Exhibit 4.46
================================================================================
RECEIVABLES PURCHASE AGREEMENT
Dated as of June 30, 1999
by and between
PHH VEHICLE MANAGEMENT SERVICES LLC
and
RAVEN FUNDING LLC
================================================================================
THIS RECEIVABLES PURCHASE AGREEMENT ("Agreement") is entered into as
of June 30, 1999, by and between PHH VEHICLE MANAGEMENT SERVICES LLC, a Delaware
limited liability company (the "Originator" or "VMS"), and RAVEN FUNDING LLC, a
Delaware limited liability company ("SPV").
RECITALS
A. The Originator owns all of the outstanding membership interests
of SPV.
B. The Originator intends to sell, and SPV intends to purchase,
certain Fleet Receivables, from time to time, as described herein.
C. In addition, the Originator, as sole member of SPV may, from time
to time, contribute capital to SPV in the form of Contributed Fleet Receivables
or cash.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in Annex X.
Section 1.2 Rules of Construction. For purposes of this Agreement,
the rules of construction set forth in Annex X shall govern. All annexes,
schedules and exhibits hereto, or expressly identified in this Agreement, are
incorporated herein by reference and, taken together with this Agreement, shall
constitute but a single agreement.
ARTICLE II.
TRANSFERS OF FLEET RECEIVABLES
Section 2.1 Agreement to Transfer.
(a) Fleet Receivables Transfers. Subject to the terms and conditions
hereof, the Originator agrees to sell (without recourse except to the
extent specifically provided herein) or contribute to SPV on the Closing
Date and on each Settlement Date thereafter (each such date, a "Transfer
Date") all Fleet Receivables owned by it as of the close of business on
the first Business Day of the calendar month during which such Transfer
Date occurred (or, in the case of the initial Transfer Date, as of June
29, 1999), together
with all of the Originator's right, title and interest in and to the
Receivables Property, and SPV agrees to purchase or accept as a capital
contribution all such Fleet Receivables and Receivables Property on each
such date. Each such Transfer shall be evidenced by a certificate of
assignment substantially in the form of Exhibit 2.1(a) (the "Receivables
Assignment"), and the Originator and SPV shall execute and deliver a
Receivables Assignment on or before the Closing Date and each other
Transfer Date.
(b) Determination of Sold Fleet Receivables. On and as of each
Transfer Date, Fleet Receivables sold to, and purchased by, SPV shall
consist of those Fleet Receivables owned by the Originator and identified
by the Originator on Schedule I to the Receivables Assignment for sale to
SPV (each such Fleet Receivable individually, a "Sold Fleet Receivable,"
and collectively, the "Sold Fleet Receivables"). The "Sale Price" of all
Sold Fleet Receivables shall be equal to the fair market value thereof as
agreed upon from time to time by the Originator and SPV.
(c) Payment of Purchase Price. In consideration for each Sale of
Sold Fleet Receivables hereunder, subject to the conditions set forth in
Article III, SPV shall pay to the Originator on the Transfer Date therefor
the Sale Price therefor in Dollars in immediately available funds. All
payments by SPV under this Section 2.1(c) shall be effected by means of a
wire transfer not later than 3:00 p.m. (New York time) on the day when due
to Account No. ______, ABA No. ______, Reference: __________________.
(d) Determination of Contributed Fleet Receivables. On and as of
each Transfer Date, the Originator shall contribute to SPV a capital
contribution of all Fleet Receivables owned by the Originator as of such
Transfer Date that have not been identified as Sold Fleet Receivables
pursuant to Section 2.1(b) (each such contributed Fleet Receivable
individually, a "Contributed Fleet Receivable," and collectively, the
"Contributed Fleet Receivables").
(e) Ownership of Transferred Fleet Receivables. On and after each
Transfer Date and after giving effect to the Transfers to be made on each
such date, SPV shall own the Transferred Fleet Receivables and the
Originator shall not take any action inconsistent with such ownership nor
shall the Originator claim any ownership interest in such Transferred
Fleet Receivables.
(f) Servicing of Transferred Fleet Receivables. The parties hereto
acknowledge that, in accordance with the terms of the Servicing Agreement,
as supplemented by the Sold SUBI Supplement 1999-1 to the Servicing
Agreement, the Servicer shall conduct the servicing and administration of
and collection of the Transferred Fleet Receivables.
Section 2.2 Grant of Security Interest. The parties hereto intend
that each Transfer shall constitute a purchase and sale or capital contribution,
as applicable, and not a loan. Notwithstanding anything to the contrary set
forth in this Section 2.2, if a court of competent jurisdiction determines that
any transaction provided for herein constitutes a loan and not a purchase and
sale or capital contribution, as applicable, then the parties hereto intend that
this
-2-
Agreement shall constitute a security agreement under applicable law and that
the Originator shall be deemed to have granted, and the Originator does hereby
grant, to SPV a first priority Lien in and to all of the Originator's right,
title and interest in, to and under the Transferred Fleet Receivables and the
Receivables Property.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer. The initial Transfer
hereunder shall be subject to satisfaction of each of the following conditions
precedent:
(a) Agreement; Other Documents. This Agreement or counterparts
hereof shall have been duly executed by, and delivered to, the Originator
and SPV, and SPV shall have received such documents, instruments,
agreements and legal opinions as SPV shall reasonably request in
connection with the transactions contemplated by this Agreement, each in
form and substance reasonably satisfactory to SPV.
(b) Governmental Approvals. SPV shall have received (i) satisfactory
evidence that the Originator has obtained all required consents and
approvals of all Persons, including all requisite Governmental
Authorities, to the execution, delivery and performance of this Agreement
and the other Transaction Documents to which the Originator is a party and
the consummation of the transactions contemplated hereby and thereby or
(ii) an Officer's Certificate from the Originator in form and substance
satisfactory to SPV affirming that no such consents or approvals are
required.
(c) Compliance with Laws. The Originator shall be in compliance with
all appli cable foreign, federal, state and local laws and regulations,
except to the extent that the failure to so comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(d) The Effective Date. The Effective Date (as defined in the
Indenture) shall have occurred.
