Exhibit 4.45
ASSET SALE AGREEMENT
dated as of
June 30, 1999
between
PHH VEHICLE MANAGEMENT SERVICES LLC
and
PHH PERSONAL LEASE CORPORATION,
as Sellers
and
RAVEN FUNDING LLC,
as Purchaser
ASSET SALE AGREEMENT (the "Agreement"), dated as of June 30, 1999,
between PHH Vehicle Management Services LLC ("VMS"), a Delaware limited
liability company, as seller, PHH Personal Lease Corporation, a Maryland
corporation, as seller, ("PHH PLC", and together with VMS, the "Sellers") and
Raven Funding LLC, a Delaware limited liability company, as purchaser (the
"Purchaser").
WHEREAS, the Sellers own certain Leases, Vehicles and interests in
the X.X. Xxxxxxxx Trust, a Maryland business trust (the "Origination Trust").
WHEREAS, the Sellers propose to sell and Purchaser proposes to
purchase the Leases, the Vehicles and the interests in the Origination Trust
from the Sellers for cash equal to the Purchase Price.
NOW, THEREFORE, the Sellers and Purchaser hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 Definitions. (a) 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").
(b) All references herein to "this Agreement" are to this Asset Sale
Agreement, and all references herein to Articles, Exhibits, Sections and
subsections are to Articles, Exhibits, Sections and subsections of this
Agreement unless otherwise specified.
ARTICLE II
SALE OF ASSETS
Section 2.1 Sale of Vehicles and Leases. The Sellers do hereby sell,
warrant, pledge, convey, transfer and set over unto the Purchaser all of their
respective 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 "Auto Assets", together with the Existing Interests (as defined below), the
"Sold Assets"):
(a) all automobiles, trucks, truck chassis, truck bodies, truck
tractors, truck trailers or other type of motorized vehicle or equipment set
forth in Exhibit A hereto (the "Sold Vehicles"), together with: (i) all
substitutions, renewals or replacements of the Sold Vehicles
or any part included therein, (ii) all proceeds, rents, income, revenues and
profits to the Seller therefor, (iii) all accessories, additions and parts from
time to time in or to such Sold Vehicles or equipment and all accessories
thereto, (iv) all logs, books, records and other written materials pertaining to
the Sold Vehicles or any part included therein and all warranties of any kind
relating to the Sold Vehicles and (v) all security interests in such Vehicles or
any of the foregoing;
(b) all the right, title, interest, claims and demands now held or
hereafter acquired by the Sellers, as lessors, in, to and under the leases set
forth in Exhibit B hereto (the "Sold Leases"), together with all rights, powers,
privileges, options, licenses and other benefits of the Sellers, as lessors,
under each thereof, whether arising under the Sold Leases, by law or in equity,
including, without limitation:
(i) 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 Seller, as lessor, under the Sold Leases;
(ii) 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 Sold 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 Sold Leases;
(iii) the right to take such action and exercise such
rights and remedies upon the occurrence of a default under a Sold
Lease, including the commencement, conduct and consummation of
legal, administrative or other proceedings, as shall be permitted by
the Sold Leases, or by any other law or in equity, and to do any and
all other things whatsoever which the Seller is or may be entitled
to do under the Sold Leases;
it being the intent and purpose hereof that the assignment and transfer to the
Purchaser 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) each certificate of title or other evidence of ownership of a
Sold 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 Sold Vehicle is
registered;
(d) 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 Sold Lease or Sold Vehicle; and
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(e) 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 Auto Assets, and (iv) all amounts payable to the Sellers by any
manufacturer, supplier or vendor of any of the Auto Assets or any component
thereof pursuant to any warranty or indemnity covering any of the Auto Assets,
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 Sellers; and (v) all monies and securities
deposited or required to be deposited with the Sellers pursuant to any term of
the Sold Leases or required to be held by the Sellers hereunder or thereunder.
Section 2.2 Sale of the Existing Interests. VMS does hereby sell,
warrant, pledge, convey, transfer and set over unto the Purchaser all of VMS'
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 in the interests in the Origination
Trust set forth in Exhibit C hereto, but in all instances subject to the Loan
(as hereinafter defined) (the "Existing Interests"). For the purposes of this
Agreement, the "Loan" shall mean the loan in the amount of $914,160,108.23 from
The Chase Manhattan Bank made to the Seller and evidenced by a Note dated as of
June 30, 1999 made by the Seller, as borrower.
