Exhibit 4.52
LOCKBOX SERVICES AGREEMENT
This Agreement is entered into as of June 30, 1999 among X.X. Xxxxxxxx
Trust (the "Trust"), a Delaware statutory business trust, PHH Vehicle
Management Services LLC, in its capacity a servicer of the Trust ("the
Servicer"), and Bank of America National Trust and Savings Association (the
"Bank") with respect to the following:
A. The Trust is the beneficial owner and the Servicer is the nominee
holder of the Accounts (as defined below) and in the checks and other payment
instruments ("Checks") mailed to the United States Post Office Addresses
#___________________, #____________________ and #__________________
("Lockbox Addresses"); provided, however, that the Servicer acknowledges
that it has no interest in any amounts from time to time deposited in the
Accounts and is the nominee holder of the Accounts solely as servicer under
the LLC, Raven Funding LLC and the Trust.
B. The Servicer, the Trust and the Bank are entering into this
Agreement to provide for the disposition of net proceeds of Checks deposited
in accounts #__________________, #______________________ and #________________
with the Bank (the "Accounts").
C. The Trust was previously a Maryland common law trust (the
"Previous Trust") with The First National Bank of Maryland as trustee and
was a party to the Three Party Agreement Relating to Lockbox Services, dated
as of February 3, 1999, among PHH Vehicle Management Services LLC, The First
National Bank of Maryland, as trustee to the Previous Trust, and the Bank.
The Trust is successor in interest to the Previous Trust.
Accordingly, the Servicer, the Trust and the Bank agree as follows:
Section 1. The Bank is hereby authorized:
(a) to perform the Lockbox Service and to follow its usual operating
procedures for the handling of any Checks, in accordance with the Standard
Terms and Conditions attached hereto as Exhibit A and incorporated herein,
except as modified by this Agreement;
(b) to charge the Accounts for all returned Checks;
(c) to follow its usual procedures in the event the Lockbox
Addresses, the Accounts or any Check should be or become the subject of any
writ, levy, order or other similar judicial or regulatory order or process;
and
(d) to administer all collected and available balances in the
Accounts pursuant to the instructions of the Trust. The Trust will give Bank
sufficient advance notice of any change in the instructions for Bank to act
upon such changes.
Section 2. (a) If the balances in the Accounts are not sufficient to pay
to the Bank for any returned Check, the Trust Agrees to pay the Bank solely
out of the assets of the Trust on demand any amounts received by the Trust
with respect to such returned Check.
(b) The Servicer agrees to pay the Bank on demand for any fees or
charges due the Bank in connection with the Lockbox Service or this
Agreement. The Servicer will have breached this Agreement if it has not paid
the Bank within 30 days after the demand, the amount due the Bank.
(c) The Servicer hereby authorizes the Bank, without prior notice,
from time to time to debit any other account the Servicer may have with the
Bank for the amount or amounts due the Bank under subsection 2(b).
(d) The Bank agrees it shall not exercise any right of offset,
counterclaim, banker's lien, security interest or other right or claim
against the Accounts, except as permitted under Section 1(b) of this
Agreement.
Section 3. Termination of this Agreement shall be as follows:
(a) The Bank may terminate this Agreement upon 30 days' prior written
notice to the Servicer and the Trust. The Trust may terminate this Agreement
upon 30 days' prior written notice to the Servicer and the Bank. The
Servicer may not terminate this Agreement or the Lockbox Service except with
the written consent of the Trust and upon 30 days' prior written notice to
the Bank and the Trust.
(b) Notwithstanding subsection 3(a), the Bank may terminate this
Agreement at any time by written notice to the Servicer and the Trust if
either the Servicer or the Trust breaches any of the terms of this Agreement.
Upon any such termination, Bank shall transfer all remaining balances in the
Accounts to an account designated by the Trust and the Accounts will be
closed.
