EXHIBIT 4.42
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X.X. XXXXXXXX TRUST
SOLD SUBI SUPPLEMENT 1999-1B
TO ORIGINATION TRUST AGREEMENT
among
RAVEN FUNDING LLC,
as Settlor and Initial Beneficiary
PHH VEHICLE MANAGEMENT SERVICES LLC,
as UTI Trustee and Servicer
and
WILMINGTON TRUST COMPANY,
as Delaware Trustee and SUBI Trustee
Dated as of June 30, 1999
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SOLD SUBI SUPPLEMENT 1999-1B
TO ORIGINATION TRUST AGREEMENT
THIS SOLD SUBI SUPPLEMENT 1999-1B TO ORIGINATION TRUST AGREEMENT
(the "Sold SUBI Supplement") is dated and effective as of June 30, 1999, among
RAVEN FUNDING LLC ("SPV" or, in its capacity as settlor, the "Settlor", or in
its capacity as initial beneficiary, the "Initial Beneficiary"), PHH VEHICLE
MANAGEMENT SERVICES LLC, a Delaware limited liability company, ("VMS"), as UTI
Trustee (in such capacity, together with any successor or permitted assign, the
"UTI Trustee") and as Servicer (in such capacity, together with any successor or
permitted assign, the "Servicer") and WILMINGTON TRUST COMPANY, as Delaware
Trustee (in such capacity, together with any successor or permitted assign, the
"Delaware Trustee"), and as trustee with respect to the Sold SUBI (in such
capacity, together with any successor or permitted assign, the "SUBI Trustee";
together with the UTI Trustee and the Delaware Trustee, the "Origination
Trustees").
RECITALS
A. The Settlor, the UTI Trustee and the Delaware Trustee have
entered into that certain Amended and Restated Origination Trust Agreement dated
as of June 30, 1999 (as modified, supplemented or amended from time to time, the
"Origination Trust Agreement") pursuant to which the Settlor continued X.X.
Xxxxxxxx Trust, formerly a Maryland common law trust, as a Delaware business
trust (the "Origination Trust"), for the purpose of acting as agent and nominee
owner of various Trust Assets in accordance with the Origination Trust
Agreement.
B. The Origination Trust, the Settlor and VMS, as Servicer, also
have entered into that certain Servicing Agreement dated as of June 30, 1999 (as
modified, supplemented or amended from time to time, the "Servicing Agreement"),
which provides, among other things, for the servicing of the Trust Assets by the
Servicer.
C. The Origination Trust Agreement contemplates that, from time to
time, the UTI Trustee, on behalf of the Origination Trust and at the direction
of the Initial Beneficiary, will identify and allocate on the Origination
Trust's books and records certain Trust Assets from the Undivided Trust Interest
to separate SUBI Portfolios (as defined in the Origination Trust Agreement) and
create and issue Certificates to the Initial Beneficiary representing separate
special units of beneficial interest in the Origination Trust or "SUBIs" (as
defined in the Origination Trust Agreement), the beneficiary or beneficiaries of
which generally will hold undivided beneficial interests in the related SUBI
Portfolios (as defined in the Origination Trust Agreement), all as set forth in
the Origination Trust Agreement.
D. The parties hereto desire to supplement the terms of the
Origination Trust Agreement (i) to cause the UTI Trustee to identify and
allocate Trust Assets to a SUBI Portfolio (the "1999- 1B Sold SUBI Portfolio"),
and (ii) to create and issue to the Initial Beneficiary a SUBI Certificate (as
defined in the Origination Trust Agreement) (such SUBI Certificate, together
with any replacements thereof, the "Class X 1999-1B Sold SUBI Certificate"), and
a
SUBI Certificate (such SUBI Certificate, together with any replacements thereof,
the "Class Y 1999-1B Sold SUBI Certificate", and together with the Class X
1999-1B Sold SUBI Certificate, the "1999-1B Sold SUBI Certificates"), that will
evidence the entire and exclusive beneficial interest in the related SUBI (the
"1999-1B Sold SUBI"), and (iii) to set forth the terms and conditions thereof.