Section 2.3 Payment for the Sold Assets. Contemporaneously with the
execution and delivery hereof, and in consideration for the purchase of (a) the
Auto Assets hereunder, the Purchaser shall deliver to the Seller $1,922,476,093,
which amount the parties hereto agree is equal to the fair market value of the
Auto Assets (the "Auto Assets Purchase Price"). Contemporaneously with the
execution and delivery hereof, and in consideration for the purchase of (b) the
Existing Interests, hereunder, subject to the Loan, the Purchaser shall deliver
to VMS $167,561,262,which amount the parties hereto agree is equal to the fair
market value of the Existing Interests, subject to the Loan, (the "Existing
Interests Purchase Price" and together with the Auto Assets Purchase Price, the
"Purchase Price").
Section 2.4 Assumption. In consideration of the transfers set forth
in Sections 2.1 and 2.2, the Purchaser hereby accepts the Sold Leases and
assumes and undertakes and agrees to perform and discharge all of the duties and
obligations of the Sellers with respect to the Sold Assets whenever and wherever
accrued.
Section 2.5 Release of the Seller. As of the date hereof, the
Sellers shall be relieved of their respective liabilities under the Sold Leases.
Section 2.6 The Closing. Subject to the conditions set forth in
Article IV, the sale of the Sold Leases, Sold Vehicles and the Existing
Interests shall take place at a closing at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on or about June 30,
1999 (the "Closing Date").
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Section 2.7 Security Interest in the Transferred Assets. The parties
to this Agreement intend that the transactions contemplated by Article II shall
be, and shall be treated as, absolute sale, assignment, transfer, and conveyance
by the Sellers of the Sold Assets and not as a lending transaction. If this
Agreement does not constitute a valid assignment, transfer and conveyance of all
right, title and interest of the Sellers in, to and under the Sold Assets
despite the intent of the parties hereto, the Sellers hereby grant a first
priority "security interest" (as defined in the UCC as in effect in the State of
New York) in the Sold Assets and all proceeds thereof to the Purchaser and the
parties agree that this Agreement shall constitute a security agreement under
the UCC in effect in New York.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Section 3.1 Representations and Warranties of the Purchaser. The
Purchaser hereby represents and warrants to the Sellers as of the date hereof
and as of the Closing Date:
(a) Organization and Good Standing. The Purchaser is a limited
liability company duly organized, validly existing and in good standing under
the laws of the State of Delaware.
(b) Power and Authority. The Purchaser has full power, authority and
legal right to execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance by it of
this Agreement.
(c) No Violation. The execution, delivery and performance by it of
this Agreement (i) shall not violate any provision of any law or regulation or
any order, writ, judgment or decree of any court, arbitrator or Governmental
Authority applicable to the Purchaser or any of its assets, (ii) shall not
violate any provision of the Purchaser's Limited Liability Company Agreement,
and (iii) shall not violate any provision of, or constitute, with or without
notice or lapse of time, a default under, any mortgage, indenture, contract,
agreement or other undertaking to which the Purchaser is a party.
(d) Governmental Approvals. The execution, delivery and performance
by the Purchaser of this Agreement shall not require the authorization, consent
or approval of, the giving of notice to, the filing or registration with, or the
taking of any other action in respect of, any Governmental Authority or agency
in the jurisdiction in which the Purchaser was formed.
(e) Validity; Binding Obligation. This Agreement has been duly
executed and delivered by the Purchaser and constitutes the legal, valid and
binding agreement of the Purchaser enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, or other similar laws affecting the enforcement of creditors'
rights in general and by general principles of equity, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
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(f) No Litigation. No legal or governmental proceedings are pending
to which the Purchaser is a party or of which any property of the Purchaser is
the subject, and no such proceedings are threatened or contemplated by any
Governmental Authorities or threatened by others.
