Exhibit 10.18
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RECEIVABLES PURCHASE AGREEMENT
Dated as of June 30, 1999
by and between
PHH VEHICLE MANAGEMENT SERVICES LLC
and
RAVEN FUNDING LLC
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS AND INTERPRETATION.....................................1
Section 1.1 Definitions...........................................1
Section 1.2 Rules of Construction.................................1
ARTICLE II.
TRANSFERS OF FLEET RECEIVABLES.....................................1
Section 2.1 Agreement to Transfer.................................1
Section 2.2 Grant of Security Interest............................2
ARTICLE III.
CONDITIONS PRECEDENT...............................................3
Section 3.1 Conditions to Initial Transfer........................3
Section 3.2 Conditions to all Transfers...........................3
ARTICLE IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS..........................4
Section 4.1 Representations and Warranties of the Originator......4
Section 4.2 Affirmative Covenants of the Originator...............7
Section 4.3 Negative Covenants of the Originator.................12
Section 4.4 Breach of Representations, Warranties or Covenants...13
ARTICLE V.
INDEMNIFICATION...................................................14
Section 5.1 Indemnification......................................14
ARTICLE VI.
MISCELLANEOUS.....................................................15
Section 6.1 Notices..............................................15
Section 6.2 No Waiver; Remedies..................................16
Section 6.3 Successors and Assigns...............................16
Section 6.4 Termination; Survival of Obligations.................17
Section 6.5 Complete Agreement, Modification of Agreement........17
Section 6.6 Amendments and Waivers...............................17
Section 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
JURY TRIAL.........................................18
Section 6.8 Counterparts.........................................19
INDEX OF APPENDICES
Exhibit 2.1(a) Form of Receivables Assignment
Schedule 4.1(b) Executive Offices; Collateral Locations; Names of Originator
THIS RECEIVABLES PURCHASE AGREEMENT ("Agreement") is entered into as
of June 30, 1999, by and between PHH VEHICLE MANAGEMENT SERVICES LLC, a
Delaware limited liability company (the "Originator" or "VMS"), and RAVEN
FUNDING LLC, a Delaware limited liability company ("SPV").
RECITALS
A. The Originator owns all of the outstanding membership interests
of SPV.
B. The Originator intends to sell, and SPV intends to purchase,
certain Fleet Receivables, from time to time, as described herein.
C. In addition, the Originator, as sole member of SPV may, from time
to time, contribute capital to SPV in the form of Contributed Fleet
Receivables or cash.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions. Capitalized terms used and not otherwise
defined herein shall have the meanings ascribed to them in Annex X.
Section 1.2 Rules of Construction. For purposes of this Agreement,
the rules of construction set forth in Annex X shall govern. All annexes,
schedules and exhibits hereto, or expressly identified in this Agreement, are
incorporated herein by reference and, taken together with this Agreement,
shall constitute but a single agreement.
ARTICLE II.
TRANSFERS OF FLEET RECEIVABLES
Section 2.1 Agreement to Transfer.
(a) Fleet Receivables Transfers. Subject to the terms and
conditions hereof, the Originator agrees to sell (without recourse
except to the extent specifically provided herein) or contribute to
SPV on the Closing Date and on each Settlement Date thereafter (each
such date, a "Transfer Date") all Fleet Receivables owned by it as of
the close of business on the first Business Day of the calendar month
during which such Transfer Date occurred (or, in the case of the
initial Transfer Date, as of June 29, 1999), together with
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all of the Originator's right, title and interest in and to the
Receivables Property, and SPV agrees to purchase or accept as a
capital contribution all such Fleet Receivables and Receivables
Property on each such date. Each such Transfer shall be evidenced by
a certificate of assignment substantially in the form of Exhibit
2.1(a) (the "Receivables Assignment"), and the Originator and SPV
shall execute and deliver a Receivables Assignment on or before the
Closing Date and each other Transfer Date.
(b) Determination of Sold Fleet Receivables. On and as of
each Transfer Date, Fleet Receivables sold to, and purchased by, SPV
shall consist of those Fleet Receivables owned by the Originator and
identified by the Originator on Schedule I to the Receivables
Assignment for sale to SPV (each such Fleet Receivable individually,
a "Sold Fleet Receivable," and collectively, the "Sold Fleet
Receivables"). The "Sale Price" of all Sold Fleet Receivables shall
be equal to the fair market value thereof as agreed upon from time to
time by the Originator and SPV.
