Exhibit 10.4
GUARANTEE
OF
PHH CORPORATION
PHH CORPORATION, a Maryland corporation, hereby agrees to
unconditionally and irrevocably guarantee to Raven Funding LLC, a Delaware
limited liability company (the "SPV"), and to each assignee and pledgee of the
SPV, and Wilmington Trust Company, a Delaware trust company, not in its
individual capacity but solely as the SUBI Trustee (the "SUBI Trustee" and
together with the SPV and each assignee and pledgee of the SPV, the "Payees")
the due and punctual payment and performance of all obligations of PHH Vehicle
Management Services, LLC ("VMS") pursuant to the Sold SUBI Supplement 1999-1 to
Servicing Agreement, dated as of June 30, 1999, as amended by Amendment No. 1 to
the Sold SUBI Supplement 1999-1, dated as of October 28, 1999, among X.X.
Xxxxxxxx Trust, the SUBI Trustee, the SPV and VMS (as may be further amended,
modified or supplemented from time to time, the "Servicing Supplement").
The undersigned hereby waives any presentment, demand of
payment, protest and notice of nonpayment, dishonor or protest thereof or of any
exchange, sale, surrender, release or any other notice or demand to which the
undersigned may otherwise be entitled. The undersigned shall not be exonerated
or discharged from liability hereunder by any time or grace period given to VMS
or by any other indulgence or concession granted to VMS, including, without
limitation, any such period, indulgence or concession whatsoever affecting or
preventing a recovery of any of the obligations guaranteed hereunder that, but
for this provision, might operate to exonerate or discharge the undersigned,
from its obligations hereunder.
The undersigned further agrees that its liabilities hereunder
shall be irrevocable and unconditional and in no way be affected, impaired,
released, reduced or discharged by reason of the occurrence of any of the
following, although without further notice to or consent of the undersigned, (i)
any bankruptcy, insolvency, reorganization, arrangement, assignment for the
benefit of creditors, receivership or trusteeship affecting VMS or the
undersigned; (ii) any claim, defense or right of set-off off VMS, the
undersigned or any other person may have against the Payees; or (iii) any other
circumstances that might otherwise constitute a defense available to, or a
discharge of, VMS or undersigned. The undersigned further guarantees that all
payments made by VMS on any obligation hereby guaranteed will, when made, be
final and agrees that, if any such payment is recovered from, or repaid by, any
Payee(s), in whole or in part, in any bankruptcy, insolvency or similar
proceeding instituted by or against VMS, this Guarantee shall continue to be
effective or be reinstated as though the payment so recovered or repaid had
never been originally made on such obligation.
Notice of acceptance of this Guarantee and of the incurring of
any or all of the obligations hereby guaranteed is hereby waived by the
undersigned, and this Guarantee and all of the terms and provisions hereof shall
immediately be binding upon the undersigned from the date of the execution of
this Guarantee.
The Payees may enforce the undersigned's obligations hereunder
without in any way first pursuing or exhausting any other rights or remedies
which the Payees may have against VMS or against any other person, firm or
corporation.
If demand shall have been made for payment or performance of
the obligations guaranteed hereunder or if an event resulting in any of the
obligations guaranteed hereunder becoming payable or performable shall at any
time have occurred and the obligations guaranteed hereunder becoming payable or
performable shall at such time be prevented by reason of the pendency against
VMS of a case or proceeding under any bankruptcy or insolvency law, the
undersigned agrees that, for purposes of this Guarantee and its obligations
hereunder, the obligations guaranteed hereunder shall be deemed to have become
payable or performable and the undersigned shall forthwith pay or perform such
obligations guaranteed hereunder, without any further notice or demand.
Each payment to be made by the undersigned under this
Guarantee or in connection herewith to the applicable Payee(s) shall be made
without set-off or deduction of any kind whatsoever. The provisions of this
paragraph shall survive termination and payment in full of the obligations
guaranteed hereunder.
The undersigned expressly waives any and all rights of
subrogation, reimbursement, contribution, exoneration and indemnity
(contractual, statutory or otherwise) arising from the existence or performance
of this Guarantee and the undersigned irrevocably waives any right to enforce
any remedy that the Payees now have or may hereafter have against VMS, or any
other person, and waives any benefit of, and any right to participate in, any
security now or hereafter held by the Payees, in each case, until such time as
the obligations guaranteed hereunder have been finally and indefeasibly paid in
full in cash to the Payees. The provisions of this paragraph shall survive the
termination and payment in full of the obligations guaranteed hereunder.
The undersigned further irrevocably and unconditionally agrees
to pay any and all reasonable costs and expenses (including, without limitation,
attorneys' fees and disbursements) incurred by the Payees in enforcing its
rights or remedies under this Guarantee.
THE UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO OR BENEFICIARY HEREOF ON
ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
GUARANTEE.
THIS GUARANTEE AND ALL RIGHTS, OBLIGATIONS AND LIABILITIES
ARISING HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF
THE STATE OF NEW YORK.
The undersigned hereby irrevocably submits to the jurisdiction
of the courts of the State of New York and of the United States District Court
for the Southern District of New York in any action or proceeding brought
against it under this Guarantee or under any document delivered by it in
connection herewith or called for by the Servicing Supplement.
-2-
No delay on the part of its exercise of, or the failure to
exercise, any right or remedy shall be deemed a waiver of any obligation of the
undersigned or right of the Payees. This Guarantee may be modified, and the
Payees' rights hereunder waived, only by agreement in writing signed by each
Payee and the undersigned.
This Guarantee shall inure to the benefit of the Payees and
their respective successors and permitted assigns, and shall bind the successors
and assigns of the undersigned.
This Guarantee may not be assigned by the undersigned without
the prior written consent of each Payee.
-3-
IN WITNESS WHEREOF, this Guarantee has been duly executed by
the undersigned this 25th day of October, 2001.
PHH CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: EVP, Chief Financial Officer and
Treasurer
-4-