Section 3.2 Conditions to all Transfers. Each Transfer hereunder
(including the initial Transfer) shall be subject to satisfaction of the
following further conditions precedent as of the Transfer Date therefor:
(a) the representations and warranties of the Originator contained
herein shall be true and correct in all material respects as of such
Transfer Date, both before and after giving effect to such Transfer and to
the application of any Sale Price therefor, except to the extent that any
such representation or warranty expressly relates to an earlier date (in
which case it shall be true and correct in all material respects as of
such earlier date);
(b) no Servicer Termination Event, Receivables Purchase Termination
Event or Potential Receivables Purchase Termination Event shall have
occurred and be
-3-
continuing or would result after giving effect to such Transfer or the
application of any Sale Price therefor; and
(c) the Originator shall have taken such other action, including
delivery of approvals, consents, opinions, documents and instruments to
SPV as SPV may reasonably request.
The acceptance by the Originator of the Sale Price for any Sold Fleet
Receivables on any Transfer Date shall be deemed to constitute, as of any such
Transfer Date, a representation and warranty by the Originator that the
conditions in this Section 3.2 have been satisfied.
ARTICLE IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Originator. To
induce SPV to purchase the Sold Fleet Receivables and to accept the Contributed
Fleet Receivables, the Originator makes the following representations and
warranties to SPV as of each Transfer Date, each and all of which shall survive
the execution and delivery of this Agreement.
(a) Existence; Compliance with Law. The Originator (i) is a limited
liability com pany duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization; (ii) is duly qualified
to conduct business and is in good standing in each other jurisdiction
where its ownership or lease of property or the conduct of its business
requires such qualification except when the failure to be so qualified
could not reasonably be expected to have a Material Adverse Effect; (iii)
has the requisite limited liability company power and authority and the
legal right to own, pledge, mortgage or otherwise encumber and operate its
properties, to lease the property it operates under lease, and to conduct
its business as now, heretofore and proposed to be conducted; (iv) has all
licenses, permits, consents or approvals from or by, and has made all
filings with, and has given all notices to, all Governmental Authorities
having jurisdiction, to the extent required for such ownership, operation
and conduct, except to the extent that any failure with respect to any
such license, permit, consent, approval, filing or notice, individually or
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect; (v) is in compliance with its certificate of formation and
limited liability company agreement; and (vi) is in compliance with all
Applicable Law, except where the failure to comply, individually or in the
aggregate, could not reasonably be expected to have a Material Adverse
Effect.
(b) Executive Offices; Collateral Locations; Company Names. As of
the Closing Date, the current location of the Originator's chief executive
office, principal place of business, and the locations of its records
concerning the Transferred Fleet Receivables are set forth in Schedule
4.1(b). During the prior five years, except as set forth in Schedule
4.1(b), the Originator has not been known as or used any corporate,
fictitious or trade name other than PHH Vehicle Management Services
Corporation.
-4-
(c) Power, Authorization, Enforceable Obligations. The execution,
delivery and performance by the Originator of this Agreement and the other
Transaction Documents to which it is a party, the creation and perfection
of all Liens and ownership interests provided for herein and therein and,
solely with respect to clause (g) below, the exercise by SPV or any
assignee or transferee thereof of any of its rights and remedies under any
Transaction Document to which it is a party: (i) are within the
Originator's limited liability company power; (ii) have been duly
authorized by all necessary or proper company or member action; (iii) do
not contravene any provision of the Originator's limited liability company
agreement or certificate of formation; (iv) do not violate any law or
regulation, or any order or decree of any court or Governmental Authority;
(v) do not conflict with or result in the breach or termination of,
constitute a default under or accelerate or permit the acceleration of any
performance required by, any indenture, mortgage, deed of trust, lease,
agreement or other instrument to which the Originator is a party or by
which the Originator or any of its property is bound; (vi) do not result
in the creation or imposition of any Adverse Claim upon any of the
property of the Originator; and (vii) do not require the consent or
approval of, or filing with or notice to, any Governmental Authority or
any other Person, except those referred to in Section 3.1(b), all of which
will have been duly obtained, made or complied with prior to the Closing
Date. On or prior to the Closing Date, each of the Transaction Documents
to which the Originator is party shall have been duly executed and
delivered by the Originator and each such Transaction Document shall then
constitute a legal, valid and binding obligation of the Originator
enforceable against it in accordance with its terms.
(d) No Litigation. No Litigation is now pending or, to the knowledge
of the Originator, threatened against the Originator that (i) challenges
the Originator's right or power to enter into or perform any of its
obligations under the Transaction Documents to which it is a party, or the
validity or enforceability of any Transaction Document or any action taken
thereunder, (ii) seeks to prevent the Transfer, purchase or pledge of any
Fleet Receivable or the consummation of any of the transactions
contemplated under this Agreement or the other Transaction Documents or
(iii) has a reasonable risk of being determined adversely to the
Originator and that, if so determined, could have a Material Adverse
Effect.
(e) Solvency. Both before and after giving effect to (i) the
transactions contem plated by this Agreement and the other Transaction
Documents and (ii) the payment and accrual of all transaction costs in
connection with the foregoing, the Originator is and will be Solvent.
(f) Material Adverse Effect. Between December 31, 1998 and the
Closing Date, no event has occurred that alone or together with other
events could reasonably be expected to have a Material Adverse Effect.
(g) Liens. The Liens granted to SPV pursuant to Section 2.2 are
fully perfected first priority Liens in and to the Transferred Fleet
Receivables and the Receivables Property, subject only to Permitted Liens.
-5-
(h) Margin Regulations. The use of all funds acquired by the
Originator under this Agreement will not conflict with or contravene any
of Regulations T, U, and X of the Board of Governors of the Federal
Reserve System, as the same may from time to time be amended, supplemented
or otherwise modified.
(i) Nonapplicability of Bulk Sales Laws. No transaction contemplated
by this Agreement requires compliance with any bulk sales act or similar
law.
(j) Government Regulation. The Originator is not, and is not
controlled by, an "investment company" registered or required to be
registered under (and as such term is defined in) the Investment Company
Act. The Originator is not subject to regulation under the Public Utility
Holding Company Act of 1935, the Federal Power Act, or any other federal
or state statute that restricts or limits its ability to incur
Indebtedness or to perform its obligations hereunder. The purchase or
acquisition of the Transferred Fleet Receivables by SPV hereunder, the
application of the Sale Price therefor and the consummation by the
Originator and SPV of the transactions contemplated by this Agreement and
the other Transaction Documents will not violate any provision of any such
statute or any rule, regulation or order issued by the Securities and
Exchange Commission.
