EXHIBIT 4.43
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X.X. XXXXXXXX TRUST,
RAVEN FUNDING LLC
AND
PHH VEHICLE MANAGEMENT SERVICES LLC
SERVICING AGREEMENT
DATED AS OF JUNE 30, 1999
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SERVICING AGREEMENT
SERVICING AGREEMENT, dated as of June 30, 1999 (as it may be further
amended, supplemented or modified, the "Agreement") , between X.X. XXXXXXXX
TRUST, a Delaware business trust (the "Trust"), RAVEN FUNDING LLC, a Delaware
limited liability company ("SPV") and PHH VEHICLE MANAGEMENT SERVICES LLC, a
Delaware limited liability company (hereinafter, together with its successors
and assigns, "VMS" or, in its capacity as servicer hereunder, the "Servicer").
R E C I T A L S
A. RAVEN FUNDING LLC ("SPV"), as Settlor and Initial Beneficiary,
VMS, as UTI Trustee, and Wilmington Trust Company, as Delaware Trustee, have
entered into that certain Amended and Restated Origination Trust Agreement dated
as of June 30,1999 (the same, as amended, supplemented or modified and in effect
from time to time, the "Trust Agreement"), pursuant to which SPV and the
Trustees continued the Trust for the purpose of taking assignments and
conveyances of and holding and dealing in various Trust Assets in accordance
with the Trust Agreement.
B. The Trustees, on behalf of the Trust and at the direction of SPV,
which also is the sole Initial Beneficiary of the Trust, intend to create and
issue from time to time to or upon the order of SPV various special units of
beneficial interest in the Trust ("SUBIs"), whose beneficiaries generally will
be entitled to the cash flow arising from designated portfolios of Trust Assets
owned by the Trust, and which SUBIs may be used in connection with various
Securitizations (as defined in the Trust Agreement).
C. The parties desire to enter into this Agreement to provide for,
among other things, the servicing of the Trust Assets (including those evidenced
by the SUBIs) by the Servicer.
D. The parties acknowledge that, in connection with one or more
Securitizations, it may be necessary or desirable to enter into supplemental
agreements hereto, including one or more SUBI Servicing Agreement Supplements,
providing for further specific servicing obligations with respect to each
Securitization.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For all purposes of this Agreement, except
as otherwise expressly provided or unless the context otherwise requires, (a)
unless otherwise defined herein, all capitalized terms shall have the meanings
attributed to them in the Trust Agreement, (b) the capitalized terms defined in
this Article have the meanings assigned to them in this Article and include (i)
all genders and (ii) the plural as well as the singular, (c) all references to
words such
as "herein", "hereof" and the like shall refer to this Agreement as a whole and
not to any particular article or section within this Agreement, (d) the term
"include" and all variations thereon shall mean "include without limitation",
(e) the term "or" shall include "and/or", and (f) any reference herein to a
"Trustee, acting on behalf of the Trust", or words of similar import, shall be
deemed to mean the applicable Trustee, acting on behalf of the Trust and all
applicable beneficiaries of the Trust.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with such Person. For the purposes of this definition, "control"
when used with respect to any specified Person means the power to direct the
management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Agreement" has the meaning set forth in the preamble.
"Certificate" or "Certificates" shall mean the UTI Certificate and
each SUBI Certificate issued and outstanding.
"Certificate of Title" shall have the meaning set forth in the Trust
Agreement.
"Charged-Off Lease" means a Lease which has been or should have been
written off by the Servicer in accordance with the Policies.
"Collections" means all payments on the Trust Assets, including,
without limitation, (i) all monthly lease payments and other lease payments on
the Leases, (ii) all proceeds from the sale or other disposition of the Trust
Vehicles, including Recoveries, (iii) all insurance proceeds and warranty
payments with respect to the Trust Vehicles, (iv) all termination payments
received in respect of the Leases, (v) all other payments in respect of the
Leases and (vi) all payments in respect of the Fleet Receivables, whether such
payments are in the form of cash, checks, wire transfers or other forms of
payment.
"Consumer Lease" means each Lease relating to a single vehicle (i)
between an Obligor and PHH and sold by PHH to the Initial Beneficiary pursuant
to the Asset Sale Agreement and contributed by the Initial Beneficiary to the
Trust pursuant to the Contribution Agreement or (ii) between an Obligor and the
Trust.
"Cost" means the total of all amounts paid to manufacturers, dealers
and vendors in connection with the purchase and delivery of a Trust Vehicle plus
delivery charges, taxes and any registration or titling fees.
"Custodian Agreement" means the Custodian Agreement dated as of June
30, 1999 among Allfirst Financial Center, National Association, as Custodian,
the Trust and the Servicer.
"Delaware Trustee" has the meaning set forth in the Recitals.
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"Fleet Service Contract" means a fleet maintenance contract, fleet
management contract, fuel card contract or any other service contract the fees
for which are billed together with the Leases.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Holder" means the holder of a Certificate as indicated in the Trust
Register.
"Initial Beneficiary" has the meaning set forth in the Recitals.
"Insurance Policy" shall have the meaning set forth in the Trust
Agreement.
"Insurance Proceeds" means, with respect to any Lease or Trust
Vehicle or Obligor, proceeds paid to the Servicer, the Trust or a Trustee, on
behalf of the Trust, pursuant to an Insurance Policy.
"Lease" shall have the meaning set forth in the Trust Agreement.
"Lease Agreement" means a Consumer Lease or a Master Lease
Agreement.
"Lease Documents" means, with respect to each Lease, the fully
executed Master Lease Agreement or Consumer Lease, as the case may be, and any
agreements modifying such Lease Agreement (including, without limitation, any
extension agreements relating to extended Leases).
"Lease Files" has the meaning provided in Section 2.2(a) of the
Custodian Agreement.
"Lease Termination Date" means, with respect to any Lease, the date
such Lease actually terminates.
"Leased Vehicles" shall have the meaning set forth in the Trust
Agreement.
"Lessee" means the lessee of a Leased Vehicle or any Person who is
obligated to make payments on the related Lease.
"Liquidation Expenses" means, to the extent not reimbursed to the
Servicer through disposition or other fees pursuant to the relevant Lease,
reasonable out-of-pocket expenses incurred by the Servicer in connection with
the attempted realization of the full amounts due or to become due under any
Lease, including, without limitation, expenses incurred in connection with the
repossession of any related Leased Vehicle, the sale of such Leased Vehicle,
whether upon its repossession or upon return of a Leased Vehicle, any collection
effort (whether or not resulting in a lawsuit against the Obligor under such
Lease) or any application for Insurance Proceeds, costs for repairs, painting
and repossession, auction fees, sale or consignment fees, and expenses incurred
in the course of pursuing available remedies. Liquidation
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Expenses shall not include "overhead" expenses of the Servicer or any Affiliate
or any expenses paid or incurred by the Servicer or any Affiliate in connection
with the routine administration of Leases that are not in default.