E. Concurrently herewith, the Initial Beneficiary, the UTI Trustee,
the Servicer, the Delaware Trustee and the SUBI Trustee are entering into a
separate SUBI supplement (the "1999-1A SUBI Supplement") to create and issue to
SPV a separate SUBI Certificate (the "1999-1A SUBI Certificate". The 1999-1A
SUBI Certificate evidences the entire and exclusive ownership interest in a
separate SUBI consisting of Trust Vehicles, Leases and related Trust Assets. The
1999-1B Sold SUBI represents the entire and exclusive ownership interest in the
Fleet Receivables and related Trust Assets.
F. Concurrently herewith, SPV is transferring all of its right,
title and interest in and to the portion of the 1999-1B Sold SUBI, represented
by the Class X 1999-1B Sold SUBI Certificate, the Class X 1999-1B Sold SUBI
Certificate, the 1999-1A SUBI and the 1999-1A SUBI Certificate to the Issuer
pursuant to the Transfer Agreement.
G. Issuer will issue (i) debt securities pursuant to an Indenture
dated as of June 30, 1999 (the "Indenture") between the Issuer and The Chase
Manhattan Bank, as indenture trustee (the "Indenture Trustee"), and (ii)
preferred membership interests in the Issuer pursuant to the LLC Agreement and
will use the proceeds thereof on the date hereof to satisfy certain claims on
the Trust Assets allocated to the 1999-1A Sold SUBI and to make a distribution
to the Initial Beneficiary and thereafter will use the proceeds thereof to fund
the acquisition of subsequent additions to the Trust Assets allocated to the
1999-1A Sold SUBI.
H. Also concurrently herewith, the Origination Trust, the Settlor
and the Servicer are entering into that certain 1999-1 Sold SUBI Supplement to
Servicing Agreement (the "1999-1 Sold SUBI Servicing Supplement") pursuant to
which, among other things, the terms of the Servicing Agreement will be
supplemented insofar as they apply to the Trust Assets allocated to the 1999-1A
Sold SUBI and the 1999-1B Sold SUBI, providing for specific servicing
obligations that will benefit the Issuer, as the holder of the Class X 1999-1B
Sold SUBI Certificate and the 1999-1A SUBI Certificate and SPV, as the holder of
the Class Y 1999-1B Sold SUBI Certificate and related matters.
PART X
DEFINITIONS; THIRD-PARTY BENEFICIARIES
Section 10.1. Definitions. For all purposes of this 1999-1B Sold
SUBI Supplement, except as otherwise provided or unless the context otherwise
requires, (a) all capitalized terms used herein which are not defined herein and
which are defined in the Origination Trust Agreement shall have the meanings
attributed to them by the Origination Trust Agreement, (b) all capitalized terms
used herein which are not defined herein or in the
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Origination Trust Agreement and which are defined in the Indenture shall have
the meanings attributed to them by the Indenture, (c) all references to words
such as "herein," "hereof" and the like shall refer to this 1999-1B Sold SUBI
Supplement as a whole and not to any particular article or section within this
1999-1B Sold SUBI Supplement, (d) the term "include" and all variations thereon
shall mean "include without limitation", and (e) the term "or" shall include
"and/or".
Section 10.2. Rights in Respect of 1999-1B Sold SUBI. The holder and
pledgees of the Sold SUBI Certificates (including the SPV, the Issuer and the
Indenture Trustee, on behalf of the Investor Noteholders) and their respective
successors and permitted assigns are third-party beneficiaries of the
Origination Trust Agreement and this 1999-1B Sold SUBI Supplement, insofar as
they apply to the 1999-1B Sold SUBI and said holders or pledgees. Therefore, to
that extent, references in the Origination Trust Agreement and herein to the
ability of any "holder of a SUBI Certificate", "pledgee or assignee of a SUBI
Certificate" or the like to take any action shall be deemed to refer to, in the
case of the Class X 1999-1B Sold SUBI Certificate, the Issuer acting with the
consent or upon the instruction of the Indenture Trustee during such time as any
Investor Note shall remain outstanding and, if no Investor Notes remain
outstanding, shall be deemed to refer to the Issuer acting in accordance with
the LLC Agreement or, in the case of the Class Y 1999-1B Sold SUBI Certificate,
SPV.