(k) Fleet Receivables. With respect to each Transferred Fleet
Receivable, as of the Transfer Date of such Transferred Fleet Receivable:
(i) such Fleet Receivable satisfies the criteria for an
Eligible Receivable;
(ii) immediately prior to its Transfer to SPV such Fleet
Receivable was owned by the Originator free and clear of any Adverse
Claim (other than Permitted Liens), and the Originator has had at
all relevant times the full right, power and authority to sell,
contribute, assign, transfer and pledge its interest therein as
contemplated under this Agreement and the other Transaction
Documents and, upon such Transfer, SPV will acquire valid and
properly perfected title to and the sole record and beneficial
ownership interest in such Fleet Receivable, free and clear of any
Adverse Claim and, following such Transfer, such Fleet Receivable
will not be subject to any Adverse Claim as a result of any action
or inaction on the part of the Originator;
(iii) the Transfer of each such Fleet Receivable and
Receivables Property pursuant to this Agreement and the Receivables
Assignments constitutes, as applicable, a valid sale or
contribution, transfer, assignment, setover and conveyance to SPV of
all right, title and interest of the Originator in and to such Fleet
Receivable and Receivables Property, which transfer is perfected and
of first priority under Applicable Law; and
(iv) the Originator has no knowledge of any fact (including
any defaults by the Obligor thereunder on any other Fleet
Receivable) that would cause it or should have caused it to expect
that any payments on such Fleet Receivable will
-6-
not be paid in full when due or that is reasonably likely to cause
or result in any other Material Adverse Effect with respect to such
Fleet Receivable.
(l) ERISA. No notice of a Lien arising under Title IV of ERISA has
been filed under Section 6323(a) of the Internal Revenue Code of 1986, as
amended (or any successor provision) against, or otherwise affecting, the
assets of the Originator.
(m) Tax filings and Expenses. The Originator has filed all federal,
state and local tax returns and all other tax returns which, to the
knowledge of the Originator, 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 the
Originator, except such taxes, if any, as are being contested in good
faith and for which adequate reserves have been set aside on its books.
The Originator 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.
(n) Other Representations. All representations and warranties of the
Originator 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.
The representations and warranties described in this Section 4.1 shall survive
the Transfer of the Transferred Fleet Receivables to SPV, any subsequent
assignment of the Transferred Fleet Receivables by SPV, and the termination of
this Agreement and the other Transaction Documents and shall continue until the
indefeasible payment in full of all Transferred Fleet Receivables.
Section 4.2 Affirmative Covenants of the Originator. The Originator
covenants and agrees that, unless otherwise consented to by SPV, from and after
the Closing Date :
(a) Offices and Records. The Originator shall maintain its principal
place of business and chief executive office and the office at which it
keeps its Records at the respective locations specified in Schedule 4.1(b)
or, upon 30 days' prior written notice to SPV, at such other location in a
jurisdiction where all action required to be taken pursuant to Section
6.13 shall have been taken with respect to the Transferred Fleet
Receivables. The Originator shall at its own cost and expense, for not
less than three years from the date on which each Transferred Fleet
Receivable was originated, or for such longer period as may be required by
law, maintain adequate Records with respect to such Transferred Fleet
Receivable, including records of all payments received, credits granted
and merchandise returned with respect thereto.
(b) Access. At any reasonable time and from time to time at the
reasonable request of SPV, any Holder of a Fleet Receivable SUBI
Certificate or any pledgee or assignee thereof, the Originator shall
permit such Person as SPV or such Holder or pledgee or assignee, as the
case may be, may designate, at such Person's expense, to conduct audits or
visit and inspect any of the properties of the Originator to examine the
-7-
Records, internal controls and procedures maintained by the Originator
with respect to the Transferred Fleet Receivables and take copies and
extracts therefrom, and to discuss matters relating to the Transferred
Fleet Receivables or the Originator's performance under this Agreement or
the Originator's affairs, finances and accounts with its officers,
employees, agents and, upon notice to the Originator, independent
accountants. The Originator hereby authorizes such officers, employees,
agents and independent accountants to discuss with SPV and any Holder of a
Fleet SUBI or any pledgee or assignee thereof and their designees such
matters and the affairs, finances and accounts of the Originator. Any
audit provided for herein shall be conducted in accordance with the
Originator's rules respecting safety and security on its premises and
without materially disrupting operations.
(c) Compliance With Policies. The Originator shall originate the
Fleet Receivables in accordance with the Policies and comply in all
material respects with the Policies applicable to each Transferred Fleet
Receivable and the Fleet Service Contracts therefor, and with the terms of
such Fleet Receivables and Fleet Service Contracts.
(d) Assignment. The Originator agrees that SPV may assign all of its
right, title and interest in, to and under the Transferred Fleet
Receivables, the Receivables Property and this Agreement, including its
right to exercise the remedies set forth in Section 4.4, to the
Origination Trust pursuant to the Contribution Agreement and agrees that
the Origination Trust may create and issue to SPV a special unit of
beneficial interest in the Transferred Fleet Receivables, the Receivables
Property and this Agreement (the "Fleet Receivable SUBI"), a portion of
which will be represented by a certificate issued by the Origination Trust
and retained by SPV (the "SPV Fleet Receivable SUBI Certificate") and a
portion of which will be represented by another certificate issued by the
Origination Trust (the "Fleet Receivable SUBI Certificate") which will be
transferred by SPV to the Issuer pursuant to the Transfer Agreement and
pledged by the Issuer to the Indenture Trustee under the Indenture. The
Originator agrees that, upon any such assignment and pledge to the Issuer,
as holder of the Fleet Receivables SUBI Certificate, or the Indenture
Trustee, as the pledgee thereof, may enforce directly, without joinder of
SPV, all of the obligations of such Originator hereunder, including any
obligations of the Originator set forth in Sections 4.2(j), 4.4, 5.1 and
6.13.