"Liquidation Proceeds" means (1) gross amounts received by the
Servicer, the Trust or a Trustee, on behalf of the Trust in connection with the
realization of the full amounts due or to become due under any Charged-Off
Lease, (before reimbursement for Liquidation Expenses relating to such Lease),
whether from the sale or other disposition of the related Leased Vehicle, the
proceeds of any collection effort (whether or not resulting in a lawsuit against
the Obligor under such Lease), receipt of Insurance Proceeds relating to loss or
damage to the related Leased Vehicle, or collection of amounts due hereunder in
respect of that Lease or otherwise minus (2) any amounts remitted to the related
Lessee as required by the Lease or applicable law.
"Lockbox Agreement" means the Lockbox Services Agreement dated as of
June 30, 1999 between Bank of America National Trust and Savings Association and
the Trust.
"Master Lease Agreement" means (i) each master lease agreement
between an Obligor and VMS and sold by VMS to the Initial Beneficiary pursuant
to the Asset Sale Agreement and contributed by the Initial Beneficiary to the
Trust pursuant to the Contribution Agreement and (ii) each master lease
agreement between an Obligor and the Trust.
"Obligee" means each Person who is the lessor under a Lease or the
assignee thereof, including the Trust.
"Obligor" has the meaning set forth in the Trust Agreement.
"Officer's Certificate" means a certificate signed by the chairman
of the board, the president, any executive vice president, any senior vice
president, any assistant vice-president, the treasurer, any assistant treasurer,
or the controller of the Servicer.
"Opinion of Counsel" means a written opinion of counsel who may be
counsel for the Servicer (including in-house counsel employed by the Servicer or
any Affiliate thereof) and who, in the case of opinions delivered to the Trust
or the Trustees, shall be reasonably satisfactory to the Trustees.
"Original Trust" has the meaning set forth in the recitals to the
Trust Agreement.
"Origination Trust Account" means an account maintained in the name
of the Trust for the benefit of the Certificateholders, their pledgees and their
assigns which account shall be subject to a Lockbox Agreement.
"Paid-In Advance Vehicle" means a Vehicle acquired at the request of
an Obligor who is either a party to a Master Lease Agreement or who has agreed
to be bound by a Master Lease Agreement but not yet accepted by such Obligor.
"PHH" means PHH Personal Lease Corporation, a Maryland corporation.
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"Policies" means the Servicer's customary standards, policies and
procedures, including but not limited to the credit and residual accrual
policies applied by the Servicer in originating Leases and those applied by the
Servicer in its collection and repossession activities.
"Portfolio" has the meaning set forth in the Trust Agreement.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Rating Agency" means any nationally recognized statistical rating
organization then rating any securities issued in connection with a
Securitization.
"Recoveries" means any amounts received by the Servicer with respect
to Charged-Off Leases, including collections received from Obligors and
liquidation proceeds of the related Trust Vehicles, net of (i) any applicable
rental receipts tax, sales and use tax, personal property tax, ad valorem tax or
any other tax or any governmental fees or charges, (ii) any and all
out-of-pockets costs and expenses incurred by the Servicer in connection with
such recovery and (iii) any amounts remitted to the related Obligor as required
by applicable law or the related Lease.
"Registrar of Titles" shall have the meaning set forth in the Trust
Agreement.
"Responsible Officer" means, (a) when used with respect to a Trustee
other than the UTI Trustee, any officer in the corporate trust office of the
Trustee with direct responsibility for the administration of the Trust Agreement
or any other officer of the Trustee to whom any corporate trust matter is
referred because of his or her knowledge of or any familiarity with the
particular subject, and (b) when used with respect to the UTI Trustee, the
President, Chief Financial Officer, the General Counsel or any other officer of
the UTI Trustee to whom any matter concerning the administration of the Trust is
referred because of his or her knowledge of or any familiarity with the
particular subject.
"Sale Proceeds" means the net proceeds actually received by the
Servicer or the applicable Trustee, on behalf of the Trust, with respect to the
disposition of a Trust Vehicle.
"Schedule of Trust Assets" means the list of Leases, Trust Vehicles
and Fleet Receivables, on microfiche, microfilm or hard paper copy, that are
included as Trust Assets in the Trust, as such list may be revised and
supplemented from time to time.
"Securitization" shall have the meaning set forth in the Trust
Agreement.
"Security Deposit" means, with respect to any Obligor, an amount
paid by such Obligor in respect of its Master Lease Agreement and held by the
Servicer on behalf of the Trust to be applied, if necessary, by the Servicer to
offset any amounts owed by such Obligor.
"Servicer" has the meaning set forth in the preamble.
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"Servicer Termination Event" means any of the acts, events or
occurrences set forth in Section 3.1(a).
"Servicing Fee" shall have the meaning specified in Section 2.5(a).
"Servicing Records" shall have the meaning specified in Section
2.6(a).
"Settlor" has the meaning set forth in the Recitals.
"SUBI" has the meaning set forth in the Recitals.
"SUBI Asset" has the meaning set forth in the Trust Agreement.
"SUBI Portfolio" has the meaning set forth in the Trust Agreement.
"SUBI Servicing Agreement Supplement" means any supplement or
amendment to this Agreement entered into from time to time to accommodate the
creation and issuance of a particular SUBI and to specify any special
responsibilities or obligations that the Servicer may be required to undertake
in connection therewith.
"SUBI Supplement" means any supplement or amendment to the Trust
Agreement executed from time to time in connection with the creation and
issuance of a particular SUBI.
"SUBI Trustee" means, as to each SUBI, the separate trustee
appointed by the Initial Beneficiary for each SUBI.
"Trust" has the meaning set forth in the preamble.
"Trust Agent" means any Person with whom a Trustee contracts to act
as its agent with respect to carrying out certain of its duties as Trustee
hereunder, as provided for in the Trust Agreement.
"Trust Agreement" has the meaning set forth in the Recitals.
"Trust Asset" has the meaning set forth in the Trust Agreement.
"Trust Documents" means and includes this Agreement, the Trust
Agreement, and all amendments or supplements or modifications hereto or thereto.
