CONTRIBUTION AGREEMENT
CONTRIBUTION AGREEMENT (this "Agreement"), dated as of June 30,
1999, between Raven Funding LLC ("Assignor"), the X.X. Xxxxxxxx Trust (the
"Origination Trust"), a business trust organized under the laws of the State of
Delaware ("Assignee").
W I T N E S S E T H:
WHEREAS, the Assignor is the sole owner of the UTI, an undivided
beneficial interest in the Assignee;
WHEREAS, the parties hereto desire to effect the contribution and
assignment by Assignor to Assignee of all of the right, title and interest of
Assignor to and under all the leases set forth on Schedule A (the "Leases");
WHEREAS, the parties hereto desire to effect the contribution and
assignment by Assignor to Assignee of all of the right, title and interest of
Assignor to and under all the vehicles set forth on Schedule B (the "Vehicles");
and
WHEREAS, the parties hereto desire to effect the contribution and
assignment by Assignor to Assignee of all of the right, title and interest of
Assignor to and under all the Fleet Receivables and the Receivables Property
transferred to the Assignee pursuant to the Receivables Purchase Agreement,
dated as of June 30, 1999 (as amended from time to time, the "Receivables
Purchase Agreement"), between the Assignor and PHH Vehicle Management Services
LLC ("VMS").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements herein contained, the parties hereto agree as follows:
1. Definitions. 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"). "Receivables
Property" shall have the meaning set forth in Annex X to the Receivables
Purchase Agreement.
2. Contribution and Assignment. Assignor does hereby contribute,
sell, warrant, pledge, convey, assign, transfer and set over unto Assignee all
of its present and future right, title and interest in, to and under the rights,
interests, powers, privileges and other benefits, in each case whether now owned
or existing or hereafter acquired or arising and wherever the same may be
located in all of the following (all of which rights, being hereby assigned and
pledged, or intended so to be, are hereinafter collectively referred to as the
"Assigned Assets"):
(a) all Vehicles, together with: (i) all substitutions,
renewals or replacements of the Vehicles or any part included therein, (ii) all
proceeds, rents, income, revenues and profits to the Assignor therefor, (iii)
all security interests in such Vehicles, (iv) all logs, books, records and other
written materials pertaining to the Vehicles or any part included therein and
all warranties of any kind relating to the Vehicles;
(b) all the right, title, interest, claims and demands now
held or hereafter acquired by the Assignor as lessor, in, to and under the
Leases, together with all rights, powers, privileges, options, licenses and
other benefits of the Assignor, as lessor, under each thereof, whether arising
under the Leases, by law or in equity, including, without limitation:
(i) all rights, if any, to leases of Vehicles;
(ii) the immediate and continuing right to receive and
collect all payments, insurance and disposition proceeds, condemnation
awards and other payments, tenders and security of any kind now or
hereafter payable or receivable by, or for the benefit or account of, the
Assignor, as lessor, under the Leases;
(iii) the right to (1) give or receive any instrument,
notice or other communication, (2) exercise any election or option or
accept any surrender of the Vehicle or any part thereof or grant any
waiver, consent or other approval, and (3) enter into any amendment,
supplement or other modification or agreement relating to the Leases;
(iv) the right to take such action and exercise such
rights and remedies upon the occurrence of a default under a Lease,
including the commencement, conduct and consummation of legal,
administrative or other proceedings, as shall be permitted by the Leases,
or by any other law or in equity, and to do any and all other things
whatsoever which the Assignor is or may be entitled to do under the
Leases;
it being the intent and purpose hereof that the contribution, assignment and
transfer to the Assignee of said rights, powers, privileges, options, licenses
and other benefits shall be effective and operative immediately and shall
continue in full force and effect;
(c) all the right, title, interest, claims and demands now
held or hereafter acquired by the Assignor, in, to and under the Fleet
Receivables and the Receivables Property, together with all rights, powers,
privileges, options, licenses and other benefits of the Assignor, under each
thereof, whether arising under the Fleet Receivables, by law or in equity,
including, without limitation:
(i) all rights, if any, to the Fleet Receivables;
(ii) the immediate and continuing right to receive and
collect all payments, insurance and disposition proceeds, condemnation
awards and other payments, tenders and security of any kind now or
hereafter payable or receivable by, or for the benefit or account of, the
Assignor;
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(iii) the right to (1) give or receive any instrument,
notice or other communication, (2) exercise any election or option or
grant any waiver, consent or other approval, and (3) enter into any
amendment, supplement or other modification or agreement relating to the
Fleet Receivables;
(iv) the right to take such action and exercise such
rights and remedies upon the occurrence of a default under the Fleet
Receivables and the Receivables Property, including the commencement,
conduct and consummation of legal, administrative or other proceedings, as
shall be permitted by the Fleet Receivables and the Receivables Property,
or by any other law or in equity, and to do any and all other things
whatsoever which the Assignor is or may be entitled to do under the Fleet
Receivables and the Receivables Property;
it being the intent and purpose hereof that the contribution, assignment and
transfer to the Assignee of said rights, powers, privileges, options, licenses
and other benefits shall be effective and operative immediately and shall
continue in full force and effect;
(d) each certificate of title or other evidence of ownership
of a Vehicle issued by any applicable department, agency or official responsible
for accepting applications for, and maintaining records regarding, certificates
of title in the respective jurisdiction in which such Vehicle is registered;
(e) the Receivables Purchase Agreement;
(f) the Asset Sale Agreement;
(g) any insurance policy and rights thereunder or proceeds
therefrom, including without limitation, any policy of comprehensive collision,
public liability, physical damage or personal liability insurance to the extent
that any such policy applies to any Lease or Vehicle; and
(h) all proceeds (as such term is defined in the Uniform
Commercial Code of the State of New York, or any other applicable Uniform
Commercial Code, each as in effect from time to time) of the foregoing, and in
any event shall include, without limitation (i) "cash proceeds," (ii) "non-cash
proceeds," (iii) all amounts payable as proceeds of insurance, as an award or
otherwise in connection with any confiscation, condemnation, requisition or
other taking of any Assigned Assets, and (iv) all amounts payable to the
Assignor by any manufacturer, supplier or vendor of any of the Vehicles or any
component thereof pursuant to any warranty or indemnity covering any Vehicle, in
each case whether now owned or existing or hereafter acquired or arising, or
acquired or arising before or after the commencement of any bankruptcy
proceeding by or against the Assignor; and (v) all monies and securities
deposited or required to be deposited with the Assignor pursuant to any term of
the Assigned Assets or required to be held by the Assignor hereunder or
thereunder.