(e) Compliance With Agreements and Applicable Laws. The Originator
shall perform each of its obligations under this Agreement and the other
Transaction Documents and comply with all federal, state and local laws
and regulations applicable to it and the Fleet Receivables, including
those relating to truth in lending, retail installment sales, fair credit
billing, fair credit reporting, equal credit opportunity, fair debt
collection practices, privacy, licensing, taxation, ERISA and labor
matters, except to the extent that the failure to so comply, individually
or in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
(f) Maintenance of Existence and Conduct of Business. The Originator
shall preserve and maintain its limited liability company existence,
rights, franchise and privi-
-8-
leges in the jurisdiction of its organization, and qualify and remain
qualified in good standing as a foreign limited liability company in each
jurisdiction where the failure to preserve and maintain such existence,
rights, franchises, privileges and qualification would have a Material
Adverse Effect.
(g) Notice of Material Event. The Originator shall promptly inform
SPV, the Issuer and the Indenture Trustee in writing of the occurrence of
any of the following, in each case setting forth the details thereof and
what action, if any, the Originator proposes to take with respect thereto:
(i) any Litigation commenced or threatened against the
Originator which could reasonably be expected to have a Material
Adverse Effect or with respect to or in connection with all or any
portion of the Transferred Fleet Receivables;
(ii) the commencement of a case or proceeding by or against
the Originator seeking a decree or order in respect of the
Originator (A) under the Bankruptcy Code or any other applicable
federal, state or foreign bankruptcy or other similar law, (B)
appointing a custodian, receiver, liquidator, assignee, trustee or
sequestrator (or similar official) for the Originator or for any
substantial part of such Person's assets, or (C) ordering the
winding-up or liquidation of the affairs of the Originator;
(iii) the receipt of notice that (A) the Originator is being
placed under regulatory supervision, (B) any license, permit,
charter, registration or approval is to be, or may be, suspended or
revoked, which suspension or revocation may have a Material Adverse
Effect, or (C) the Originator is to cease and desist any practice,
procedure or policy employed by the Originator in the conduct of its
business if such cessation which could reasonably be expected to
have a Material Adverse Effect;
(iv) (A) any Adverse Claim made or asserted against any of the
Transferred Fleet Receivables of which it becomes aware or (B) any
determination that a Transferred Fleet Receivable was not an
Eligible Receivable on the Transfer Date therefor; or
(v) any other event, circumstance or condition that has had or
could reason ably be expected to have a Material Adverse Effect.
(h) Separate Identity. The Originator shall take all actions
required to maintain SPV's status as a separate legal entity, including
(i) not holding SPV out to third parties as other than an entity with
assets and liabilities distinct from the Originator and the Originator's
other Subsidiaries; (ii) not holding itself out to be responsible for the
Indebtedness of SPV or, other than by reason of owning, membership
interests in SPV, for any decisions or actions relating to SPV; (iii)
preparing separate financial statements for SPV; (iv) taking such other
actions as are necessary on its part to ensure that all
-9-
procedures required by its and SPV's respective limited liability company
agreement and certificate of formation are duly and validly taken; (v)
keeping correct and complete records and books of account and minutes; and
(vi) not acting in any manner that could foreseeably mislead others with
respect to SPV's separate identity. In addition to the foregoing, the
Originator and SPV shall take such actions as shall be required in order
that:
(i) The Originator shall maintain records and books of account
separate from those of SPV.
(ii) The resolutions, agreements and other instruments
underlying the trans actions described in this Agreement shall be
continuously maintained by the Originator as official records.
(iii) The Originator shall maintain an arm's-length
relationship with SPV and shall not hold itself out as being liable
for the Indebtedness of SPV.
(iv) The Originator shall keep its assets and liabilities
wholly separate from those of SPV.
(v) The Originator shall not mislead third parties by
conducting or appearing to conduct business on behalf of SPV or
expressly or impliedly representing or suggesting that the
Originator is liable or responsible for the Indebtedness of SPV or
that the assets of the Originator are available to pay the creditors
of SPV.
(vi) The Originator shall at all times have stationery and
other business forms and a mailing address and telephone number
separate from those of SPV.
(vii) The Originator shall at all times limit its transactions
with SPV only to those expressly permitted hereunder or under any
other Transaction Document.
(viii) The Originator shall comply with (and cause to be true
and correct) each of the facts and assumptions relating to the
Originator and SPV contained in the no substantive consolidation
opinion of White & Case LLC delivered on the Closing Date.
(i) Payment, Performance and Discharge of Obligations. (i) Subject
to Section 4.2(i)(ii), the Originator shall pay, perform and discharge or
cause to be paid, performed and discharged all of its obligations and
liabilities, including all taxes, assessments and governmental charges
upon its income and properties and all lawful claims for labor, materials,
supplies and services, promptly when due, except to the extent that the
failure to so act, individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect.
-10-
(ii) The Originator may in good faith contest, by appropriate
proceedings, the validity or amount of any charges or claims
described in Section 4.2(i)(i); provided, that (A) adequate reserves
with respect to such contest are maintained on the books of the
Originator, in accordance with GAAP, (B) such contest is maintained
and prosecuted continuously and with diligence, (C) none of the
Transferred Fleet Receivables may become subject to forfeiture or
loss as a result of such contest, and (D) no Lien may be imposed to
secure payment of such charges or claims other than inchoate tax
liens.
(j) Adjustments to Sale Price. If on any day the Billed Amount of
any Sold Fleet Receivable or Contributed Fleet Receivable is reduced as a
result of any Dilutions, the Originator shall, on or prior to the next
following Settlement Date, make a cash payment to SPV in the amount of
such reduction by remitting such amount to the Collection Account.
(k) Annual Opinion of Counsel. On or before March 31 of each
calendar year, commencing with March 31, 2000, Originator shall furnish to
the SPV, 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 Receivables 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 SPV's perfected
ownership interest in the Transferred Fleet Receivables and Receivables
Property sold by this Agreement and the Receivables 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
Receivables Assignments 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 SPV's ownership interest in the Transferred
Fleet Receivables and Receivables Property until March 31 in the following
calendar year.
(l) Protection of Title. (i) Originator 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 SPV of the Transferred Fleet Receivables and
Receivables Property and in the proceeds thereof. The Originator shall
deliver (or cause to be delivered) to the SPV, the Issuer and the
Indenture Trustee file stamped copies of, or filing receipts for, any
document filed as provided above, as soon as available following such
filing.
(ii) The Originator 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 statement or
continuation statement filed by the Originator in accordance with
this Agreement seriously misleading within the
-11-
meaning of Section 9-402(7) of the New York UCC, unless it shall
have given SPV, the Issuer and the Indenture Trustee at least 30
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 Fleet
Receivables and Receivables Property sold, transferred, conveyed and
assigned hereunder.