PART XI
CREATION OF THE 1999-1B SOLD SUBI
Section 11.1. Initial Creation of the 1999-1B Sold SUBI Portfolio
and the 1999-1B Sold SUBI. (a) Pursuant to Section 4.2(a) of the Origination
Trust Agreement, the Initial Beneficiary hereby directs the UTI Trustee to
identify and allocate or cause to be identified and allocated on the books and
records of the Origination Trust a separate portfolio of SUBI Assets (the
"1999-1B Sold SUBI Portfolio") consisting of an ownership interest in all Trust
Assets consisting of Fleet Receivables, the Trust's rights under the Receivables
Purchase Agreement and all Trust Assets to the extent related thereto,
including, without limitation, the Initial Beneficiary's rights under the
Contribution Agreement and the Asset Sale Agreement related thereto (the
"1999-1B Sold SUBI Assets").
(b) Also pursuant to Section 4.2(a) of the Origination Trust
Agreement, the UTI Trustee hereby creates a SUBI which shall be known as the
"1999-1B Sold SUBI" and which shall represent an exclusive and specific
beneficial interest solely in the 1999-1B Sold SUBI Portfolio.
(c) As required by Section 4.2(d) of the Origination Trust
Agreement, the SPV has appointed Wilmington Trust Company as the SUBI Trustee
for the 1999-1B Sold SUBI and the 1999-1B Sold SUBI Portfolio.
Section 11.2. [Reserved.]
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Section 11.3. Issuance and Form of the 1999-1B Sold SUBI
Certificates. (a) The 1999-1B Sold SUBI shall be represented by a Class X
1999-1B Sold SUBI Certificate and a Class Y 1999-1B Sold SUBI Certificate which,
collectively shall represent the entire and exclusive beneficial interest in the
1999-1B Sold SUBI and the 1999-1B Sold SUBI Portfolio, as further set forth
herein. The 1999-1B Sold SUBI Certificates shall be substantially in the form of
Exhibit A attached hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required by this Sold SUBI Supplement
and may have such letters, numbers or other marks of identification and such
legends and endorsements placed thereon as may, consistently herewith and with
the Origination Trust Agreement, be directed by the Initial Beneficiary. Any
portion of the 1999-1B Sold SUBI Certificates may be set forth on the reverse
thereof. The 1999-1B Sold SUBI Certificates shall be printed, lithographed,
typewritten, photocopied or otherwise produced or may be produced in any other
manner as may, consistently herewith and with the Origination Trust Agreement,
be determined by the Initial Beneficiary.
(b) As required by Section 4.2(b) of the Origination Trust
Agreement, the 1999-1B Sold SUBI Certificates shall contain an express written
release and subordination of any claim by any holder thereof to any proceeds or
assets of the Origination Trust other than those from time to time included
within the 1999-1B Sold SUBI Portfolio.
(c) The Class X 1999-1B Sold SUBI Certificate represents the right
to the Class X 1999-1B Invested Amount and the Class Y 1999-1B Sold SUBI
Certificate represents the right to the Class Y 1999-1B Invested Amount, after
the holder of the Class X 1999-1B Sold SUBI Certificate shall have received the
Class X 1999-1B Invested Amount. For the purposes of this 1999-1B Sold SUBI
Supplement, (i) "Class X 1999-1B Invested Amount" means for each Monthly Period,
an amount equal to the lesser of (x) $80,000,000 and (y) the Aggregate
Receivables Amount as of the close of business on the first day of such Monthly
Period, (ii) "Class Y 1999-1B Invested Amount" means, for any Monthly Period, an
amount equal to the excess, if any, of (x) the Aggregate Receivables Amount as
of the close of business on the first day of such Monthly Period over (y)
$80,000,000, and (iii) the "Aggregate Receivables Amount" as of any date is
equal to the sum for all Eligible Receivables held by the Trust on such date of
the amounts owing by the Obligors thereunder as of such date. A list identifying
the Obligors with respect to the Fleet Receivables as of June, 24, 1999 is
attached hereto as Schedule I. The UTI Trustee hereby identifies and allocates
as 1999-1B Sold SUBI Assets such portfolio of SUBI Assets, such SUBI Assets to
be identified on the books and accounts of the Origination Trust as belonging
exclusively to the 1999-1B Sold SUBI Portfolio.