(c) Payment of Purchase Price. In consideration for each
Sale of Sold Fleet Receivables hereunder, subject to the conditions
set forth in Article III, SPV shall pay to the Originator on the
Transfer Date therefor the Sale Price therefor in Dollars in
immediately available funds. All payments by SPV under this Section
2.1(c) shall be effected by means of a wire transfer not later than
3:00 p.m. (New York time) on the day when due to Account No. 175 803
71, ABA No. 052 000113, Reference: Raven Funding for PHH VMS LLC.
(d) Determination of Contributed Fleet Receivables. On and
as of each Transfer Date, the Originator shall contribute to SPV a
capital contribution of all Fleet Receivables owned by the Originator
as of such Transfer Date that have not been identified as Sold Fleet
Receivables pursuant to Section 2.1(b) (each such contributed Fleet
Receivable individually, a "Contributed Fleet Receivable," and
collectively, the "Contributed Fleet Receivables").
(e) Ownership of Transferred Fleet Receivables. On and after
each Transfer Date and after giving effect to the Transfers to be
made on each such date, SPV shall own the Transferred Fleet
Receivables and the Originator shall not take any action inconsistent
with such ownership nor shall the Originator claim any ownership
interest in such Transferred Fleet Receivables.
(f) Servicing of Transferred Fleet Receivables. The parties
hereto acknowledge that, in accordance with the terms of the
Servicing Agreement, as supplemented by the Sold SUBI Supplement
1999-1 to the Servicing Agreement, the Servicer shall conduct the
servicing and administration of and collection of the Transferred
Fleet Receivables.
Section 2.2 Grant of Security Interest. The parties hereto intend
that each Transfer shall constitute a purchase and sale or capital
contribution, as applicable, and not a loan. Notwithstanding anything to the
contrary set forth in this Section 2.2, if a court of competent jurisdiction
determines that any transaction provided for herein constitutes a loan and not
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a purchase and sale or capital contribution, as applicable, then the parties
hereto intend that this Agreement shall constitute a security agreement under
applicable law and that the Originator shall be deemed to have granted, and
the Originator does hereby grant, to SPV a first priority Lien in and to all
of the Originator's right, title and interest in, to and under the Transferred
Fleet Receivables and the Receivables Property.
ARTICLE III.
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer. The initial Transfer
hereunder shall be subject to satisfaction of each of the following conditions
precedent:
(a) Agreement; Other Documents. This Agreement or
counterparts hereof shall have been duly executed by, and delivered
to, the Originator and SPV, and SPV shall have received such
documents, instruments, agreements and legal opinions as SPV shall
reasonably request in connection with the transactions contemplated
by this Agreement, each in form and substance reasonably satisfactory
to SPV.
(b) Governmental Approvals. SPV shall have received (i)
satisfactory evidence that the Originator has obtained all required
consents and approvals of all Persons, including all requisite
Governmental Authorities, to the execution, delivery and performance
of this Agreement and the other Transaction Documents to which the
Originator is a party and the consummation of the transactions
contemplated hereby and thereby or (ii) an Officer's Certificate from
the Originator in form and substance satisfactory to SPV affirming
that no such consents or approvals are required.
(c) Compliance with Laws. The Originator shall be in
compliance with all applicable foreign, federal, state and local laws
and regulations, except to the extent that the failure to so comply,
individually or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect.
(d) The Effective Date. The Effective Date (as defined in the
Indenture) shall have occurred.
Section 3.2 Conditions to all Transfers. Each Transfer hereunder
(including the initial Transfer) shall be subject to satisfaction of the
following further conditions precedent as of the Transfer Date therefor:
(a) the representations and warranties of the Originator
contained herein shall be true and correct in all material respects
as of such Transfer Date, both before and after giving effect to such
Transfer and to the application of any Sale Price therefor, except to
the extent that any such representation or warranty expressly relates
to an earlier date (in which case it shall be true and correct in all
material respects as of such earlier date);
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(b) no Servicer Termination Event, Receivables Purchase
Termination Event or Potential Receivables Purchase Termination Event
shall have occurred and be continuing or would result after giving
effect to such Transfer or the application of any Sale Price
therefor; and
(c) the Originator shall have taken such other action,
including delivery of approvals, consents, opinions, documents and
instruments to SPV as SPV may reasonably request.
The acceptance by the Originator of the Sale Price for any Sold Fleet
Receivables on any Transfer Date shall be deemed to constitute, as of any such
Transfer Date, a representation and warranty by the Originator that the
conditions in this Section 3.2 have been satisfied.
ARTICLE IV.