(iii) The Originator shall give SPV, 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. The
Originator shall at all times maintain its principal executive
office within the United States of America.
(m) Computer Files Marked. The Originator shall, at its own expense,
on or prior to each Transfer Date, indicate in its computer files created
in connection with the Transferred Fleet Receivables and Receivables
Property for such Transfer Date that such Transferred Fleet Receivables
and Receivables Property have been transferred, assigned and conveyed to
SPV pursuant to this Agreement.
Section 4.3 Negative Covenants of the Originator. The Originator
covenants and agrees that, without the prior written consent of SPV, from and
after the Closing Date:
(a) Sale of Assets. The Originator shall not sell, transfer, convey,
assign (by operation of law or otherwise) or otherwise dispose of, or
assign any Transferred Fleet Receivable, Receivables Property or Fleet
Service Contract therefor (except as otherwise expressly permitted by this
Agreement or any of the other Transaction Documents).
(b) Liens. The Originator shall not create, incur, assume or permit
to exist any Adverse Claim on or with respect to the Transferred Fleet
Receivables or the Receivables Property except for Permitted Liens.
(c) Modifications of Fleet Receivables or Fleet Service Contracts.
The Originator shall not extend, amend, forgive, discharge, compromise,
cancel or otherwise modify the terms of any Transferred Fleet Receivable,
or amend, modify or waive any payment term or condition of any Fleet
Service Contract therefor as it applies to any outstanding Fleet
Receivable except in accordance with the Policies to the extent permitted
by Section 4.2(j).
(d) Sale Characterization. The Originator shall not make statements
or disclosures or prepare any financial statements for any purpose,
including for federal income tax, reporting or accounting purposes, that
shall account for the transactions contemplated by this Agreement in any
manner other than, with respect to the Sale of each Sold Fleet Receivable
and the Transfer of each Contributed Fleet Receivable, as a true sale
and/or
-12-
absolute assign ment of its full right, title and ownership interest in
such Transferred Fleet Receivable and the Receivables Property to SPV.
(e) Actions Affecting Rights. The Originator shall not (i) take any
action, or fail to take any action, if such action or failure to take
action may interfere with the enforcement of any material rights hereunder
or under the other Transaction Documents, including rights with respect to
the Transferred Fleet Receivables and the Receivables Property (except as
provided in clause (ii) below); (ii) waive or alter any rights with
respect to the Transferred Fleet Receivables (or any agreement or
instrument relating thereto) except in accordance with the Policies; or
(iii) fail to pay any tax, assessment, charge, fee or other obligation of
the Originator with respect to the Transferred Fleet Receivables and the
Receivables Property , or fail to defend any action, if such failure to
pay or defend may adversely affect the priority or enforceability of the
perfected title of SPV to and the sole record and beneficial ownership
interest of SPV in the Transferred Fleet Receivables and the Receivables
Property, or prior to their Transfer hereunder, the Originator's right,
title or interest therein.
(f) Change to Policies. No change that in any respect materially
adversely affects the collectibility of the Fleet Receivables or otherwise
has a Material Adverse Effect shall be made to the Policies without the
prior written consent of SPV, the Issuer and, while any Series of Investor
Notes are outstanding, the Indenture Trustee.
(g) No Proceedings. From and after the Closing Date and until the
date one year plus one day following the date on which each Series of
Investor Notes and each series of Preferred Membership Interests have been
indefeasibly paid in full in cash, the Originator shall not, directly or
indirectly, institute or cause to be instituted against SPV any
bankruptcy, insolvency or other similar proceeding.
(h) Separate Identity. The Originator shall not take any action that
is inconsistent with the terms of Section 4.2(h) hereof, Section 6.18 of
the Transfer Agreement, Section 9.6 of the Origination Trust Agreement or
Section 8.24 of the Indenture.
Section 4.4 Breach of Representations, Warranties or Covenants. Upon
discovery by the Originator, SPV, the Issuer or the Indenture Trustee of any
breach of any representation, warranty or covenant described in Sections 4.1,
4.2 or 4.3, which breach is reasonably likely to have a material adverse effect
on the value of a Transferred Fleet Receivable or the interests of SPV or the
Issuer therein, the party discovering the same shall give prompt written notice
thereof to the other party hereto. The Originator shall, on or prior to the next
succeeding Settlement Date upon the Originator's, SPV's or the Issuer's
discovery of (or otherwise obtaining actual knowledge of) any breach of such
representation, warranty or covenant, either (a) repurchase such Transferred
Fleet Receivable from the Origination Trust for cash, by remitting the purchase
price to the Servicer in such manner as will permit the Servicer to deposit the
same on such date into the Collection Account in accordance with the terms of
the Servicing Agreement (or if the Originator is then the Servicer, by remitting
the purchase price to
-13-
the Collection Account), (b) transfer ownership of a new Eligible Receivable or
new Eligible Receivables to SPV on such Settlement Date (or such Business Day in
exchange for such Transferred Fleet Receivable), or (c) make a capital
contribution in cash to SPV by remitting the amount of such capital contribution
to the Collection Account, in each case in an amount (the "Rejected Amount")
equal to the Billed Amount of such Transferred Fleet Receivable minus the
Collections received by SPV or its assignees in respect thereof.
ARTICLE V.