Section 11.4. Filings; Termination of 1999-1B Sold SUBI; Related
Matters. (a) The Settlor, the UTI Trustee and the SUBI Trustee will undertake
all other and future actions and activities as may be required by the Servicer
to perfect (or evidence) and confirm the foregoing allocations of 1999-1B SUBI
Assets to the 1999-1B Sold SUBI Portfolio, including filing or causing to be
filed UCC financing statements and executing and delivering all related filings,
documents or writings as may be deemed reasonably necessary by the Servicer
hereunder or under any of the Transaction Documents and as are presented to them
in final execution form. The Settlor hereby irrevocably makes and appoints each
of the SUBI Trustee and the Servicer, and any of their respective officers,
employees or agents, as the true and lawful attorney-in-fact
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of the Settlor (which appointment is coupled with an interest and is
irrevocable) with power to sign on behalf of the Settlor any financing
statements, continuation statements, security agreements, mortgages,
assignments, affidavits, letters of authority, notices or similar documents
necessary or appropriate to be executed or filed pursuant to this Section.
(b) If all of the 1999-1B Sold SUBI Assets have been liquidated into
cash and all of such cash shall have been distributed in accordance with the
1999-1 Sold SUBI Servicing Supplement, then at the direction of the Initial
Beneficiary the 1999-1B Sold SUBI shall be terminated and the 1999-1B Sold SUBI
Certificates shall be returned to the SUBI Trustee and canceled thereby and all
1999-1B Sold SUBI Assets shall be allocated to the UTI.
Section 11.5. Acceptance by SUBI Trustee. The SUBI Trustee shall
have the rights, powers and duties set forth herein and in the Origination Trust
Agreement with respect to the 1999-1B Sold SUBI. Pursuant to Section 3.1(c) of
the Origination Trust Agreement, the SUBI Trustee hereby accepts its appointment
as SUBI Trustee with respect to the 1999-1B Sold SUBI hereunder and agrees to
act as a trustee of the Origination Trust for the benefit of the holder or
holders of each 1999-1B Sold SUBI Certificates in accordance with the terms of
this 1999-1B Sold SUBI Supplement and the Origination Trust Agreement. The Class
X 1999-1B Sold SUBI Certificate shall be initially registered in the name of the
Issuer and the Class Y 1999-1B Sold SUBI Certificate shall be initially
registered in the name of the Initial Beneficiary.
Section 11.6. Representations and Warranties of SUBI Trustee. The
SUBI Trustee hereby makes the following representations and warranties on which
the Settlor and Initial Beneficiary, each of their permitted assignees and
pledgees, and each pledgee or holder of the 1999-1B Sold SUBI Certificates may
rely:
(a) Organization and Good Standing. The SUBI Trustee is a banking
corporation, duly organized, validly existing and in good standing under
the laws of the State of Delaware.
(b) Power and Authority. The SUBI Trustee has full power, authority
and right to execute, deliver and perform this 1999-1B Sold SUBI
Supplement and has taken all necessary action to authorize the execution,
delivery and performance by it of this 1999-1B Sold SUBI Supplement.
(c) Due Execution. This 1999-1B Sold SUBI Supplement has been duly
executed and delivered by the SUBI Trustee, and this 1999-1B Sold SUBI
Supplement and the Origination Trust Agreement are legal, valid and
binding instruments enforceable against the SUBI Trustee in accordance
with their respective terms, except as such enforceability may be limited
by bankruptcy, insolvency and other similar laws relating to the
enforcement of creditors' rights generally and to general principles of
equity.
(d) No Conflict. Neither the execution and delivery of this 1999-1B
Sold SUBI Supplement nor the consummation of the transactions herein
contemplated, nor compliance with the provisions hereof, will conflict
with or result in a breach of, or constitute a default (with notice or
passage of time or both) under any provision of any
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law, governmental rule, regulation, judgment, decree or order of any
Governmental Authority in the State of Delaware binding on the SUBI
Trustee or the charter or bylaws of the SUBI Trustee or any provision of
any mortgage, indenture, contract, agreement or other instrument to which
the SUBI Trustee is a party or by which it is bound. No consent, approval
or authorization of, or filing, registration or qualification with, or the
giving of notice or the taking of any other action with respect to, any
Governmental Authority of the State of Delaware is required on the part of
the SUBI Trustee in connection with the execution, delivery and
performance by the SUBI Trustee of the Origination Trust Agreement, the
Servicing Agreement, the 1999-1 Sold SUBI Servicing Supplement and this
1999-1B Sold SUBI Supplement.
(e) Location of Records. The office where the SUBI Trustee keeps its
records concerning the transactions contemplated hereby is located at 0000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000.
