Exhibit 10.22
NOMINEE LIENHOLDER AGREEMENT
----------------------------
THIS NOMINEE LIENHOLDER AGREEMENT (this "Agreement") is made as
of this 18th day of June, 2003, between Raven Funding LLC, a Delaware limited
liability company ("Raven"), as nominee lienholder, and JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), a New York banking corporation
(the "Indenture Trustee"), as Indenture Trustee.
WHEREAS, X.X. Xxxxxxxx Trust, a Delaware statutory trust ("DLPT")
executed a Guaranty (the "Guaranty"), dated as of the date hereof, in favor of
the Indenture Trustee, pursuant to which DLPT guaranteed the payment of certain
amounts payable from amounts available under the Base Indenture (the "Base
Indenture"), dated as of June 30, 1999, as amended, between Chesapeake Funding
LLC (formerly known as Greyhound Funding LLC), a Delaware limited liability
company ("Chesapeake"), as Issuer and the Indenture Trustee, as supplemented by
each supplement to the Base Indenture executed in connection with the issuance
of any series of Investor Notes, for the benefit of each Investor Noteholder and
each other person to whom amounts are payable from amounts on deposit in the
Collection Account or any subaccount thereof on any Payment Date (all such
Investor Noteholders and other such persons, collectively, the "Secured
Parties");
WHEREAS, DLPT entered into the Security Agreement (the "Security
Agreement"), dated as of June 18, 2003, between DLPT and the Indenture Trustee,
pursuant to which DLPT granted to the Indenture Trustee a security interest in
all Leased Vehicles and Paid in Advance Vehicles allocated to the Lease SUBI
from time to time; and
WHEREAS, Raven, which is noted as the lienholder on the
certificates of title for each of the Leased Vehicles and the Paid in Advance
Vehicles allocated to the Lease SUBI (collectively, the "Chesapeake Vehicles"),
is willing to act as nominee lienholder for the Indenture Trustee;
NOW THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1. Certain Defined Terms. Terms used but not otherwise defined
herein shall have the meanings ascribed to such terms in the Base Indenture.
2. Term. This Agreement will commence upon the date hereof and
will remain in full force and effect until the termination of the Security
Agreement or as otherwise agreed by the parties hereto.
3. Appointment of Raven as Nominee Lienholder. (a) The Indenture
Trustee hereby appoints Raven as nominee lienholder of the Chesapeake Vehicles
and Raven hereby agrees to serve as the designated agent of the Indenture
Trustee in such capacity as described herein.
(b) Raven hereby grants to the Indenture Trustee a power of
attorney substantially in the form of Exhibit A attached hereto (the "Power of
Attorney") to remove the notation of the lien of Raven from the title to any
Chesapeake Vehicle in connection with the sale of any Cheasapeake Vehicle or
other enforcement of the Security Interest (as defined in the Security
Agreement) against any Chesapeake Vehicle pursuant to the Security Agreement.
The Indenture Trustee agrees that it will exercise its rights under such Power
of Attorney only in connection with the enforcement of the Security Agreement.
4. Fees and Costs. Raven will be responsible for the payment of
any transfer fees, taxes, license fees, registration fees or other similar
governmental fees, taxes, costs and expenses in connection with the removal of
the notation of Raven's lien on any Chesapeake Vehicle (collectively, "Title
Fees and Costs").
5. Indemnification. (a) Raven hereby agrees to indemnify and hold
harmless the Indenture Trustee from and against any damage, loss, liability,
expense and tax (including, without limitation, reasonable costs of
investigation and attorneys' fees and expenses) (each a "Loss" and collectively,
"Losses") arising out of or related to the Chesapeake Vehicles from and after
the date hereof, whether due to Raven's appointment as nominee lienholder of
such Chesapeake Vehicles, Raven's removal of its name as lienholder on such
Chesapeake Vehicles or Raven's performance under this Agreement, including,
without limitation, Losses arising out of or related to Raven's failure to pay
all Title Fees and Costs pursuant to this Section 5. This indemnity shall
survive the termination of this Agreement or the resignation or removal of
Raven.
6. Further Assurances. Each of the parties hereto will, from time
to time, execute and deliver such further instruments and render such further
assistance as the other party may reasonably request in order to carry out the
transactions contemplated herein.
7. Representations, Warranties and Covenants. Raven represents,
warrants and covenants as follows:
(a) Raven is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of Delaware. It has
all power and authority to own its properties and assets and to carry on its
business as now conducted and as presently proposed to be conducted.
(b) Raven has all requisite power and authority to execute,
deliver and perform this Agreement and to carry out the provisions hereof. The
execution, delivery and performance by Raven of this Agreement have been duly
authorized by all necessary action on the part of Raven, and this Agreement has
been duly executed and delivered by Raven and constitutes the legal, valid and
binding obligation of Raven, enforceable against Raven in accordance with its
terms, except as the same may be limited by (i) applicable bankruptcy,
insolvency, reorganization or similar laws affecting the enforcement of
creditors' rights and (ii) general principles of equity.
(c) There are no actions, suits, investigations or proceedings
pending or, to its knowledge, threatened against Raven before any Governmental
Authority which question the
2
validity or enforceability of this Agreement or any action taken or to be taken
pursuant hereto, or which, if adversely determined, would materially impair
Raven's ability to perform its obligations under this Agreement.