(c) Notwithstanding subsection 3(a), the Bank may also terminate
this Agreement at any time if the Servicer (i) breaches any other agreement
with the Bank or any agreement involving the borrowing of money or extension
of credit; (ii) liquidates, dissolves, merges with or into or consolidates
with another entity (PROVIDED HOWEVER, that the Servicer (by merger
or otherwise) may reincorporate in another state or convert from a limited
liability company to a corporation or a substantially similar entity) or
sells, leases or disposes of a substantial portion of its business or assets;
(iii) terminates its business, fails generally or admits in writing its
inability to pay its debts as they become due; any bankruptcy,
reorganization, arrangement, insolvency, dissolution or similar proceeding is
instituted with respect to the Servicer; the Servicer makes any assignment
for the benefit of creditors or enters into any composition with creditors or
takes any action in furtherance of any of the foregoing; or(iv) any material
adverse change occurs in the Servicer's financial condition, results of
operations or ability to perform its obligations under this Agreement, the
Servicer shall promptly give written notice to the Bank of the occurrence of
any of the foregoing events as it applies to it. Upon any such termination,
the Bank shall transfer all remaining balances in Accounts to an account
designated by the Trust and the Accounts will be closed.
Section 4. (a) The Bank will not be liable to the Servicer or the Trust
for any expense, claim, loss, damage or cost("Damages") arising out of or
relating to its performance under this Agreement other than those Damages
which result directly from its acts or omissions constituting negligence or
willful misconduct by the Bank or any of its employees or agents.
(b) In no event will the Bank be liable for any special indirect,
exemplary or consequential damages, including but not limited to lost profits.
(c) The Bank will be excused from failing to act or delay in acting,
and no such failure or delay shall constitute a breach of this Agreement or
otherwise give rise to any liability of the Bank, if (i) such failure or
delay is caused by circumstances beyond the Bank's reasonable control,
including but not limited to legal constraint, emergency conditions, action
or inaction of governmental, civil or military authority, fire, strike,
lockout or other labor dispute, war, riot, theft, flood, earthquake or other
natural disaster, breakdown of public or private or common carrier
communications or transmission facilities, equipment failure, or act,
negligence or default of the Servicer or the Trust or (ii) such failure or
delay resulted from the Bank's reasonable belief that the action would have
violated any guideline, rule or regulation of any governmental authority.
Section 5. The Servicer shall indemnify the Bank against, and hold it
harmless from, any and liabilities, claims, costs, expenses and damages of any
nature (including but not limited to allocated costs of staff counsel, other
reasonable attorney's fees and any fees and expenses incurred in enforcing
this Agreement) in any way arising out of or relating to disputes or legal
actions concerning the Bank's provision of the Lockbox Service, this
Agreement, any Check or the Lockbox Addresses. This section does not apply
to any cost or damage attributable to the gross negligence or intentional
misconduct of the Bank, its employees or agents. The Servicer's obligations
under this Section shall survive termination of this Agreement.
Section 6. (a) The Servicer and the Trust each represent and warrant to
the Bank that (i) this Agreement constitutes it duly authorized, legal, valid,
binding and enforceable obligation; (ii) the performance of its obligations
under this Agreement and the consummation of the transactions contemplated
hereunder will not (A) constitute or result in a breach of its certificate of
formation or certificate of trust, as applicable, or the provisions of any
material contract to which it is a party or by which it is bound or (B)
result in the violation of any law, regulation, judgment, decree or
governmental order applicable to it; an (iii) all approvals and authorizations
required to permit the execution, delivery, performance and consummation of
this Agreement and the transaction contemplated hereunder have been obtained.
(b) The Servicer and the Trust each agree that it shall be deemed to
make and renew each representation and warrant in subsection 6(a) on and as
of each day on which it uses the Lockbox Service.
Section 7. The Servicer agrees that it will not permit the Accounts to
become subject to any other pledge, assignment, lien, charge or encumbrance
of any kind nature of description, other than Trust's beneficial ownership
interest referred to herein.
Section 8. The Trust acknowledges and agrees that Bank has the right to
charge the Accounts from time to time, as set forth in Section 1(b) of this
Agreement.
Section 9. (a) Each business day, the Bank will send any Checks not
processed in accordance with the set-up documents as well as any other
materials, such as invoices, received at the Lockbox Address plus information
regarding the deposit for the day to the address specified below for the
Servicer with a copy of the deposit advice to the address specified below for
the Trust.
(b) In addition to the original Bank statement which will be provided to
the Trust, the Bank will provide the Servicer with a duplicate statement.