"Trust Vehicle" has the meaning set forth in the Trust Agreement.
"Trustees" means the Delaware Trustee, the UTI Trustee and any SUBI
Trustee.
"Uniform Commercial Code" and "UCC" mean the Uniform Commercial Code
as in effect in any applicable jurisdiction.
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"United States" means the United States of America, its territories
and possessions and areas subject to its jurisdiction.
"UTI" means the undivided trust interest in the Trust created
pursuant to Section 4.1 of the Trust Agreement.
"UTI Certificate" has the meaning set forth in the Trust Agreement.
"UTI Holder" means, initially, SPV and any other registered holder
of the UTI Certificate.
"UTI Portfolio" has the meaning set forth in the Trust Agreement.
"UTI Servicing Agreement Supplement" means any supplement or
amendment to this Agreement entered into from time to time to specify any
special responsibilities or obligations that the Servicer may be required to
undertake in connection with the UTI.
"UTI Trustee" has the meaning set forth in the Recitals.
"Vehicle" has the meaning set forth in the Trust Agreement.
"VMS" has the meaning set forth in the preamble.
ARTICLE II
ADMINISTRATION AND SERVICING OF TRUST ASSETS
Section 2.1. Servicer to Act as Servicer. (a) As agent for and
subject to the supervision, direction and control of the Trust as set forth in
the Trust Agreement, the Servicer shall originate new Lease Agreements in
accordance with the Policies, originate Leases under the Master Lease Agreements
in accordance with the Policies and service, administer and make collections on
the Leases, the Fleet Receivables and the other Trust Assets in accordance with
the terms of this Agreement, and shall have full power and authority, acting
alone and subject only to the specific requirements and prohibitions of this
Agreement, to do any and all things in connection with such servicing,
administering and collecting that it may reasonably deem necessary or desirable.
The duties of the Servicer shall include, without limitation, contracting
potential lessees, evaluating the creditworthiness of potential lessees,
negotiating Lease Agreements, collecting and posting payments, responding to
inquiries of Obligors, investigating delinquencies, sending invoices or billing
statements to Obligors, disposing of Trust Vehicles, paying costs of disposition
of Leased Vehicles related to Charged-Off Leases and of Paid-In-Advance Vehicles
that have been rejected by the applicable Obligors, administering the Leases,
Trust Vehicles and Fleet Receivables, amending payment due dates and making
other modifications to the Leases and Fleet Receivables in accordance with the
Policies, approving repairs to Trust Vehicles, accounting for Collections,
monitoring the Leases in cases of Obligor defaults and filing all tax returns
(if any) of the Trust.
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(b) Without limiting the generality of the foregoing, the Servicer
hereby expressly agrees to perform and carry out on behalf of the Trust, all of
the obligations on the part of the Obligee under the Lease Agreements and is
hereby authorized and empowered by the Trust to execute and deliver, in its own
name or on behalf of the Trust, or both of them, as the case may be, any and all
instruments of satisfaction, extension or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Lease Agreements or the Trust Vehicles in accordance with the Policies.
(c) The Servicer shall cause the Trust to (i) apply for and maintain
(or cause to be applied for and maintained) all licenses, permits and
authorizations necessary and appropriate to acquire, hold and manage Trust
Assets as contemplated by the Trust Agreement in each jurisdiction where the
ownership of its assets or the nature of its operations would require it to
maintain such licenses, permits or authorizations, (ii) file (or cause to be
filed) all notices, reports and other required filings in each jurisdiction
where the location of its assets or the nature of its operations would require
it to make such filing, and (iii) pay or cause to be paid all applicable taxes
and fees properly due and owing in connection with its activities.
(d) If the Servicer shall commence a legal proceeding to enforce a
Lease Agreement or Fleet Receivable, the Trust shall thereupon be deemed to have
automatically assigned, solely for the purpose of collection on behalf of the
Trust, its interest in such Lease Agreement (and the related Leased Vehicles) or
Fleet Receivable to the Servicer to the extent necessary for the purposes of
participating in such proceeding. If in any enforcement suit or legal proceeding
it is held that the Servicer may not enforce a Lease Agreement or Fleet
Receivable on the grounds that it is not the real party in interest or a holder
entitled to enforce such Lease Agreement or Fleet Receivable, the Trust shall,
at the expense and direction of the Servicer, take steps to enforce the Lease
Agreement or Fleet Receivable, including bringing suit in its name. The Trust
shall furnish the Servicer with any powers of attorney and other documents
necessary or appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(e) In performing its duties hereunder, the Servicer shall use
reasonable care, following the Policies and using that degree of skill and
attention that the Servicer exercises with respect to all comparable fleet
vehicle leases and receivables that it services for itself.
Section 2.2. Origination of Leases; Acquisition and Titling of Trust
Vehicles. (a) As agent for the SPV, the Servicer shall acquire Vehicles at the
request of Obligors party to the Lease Agreements for contribution to the Trust
in accordance with the terms of this Agreement, and shall have the power and
authority, acting alone and subject only to the specific requirements and
prohibitions of this Agreement, to do any and all things in connection with such
acquisition of Vehicles that it may deem reasonably necessary or desirable. The
Servicer shall cause the Manufacturer's Certificate of Ownership with respect to
each Vehicle acquired by the Servicer on behalf of the SPV to be assigned to the
Trust at the time that such Vehicle is contributed to the Trust by the SPV.
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(b) The Servicer shall maintain, during the term of this Agreement,
a staff and a system reasonably sufficient to originate Lease Agreements, assess
the credit worthiness of potential Obligors, open and service customer accounts,
xxxx and collect payments on Leases and Fleet Receivables, obtain Vehicles for
lease under the Lease Agreements and dispose of Trust Vehicles and otherwise
perform its obligations hereunder.
(c) The Servicer shall cause the Certificate of Title for each Trust
Vehicle to be issued in the name of the Trust or its nominee under a Nominee
Agreement in accordance with the Trust Agreement, with the address of the
Servicer (or such other address as the Servicer and the Trustees shall agree) as
the address of the recorded owner of such Trust Vehicle. The Servicer shall
cause the Certificate of Title for each Trust Vehicle to name the SPV as first
lienholder; provided that with respect to Trust Vehicles acquired prior to July
15, 1999, the related Certificates of Title may name VMS or PHH Personal Lease
Corporation as first lienholder. The Servicer shall cause to be made all filings
necessary to evidence the security interest of SPV (or VMS, in the case of
Vehicles acquired by the Trust on or prior to the date hereof) in all Vehicles
not subject to a certificate of title, act or statue.