Section 11.7. Merger and Consolidation of Origination Trustees. Each
Origination Trustee shall give notice to the Initial Beneficiary, the Servicer,
SPV, the Issuer, and the Indenture Trustee within 30 days after effecting any
merger, consolidation, or other transaction set forth in Section 6.5 of the
Origination Trust Agreement.
PART XII
ORIGINATION TRUST FEES AND EXPENSES
Section 12.1. Origination Trust Fees and Expenses. Notwithstanding
Sections 5.5, 6.8 or 7.1 or any other provision of the Origination Trust
Agreement, the rights of the Origination Trustees to receive fees or be
indemnified or reimbursed for expenses incurred in connection with or allocated
to the 1999-1B Sold SUBI out of the 1999-1B Sold SUBI Assets shall be paid by
the Servicer pursuant to Section 7.5 of the 1999-1 Sold SUBI Servicing
Supplement.
PART XIII
ASSIGNMENT OF THE CLASS X 1999-1B SOLD SUBI
Section 13.1. Assignment. The parties to this 1999-1B Sold SUBI
Supplement hereby acknowledge and consent to (i) the transfer, pledge,
assignment by SPV to the Issuer pursuant to the Transfer Agreement of all of the
SPV's right, title and interest in and to the portion of 1999-1B Sold SUBI,
represented by the Class X 1999-1B Sold SUBI Certificate, and the Class X
1999-1B Sold SUBI Certificate and (ii) the pledge, assignment and grant of a
security interest by the Issuer to the Indenture Trustee for the benefit of the
Investor Noteholders pursuant to the Indenture of all of the Issuers right,
title and interest in and to the portion of 1999-1B Sold SUBI, represented by
the Class X 1999-1B Sold SUBI Certificate, and the Class X 1999-1B Sold SUBI
Certificate. The parties to this 1999-1B Sold SUBI Supplement hereby acknowledge
and agree that the SPV shall be prohibited from transferring any of its right,
title
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and interest in and to the portion of 1999-1B Sold SUBI, represented by the
Class Y 1999-1B Sold SUBI Certificate, to any Person.
PART XIV
MISCELLANEOUS PROVISIONS
Section 14.1. Amendment, Etc. (a) Notwithstanding Section 9.1 of the
Origination Trust Agreement, the Origination Trust Agreement, as supplemented by
this 1999-1B Sold SUBI Supplement, to the extent that it deals solely with the
1999-1B Sold SUBI and the 1999-1B Sold SUBI Portfolio, may be amended only in
accordance with this Section 14.1.
(b) The Origination Trust Agreement or this 1999-1B Sold SUBI
Supplement may be amended by SPV with the consent of the Origination Trustees,
but without the consent of any other Person, to correct any inconsistency or
cure any ambiguity or errors in the Origination Trust Agreement or this 1999-1B
Sold SUBI Supplement only in a manner which would have no adverse effect on any
holder of 1999-1B Sold SUBI Certificate or any pledgee or assignee thereof.
(c) The Origination Trust Agreement or this 1999-1B Sold SUBI
Supplement may be amended in any respect from time to time by SPV, with the
consent of the Origination Trustees (to the extent adversely affected thereby),
each holder of the 1999-1B Sold SUBI Certificates and each pledgee or assignee
thereof.
(d) Prior to the execution of any such amendment or consent, the
Servicer shall furnish at least five (5) Business Days prior written
notification of the substance of such amendment or consent (together with a copy
of the related Opinion of Counsel) to each Rating Agency with respect to each
Series of Investor Notes and each series of Preferred Membership Interests;
provided that the Servicer shall have no obligation to furnish any such Rating
Agency with prior written notice of the substance of any amendment or consent to
the Origination Trust Agreement. No later than ten (10) Business Days after the
execution of any such amendment or consent, the Servicer 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, the Issuer and
the Indenture Trustee.
(e) Prior to the execution of any amendment to the Origination Trust
Agreement or this 1999-1B Sold SUBI Supplement, the Issuer and the Indenture
Trustee shall be entitled to receive and conclusively rely upon an Opinion of
Counsel stating that the execution of such amendment is authorized or permitted
by the Origination Trust Agreement or this 1999-1B Sold SUBI Supplement and that
all conditions precedent to the execution and delivery of such amendment have
been satisfied.
Section 14.2. Control. The Initial Beneficiary hereby agrees that,
so long as Class X 1999-1B Invested Amount is greater than zero, the holder of
the Class Y 1999-1B
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Certificate, or its pledgee, shall have no right to control the exercise of all
rights, remedies, powers, interests and privileges in respect of the 1999- 1B
Sold SUBI Portfolio.