Section 3.2 Representations and Warranties of the Sellers. (a) The
Sellers hereby represent and warrant to the Purchaser as of the date hereof and
as of the Closing Date:
(i) Organization. VMS has been duly organized and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware, with power and authority to own its properties and
to conduct its business as such properties are presently owned and such
business is presently conducted. PHH PLC has been duly organized and is
validly existing as a corporation in good standing under the laws of the
State of Maryland, with power and authority to own its properties and to
conduct its business as such properties are presently owned and such
business is presently conducted.
(ii) Good Standing. VMS is duly qualified to do business as a
foreign limited liability company in good standing, and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires
such qualifications. PHH PLC is duly qualified to do business as a foreign
corporation in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualifications.
(iii) Power and Authority. Each of the Sellers has the full power
and authority to execute and deliver this Agreement, to carry out its
terms, and to sell and assign the property sold and assigned by it to the
Purchaser hereunder and has duly authorized such sale and assignment by
all necessary corporate action.
(iv) No Violation. The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms of this Agreement do
not conflict with, result in any breach of any of the terms and provisions
of or constitute (with or without notice or lapse of time) a default
under, VMS's limited liability company agreement or PHH PLC's certificate
of incorporation or by-laws, or any indenture, mortgage, deed of trust,
lease, agreement or other instrument to which either of VMS and PHH PLC is
a party or by which either of VMS and PHH PLC is bound (an "Applicable
Agreement"), or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such Applicable Agreement,
or violate any law, rule or regulation or, to the best of each of VMS' and
the PHH PLC's knowledge, any order applicable to it of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over it or any of its
properties.
(v) Validity; Binding Obligation. This Agreement has been duly
authorized, executed and delivered by it and constitutes the legal, valid
and binding agreement of the Sellers, enforceable in accordance with its
terms, except as enforceability may be limited
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by bankruptcy, insolvency, reorganization, or other similar laws affecting
the enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability is considered in a
proceeding in equity or at law.
(vi) No Litigation. No legal or governmental proceedings are pending
to which the Sellers are a party or of which any property of the Sellers
is the subject, and no such proceedings are threatened or contemplated by
any Governmental Authorities or threatened by others, other than such
proceedings which will not have a material adverse effect upon the general
affairs, financial position, net worth or results of operations (on an
annual basis) of such Seller and its subsidiaries considered as a whole
and will not materially and adversely affect the performance by such
Seller of its obligations under, or the validity and enforceability of,
this Agreement.
(vii) No Consent. No consent, action by or in respect of, approval
or other authorization of, or registration, declaration or filing with,
any Governmental Authority or other Person is required for the valid
execution and delivery of this Agreement or for the performance of any of
Sellers' obligations hereunder or thereunder or under any Transaction
Document other than such consents, approvals, authorizations,
registrations, declarations or filing as shall have been obtained by the
Sellers prior to the Closing Date.
(viii) Executive Offices. As of the Closing Date, the current
location of VMS's and PHH PLC's chief executive offices, principal places
of business, and the locations of their records concerning the Sold Assets
are set forth in Schedule 3.2(a)(viii).
(ix) Other Representations. All representations and warranties of
each of the Sellers made in each Transaction Document to which it is a
party are true and correct and are repeated herein as though fully set
forth herein.
(b) The Sellers make the following representations and warranties as
to the Sold Leases, on which the Purchaser relies in accepting the Sold Leases.
Such representations and warranties speak as of the Closing Date, but shall
survive the transfer and assignment of the Sold Leases to the Purchaser and the
transfer thereof by the Purchaser to the Origination Trust pursuant to the
Contribution Agreement:
(i) All right, title and interest to and in each Sold Lease has been
validly transferred by the Sellers directly to the Purchaser under and in
accordance with this Agreement, and the Purchaser has good and marketable
title thereto free and clear of any adverse claim ("Adverse Claim").
(ii) Each Sold Lease and Sold Vehicle and each Lease (the "Existing
Leases") and Vehicle (the "Existing Vehicles") a beneficial interest in
which is represented by the Existing Interests on the date hereof is
listed on Exhibits A, B, D and E attached hereto, respectively.