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 4.1 Representations and Warranties of the Originator. To
induce SPV to purchase the Sold Fleet Receivables and to accept the
Contributed Fleet Receivables, the Originator makes the following
representations and warranties to SPV as of each Transfer Date, each and all
of which shall survive the execution and delivery of this Agreement.
(a) Existence; Compliance with Law. The Originator (i) is a
limited liability company duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization;
(ii) is duly qualified to conduct business and is in good standing in
each other jurisdiction where its ownership or lease of property or
the conduct of its business requires such qualification except when
the failure to be so qualified could not reasonably be expected to
have a Material Adverse Effect; (iii) has the requisite limited
liability company power and authority and the legal right to own,
pledge, mortgage or otherwise encumber and operate its properties, to
lease the property it operates under lease, and to conduct its
business as now, heretofore and proposed to be conducted; (iv) has
all licenses, permits, consents or approvals from or by, and has made
all filings with, and has given all notices to, all Governmental
Authorities having jurisdiction, to the extent required for such
ownership, operation and conduct, except to the extent that any
failure with respect to any such license, permit, consent, approval,
filing or notice, individually or in the aggregate, could not
reasonably be expected to have a Material Adverse Effect; (v) is in
compliance with its certificate of formation and limited liability
company agreement; and (vi) is in compliance with all Applicable Law,
except where the failure to comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(b) Executive Offices; Collateral Locations; Company Names.
As of the Closing Date, the current location of the Originator's
chief executive office, principal place of business, and the
locations of its records concerning the Transferred Fleet Receivables
are set forth in Schedule 4.1(b). During the prior five years, except
as set
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forth in Schedule 4.1(b), the Originator has not been known as or
used any corporate, fictitious or trade name other than PHH Vehicle
Management Services Corporation.
(c) Power, Authorization, Enforceable Obligations. The
execution, delivery and performance by the Originator of this
Agreement and the other Transaction Documents to which it is a party,
the creation and perfection of all Liens and ownership interests
provided for herein and therein and, solely with respect to clause
(g) below, the exercise by SPV or any assignee or transferee thereof
of any of its rights and remedies under any Transaction Document to
which it is a party: (i) are within the Originator's limited
liability company power; (ii) have been duly authorized by all
necessary or proper company or member action; (iii) do not contravene
any provision of the Originator's limited liability company agreement
or certificate of formation; (iv) do not violate any law or
regulation, or any order or decree of any court or Governmental
Authority; (v) do not conflict with or result in the breach or
termination of, constitute a default under or accelerate or permit
the acceleration of any performance required by, any indenture,
mortgage, deed of trust, lease, agreement or other instrument to
which the Originator is a party or by which the Originator or any of
its property is bound; (vi) do not result in the creation or
imposition of any Adverse Claim upon any of the property of the
Originator; and (vii) do not require the consent or approval of, or
filing with or notice to, any Governmental Authority or any other
Person, except those referred to in Section 3.1(b), all of which will
have been duly obtained, made or complied with prior to the Closing
Date. On or prior to the Closing Date, each of the Transaction
Documents to which the Originator is party shall have been duly
executed and delivered by the Originator and each such Transaction
Document shall then constitute a legal, valid and binding obligation
of the Originator enforceable against it in accordance with its
terms.
(d) No Litigation. No Litigation is now pending or, to the
knowledge of the Originator, threatened against the Originator that
(i) challenges the Originator's right or power to enter into or
perform any of its obligations under the Transaction Documents to
which it is a party, or the validity or enforceability of any
Transaction Document or any action taken thereunder, (ii) seeks to
prevent the Transfer, purchase or pledge of any Fleet Receivable or
the consummation of any of the transactions contemplated under this
Agreement or the other Transaction Documents or (iii) has a
reasonable risk of being determined adversely to the Originator and
that, if so determined, could have a Material Adverse Effect.
(e) Solvency. Both before and after giving effect to (i) the
transactions contemplated by this Agreement and the other Transaction
Documents and (ii) the payment and accrual of all transaction costs
in connection with the foregoing, the Originator is and will be
Solvent.
(f) Material Adverse Effect. Between December 31, 1998 and
the Closing Date, no event has occurred that alone or together with
other events could reasonably be expected to have a Material Adverse
Effect.
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(g) Liens. The Liens granted to SPV pursuant to Section 2.2
are fully perfected first priority Liens in and to the Transferred
Fleet Receivables and the Receivables Property, subject only to
Permitted Liens.
(h) Margin Regulations. The use of all funds acquired by the
Originator under this Agreement will not conflict with or contravene
any of Regulations T, U, and X of the Board of Governors of the
Federal Reserve System, as the same may from time to time be amended,
supplemented or otherwise modified.
