Exhibit 10.19
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:
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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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Schedule A
List of Leases
See the computer tape delivered to the UTI Trustee and the Indenture
Trustee
Schedule B
List of Vehicles
See the computer tape delivered to the UTI Trustee and the Indenture
Trustee