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(c) The Sellers make the following representations and warranties as
to the Sold Vehicles, on which the Purchaser relies in accepting the Sold
Vehicles. Such representations and warranties speak as of the Closing Date, but
shall survive the transfer and assignment of the Sold Vehicles to the Purchaser
and the transfer thereof by the Purchaser to the Origination Trust pursuant to
the Contribution Agreement:
(i) All right, title and interest to and in each Sold Vehicle has
been validly transferred by the Sellers directly to the Purchaser under
and in accordance with this Agreement, and the Purchaser has good and
marketable title thereto free and clear of any Adverse Claim.
(ii) The transfer of each Sold Vehicle to Purchaser hereunder
complies with and does not contravene any Applicable Law in any material
respect.
(d) VMS makes the following representations and warranties as to the
Existing Interests, on which the Purchaser relies in accepting the Existing
Interests. Such representations and warranties speak as of the Closing Date, but
shall survive the transfer and assignment of the Existing Interests to the
Purchaser and the transfer thereof by the Purchaser to the Origination Trust
pursuant to the Contribution Agreement:
(i) All right, title and interest to and in the Existing Interests
have been validly transferred by the Seller directly to the Purchaser
under and in accordance with this Agreement, and the Purchaser has good
and marketable title thereto free and clear of any Adverse Claim.
(ii) The Existing Interests represent 100% of the beneficial
interest in the Origination Trust Assets.
(e) VMS makes the following representations and warranties as to the
Existing Leases and Existing Vehicles, on which the Purchaser relies in
accepting the Existing Interests. Such representations shall speak as of the
Closing Date, but shall survive the transfer and assignment of the Existing
Interests to the Purchaser and the transfer thereof by the Purchaser to the
Origination Trust pursuant to the Contribution Agreement:
(i) The Origination Trust has good and marketable title to all
Existing Leases and Existing Vehicles, free of any Adverse Claim;
(ii) Each Existing Lease is an Eligible Lease; and
(iii) Each Master Lease Agreement included in the Existing Leases is
an Eligible Master Lease and no adverse selection procedures were employed
in selecting such Master Lease Agreement when such Master Lease Agreement
was transferred to the Origination Trust.
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ARTICLE IV
CONDITIONS
Section 4.1 Conditions to Obligation of the Purchaser. The
obligation of the Purchaser to acquire the Sold Leases, Sold Vehicles and
Existing Interests and assume any obligations thereunder is subject to the
satisfaction of the following conditions:
(a) Representations and Warranties True. The representations and
warranties of the Sellers hereunder shall be true and correct on the Closing
Date with the same effect as if then made, and the Sellers shall have performed
all obligations to be performed by the Sellers hereunder on or prior to the
Closing Date.
(b) Delivery of Sold Leases, Sold Vehicles and Existing Interests.
The Sellers shall deliver the Sold Leases, titles to the Sold Vehicles and all
certificates representing the Existing Interests to the Purchaser.
(c) Other Transactions. On or prior to the Closing Date (i) each of
the Transaction Documents shall have been executed and delivered by the parties
thereto, and (ii) each of the parties to the Transaction Documents shall have
performed all of their respective obligations thereunder required to be
performed on or prior to the Closing Date.
(d) Closing Certifications. In connection with the Purchaser's
transfer of the Sold Assets to the Origination Trust pursuant to the
Contribution Agreement, the Sellers shall have delivered to the Origination
Trust the Certificate in the form attached as Exhibit A to the Series 1999-1
SUBI Servicing Supplement making the representations and warranties as of the
Closing Date set forth therein with respect to the Sold Vehicles and the
Existing Vehicles (the "Vehicles") and the Sold Leases and the Existing Leases
(the "Leases").
Section 4.2 Conditions to Obligation of the Sellers. The obligation
of the Sellers to sell the Sold Assets to the Purchaser on the Closing Date is
subject to each representation and warranty of the Purchaser hereunder being
true and correct on the Closing Date as if such representation and warranty was
then made, and each obligation to be performed by the Purchaser by the Closing
Date having been performed.