(d) The Servicer shall deliver or cause to be delivered to the
Custodian the original copy of each Lease Agreement prior to the date of the
first acquisition of Vehicles to be leased by the Trust thereunder.
(e) To the extent not already paid, the Servicer shall pay to the
respective tax authorities on behalf of the Trust or the SPV all sales, use,
gross receipts, general corporation, tangible personal property, intangible,
franchise, privilege or license taxes required to be paid by the Trust or the
SPV, as such amounts become due.
Section 2.3. Collections; Extensions and Adjustments; Applications
of Collections. (a) In accordance with the Policies, the Servicer shall use
commercially reasonable efforts to collect all payments called for under the
terms and provisions of the Leases and Fleet Receivables as and when the same
shall become due. Subject to any provisions of a SUBI Servicing Agreement
Supplement, the Servicer may grant extensions, rebates, credits or adjustments
in respect of a Lease or Fleet Receivable provided that any such extension,
rebate, credit or adjustment is in accordance with the Policies. The Servicer
may in its discretion waive any late payment charge that may be collected in the
ordinary course of servicing a Lease or a Fleet Receivable in accordance with
the Policies.
(b) The Servicer shall direct the Obligors to make all payments in
respect of the Leases and the Fleet Receivables to an Origination Trust Account.
The Servicer shall direct any other Person making a payment constituting a
Collection to make such payment directly to an Origination Trust Account. Any
Collections received by the Servicer at any time otherwise than in an
Origination Trust Account shall be held in trust by the Servicer for the benefit
of the Trust and deposited in an Origination Trust Account or applied in
accordance with the next sentence as promptly as practicable and, in any event,
within two (2) Business Days following receipt. All Collections shall be applied
as follows: (i) if such Collections relate to a SUBI Asset, the Servicer shall
deposit such funds as set forth in the related SUBI Servicing Agreement
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Supplement and (ii) if such Collections relate to a Trust Asset other than a
SUBI Asset, the Servicer shall pay such funds as directed by the UTI
Certificateholder.
(c) The Servicer shall, on behalf of the UTI Trustee and at the
direction of the Initial Beneficiary, from time to time, in accordance with the
Trust Agreement or the applicable SUBI Supplement thereto, identify and allocate
on the books and records of the Trust certain Leases, Trust Vehicles and/or
Fleet Receivables into one or more SUBI Portfolios, either upon the initial
creation of such SUBI or periodically following its creation. The Servicer shall
account to the applicable Trustee for each Portfolio of Trust Assets separately
and in accordance with any supplement or amendment to this Agreement entered
into with respect to such Portfolio.
Section 2.4. Collection and Application of Security Deposits. The
Servicer shall retain any Security Deposit remitted to it as agent and bailee
for the Trust and as proceeds of the Leases and the Fleet Receivables, and shall
apply the proceeds of such Security Deposits in accordance with applicable law,
the Policies and any contract or agreement pursuant to which such Security
Deposit is being provided to the Trust, including but not limited to using the
Security Deposit in respect of any payment that the related Obligor failed to
pay. Upon the termination of a Master Lease Agreement, the related Security
Deposit, after deduction for amounts applied towards the payment of any amount
resulting from the related Obligor's default or failure to pay any amounts
required to be paid under such Master Lease Agreement or in respect of Fleet
Receivables, shall be returned to the related Obligor by the Servicer; provided,
however, that the Servicer may retain a Security Deposit until the Obligor has
repaid all other charges owed to the Trust under such Lease or otherwise.
Section 2.5. Servicing Compensation; Fees, Costs and Expenses. (a)
As compensation for the performance of its obligations under this Agreement and
subject to the terms of this Section and the terms of any applicable SUBI
Servicing Agreement Supplement, the Servicer shall be entitled to receive from
the Trust, a fee (the "Servicing Fee") equal to:
(i) With respect to each SUBI Portfolio, the amount set forth in the
related SUBI Servicing Agreement Supplement; and
(ii) With respect to each UTI Portfolio, such amount as shall be
agreed from time to time between the holder of the UTI and the Servicer.
The Servicer shall pay all expenses of the Trust and all expenses
incurred by it in connection with its servicing activities hereunder, including
the costs of any separate trustee or co-trustee appointed by a Trustee pursuant
to Section 5.7 of the Trust Agreement, and shall not be entitled to
reimbursement of such expense. Notwithstanding anything contained in the
foregoing sentence to the contrary, the Servicer shall not be liable to pay the
expenses of the Trust or expenses incurred by the Servicer which constitute
Liquidation Expenses, losses with respect to Trust Assets or expenses
recoverable under an applicable Insurance Policy.
(b) As additional servicing compensation, the Servicer also shall be
entitled to the earnings from the investment of Security Deposits retained as
provided in Section 2.4 and as permitted by applicable law.
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Section 2.6. Records. (a) The Servicer shall maintain or cause to be
maintained such computer and manual records with respect to the Leases, Trust
Vehicles, Fleet Receivables and other Trust Assets, and the Collections thereon,
as are sufficient to permit (i) it to perform its servicing duties hereunder and
(ii) the UTI Trustee to identify and allocate Trust Assets on a segregated basis
in accordance with the terms and provisions of the Trust Agreement and any SUBI
Supplements thereto. The Servicer shall retain or cause to be retained all data
(including, without limitation, computerized records), together with all
operating software and appropriate documentation, relating directly to or
maintained in connection with the servicing of the Trust Assets (the "Servicing
Records"). The Servicer shall provide or cause to be provided to the Trustees,
on behalf of the Trust, upon its request, access to such Servicing Records at
the respective offices of the Servicer, upon reasonable prior notice and during
normal business hours. Nothing in this Section 2.6 shall affect the obligation
of the Servicer to observe any applicable law prohibiting disclosure of
information regarding the Leases or Fleet Receivables, and the failure of the
Servicer to provide access to information as a result of such obligation shall
not constitute a breach of this Section 2.6.