INDEMNIFICATION
Section 5.1 Indemnification. Without limiting any other rights that
SPV or the Issuer or any of their respective officers, directors, employees,
attorneys, agents or representatives (each, an "SPV Indemnified Person") may
have hereunder or under applicable law, the Originator hereby agrees to
indemnify and hold harmless each SPV Indemnified Person from and against any and
all Indemnified Amounts that may be claimed or asserted against or incurred by
any such SPV Indemnified Person, including any and all legal costs and expenses
arising out of or incurred in connection with disputes between or among any
parties to any of the Transaction Documents, relating to or resulting from:
(a) reliance on any representation or warranty made or deemed made
by the Originator (or any of its officers) under or in connection with
this Agreement or any other Transaction Document to which it is a party or
on any other information delivered by the Originator pursuant hereto or
thereto that shall have been incorrect in any material respect when made
or deemed made or delivered;
(b) the failure by the Originator to comply with any term, provision
or covenant contained in this Agreement, any other Transaction Document to
which it is a party or any agreement executed in connection herewith or
therewith, any applicable law, rule or regulation with respect to any
Transferred Fleet Receivable or Fleet Service Contract therefor or other
Receivables Property, or the nonconformity of any Transferred Fleet
Receivable or the Fleet Service Contract therefor with any such applicable
law, rule or regulation;
(c) the failure to vest and maintain vested in SPV, or to Transfer
to SPV, valid and properly perfected title to and sole record and
beneficial ownership of the Fleet Receivables that constitute Transferred
Fleet Receivables, together with all Collections and in respect thereof or
other Receivables Property, free and clear of any Adverse Claim;
(d) any dispute, claim, offset or defense of any Obligor (other than
its discharge in bankruptcy) to the payment of any Fleet Receivable that
is the subject of a Transfer hereunder (including a defense based on such
Fleet Receivable or the Fleet Service Contract therefor not being a legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms, or any other claim resulting from the sale of
the merchandise or services giving rise to such Fleet Receivable or the
furnishing
-14-
or failure to furnish such merchandise or services or relating to
collection activities with respect to such Fleet Receivable (if such
collection activities were performed by the Originator acting as
Servicer), except to the extent that such dispute, claim, offset or
defense results solely from any action or inaction on the part of SPV;
(e) any products liability claim or other claim arising out of or in
connection with merchandise, insurance or services that is the subject of
any Fleet Service Contract;
(f) any failure by the Originator to cause the filing of, or any
delay in filing, financing statements or other similar instruments or
documents under the UCC of any appli cable jurisdiction or any other
applicable laws with respect to any Fleet Receivable and any other
Receivables Property that is the subject of a Transfer hereunder, whether
at the time of any such Transfer or at any subsequent time;
(g) any failure by the Originator or the Servicer to perform, keep
or observe any of their respective duties or obligations hereunder, under
any other Transaction Document to which it is a party or under any Fleet
Service Contract related to a Transferred Fleet Receivable, including the
commingling of Collections with respect to Transferred Fleet Receivables
by the Originator or the Servicer at any time with the funds of any other
Person;
(h) any investigation, Litigation or proceeding related to this
Agreement or the use of the Sale Price obtained in connection with any
Sale or the ownership of Fleet Receivables or Collections or any other
Receivables Property with respect thereto or in respect of any Fleet
Receivable or Fleet Service Contract or any other Receivables Property,
except to the extent any such investigation, Litigation or proceeding
relates to a matter involving an SPV Indemnified Person for which neither
the Originator nor any of its Affiliates is at fault, as finally
determined by a court of competent jurisdiction; or
(i) any claim brought by any Person other than an SPV Indemnified
Person arising from any activity by the Originator or any of its
Affiliates in servicing, administering or collecting any Transferred Fleet
Receivables or any other Receivables Property;
provided, that the Originator shall not be liable for any indemnification to an
SPV Indemnified Person to the extent that any such Indemnified Amounts result
from (i) such SPV Indemnified Person's gross negligence or willful misconduct,
(ii) recourse for uncollectible or uncollected Transferred Fleet Receivables
(except to the extent resulting from a breach or default by Obligor under this
Agreement) or (iii) any income tax or franchise tax incurred by any SPV
Indemnified Person, except to the extent that the incurrence of any such tax
results from a breach of or default by the Originator under this Agreement or
any other Transaction Document to which it is a party.
-15-
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration or
other commun ication shall be in writing and shall be deemed to have been
validly served, given or delivered (a) upon the earlier of actual receipt and
three Business Days after deposit in the United States mail, registered or
certified mail, return receipt requested, with proper postage prepaid, (b) upon
transmission, when sent by telecopy or other similar facsimile transmission
(with such telecopy or facsimile promptly confirmed by delivery of a copy by
personal delivery or United States mail as otherwise provided in this Section
6.1, (c) one Business Day after deposit with a reputable overnight courier with
all charges prepaid or (d) when delivered, if hand-delivered by messenger, all
of which shall be addressed to the party to be notified and sent to the address
or facsimile number set forth under its name on the signature page hereof or to
such other address (or facsimile number) as may be substituted by notice given
as herein provided. The giving of any notice required hereunder may be waived in
writing by the party entitled to receive such notice. Failure or delay in
delivering copies of any notice, demand, request, consent, approval, declaration
or other communication to any Person (other than SPV) designated in any written
communication provided hereunder to receive copies shall in no way adversely
affect the effectiveness of such notice, demand, request, consent, approval,
declaration or other communication. Notwithstanding the foregoing, whenever it
is provided herein that a notice is to be given to any other party hereto by a
specific time, such notice shall only be effective if actually received by such
party prior to such time, and if such notice is received after such time or on a
day other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day.
Section 6.2 No Waiver; Remedies. SPV's failure, at any time or
times, to require strict performance by the Originator of any provision of this
Agreement or the Receivables Assignments shall not waive, affect or diminish any
right of SPV thereafter to demand strict compli ance and performance herewith or
therewith. Any suspension or waiver of any breach or default hereunder shall not
suspend, waive or affect any other breach or default whether the same is prior
or subsequent thereto and whether the same or of a different type. None of the
undertakings, agreements, warranties, covenants and representations of the
Originator contained in this Agreement or the Receivables Assignments, and no
breach or default by the Originator hereunder or thereunder, shall be deemed to
have been suspended or waived by SPV unless such waiver or suspension is by an
instrument in writing signed by an officer of or other duly authorized signatory
of SPV and directed to the Originator specifying such suspension or waiver.
SPV's rights and remedies under this Agreement shall be cumulative and
nonexclusive of any other rights and remedies that SPV may have under any other
agreement, including the other Transaction Documents, by operation of law or
otherwise.