ARTICLE V
COVENANTS OF THE SELLERS
The Sellers hereby agrees with the Purchaser as follows:
Section 5.1 Protection of Right, Title And Interest. (a) The Sellers
shall take such actions as are required by law to preserve, maintain, and
protect fully the interest of the Purchaser in the Sold Assets and in the
proceeds thereof. Each of the Sellers shall, at its sole cost and expense,
promptly and duly execute and deliver any and all further instruments and
documents and take such further actions that may be necessary or desirable or
that the Purchaser
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may request to carry out more effectively the provisions and purposes of this
Agreement or any other Transaction Document or to obtain the full benefits of
this Agreement and of the rights and powers herein granted, including (i) using
its best efforts to secure all consents and approvals necessary or appropriate
for the sale to or for the benefit of the Purchaser of any Sold Assets, (ii)
perfecting, protecting, preserving, continuing and maintaining fully the
purchase by, and the assignments, security interests and other Liens granted or
purported to be granted to, the Purchaser under this Agreement (including the
filing any financing or continuation statements under the UCC with respect to
the ownership interests or Liens granted hereunder or under any other
Transaction Document) and (iii) enabling the Purchaser, the Issuer or the
Indenture Trustee to exercise or enforce its rights under this Agreement or any
of the other Transaction Documents. Each of the Sellers hereby authorizes the
Purchaser, the Issuer or the Indenture Trustee to file any such financing or
continuation statements without the signature of the Sellers to the extent
permitted by applicable law. A carbon, photographic or other reproduction of
this Agreement or of any notice or financing statement covering the Sold Assets
shall be sufficient as a notice or financing statement where permitted by law.
If any amount payable under or in connection with any of the Sold Assets is or
shall become evidenced by any instrument, such instrument, other than checks and
notes received in the ordinary course of business, shall be duly endorsed in a
manner satisfactory to the Purchaser immediately upon the Sellers' receipt
thereof and promptly delivered to or at the direction of the Purchaser. If
either of the Sellers fail to perform any agreement or obligation under this
Section 5.1(a), the Purchaser, the Issuer or the Indenture Trustee may (but
shall not be required to) itself perform, or cause performance of, such
agreement or obligation, and the reasonable expenses of the Purchaser, the
Issuer or the Indenture Trustee incurred in connection therewith shall be
payable by such Seller upon demand of the Purchaser.
(b) The Sellers shall not change their respective names, identities,
or corporate structures in any manner that would, could, or might make any
financing statement or continuation statement filed by the Sellers, in
accordance with Section 5.1(a) seriously misleading within the meaning of ss. 9-
402(7) of the New York Uniform Commercial Code, unless such Seller shall have
given the Purchaser at least 30 days' prior written notice thereof and shall
have promptly, but in no event later than 10 days after such change, filed
appropriate amendments to all previously filed financing statements or
continuation statements.
(c) The Sellers shall give the Purchaser, the Issuer and the
Indenture Trustee at least 30 days' prior written notice of any relocation of
their principal executive offices if, as a result of such relocation, the
applicable provisions of the Uniform Commercial Code would require the filing of
any amendment of any previously filed financing or continuation statement or of
any new financing statement and shall promptly, but in no event later than 10
days after such relocation, file any such amendment or new financing statement.
(d) The Sellers shall permit the Purchaser and its agents at any
time during normal business hours to inspect, audit, and make copies of and
abstracts from the Sellers' records regarding the Sold Assets.
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(e) On the Closing Date, the Sellers shall furnish to the Purchaser,
a list of all Sold Leases and Sold Vehicles (by vehicle registration number and
account number).
Section 5.2 Other Liens or Interests. Except for the conveyances
hereunder, the Sellers will not sell, pledge, assign or transfer the Sold Assets
to any other Person, or grant, create, incur, assume or suffer to exist any Lien
on any Sold Assets and the Sellers shall defend the right, title, and interest
of the Purchaser in, to and under the Sold Assets against all claims of third
parties claiming through or under the Sellers.
Section 5.3 Costs and Expenses. The Sellers agree to pay all
reasonable costs and disbursements in connection with the perfection, as against
all third parties, of the Purchaser's right, title and interest in and to the
Sold Assets.