(b) Upon the occurrence and during the continuance of a Servicer
Termination Event with respect to a Portfolio, if the duties of the Servicer in
respect of such Portfolio are to be terminated, the Servicer shall deliver to
any successor Servicer appointed pursuant to the terms hereof, or, if otherwise
directed by the applicable Trustee, to such Trustee, all such data, operating
software and appropriate documentation necessary for the servicing of the Trust
Assets included in such Portfolio, including but not limited to the related
Lease Documents (other than any Lease Files held by the Custodian), Certificate
of Titles and Fleet Service Contracts, all monies collected by it and required
to be deposited in any account on behalf of the Trust relating to that Portfolio
and all related Security Deposits. In addition to delivering such data,
operating software and appropriate documentation and moneys, the Servicer shall
use all commercially reasonable efforts to effect the orderly and efficient
transfer of the servicing of the Trust Assets included in that Portfolio with
respect to which such termination shall have occurred to the party that will be
assuming responsibility for such servicing, including, without limitation, (i)
directing Obligors to remit payments in respect of those Trust Assets to an
account or address designated by the applicable Trustee or such new Servicer and
(ii) at the expense of the Servicer, cooperating as may be requested by such
Trustee or such new Servicer to achieve a transfer of data held in electronic or
other form to the new Servicer's or such Trustee's computer systems.
Section 2.7. Custody of Lease Files; Custodial Duties. (a) In
accordance with the Custodian Agreement, the Custodian shall maintain custody of
the Lease Files. The Custodian shall act for the UTI Holder with respect to the
UTI Portfolio and for the Holders of each SUBI, and any pledgee or assignee
thereof, with respect to the related SUBI Portfolio. The Custodian shall follow
the direction, if any, of such Certificateholders and their assignees and
pledgees with respect to the related Portfolio.
(b) With respect to the documents constituting each Lease File which
are delivered to the Custodian (or at any time come into the possession of the
Custodian), the Custodian is exclusively the bailee of the Trustees. The
Trustees, the Certificateholders and all other persons with an interest in the
Trust hereby acknowledge and consent on behalf of them-
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selves and their successors and assigns that the duty of care applicable to the
Custodian shall be that applicable to a bailee.
Section 2.8. Maintenance of Record Ownership Interests in Trust
Vehicles. In accordance with the Policies, the Servicer shall take all necessary
steps to maintain evidence of the ownership interest of the Trust in each Trust
Vehicle on its Certificate of Title. The Trustees hereby authorize the Servicer
to take such steps as are reasonably necessary to record such ownership interest
on behalf of the Trust in the event of the relocation of a Trust Vehicle or for
any other reason.
Section 2.9. Covenant of Servicer. The Servicer shall not impair the
rights of the Trust in the Leases, the Trust Vehicles, the Fleet Receivables or
any other Trust Assets; provided that the Servicer shall be entitled to
undertake the actions permitted by 2.3(a) hereof, and shall also be entitled to
permit, in accordance with the Policies, the assignment by a Lessee of its
obligations under its Master Lease Agreement to a new lessee.
Section 2.10. Third Party Claims. The Servicer shall promptly notify
VMS (in the event that VMS is not acting as the Servicer hereunder) and the
Trustees, on behalf of the Trust, upon its learning that a claim of whatever
kind is being made that could have a material adverse effect on the UTI Holder,
any Trustee, any SUBI Certificateholder, the Trust or the Trust Assets.
Section 2.11. Insurance Policies. The Servicer shall at all times
maintain or cause to be maintained by an Affiliate of the Servicer, on behalf of
the Trust, Insurance Policies (which may be blanket policies covering the
Servicer, the Trust and some or all Affiliates of the Servicer) with respect to
the Leases, the Trust Vehicles and the Lessees (and shall cause each such
Insurance Policy maintained by it or any of its Affiliates to name the Trust as
an additional insured or loss payee, as appropriate) of at least the types and
in at least the same amounts as are customarily maintained by the Servicer and
its Affiliates for its own portfolio of fleet vehicle leases and related leased
vehicles.
Section 2.12. Obligor Insurance Coverage in Respect of Leased
Vehicles. Unless otherwise required by the Policies, the Servicer shall use
reasonable efforts to ensure that the Obligor under each Lease Agreement shall
have, and maintain in full force and effect during the term of such Lease
Agreement, a comprehensive, collision and property damage insurance policy
covering the actual cash value of the Leased Vehicles to which such Lease
Agreement relates and naming the Trust as a loss payee and additional insured,
as well as public liability, bodily injury and property damage coverage equal to
the greater of the amounts required by applicable state law or industry
standards as set forth in the Lease Agreement, and naming the Trust as an
additional insured.
Section 2.13. Sale of Trust Vehicles; Realization on Charged-Off
Leases.
(a) Sale upon Expiration or Termination of a Lease or Return of a
Trust Vehicle. Upon the termination or expiration of a Lease, or in the event
that any Trust Vehicle is otherwise returned to the Trust, the Servicer shall
arrange for the sale of such Trust Vehicle in
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accordance with the terms of the related Lease Agreement and the Policies and
will collect from the related Lessee any amounts payable by the Lessee pursuant
to the Lease Agreement in connection with such expiration, termination, return
and/or disposal.
(b) Sale of Paid-In-Advance Vehicles If Lessee does not Accept the
Paid-In Advance Vehicle. If the Lessee does not accept delivery of a
Paid-In-Advance Vehicle, the Servicer shall arrange for the sale or other
disposition of such Paid-In-Advance Vehicle and collect from the related Lessee
any fee, penalty or other amount payable in connection therewith.
(c) Realization on Repossessed Vehicles. On behalf of the Trust and
in accordance with the Policies, the Servicer shall use reasonable efforts to
repossess or otherwise convert the possession of any Leased Vehicle subject to a
delinquent Lease. In accordance with the Policies, the Servicer shall take such
actions as it shall deem necessary or advisable to realize against the Lessee
which executed such Lease, and to sell such Leased Vehicle at public or private
sale, subject to and in accordance with the provisions of the applicable Lease.
The Servicer shall be entitled to reimbursement out of Sales Proceeds for all
reasonable Liquidation Expenses incurred by it in the course of converting the
Leased Vehicle into cash proceeds. The foregoing shall be subject to the
provisions that, in any case in which the related Leased Vehicle shall have
suffered damage, the Servicer shall not incur Liquidation Expenses in connection
with the repair or the repossession of such Leased Vehicle unless it shall
determine in its sole discretion that such repair and/or repossession will
increase the Liquidation Proceeds by an amount greater than the amount of such
Liquidation Expenses.