-16-
Section 6.3 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Originator and SPV and their
respective successors and permitted assigns, except as otherwise provided
herein. The Originator may not assign, transfer, hypothecate or otherwise convey
its rights, benefits, obligations or duties hereunder without the prior express
written consent of SPV, the Issuer and the Indenture Trustee. Any such purported
assignment, transfer, hypothecation or other conveyance by the Originator
without the prior express written consent of SPV, the Issuer and the Indenture
Trustee shall be void. The Originator acknowledges that SPV may assign its
rights granted hereunder, including the benefit of any indemnities under Article
V and any Transferred Fleet Receivables and Receivables Property acquired
hereunder to the Origination Trust pursuant to the Contribution Agreement and
that SPV will transfer the Fleet Receivable SUBI Certificate (representing a
beneficial interest in Origination Trust assets consisting of rights under this
Agreement (including rights to indemnities and to Transferred Fleet Receivables
and Receivables Property)) to the Issuer pursuant to the Transfer Agreement. The
Issuer shall pledge the Fleet Receivable SUBI Certificate to the Indenture
Trustee for the benefit of the Investor Noteholders under the Indenture. The
Originator acknowledges that, upon such assignments and pledges, the Issuer or
the Indenture Trustee, as the case may be, may enforce directly, without joinder
of SPV, the rights set forth in this Agreement All such assignees, including
parties to the Indenture in the case of any assignment to such parties, shall be
third-party beneficiaries of, and shall be entitled to enforce SPV's rights and
remedies under, this Agreement to the same extent as if they were parties
hereto.
Section 6.4 Termination; Survival of Obligations. (a) This Agreement
shall create and constitute the continuing obligations of the parties hereto in
accordance with its terms, and shall remain in full force and effect until the
payment in full of each series of Investor Notes and each series of Preferred
Membership Interests.
(b) Except as otherwise expressly provided herein or in any other
Transaction Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by SPV under this Agreement shall in any way
affect or impair the obligations, duties and liabilities of the Originator or
the rights of SPV relating to any unpaid portion of any and all recourse and
indemnity obligations of the Originator to SPV, including those set forth in
Sections 4.2(j), 4.4, 5.1 and 6.14, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination, or
any transaction or event, the performance of which is required after the
Termination Date. Except as otherwise expressly provided herein or in any other
Transaction Document, all undertakings, agreements, covenants, warranties and
representations of or binding upon the Originator, and all rights of SPV
hereunder, all as contained in the Transaction Documents, shall not terminate or
expire, but rather shall survive any such termination or cancellation and shall
continue in full force and effect until the Termination Date; provided, that the
rights and remedies pursuant to Sections 4.2(j), 4.4, the indemnification and
payment provisions of Article V, and the provisions of Sections 4.3(h), 6.3, and
6.13 shall be continuing and shall survive any termination of this Agreement.
-17-
Section 6.5 Complete Agreement, Modification of Agreement. This
Agreement and the other Transaction Documents constitute the complete agreement
between the parties with respect to the subject matter hereof and thereof,
supersede all prior agreements and understandings relating to the subject matter
hereof and thereof, and may not be modified, altered or amended except as set
forth in Section 6.6.
Section 6.6 Amendments and Waivers. (a) This Agreement may be
amended from time to time by a written amendment duly executed and delivered by
the Originator and SPV, 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 the Originator and SPV, 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, the
Originator 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, the Originator 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.
Section 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND EACH RECEIVABLES ASSIGNMENT AND THE OBLIGATIONS
ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF
CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM
PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY RELATED DOCUMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES
THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED
OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER, THAT
NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE SPV FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE
ON THE TRANSFERRED FLEET RECEIVABLES OR ANY OTHER SECURITY FOR THE OBLIGATIONS
OF THE ORIGINA-
-18-
TOR ARISING HEREUNDER, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF
SPV. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN
ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL
JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE
GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH
COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS,
COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT
SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED
OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS
NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED
COMPLETED UPON THE EARLIER OF SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS
AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS
SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 6.8 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and separately
constitute one agreement.
Section 6.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
-19-
Section 6.10 Section Titles. The section titles and table of
contents contained in this Agreement are provided for ease of reference only and
shall be without substantive meaning or content of any kind whatsoever and are
not a part of the agreement between the parties hereto.
Section 6.11 No Setoff. The Originator's obligations under this
Agreement shall not be affected by any right of setoff, counterclaim,
recoupment, defense or other right the Originator might have against SPV, the
Issuer or the Indenture Trustee, all of which rights are hereby expressly waived
by the Originator.
Section 6.12 Further Assurances. (a) The Originator shall, at its
sole cost and expense, promptly and duly execute and deliver any and all further
instruments and documents and take such further actions that may be necessary or
desirable or that SPV or the Indenture Trustee may request to carry out more
effectively the provisions and purposes of this Agreement or any other
Transaction Document or to obtain the full benefits of this Agreement and of the
rights and powers herein granted, including (i) securing all consents and
approvals necessary or appropriate for the assignment to or for the benefit of
SPV of any Transferred Fleet Receivable and the Receivables Property, (ii)
perfecting, protecting, preserving, continuing and maintaining fully the
purchase by, and the assignments, security interests and other Liens granted or
purported to be granted to, SPV under this Agreement (including the filing any
financing or continuation statements under the UCC with respect to the ownership
interests or Liens granted hereunder or under any other Transaction Document)
and (iii) enabling SPV, the Issuer or the Indenture Trustee to exercise or
enforce its rights under this Agreement or any of the other Transaction
Documents. The Originator hereby authorizes SPV, the Issuer or the Indenture
Trustee to file any such financing or continuation statements without the
signature of the Originator to the extent permitted by applicable law. A carbon,
photographic or other reproduction of this Agreement or of any notice or
financing statement covering the Transferred Fleet Receivables or any part
thereof and the Receivables Property shall be sufficient as a notice or
financing statement where permitted by law. If any amount payable under or in
connection with any of the Transferred Fleet Receivables or Receivables Property
is or shall become evidenced by any instrument, such instrument, other than
checks and notes received in the ordinary course of business, shall be duly
endorsed in a manner satisfactory to SPV immediately upon the Originator's
receipt thereof and promptly delivered to or at the direction of SPV.
(b) If the Originator fails to perform any agreement or obligation
under this Section 6.12, SPV, the Issuer or the Indenture Trustee may (but shall
not be required to) itself perform, or cause performance of, such agreement or
obligation, and the reasonable expenses of SPV, the Issuer or the Indenture
Trustee incurred in connection therewith shall be payable by such Originator
upon demand of SPV, the Issuer or the Indenture Trustee.