Section 5.4 Indemnification. The Sellers shall defend, indemnify and
hold harmless the Purchaser from and against:
(a) any and all costs, expenses, losses, damages, claims, and
liabilities, arising out of or resulting from the failure of a Sold Lease
or Sold Vehicle to be originated in compliance with all requirements of
law and for any breach of any of either of the Sellers' respective
representations and warranties contained herein;
(b) any and all taxes that may at any time be asserted against the
Purchaser with respect to the transactions contemplated herein, including,
without limitation, any sales, use, gross receipts, transfer taxes,
general corporation, tangible personal property, privilege, license or
income taxes, taxes on or measured by income, or any state or local taxes
assessed on the Purchaser resulting from the transfer of the Sold Assets
hereunder, the location of assets of the Purchaser and costs and expenses
in defending against the same;
(c) any and all costs, expenses, losses, claims, damages, and
liabilities to the extent that such cost, expense, loss, claim, damage, or
liability arose out of, or was imposed upon the Purchaser through, the
breach of any covenants of the Sellers hereunder or the inaccuracy of any
of the representations and warranties of the Sellers hereunder, the
negligence, willful misfeasance, or bad faith of the Sellers in the
performance of its duties under this Agreement or by reason of reckless
disregard of the Sellers' obligations and duties under this Agreement;
(d) the failure of the transfer of the Sold Assets by the Sellers to
the Purchaser to convey to the Purchaser an ownership interest in the Sold
Assets free and clear of Adverse Claims;
(e) any attempt by any person to void the transfer of any portion of
the Sold Assets under statutory provisions or common law or equitable
action, including, without limitation, any provision of the federal
Bankruptcy Code, 11 U.S.C. Section 101 et seq; and
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(f) any dispute, claim, offset or defense of any Obligor under a
Lease (including a defense based on such Lease not being a legal, valid
and binding obligation of such Obligor).
These indemnity obligations shall be in addition to any obligation
that the Sellers may otherwise have.
Section 5.5 Absolute Transfer; Sale or Exchange. The Sellers agree
to treat this conveyance for all purposes (including, without limitation, tax
and financial accounting purposes) as an absolute transfer on all relevant
books, records, tax returns, financial statements and other applicable
documents.
ARTICLE VI
MISCELLANEOUS PROVISIONS
Section 6.1 Obligations of the Sellers. The obligations of the
Sellers under this Agreement shall not be affected by reason of any invalidity,
illegality or irregularity of any Leases or any Vehicles and the Existing
Interests.
Section 6.2 Amendment. (a) This Agreement may be amended from time
to time by a written amendment duly executed and delivered by the Sellers and
the Purchaser, 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 the Sellers and the Purchaser, with the
consent 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, the
Seller 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, the Seller 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.
Section 6.3 Waivers. No failure or delay on the part of the
Purchaser in exercising any power, right or remedy under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
Section 6.4 Costs and Expenses. The Sellers and the Purchaser will
pay their respective expenses incident to the performance of their obligations
under this Agreement.
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Section 6.5 Representations of the Sellers. The respective
agreements, representations, warranties and other statements by the Sellers set
forth in or made pursuant to this Agreement shall remain in full force and
effect and will survive the closing under Section 2.6.
Section 6.6 Notices. All demands, notices and communications upon or
to the Sellers and the Purchaser shall be in writing, and shall be personally
delivered, sent by electronic facsimile or overnight delivery service or mailed
by certified mail-return receipt requested, and shall be deemed to have been
duly given to the intended recipient upon receipt at the respective addresses
listed below, or at such other address as shall be designated by such Person in
a written notice to the other parties to this Agreement.
(i) In the case of the Sellers:
PHH Vehicle Management Services LLC
PHH Personal Lease Corporation
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
(ii) In the case of the Purchaser:
Raven Funding LLC
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
Section 6.7 Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
Section 6.8 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument.
Section 6.9 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
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Section 6.10 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
Section 6.11 No Petition Covenants. The Sellers, by entering into
this Agreement, covenant and agree that it will not at any time institute
against, or join any other Person in instituting against, the Purchaser any
bankruptcy, reorganization, arrangement, insolvency, or liquidation or other
similar proceedings under any U.S. Federal or state bankruptcy or similar law.