Section 2.14. Limitation on Liability of Servicer and Others. (a)
Neither the Servicer nor any of the directors or officers or employees or agents
of the Servicer shall be under any liability to the Trust or the
Certificateholders (except as explicitly provided under this Agreement or
explicitly provided in any SUBI Servicing Agreement Supplement) or to the
Trustees (except as provided under this Agreement) for the taking of any action
or for refraining from the taking of any action pursuant to this Agreement or
for errors in judgment; provided, however, that this Section 2.14 shall not
protect the Servicer or any such person against any liability that would
otherwise be imposed by reason of willful misfeasance or bad faith in the
performance of duties or by reason of reckless disregard of obligations and
duties under this Agreement or any SUBI Servicing Agreement Supplement, or by
reason of negligence in the performance of its duties under this Agreement or
any SUBI Servicing Agreement Supplement (except for errors in judgment). The
Servicer and any director, officer or employee or agent of the Servicer may rely
in good faith on any Opinion of Counsel or on any Officer's Certificate or
certificate of auditors or accountants believed to be genuine and to have been
signed by the proper party in respect of any matters arising under this
Agreement.
(b) Except as provided in this Agreement or in any SUBI Servicing
Agreement Supplement, the Servicer shall not be under any obligation to appear
in, prosecute, or defend any legal action that shall not be incidental to its
duties to service the Trust Assets in accordance with this Agreement or the
related SUBI Servicing Agreement Supplement, and that in its opinion may involve
it in any expense or liability; provided, however, that the Servicer may
undertake any reasonable action that it may, in good faith, deem necessary or
desirable in respect
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of this Agreement or any SUBI Servicing Agreement Supplement, the rights and
duties of the parties to this Agreement or any SUBI Servicing Agreement
Supplement, and the interests of the Certificateholders under this Agreement or
any SUBI Servicing Agreement Supplement. The Servicer shall be entitled to
reimbursement for the legal expenses and costs of any such action with respect
to the UTI Portfolio from the UTI Holder and with respect to SUBI Assets from
the holders of the related SUBI Certificates. Any liability resulting from any
such action shall be expenses, costs, and liabilities of the UTI Holder or the
holders of the related SUBI Certificates, as the case may be.
Section 2.15. Servicer Not to Resign; Assignment. (a) The Servicer
shall not resign from the duties and obligations hereby imposed on it as
Servicer except upon a determination that the continued performance by the
Servicer of its duties as Servicer under this Agreement is no longer permissible
under applicable law, said determination to be evidenced by an Opinion of
Counsel reasonably satisfactory to the Trustees, to such effect. No such
resignation shall become effective unless and until a new servicer is willing to
service the Trust Assets and enters into a servicing agreement with the Trust.
The Trust shall not unreasonably fail to consent to such a servicing agreement.
(b) Subject to paragraph (c) of this Section, the Servicer may not
assign this Agreement or any of its rights, powers, duties or obligations
hereunder; provided, however, that the Servicer may assign this Agreement in
connection with a consolidation, merger, conveyance, transfer or lease made in
compliance with Section 2.16.
(c) The Servicer may, at any time without notice or consent,
delegate (i) any or all duties under this Agreement to any Person more than 50%
of the voting securities of which are owned, directly or indirectly, by Avis
Rent A Car, Inc., or (ii) specific duties to sub-contractors who are in the
business of performing such duties; provided, however, that no such delegation
shall relieve the Servicer of its responsibility with respect to such duties and
the Servicer shall remain obligated and liable to the Trustees and the holders
of the UTI and the SUBIs for servicing and administering the Trust Assets in
accordance with this Agreement as if the Servicer alone were performing such
duties. The Servicer may delegate its duty to originate Consumer Leases in
accordance with the Policies to PHH Personal Lease Corporation, a wholly-owned
subsidiary of VMS.
(d) Except as provided in paragraphs (a), (b) and (c) above, the
duties and obligations of the Servicer under this Agreement shall continue until
this Agreement shall have been terminated as provided herein and shall survive
the exercise by any Trustee, on behalf of the Trust, of any right or remedy
under this Agreement or the enforcement by any Trustee, on behalf of the Trust,
of any provision of the Trust Documents.
Section 2.16. Corporate Existence; Status; Merger. (a) The Servicer
shall keep in full effect its existence, rights and franchises as a limited
liability company and shall continue to be duly organized, validly existing and
in good standing under the laws of its jurisdiction of organization and shall
take such actions under the laws of each state as shall be necessary to protect
the validity and enforceability of, or to permit the Servicer to perform its
obligations
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(including but not limited to its origination and servicing obligations) under,
the Trust Documents.
(b) Any corporation or other entity (i) into which the Servicer is
merged or consolidated, (ii) that may result from any merger, conversion, or
consolidation to which the Servicer is a party, or (iii) that may succeed by
purchase and assumption of all or substantially all of the business of the
Servicer, where the Servicer in any of the foregoing cases is not the surviving
entity, which corporation or other entity in any of the foregoing cases shall
execute an agreement of assumption to perform every obligation of the Servicer
under this Agreement, shall be the successor to the Servicer under this
Agreement without any further act on the part of any of the parties to this
Agreement; provided, however, that the Servicer shall have delivered to the
Trustees a certificate and an Opinion of Counsel each stating that such merger,
conversion, consolidation or succession and such agreement of assumption comply
with this Section. The Servicer shall promptly inform the Trustees and each
Rating Agency of any such merger, conversion, consolidation or purchase and
assumption where the Servicer is not the surviving entity.
Section 2.17. Power of Attorney. In connection with this Agreement,
the Trust grants to the Servicer the authority to and will execute and deliver
to the Servicer any necessary Power of Attorney as the Servicer may require in
order to effect its responsibilities hereunder and under any Supplement to this
Agreement.
ARTICLE III
SERVICER TERMINATION EVENTS
Section 3.1. Servicer Termination Events; Termination of Servicer
(a) Any of the following acts or occurrences shall constitute a Servicer
Termination Event with respect to a SUBI Portfolio:
(i) The Servicer shall have failed to deposit or transfer any
amounts in excess of $100,000 in the aggregate at any time outstanding
that are required to be deposited or transferred with respect to such SUBI
Portfolio pursuant to Section 2.2 hereof, which failure continues for five
(5) Business Days after receipt by the Servicer of written notice thereof
from the SUBI Trustee with respect to such SUBI Portfolio or any Holder of
the SUBI Certificate with respect to such SUBI Portfolio;
(ii) The Servicer shall default in the due performance and
observance of any other provision of this Agreement with respect to such
SUBI Portfolio, which default materially and adversely affects the rights
of any Holder of a SUBI Certificate with respect to such SUBI Portfolio,
and such default shall have continued for a period of 30 days after
written notice thereof shall have been given to the Servicer by the SUBI
Trustee with respect to such SUBI Portfolio;
(iii) The entry of a decree or order for relief by a court or
regulatory authority having jurisdiction over the Servicer in an
involuntary case under the federal bankruptcy laws, as now or hereafter in
effect, or another present or future federal or state bank-
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ruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of
the Servicer or of any substantial part of its property, or ordering the
winding up or liquidation of the affairs of the Servicer and the
continuance of any such decree or order unstayed and in effect for a
period of 60 consecutive days; or
(iv) The commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other
present or future federal or state bankruptcy, insolvency or similar law,
or the consent by the Servicer to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, seques- trator or
other similar official of the Servicer or of any substantial part of its
property or the making by the Servicer of an assignment for the benefit of
creditors or the failure by the Servicer generally to pay its debts as
such debts become due or the taking of corporate action by the Servicer in
furtherance of any of the foregoing.