Section 6.13 Fees, Expenses and Taxes. In addition to its
indemnification obligations pursuant to Article V, the Originator agrees to pay
all costs and expenses, if any (including attorneys' fees and expenses but
excluding any costs of enforcement or collection of the Transferred Fleet
Receivables), in connection with the enforcement of, or any actual or claimed
breach of, this Agreement. The Originator shall pay all filing fees, stamp taxes
and other similar
-20-
taxes and expenses, if any, which may be incurred on account of or arise out of
this Agreement and the documents and transactions entered into pursuant to this
Agreement.
-21-
IN WITNESS WHEREOF, the parties have caused this Receivables
Purchase Agreement to be executed by their respective duly authorized
representatives, as of the date first above written.
PHH VEHICLE MANAGEMENT SERVICES LLC
By
--------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
RAVEN FUNDING LLC
By
--------------------------------------
Name:
Title:
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
FORM OF RECEIVABLES ASSIGNMENT
THIS RECEIVABLES ASSIGNMENT (the "Receivables Assignment") is
entered into as of __________, ____, by and between PHH Vehicle Management
Services LLC ("VMS") and Raven Funding LLC ("SPV").
1. We refer to that certain Receivables Purchase Agreement (as the
same may from time to time be amended, restated, supplemented or otherwise
modified, the "Transfer Agreement") dated as of June 30, 1999 between VMS and
SPV. All of the terms, covenants and conditions of the Transfer Agreement are
hereby made a part of this Receivables Assignment and are deemed incorporated
herein in full. Unless otherwise defined herein, capitalized terms or matters of
construction defined or established in the Transfer Agreement shall be applied
herein as defined or established therein.
-22-
2. [For good and valuable consideration, the receipt of which is
hereby acknowledged, VMS hereby sells, assigns, transfers and conveys to SPV,
without recourse, except as provided in the Transfer Agreement, all of VMS's
right, title and interest in, to and under all Fleet Receivables identified on
Schedule I hereto as "Sold Receivables" and the Receivables Property with
respect thereto.]
[For good and valuable consideration, the receipt of which is
hereby acknowledged, VMS hereby assigns, transfers and conveys to SPV as a
capital contribution, without recourse, except as provided in the Transfer
Agreement, all of VMS's right, title and interest in, to and under all Fleet
Receivables identified on Schedule I hereto as "Contributed Receivables" and the
Receivables Property with respect thereto.]
3. The Fleet Receivables being transferred by this Receivables
Assignment consist of [$______ in face amount of Sold Fleet Receivables for a
purchase price of $______] [$______ in face amount of Contributed Fleet
Receivables].
4. Subject to the terms and conditions of the Transfer Agreement,
VMS hereby covenants and agrees to sell or contribute, as applicable, execute
and deliver, or cause to be signed, sold or contributed, executed and delivered,
and to do or make, or cause to be done or made, upon request of SPV and at VMS's
expense, any and all agreements, instruments, papers, deeds, acts or things,
supplemental, confirmatory or otherwise, as may be reasonably required by SPV
for the purpose of or in connection with acquiring or more effectively vesting
in SPV or evidencing the vesting in SPV of the property, rights, title and
interests of VMS sold or contributed hereunder or intended to be sold or
contributed hereunder.
5. Wherever possible, each provision of this Receivables Assignment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Receivables Assignment shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Receivables Assignment.
6. THIS RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. The foregoing [sale,] assignment, transfer and conveyance does
not constitute and is not intended to result in any assumption by SPV of any
obligation of the undersigned to any other Person in connection with the
Transferred Fleet Receivables and Receivables Property described above or any
agreement or instrument relating to any of them.
8. The SPV and VMS intend that the transactions contemplated by this
assignment shall be treated as a [sale,] assignment, transfer and conveyance by
VMS of the Transferred Fleet Receivables and Receivables Property described
above and not a lending transaction. If this Assignment does not constitute a
valid [sale,] assignment, transfer and conveyance of all right, title and
interest of, in, to and under the Transferred Fleet Receivables
-23-
and Receivables Property described above despite the intent of the parties
hereto, VMS hereby grants a first priority "security interest" (as defined in
the UCC as in effect in the State of New York) in the Transferred Fleet
Receivables and Receivables Property and all proceeds thereof to the SPV and the
parties agree that this Assignment shall constitute a security agreement under
the UCC in effect in New York.
9. This Assignment is made pursuant to and based 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.
IN WITNESS WHEREOF, the parties have caused this Receivables
Assignment to be executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
PHH VEHICLE MANAGEMENT SERVICES LLC
By
--------------------------------------
Name:
Title:
RAVEN FUNDING LLC
By
--------------------------------------
Name:
Title:
-24-
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION..........................................1
Section 1.1 Definitions...............................................1
Section 1.2 Rules of Construction.....................................1
ARTICLE II.
TRANSFERS OF FLEET RECEIVABLES..........................................1
Section 2.1 Agreement to Transfer.....................................1
Section 2.2 Grant of Security Interest................................2
ARTICLE III.
CONDITIONS PRECEDENT....................................................3
Section 3.1 Conditions to Initial Transfer............................3
Section 3.2 Conditions to all Transfers...............................3
ARTICLE IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS...............................4
Section 4.1 Representations and Warranties of the Originator..........4
Section 4.2 Affirmative Covenants of the Originator...................7
Section 4.3 Negative Covenants of the Originator.....................12
Section 4.4 Breach of Representations, Warranties or Covenants.......13
ARTICLE V.
INDEMNIFICATION........................................................14
Section 5.1 Indemnification..........................................14
ARTICLE VI.
MISCELLANEOUS..........................................................15
Section 6.1 Notices..................................................15
Section 6.2 No Waiver; Remedies......................................16
Section 6.3 Successors and Assigns...................................16
(i)
Page
----
Section 6.4 Termination; Survival of Obligations.....................17
Section 6.5 Complete Agreement, Modification of Agreement............17
Section 6.6 Amendments and Waivers...................................17
Section 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL...............................................18
Section 6.8 Counterparts.............................................19
Section 6.9 Severability.............................................19
Section 6.10 Section Titles...........................................19
Section 6.11 No Setoff................................................19
Section 6.12 Further Assurances.......................................19
Section 6.13 Fees, Expenses and Taxes.................................20
(ii)
INDEX OF APPENDICES
Exhibit 2.1(a) Form of Receivables Assignment
Schedule 4.1(b) Executive Offices; Collateral Locations; Names of Originator
(i)