Section 6.12 Sucessors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Sellers and the Purchaser and their
respective successors and permitted assigns, except as otherwise provided
herein. The Sellers may assign, transfer, hypothecate or otherwise convey its
rights, benefits, obligations or duties hereunder without the prior express
written consent of the Purchaser, the Issuer and the Indenture Trustee. Any such
purported assignment, transfer, hypothecation or other conveyance by either of
the Sellers without the prior express written consent of the Purchaser, the
Issuer and the Indenture Trustee shall be void. The Sellers acknowledge that the
Purchaser may assign its rights granted hereunder and any Sold Assets acquired
hereunder to the Origination Trust pursuant to the Contribution Agreement and
that the Purchaser will transfer the Lease SUBI Certificate (representing a
beneficial interest in Origination Trust assets consisting of rights under this
Agreement (including rights to indemnities and to Sold Assets)) to the Issuer
pursuant to the Transfer Agreement. The Issuer shall pledge the Lease SUBI
Certificate to the Indenture Trustee for the benefit of the Investor Noteholders
under the Indenture. The Sellers acknowledge that, upon such assignments and
pledges, the Issuer or the Indenture Trustee, as the case may be, may enforce
directly, without joinder of the Purchaser, the rights set forth in this
Agreement. All such assignees, including parties to the Indenture in the case of
any assignment to such parties, shall be third-party beneficiaries of, and shall
be entitled to enforce the Purchaser's rights and remedies under, this Agreement
to the same extent as if they were parties hereto.
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IN WITNESS WHEREOF, the parties hereby have caused this Asset Sale
Agreement to be executed by their respective officers thereunto duly authorized
as of the date and year first above written.
PHH VEHICLE MANAGEMENT SERVICES
LLC,
as Seller
By:___________________________________
Name:
Title:
PHH PERSONAL LEASE CORPORATION,
as Seller
By:___________________________________
Name:
Title:
RAVEN FUNDING LLC,
as the Purchaser
By:___________________________________
Name:
Title:
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TABLE OF CONTENTS
Page
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ARTICLE I CERTAIN DEFINITIONS................................................1
Section 1.1 Definitions.................................................1
ARTICLE II SALE OF ASSETS.....................................................1
Section 2.1 Sale of Vehicles and Leases.................................1
Section 2.2 Sale of the Existing Interests..............................3
Section 2.3 Payment for the Sold Assets...........................3
Section 2.4 Assumption............................................3
Section 2.5 Release of the Seller.................................3
Section 2.6 The Closing...........................................3
Section 2.7 Security Interest in the Transferred Assets.................3
ARTICLE III REPRESENTATIONS AND WARRANTIES.....................................4
Section 3.1 Representations and Warranties of
Purchaser...................................................4
Section 3.2 Representations and Warranties of the
Sellers.....................................................5
ARTICLE IV CONDITIONS.........................................................7
Section 4.1 Conditions to Obligation of the Purchaser...................7
Section 4.2 Conditions to Obligation of the Sellers.....................8
ARTICLE V COVENANTS OF THE SELLERS ..........................................8
Section 5.1 Protection of Right, Title And Interest.....................8
Section 5.2 Other Liens or Interests....................................9
Section 5.3 Costs and Expenses..........................................9
Section 5.4 Indemnification.............................................9
Section 5.5 Absolute Transfer; Sale or Exchange........................10
ARTICLE VI MISCELLANEOUS PROVISIONS..........................................10
Section 6.1 Obligations of the Sellers.................................11
Section 6.2 Amendment..................................................11
Section 6.3 Waivers....................................................11
Section 6.4 Costs and Expenses.........................................11
Section 6.5 Representations of the Sellers.............................11
Section 6.6 Notices....................................................11
(i)
Section 6.7 Severability...............................................12
Section 6.8 Counterparts...............................................12
Section 6.9 Headings...................................................12
Section 6.10 Governing Law..............................................12
Section 6.11 No Petition Covenants......................................12
Section 6.12 Sucessors and Assigns......................................12
Exhibit A - Schedule of Sold Vehicles
Exhibit B - Schedule of Sold Leases
Exhibit C - Schedule of Existing Interests
Exhibit D - Existing Leases
Exhibit E - Existing Vehicles
Schedule 3.2(a)(viii) Executive Offices of Sellers