(b) If a Servicer Termination Event shall have occurred and be
continuing with respect to a SUBI Portfolio, the SUBI Trustee of that particular
SUBI Portfolio may, by notice given to the Servicer, terminate all or a portion
of the rights and powers of the Servicer under this Agreement with respect to
such SUBI Portfolio, including all or a portion of the rights of the Servicer to
receive the servicing compensation with respect to such SUBI Portfolio provided
for in Section 2.5 hereof for all periods following such termination; provided,
however, that in no event shall the rights and powers of the Servicer be
terminated until such time as the SUBI Trustee for such SUBI Portfolio shall
have appointed a successor Servicer in the manner set forth below. Upon any such
termination, all rights, powers, duties and responsibilities of the Servicer
under this Agreement with respect to such SUBI Portfolio, whether with respect
to the related Lease Documents, the related Certificates of Title or Servicing
Records, the Servicing Fee or otherwise, so terminated shall vest in and be
assumed by any successor Servicer appointed by the Trustee for such SUBI
Portfolio pursuant to a servicing agreement containing substantially the same
provisions as this Agreement (including with respect to the compensation of such
successor servicer), and the successor Servicer is hereby irrevocably authorized
and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments (including
any notices to Obligors deemed necessary or advisable by the SUBI Trustee for
such SUBI Portfolio), and to do or accomplish all other acts or things necessary
or appropriate to effect such vesting and assumption, including, without
limitation, directing some or all of the Obligors with respect to such SUBI
Portfolio to remit payments on or in respect of the Leases, the Leased Vehicles,
the Fleet Receivables and the other Trust Assets to an account or address
designated by such new Servicer. Further, in such event, the Servicer shall use
its commercially reasonable efforts to effect the orderly and efficient transfer
of the servicing of the affected Trust Assets with respect to such SUBI
Portfolio to the new Servicer (including transfer of any Security Deposits being
held by the Servicer with respect to such SUBI Portfolio pursuant to Section
2.4), and as promptly as practicable, the Servicer shall provide to the new
Servicer a current computer tape containing all information from the Servicing
Records with respect to such SUBI Portfolio required for the servicing of the
affected Trust Assets, together with documentation containing any and all
information necessary for use of the tape. In no event shall the Wilmington
Trust Company be responsible for any duties of the Servicer hereunder.
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(c) The SUBI Trustee of a SUBI Portfolio, acting at the direction of
the related Certificateholders, may waive in writing any Servicer Termination
Event by the Servicer in the performance of its obligations hereunder and its
consequences with respect to such SUBI Portfolio. Upon any such waiver of a past
Servicer Termination Event, such Servicer Termination Event shall cease to
exist, and any Servicer Termination Event arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other Servicer Termination Event or impair any right
consequent thereon.
(d) The UTI Holder may, upon written notice to the Servicer,
terminate all or a portion of the rights and powers of the Servicer with respect
to the UTI under this Agreement, unless otherwise provided in a UTI Servicing
Agreement Supplement.
ARTICLE IV
MISCELLANEOUS
Section 4.1. Termination of Agreement. This Agreement shall, except
as otherwise provided herein, terminate upon the earliest of (a) the termination
of the Trust; (b) the discharge of the Servicer in accordance with the terms
hereof; or (c) the mutual written determination of the parties hereto. Upon
termination of this Agreement, the Servicer shall pay over to the Trust, or any
other Person entitled thereto, all monies held by the Servicer on behalf of the
Trust pursuant to this Agreement.
Section 4.2. Amendment. (a) Subject to any restriction set forth in
a SUBI Servicing Agreement Supplement, this Agreement may be amended from time
to time in a writing signed by the Trustees, on behalf of the Trust, and the
Servicer. Any amendment affecting particular Trust Assets need not be signed by
any Trustee which does not administer such particular Trust Assets.
(b) In particular, but without limiting the foregoing, this
Agreement may be amended by means of one or more SUBI Servicing Agreement
Supplements in connection with any Securitizations. Such supplemental agreements
may provide, among other things, for further specific servicing obligations
relating to SUBI Assets for the particular benefit of holders of related SUBIs.
Such supplemental agreements may permit the termination of this Agreement
insofar as it applies to such SUBI Assets upon the terms and conditions set
forth therein; however, no such supplemental agreement shall permit the
termination of this Agreement insofar as it applies to other Trust Assets except
as provided herein.
(c) Any amendment or modification effected contrary to the provision
of this Section shall be void.
Section 4.3. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO ANY OTHERWISE APPLICABLE PRINCIPLES OF CONFLICT OF LAWS.
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Section 4.4. Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United States mail, postage prepaid, hand delivery, any
prepaid courier service, or by telecopier, and addressed in each case as
follows: (a) if to the Servicer or SPV at 000 Xxx Xxxxxxx Xxxx, Xxxxxx Xxxx, XX
00000, Attention: General Counsel (telecopier no. 000- 000-0000); and (b) if to
the Trust, at Wilmington Trust Company, 0000 X. Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attention: Corporate Trust Administration (telecopier no.
302-651-8882). The Servicer or any Trustee may change its address for notices
hereunder by giving notice of such change to the other such Persons. All notices
and demands shall be deemed to have been given upon delivery or tender of
delivery thereof to any officer of the Person entitled to receive such notices
and demands at the address of such Person for notices hereunder.
Section 4.5. Severability. If one or more of the provisions of this
Agreement shall be for any reason whatever held invalid or unenforceable, such
provisions shall be deemed severable from the remaining covenants, agreements
and provisions of this Agreement, and such invalidity or unenforceability shall
in no way affect the validity or enforceability of such remaining covenants,
agreements and provisions, or the rights of any parties hereto. To the extent
permitted by law, the parties hereto waive any provision of law that renders any
provision of this Agreement invalid or unenforceable in any respect.