Section 10. The Servicer agrees to pay to the Bank, upon receipt of the
Bank's invoice, all costs, expenses and attorney's fees (including allocated
costs for in-house legal services) incurred by the Bank in connection with
the enforcement of this Agreement any instrument or agreement required
hereunder, including but not limited to any such costs, expenses and fees
arising out of the resolution of any conflict, dispute, motion regarding
entitlement to right or rights of action, or other action to enforce the
Bank's rights in a case arising under Xxxxx 00, Xxxxxx Xxxxxx Code, the
Servicer agrees to pay the Bank, upon receipt of the Bank's invoice, all
costs, expenses and attorneys' fees (including allocated costs for in-house
legal services) incurred by the Bank in the preparation and administration of
this Agreement (including any amendments hereto or instruments or agreements
required hereunder).
Section 11. As of the date of deliver of this Agreement, the Bank
represents that, to the best of its knowledge, it has not received any notice
of any claim, lien, security interest or other encumbrance relating to the
Accounts as of the date of this Agreement. Additionally, the Bank hereby
represents that no security interest relating to the Accounts has been
created in the Bank's favor. The Bank shall, to the extent permitted by law,
give the Trust and the Servicer prompt notice if the Accounts shall become
subject to any writ, judgment, warrant of attachment, execution or similar
process.
Section 12. The Bank, in its capacity under the Agreement, agrees that
it will not institute against, or join any other person in instituting
against, the Trust any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law.
Section 13. Notwithstanding any of the other provisions in this
Agreement, in the event of the commencement of a case pursuant to Xxxxx 00,
Xxxxxx Xxxxxx Code, filed by or against the Servicer, or in the event of the
commencement of any similar case under then applicable federal or state law
providing for the relief of debtors or the protection of creditors by or
against the Servicer, the Bank may act as the Bank deems necessary to comply
with all applicable
provisions of governing statutes and shall be held harmless from any claim of
any of the parties for so doing.
Section 14. This Agreement may be amended from time to time by a
written amendment duly executed and delivered by the Trust, the Servicer and
the Bank.
Section 15. This Agreement may be executed in counterparts; all such
counterparts shall constitute but one and the same agreement.
Section 16. Any written notice or other written communication to be
given under this Agreement shall be addressed to each party at its address
set forth on the signature page of this Agreement or to such other address as
a party may specify in writing. Except as otherwise expressly provided
herein, any such notice shall be effective upon receipt.
Section 17. This Agreement controls in the event of any conflict
between this Agreement and any other document or written or oral statement.
This Agreement supersedes all prior understandings, writings, proposals,
representations and communications, oral or written, of any party relating to
the subject matter hereof.
Section 18. Neither the Servicer nor the Trust may assign any of its
rights under this Agreement without the prior written consent of the Bank.
Section 19. Nothing contained in the Agreement shall create any agency,
fiduciary, joint venture or partnership relationship between the Servicer,
the Trust and the Bank.
Section 20. This Agreement shall be governed by the laws of the State
of Illinois.
In witness whereof, the parties hereto have executed this Agreement by
their duly authorized officers as of the day and year first above written.
PHH VEHICLE MANAGEMENT Address for notices:
SERVICES LLC
PHH Vehicle Management Services LLC
000 Xxx Xxxxxxx Xxxx
By:_______________________________ Garden City, New York
Name: Attn: General Counsel
Title: Fax: 000-000-0000
With a copy to:
PHH Vehicle Management Services LLC
000 Xxxxxxxxxxxxx Xxxxxx
Mail Code - XX
Xxxx Xxxxxx, Xxxxxxxx 00000-0000
Attn: General Counsel
Fax: 000-000-0000
X.X. XXXXXXXX TRUST Address for notices:
BY: WILMINGTON TRUST COMPANY, NOT IN
ITS INDIVIDUAL CAPACITY BUT SOLELY AS Wilmington Trust Company
TRUSTEE 0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Corporate Trust Administration
By:_______________________________ Fax: 000-000-0000
Name:
Title:
BANK OF AMERICA NATIONAL TRUST Address for notices:
AND SAVINGS ASSOCIATION
Bank of America
Documentation Management
By:________________________________ 0000 Xxxxxxx Xxxx., Xxxx #0000
Name: Xxxxxxx, XX 00000-0000
Title: Fax: 000-000-0000
