI
COVENANTS OF SPV
Section 6.1 Conduct of Business and Maintenance of Existence.
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.
Section 6.2 Compliance with Laws.
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
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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.
Section 6.3 Inspection of Property, Books and Records.
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.
Section 6.4 Compliance with Transaction Documents.
(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 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.
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Section 6.5 Notice of Defaults.
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.
Section 6.6 Notice of Material Proceedings.
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.
Section 6.7 Further Requests.
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.
Section 6.8 Annual Opinion of Counsel.
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.
Section 6.9 Liens.
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
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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.
Section 6.10 Other Indebtedness.
SPV will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness.
Section 6.11 Mergers.
SPV will not merge or consolidate with or into any other
Person.
Section 6.12 Acquisition of Assets.
SPV will not acquire, by long-term or operating lease or
otherwise, any assets except in accordance with the terms of the
Transaction Documents.
Section 6.13 Distributions.
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.
Section 6.14 Organizational Documents.
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.
Section 6.15 Investments.
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.
Section 6.16 No Other Agreements.
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.
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Section 6.17 Other Business.
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.
Section 6.18 Maintenance of Separate Existence.
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;
(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,
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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;
(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
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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.
Section 6.19 No ERISA Plan.
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.
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.
ARTICLE VII
ADDITIONAL AGREEMENTS
SECTION 7.1 Initial UCC Filings. 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
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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.
SECTION 7.2 Computer Files Marked. 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.
SECTION 7.3 Protection of Title.
(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 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.
SECTION 7.4 Repurchase Events. 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
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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.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.1 Amendment. (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.
(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.
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SECTION 8.2 Survival. 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.
SECTION 8.3 Notices. 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
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
The Issuer: Greyhound Funding, LLC
c/o Global Securitization Services,
LLC
00 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: President
Telecopier No.: (000) 000-0000
in each case,
with a copy to: PHH Vehicle Management Services, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000
Attention: General Counsel
SECTION 8.4 GOVERNING LAW. 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.
SECTION 8.5 Waivers. 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.
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SECTION 8.6 Headings. 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.
SECTION 8.7 Counterparts. 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.
SECTION 8.8 Severability of Provisions. 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.
SECTION 8.9 Assignment. 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.
SECTION 8.10 Further Assurances. 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.
SECTION 8.11 No Third-Party Beneficiaries. 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.
SECTION 8.12 Merger and Integration. Except as
specifically stated otherwise herein, this Agreement, the Initial
Assignment, the Additional Assignments and the other Transaction
Documents set forth the entire understanding of the parties relating to
the subject matter hereof, and all prior understandings, written or oral,
are superseded by this Agreement.
SECTION 8.13 Authority of the Administrator. 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
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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.
SECTION 8.14 No Petition Covenants. (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.
SECTION 8.15 SUBIs.
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. Section 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 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
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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
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IN WITNESS WHEREOF, the parties hereby have executed
this Agreement as of the date and year first above written.
GREYHOUND FUNDING, LLC
By: /s/ Xxxxx X. Xxxxx
___________________________
Name: Xxxxx X. Xxxxx
Title: Manager
RAVEN FUNDING LLC
By: /s/ Xxxxx Xxxxxxx
___________________________
Name: Xxxxx Xxxxxxx
Title: Manager
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Exhibit A to
Transfer Agreement
FORM OF INITIAL ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the Transfer
Agreement, dated as of June 30, 1999 (the "Transfer Agreement"), between
RAVEN FUNDING LLC, a Delaware limited liability company ("SPV"), and
GREYHOUND FUNDING, LLC, a Delaware limited liability company (the
"Issuer"), SPV does hereby assign, transfer, set over and otherwise
convey unto the Issuer as a capital contribution, without recourse, all
right, title and interest of SPV in, to and under the following assets
(collectively, the "Transferred 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 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.
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The foregoing assignment, transfer and conveyance does
not constitute and is not intended to result in any assumption by Issuer
of any obligation of the undersigned to any other Person in connection
with the Transferred Assets described above or any agreement or
instrument relating to any of them.
The SPV and the Issuer intend that the transactions
contemplated by this assignment shall be treated as an assignment,
transfer and conveyance by SPV of the Transferred Assets and not 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.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Transfer Agreement and is to be governed by the Transfer
Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Transfer Agreement.
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IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of June 30, 1999.
RAVEN FUNDING LLC
By:___________________________
Name:
Title:
-3-
Exhibit B to
Transfer Agreement
FORM OF ADDITIONAL ASSIGNMENT
FOR VALUE RECEIVED, in accordance with the Transfer
Agreement, dated as of June 30, 1999 (the "Transfer Agreement"), between
Raven Funding LLC, a Delaware limited liability company ("SPV"), and
Greyhound Funding, LLC, a Delaware limited liability company (the
"Issuer"), SPV does hereby sell, assign, transfer, set over and otherwise
convey unto the Issuer, without recourse, all right, title and interest
of SPV in, to and under the following assets (collectively, the
"Transferred Assets"):
(a) the beneficial interest in the Additional Units
allocated to the Lease SUBI Portfolio on the date hereof 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.
The foregoing sale, assignment, transfer and conveyance
does not constitute and is not intended to result in any assumption by
Issuer of any obligation of the undersigned to any other Person in
connection with the Transferred Assets described above or any agreement
or instrument relating to any of them.
The SPV and the Issuer intend that the transactions
contemplated by this assignment shall be treated as a sale, assignment,
transfer and conveyance by SPV of the Transferred Assets and not a
-4-
lending transaction. If this Agreement does not constitute a valid sale,
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.
This Assignment is made pursuant to and upon the
representations, warranties and agreements on the part of the undersigned
contained in the Transfer Agreement and is to be governed by the Transfer
Agreement.
Capitalized terms used herein and not otherwise defined
shall have the meaning assigned to them in the Transfer Agreement.
-5-
IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed as of _____ ___, ___.
RAVEN FUNDING LLC
By:___________________________
Name:
Title:
-6-