Section 4.6. Inspection Rights. The Servicer agrees that, on
reasonable prior notice, it will permit any representative, agent or designee of
the Trust, during the normal business hours of the Servicer, to examine all
books of account, records, reports and other papers of the Servicer relating to
the Trust Assets, to make copies and extracts therefrom, to cause such books to
be audited by independent accountants selected by any Trustee, and to discuss
the affairs, finances and accounts relating to the Trust Assets with its
officers and employees in such manner as will not unreasonably interfere with
the Servicer's normal operations. Such rights shall include, but shall not be
limited to, any off-site storage facilities at which any data (including,
without limitation, computerized records), together with all operating software
and appropriate documentation, may be held. The Trust and the Trustees agree to
keep confidential all the confidential information of the Servicer acquired
during any such examination as if such information were its own confidential
information, except to the extent necessary for the purposes of this Agreement.
Section 4.7. Binding Effect. The provisions of this Agreement shall
be binding upon and inure to the benefit of the respective successors and
permitted assigns of the parties hereto, and all such provisions shall inure to
the benefit of the Trust.
Section 4.8. Article and Section Headings. The article and section
headings herein are for convenience of reference only, and shall not limit or
otherwise affect the meaning hereof.
Section 4.9. Execution in Counterparts. This Agreement may be
executed in any number of counterparts, each of which so executed and delivered
shall be deemed to be an original, but all of which counterparts shall together
constitute but one and the same instrument.
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Section 4.10. Rights Cumulative. All rights and remedies from time
to time conferred upon or reserved to the Trust, the Trustees (or any of them),
on behalf of the Trust, or the Servicer or to any or all of the foregoing are
cumulative, and none is intended to be exclusive of another. No delay or
omission in insisting upon the strict observance or performance of any provision
of this Agreement, or in exercising any right or remedy, shall be construed as a
waiver or relinquishment of such provision, nor shall it impair such right or
remedy. Every right and remedy may be exercised from time to time and as often
as deemed expedient.
Section 4.11. Further Assurances. Each party will do such acts, and
execute and deliver to any other party, such additional documents or instruments
as may be reasonably requested in order to effect the purposes of this Agreement
and to better assure and confirm unto the requesting party its rights, powers
and remedies thereunder.
Section 4.12. Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto and each of the
beneficiaries of the Trust (and each pledgee of a Certificate) who shall be
considered to be third-party beneficiaries hereof. Except as otherwise provided
in this Agreement, no other Person will have any right or obligation hereunder.
Section 4.13. No Waiver. No waiver by any party hereto of any one or
more defaults by any other party or parties in the performance of any of the
provisions of this Agreement shall operate or be construed as a waiver of any
future default or defaults, whether of a like or different nature. No failure or
delay on the part of any party in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to any party hereto at law, in equity or
otherwise.
Section 4.14. Non-Petition Covenant. The Servicer covenants and
agrees that prior to the date which is one year and one day after the date upon
which all obligations under each Securitization has been paid in full, the
Servicer will not institute against, or join any other person in instituting
against the Trust, any Special Purpose Entity, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law. This Section shall survive the
termination of this Agreement or the resignation or removal of the Servicer
under this Agreement.
Section 4.15. Limitation of Liability. It is expressly understood
and agreed by the parties hereto that (a) this Agreement is executed and
delivered by Wilmington Trust Company, not individually or personally but solely
as trustee of the Trust in the exercise of the powers and authority conferred
and vested in it under the Trust Agreement, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as a personal representation, undertaking and agreement by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Trust and (c) under no circumstances shall Wilmington Trust Company be
personally liable for the payment of any
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indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Agreement or the other Trust Documents except in accordance
with the provisions of the Trust Agreement.
Section 4.16. Series Liabilities. It is expressly understood and
agreed by the Servicer, and all persons claiming through the Servicer, the Trust
is a series trust pursuant to Sections 3804 and 3806(b) (2) of the Delaware
Business Trust Act. As such, separate and distinct records shall be maintained
for the UTI Portfolio and each SUBI Portfolio and the Trust Assets associated
with the UTI Portfolio and each SUBI Portfolio shall be held and accounted for
separately from the other assets of the Trust. The debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to the UTI and each SUBI shall be enforceable against the UTI Portfolio
or the related SUBI Portfolio only, and not against the Trust Assets generally
or the assets of any other SUBI Portfolio.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers duly authorized as of the day and
year first above written.
PHH VEHICLE MANAGEMENT SERVICES
LLC, as UTI Trustee and Servicer
By:_________________________________________
Name:
Title:
RAVEN FUNDING LLC
By:_________________________________________
Name:
Title:
X.X. XXXXXXXX TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Delaware Trustee
By:_________________________________________
Name:
Title:
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS.............................................................1
Section 1.1. Definitions...............................................1
ARTICLE II
ADMINISTRATION AND SERVICING OF TRUST ASSETS............................7
Section 2.1. Servicer to Act as Servicer..............................7
Section 2.2. Origination of Leases; Acquisition and Titling of Trust
Vehicles ..............................................8
Section 2.3. Collections; Extensions and Adjustments; Applications
of Collections .........................................9
Section 2.4. Collection and Application of Security Deposits..........10
Section 2.5. Servicing Compensation; Fees, Costs and Expenses.........10
Section 2.6. Records .................................................11
Section 2.7. Custody of Lease Files; Custodial Duties ................11
Section 2.8. Maintenance of Record Ownership Interests in Trust
Vehicles ..............................................12
Section 2.9. Covenant of Servicer ....................................12
Section 2.10. Third Party Claims.......................................12
Section 2.11. Insurance Policies.......................................12
Section 2.12. Obligor Insurance Coverage in Respect of Leased
Vehicles ..............................................12
Section 2.13. Sale of Trust Vehicles; Realization on Charged-Off
Leases ................................................12
(a) Sale upon Expiration or Termination of a Lease or
Return of a Trust Vehicle ...............................12
(b) Sale of Paid-In-Advance Vehicles If Lessee does not
Accept the Paid-In Advance Vehicle.......................13
(c) Realization on Repossessed Vehicles......................13
Section 2.14. Limitation on Liability of Servicer and Others...........13
Section 2.15. Servicer Not to Resign; Assignment.......................14
Section 2.16. Corporate Existence; Status; Merger......................14
Section 2.17. Power of Attorney........................................15
ARTICLE III
SERVICER TERMINATION EVENTS.............................................15
Section 3.1. Servicer Termination Events; Termination of Servicer.....15
(i)