(d) Neither Raven nor any of its properties or assets are subject
to any contract or agreement, any provision of its certificate of formation or
its limited liability company agreement, or other restriction, any law or any
order, rule, ruling, certificate, license, regulation, judgment, injunction or
demand of any country, state, territory or political subdivision thereof or of
any court, agency, board, commission, governmental instrumentality or other
tribunal or governmental authority which would have a material adverse effect on
its ability to perform its obligations under this Agreement. The valid and
binding execution and delivery of, and compliance with, this Agreement will not
contravene any provision of any presently effective law, rule, regulation,
decree, ruling, judgment, order or injunction applicable to or binding upon
Raven, the contravention of any of which would materially impair the valid and
binding nature of, or its ability to perform, any of its obligations under this
Agreement, or conflict with or contravene its certificate of formation or
limited liability company agreement.
8. Entire Agreement. This Agreement and the other agreements
specifically referenced herein constitute the entire agreement among the parties
hereto and supersede any prior understandings, agreements, or representations by
or among the parties hereto, written or oral, to the extent they related in any
way to the subject matter hereof.
9. Succession and Assignment. This Agreement will be binding upon
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. The parties hereto may not assign either this Agreement
or any of their respective rights, interest, or obligations hereunder without
the prior written approval of the other party.
10. Counterparts. This Agreement may be executed in separate
counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
11. Headings. The section headings contained in this Agreement
are inserted for convenience only and will not affect in any way the meaning or
interpretation of this Agreement.
12. Notices. All notices, requests, demands, claims and other
communications hereunder will be in writing. Any notice, request, demand, claim,
or other communication hereunder will be deemed duly given if (and then two
business days after) it is sent by registered or certified mail, return receipt
requested, postage prepaid, and addressed to the intended recipient as set forth
below:
If to the Indenture Trustee:
JPMorgan Chase Bank
0 Xxx Xxxx Xxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
3
If to Raven Funding LLC:
Raven Funding LLC
000 Xxxxxxxxxxxxx Xxxxxx
Xxxx Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Any notice (i) given in person shall be deemed delivered on the
date of delivery of such notice, (ii) given by first class mail shall be deemed
given three (3) days after the date that such notice is mailed, (iii) delivered
by telex or telecopier shall be deemed given on the date of delivery of such
notice, and (iv) delivered by overnight air courier shall be deemed delivered
one Business Day after the date that such notice is delivered to such overnight
courier. Copies of all notices must be sent by first class mail promptly after
transmission by facsimile. Any party hereto may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other parties notice in the manner herein as set forth.
13. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK.
14. Amendments and Waivers. No amendment of any provision of this
Agreement will be valid unless (i) the same will be in writing and signed by
each of the parties hereto and (ii) the Rating Agency Confirmation has been
satisfied with respect to such amendment. No waiver by any party hereto of any
default, misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, will be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such occurrence.
15. Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction will not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
16. Construction. (a) General. The language used in this
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be applied
against any party.
17. Title, Titling. As used in this Agreement, the term "title"
refers to a certificate of title or other similar form of vehicle title and is
intended by each party hereto to include the terms "vehicle registration" and
"vehicle license plate," unless specified otherwise.
4
Similarly, unless specified otherwise, "titling" will be deemed to include the
acts of registering a vehicle, including the registering of the license plates
of a vehicle.
18. Nonpetition Covenants. The Indenture Trustee hereby covenants
and agrees that it will not institute against, or join any other person in
instituting against Raven any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceedings under the
laws of the United States or any state of the United States.
5
IN WITNESS WHEREOF, the parties hereto have duly executed this
Nominee Lienholder Agreement as of the date first above written.
JPMORGAN CHASE BANK, as Indenture
Trustee
By: /s/ Xxxxxx Xxx
--------------------------------------
Name: Xxxxxx Xxx
Title: Trust Officer
RAVEN FUNDING LLC, as Nominee
Lienholder
By: /s/ Xxxxxx X. Xxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Manager
EXHIBIT A
---------
Power of Attorney
-----------------
KNOW ALL MEN BY THESE PRESENTS, that Raven Funding LLC ("Raven")
does hereby make, constitute and appoint JPMorgan Chase Bank, as Indenture
Trustee its true and lawful Attorney-in-Fact for it and in its name, stead and
behalf, to remove on the title to any Chesapeake Vehicle the name of Raven as
lienholder with respect to such Chesapeake Vehicle at any time and to execute
such other documents and instruments as may be necessary to reflect any such
removal of Raven's name as lienholder. This power is limited to the foregoing.
The powers and authority granted hereunder shall, unless sooner
terminated, revoked or extended, cease on the date upon which the Guaranty is no
longer in force pursuant to Section 2 of the Guaranty.
A-1
IN WITNESS WHEREOF, Raven Funding LLC has caused this instrument
to be executed on its behalf by its duly authorized officer this [____] day of
[________], 200[_].
RAVEN FUNDING LLC
By:
----------------------------------
Name:
Title:
State of _________ )
County of _______ )
Subscribed and sworn before me, a notary public, in and for said
county and state, this [____] day of [______________], 200[_].
-----------------------------------
Notary Public
My Commission Expires:
--------------
A-2