Section 14.3. Governing Law. THIS 1999-1B SOLD SUBI SUPPLEMENT SHALL
BE CREATED UNDER AND GOVERNED BY AND CONSTRUED UNDER THE INTERNAL LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO ANY OTHERWISE APPLICABLE PRINCIPLES OF
CONFLICTS OF LAWS.
Section 14.4. Notices. The notice provisions of Section 9.3 of the
Origination Trust Agreement shall apply equally to this 1999-1B Sold SUBI
Supplement. All demands, notices and communications under this 1999-1B Sold SUBI
Supplement or the Origination Trust Agreement shall be in writing and shall be
delivered or mailed by registered or certified first class United States mail,
postage prepaid, return receipt requested; hand delivery; prepaid courier
service; or telecopier, and;
(i) if to the SUBI Trustee, addressed to:
Wilmington Trust Company
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
(at Telecopier No. 302-651-8882)
or at such other address as shall be designated by such Person to the
other parties hereto;
(ii) if to the Initial Beneficiary, addressed to:
RAVEN FUNDING LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(at Telecopier No. (000) 000-0000)
or at such other address as shall be designed by the holders of the
1999-1B Sold SUBI Certificates to the other parties hereto; and
(iii) if to the Indenture Trustee, addressed to:
The Chase Manhattan Bank
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Capital Markets Fiduciary Services
(iv) if to the Issuer, addressed to:
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Greyhound Funding, LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
(at Telecopier No. (000) 000-0000)
or at such other address as shall be designated by such Person to the
parties hereto.
Section 14.5. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this 1999-1B Sold SUBI Supplement
shall be for any reason whatsoever held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this 1999-1B Sold SUBI Supplement
and shall in no way affect the validity or enforceability of the other
provisions of this 1999-1B Sold SUBI Supplement or of the 1999-1B Sold SUBI
Certificates or the rights of the holders thereof. To the extent permitted by
law, the parties hereto waive any provision of law that renders any provision of
this 1999-1B Sold SUBI Supplement invalid or unenforceable in any respect.
Section 14.6. Effect of 1999-1B Sold SUBI Supplement on Origination
Trust Agreement and Transaction Documents. (a) Except as otherwise specifically
provided herein: (i) the parties shall continue to be bound by all provisions of
the Origination Trust Agreement; and (ii) the provisions set forth herein shall
operate either as additions to or modifications of the obligations of the
parties under the Origination Trust Agreement, as the context may require. In
the event of any conflict between the provisions of this 1999-1B Sold SUBI
Supplement and the Origination Trust Agreement with respect to the 1999-1B Sold
SUBI, the provisions of this 1999-1B Sold SUBI Supplement shall prevail.
(b) For purposes of determining the parties' obligations under this
Sold SUBI Supplement with respect to the 1999-1B Sold SUBI, general references
in the Origination Trust Agreement to: (i) the SUBI Portfolio shall be deemed to
refer more specifically to the 1999-1B Sold SUBI Portfolio; (ii) the SUBI
Supplement shall be deemed to refer more specifically to this 1999-1B Sold SUBI
Supplement; and (iii) the SUBI Servicing Agreement Supplement shall be deemed to
refer more specifically to the 1999-1 Sold SUBI Servicing Supplement.
(c) Anything contained in the Origination Trust Agreement to the
contrary notwithstanding (including, without limitation, Section 5.5 thereof),
no Origination Trustee that is an Affiliate of VMS shall be entitled to any
indemnification out of any 1999-1B Sold SUBI Assets for any matter for which VMS
or any Affiliate of VMS shall have indemnified SPV or shall otherwise be
responsible under the Transaction Documents.