3. Assumption. In consideration of the contribution and assignment
set forth in Section 2 above, the Assignee hereby accepts the contribution and
assignment of the Assigned
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Assets and assumes and undertakes and agrees to perform and discharge all of the
duties and obligations of Assignor with respect to the Leases whenever and
wherever accrued.
4. Release of Assignor. As of the date hereof, Assignor shall be
relieved of all its liabilities under the Leases.
5. Payments. Assignor hereby covenants and agrees to pay over to
Assignee, if and when received following the date hereof, any amounts (including
any sums payable as interest in respect thereof) paid on account of the Assigned
Assets to or for the benefit of Assignor; and Assignee hereby covenants and
agrees to pay over to Assignor, if and when received following the date hereof,
any amounts (including any sums payable as interest in respect thereof) paid to
or for the benefit of Assignee that are not attributable to the Assigned Assets
and to which Assignor is otherwise entitled.
6. Representation by Assignor. As of the Initial Closing Date,
Assignor hereby represents and warrants to Assignee that none of the Assigned
Assets transferred by Assignor on such date has been contributed, sold,
transferred, assigned or pledged by Assignor to any Person other than Assignee.
Immediately prior to the transfer and assignment contemplated herein, Assignor
had good title to such Assigned Assets free and clear of all Liens and,
immediately upon the transfer thereof hereunder, Assignee will have good title
to such Assigned Assets, free and clear of all Liens, and the transfer of such
Assigned Assets by Assignor to the Assignee has been perfected under the UCC.
7. Indemnities of Assignor. Assignor shall defend, indemnify, and
hold harmless Assignee, to the extent that the Assignee does not acquire
perfected first priority ownership of the Assigned Assets, from and against the
failure to vest perfected first priority ownership of the Assigned Assets.
8. Protection, Right, Title and Interest. (a) Assignor shall take
such necessary actions and precautions and actions to preserve, maintain, and
protect the interest of Assignee in the Assigned Assets and proceeds thereof.
(b) Assignor shall, at its own expense, on or prior to the Initial
Closing Date, indicate in its computer files created in connection with the
Assigned Assets for such Initial Closing Date that such Assigned Assets have
been transferred, assigned and conveyed to the Trust pursuant to this Agreement.
(c) Assignor 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
Assigned Assets and in the proceeds thereof. Assignor 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.
(d) Assignor shall not change its name, identity or limited
liability company structure in any manner that would, could or might make any
financing statement or continuation
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statement filed by Assignor in accordance with this Agreement 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 30 days prior written
notice thereof and shall file such financing statement or amendments as may be
necessary to continue the perfection of the Trust's interest in all Assigned
Assets sold, transferred, conveyed and assigned hereunder.
(e) Assignor shall give the Trust, the Issuer and the Indenture
Trustee at least 30 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. Assignor
shall at all times maintain its principal executive office within the United
States of America.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
10. Counterparts. This Agreement may be executed in any number of
counterparts, all of which together shall constitute a single agreement. It
shall not be necessary that any counterpart be signed by both parties so long as
each party shall sign at least one counterpart.
11. Further Assurances. Each party agrees that from time to time
after the date hereof, it shall execute and deliver or cause to be executed and
delivered such instruments, documents and papers, and take all such further
action as may be reasonably required in order to consummate fully the purposes
of this Agreement and to implement the transactions contemplated hereby.
12. Amendment. (a) This Agreement may be amended form time to time
by a written amendment duly executed and delivered by Assignor and Assignee, 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 Assignor and Assignee, with the consent
of the Issuer and 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,
Assignee 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, Assignor 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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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
RAVEN FUNDING LLC, as Assignor
By:
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Name:
Title:
X.X. XXXXXXXX TRUST, as ASSIGNEE
By: Wilmington Trust Company, not in
its individual capacity but solely
as Delaware Trustee and SUBI Trustee
By: PHH VEHICLE MANAGEMENT SERVICES
LLC, as UTI Trustee
By:
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Name:
Title:
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