Section 14.7. Series Liability. Each party hereto represents,
warrants and covenants (and each holder or pledgee of the 1999-1B Sold SUBI, by
virtue of its acceptance of such Sold SUBI or pledge thereof represents,
warrants and covenants) that (a) the 1999-1B Sold 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,
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obligations and expenses incurred, contracted for or otherwise existing with
respect to the 1999-1B Sold SUBI or the 1999-1B Sold SUBI Portfolio shall be
enforceable against the 1999-1B Sold SUBI Portfolio only, and not against any
other SUBI Assets or the UTI Portfolio and (ii) the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to any other SUBI, 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 or specified in the Origination Trust Agreement or
in this 19991-1B Sold SUBI Supplement, UTI Assets or SUBI Assets with respect to
any SUBI (other than the 1999-1B Sold SUBI) shall not be subject to the claims,
debts, liabilities, expenses or obligations arising from or with respect to the
1999-1B Sold SUBI in respect of such claim, (d)(i) no creditor or holder of a
claim relating to assets allocated to the 1999-1B Sold SUBI or the 1999-1B Sold
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 1999-1B Sold SUBI or any SUBI
Assets other than the 1999-1B Sold SUBI Portfolio shall be entitled to maintain
any action against or recover any assets allocated to the 1999-1B Sold SUBI, and
(e) any purchaser, assignee or pledgee of an interest in the 1999-1B Sold SUBI,
the 1999-1B Sold SUBI Certificate, any other SUBI, any other SUBI Certificate,
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.
Section 14.8. No Petition: Release of Claims. With respect to each
Special Purpose Entity, each party hereto (and each holder and pledgee of the
1999-1B Sold SUBI, by virtue of its acceptance of such SUBI or pledge thereof)
agrees that, prior to the date which is one year and one day after payment in
full of all obligations under each Securitization (i) no party hereto shall
authorize such Special Purpose Entity to commence a voluntary winding-up or
other voluntary case or other proceeding seeking liquidation, reorganization or
other relief with respect to such Special Purpose Entity or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect in any
jurisdiction or seeking the appointment of an administrator, a trustee,
receiver, liquidator, custodian or other similar official with respect to such
Special Purpose Entity or any substantial part of its property or to consent to
any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against such
Special Purpose Entity, or to make a general assignment for the benefit of any
party hereto or any other creditor of such Special Purpose Entity, and (ii) none
of the parties hereto shall commence or join with any other Person in commencing
any proceeding against such Special Purpose Entity under any bankruptcy,
reorganization, liquidation or insolvency law or statute now or hereafter in
effect in any jurisdiction. Each of the parties hereto agrees that, prior to the
date which is one year and one day after the payment in full of all
-10-
obligations under each Securitization, it will not institute against, or join
any other Person in instituting against, any Special Purpose Entity an action in
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or similar proceeding under the laws of the United States or any State of the
United States.
[SIGNATURES ON NEXT PAGE]
-11-
IN WITNESS WHEREOF, the Settlor and the Trustees have caused this
1999-1B Sold SUBI Supplement to be duly executed by their respective officers as
of the day and year first above written.
RAVEN FUNDING LLC, as Settlor and
Initial Beneficiary
By___________________________________________
Name:
Title:
PHH VEHICLE MANAGEMENT SERVICES LLC,
as UTI Trustee and Servicer
By___________________________________________
Name:
Title:
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Delaware Trustee and SUBI Trustee
By___________________________________________
Name:
Title:
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TABLE OF CONTENTS
Page
----
RECITALS .............................................................1
PART X
DEFINITIONS; THIRD-PARTY BENEFICIARIES....................2
Section 10.1. Definitions...............................................2
Section 10.2. Rights in Respect of 1999-1B Sold SUBI...................3
PART XI
CREATION OF THE 1999-1B SOLD SUBI.........................3
Section 11.1. Initial Creation of the 1999-1B Sold SUBI Portfolio
and the 1999-1B Sold SUBI...............................3
Section 11.2. ..........................................................3
Section 11.3. Issuance and Form of the 1999-1B Sold SUBI Certificates...4
Section 11.4. Filings; Termination of 1999-1B Sold SUBI; Related
Matters.................................................4
Section 11.5. Acceptance by SUBI Trustee................................5
Section 11.6. Representations and Warranties of SUBI Trustee............5
Section 11.7. Merger and Consolidation of Origination Trustees..........6
PART XII
ORIGINATION TRUST FEES AND EXPENSES.......................6
Section 12.1. Origination Trust Fees and Expenses.......................6
PART XIII
ASSIGNMENT OF THE CLASS X 1999-1B SOLD SUBI...............6
Section 13.1. Assignment................................................6
PART XIV
MISCELLANEOUS PROVISIONS..................................7
Section 14.1. Amendment, Etc............................................7
Section 14.2. Control...................................................7
Section 14.3. Governing Law.............................................8
Section 14.4. Notices...................................................8
(i)