(i) Nonapplicability of Bulk Sales Laws. No transaction
contemplated by this Agreement requires compliance with any bulk
sales act or similar law.
(j) Government Regulation. The Originator is not, and is not
controlled by, an "investment company" registered or required to be
registered under (and as such term is defined in) the Investment
Company Act. The Originator is not subject to regulation under the
Public Utility Holding Company Act of 1935, the Federal Power Act, or
any other federal or state statute that restricts or limits its
ability to incur Indebtedness or to perform its obligations
hereunder. The purchase or acquisition of the Transferred Fleet
Receivables by SPV hereunder, the application of the Sale Price
therefor and the consummation by the Originator and SPV of the
transactions contemplated by this Agreement and the other Transaction
Documents will not violate any provision of any such statute or any
rule, regulation or order issued by the Securities and Exchange
Commission.
(k) Fleet Receivables. With respect to each Transferred Fleet
Receivable, as of the Transfer Date of such Transferred Fleet
Receivable:
(i) such Fleet Receivable satisfies the criteria for an
Eligible Receivable;
(ii) immediately prior to its Transfer to SPV such Fleet
Receivable was owned by the Originator free and clear of any
Adverse Claim (other than Permitted Liens), and the Originator
has had at all relevant times the full right, power and
authority to sell, contribute, assign, transfer and pledge its
interest therein as contemplated under this Agreement and the
other Transaction Documents and, upon such Transfer, SPV will
acquire valid and properly perfected title to and the sole
record and beneficial ownership interest in such Fleet
Receivable, free and clear of any Adverse Claim and, following
such Transfer, such Fleet Receivable will not be subject to any
Adverse Claim as a result of any action or inaction on the part
of the Originator;
(iii) the Transfer of each such Fleet Receivable and
Receivables Property pursuant to this Agreement and the
Receivables Assignments constitutes, as applicable, a valid
sale or contribution, transfer, assignment, setover and
conveyance to SPV of all right, title and interest of the
Originator in and to such Fleet Receivable and Receivables
Property, which transfer is perfected and of first priority
under Applicable Law; and
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(iv) the Originator has no knowledge of any fact
(including any defaults by the Obligor thereunder on any other
Fleet Receivable) that would cause it or should have caused it
to expect that any payments on such Fleet Receivable will not
be paid in full when due or that is reasonably likely to cause
or result in any other Material Adverse Effect with respect to
such Fleet Receivable.
(l) ERISA. No notice of a Lien arising under Title IV of
ERISA has been filed under Section 6323(a) of the Internal Revenue
Code of 1986, as amended (or any successor provision) against, or
otherwise affecting, the assets of the Originator.
(m) Tax filings and Expenses. The Originator has filed all
federal, state and local tax returns and all other tax returns which,
to the knowledge of the Originator, are required to be filed (whether
informational returns or not), and has paid all taxes due, if any,
pursuant to said returns or pursuant to any assessment received by
the Originator, except such taxes, if any, as are being contested in
good faith and for which adequate reserves have been set aside on its
books. The Originator has paid all fees and expenses required to be
paid by it in connection with the conduct of its business, the
maintenance of its existence and its qualification as a foreign
limited liability company authorized to do business in each state in
which it is required to so qualify.
(n) Other Representations. All representations and warranties
of the Originator 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.
The representations and warranties described in this Section 4.1 shall survive
the Transfer of the Transferred Fleet Receivables to SPV, any subsequent
assignment of the Transferred Fleet Receivables by SPV, and the termination of
this Agreement and the other Transaction Documents and shall continue until
the indefeasible payment in full of all Transferred Fleet Receivables.
Section 4.2 Affirmative Covenants of the Originator. The Originator
covenants and agrees that, unless otherwise consented to by SPV, from and
after the Closing Date:
(a) Offices and Records. The Originator shall maintain its
principal place of business and chief executive office and the office
at which it keeps its Records at the respective locations specified
in Schedule 4.1(b) or, upon 30 days' prior written notice to SPV, at
such other location in a jurisdiction where all action required to be
taken pursuant to Section 6.13 shall have been taken with respect to
the Transferred Fleet Receivables. The Originator shall at its own
cost and expense, for not less than three years from the date on
which each Transferred Fleet Receivable was originated, or for such
longer period as may be required by law, maintain adequate Records
with respect to such Transferred Fleet Receivable, including records
of all payments received, credits granted and merchandise returned
with respect thereto.
(b) Access. At any reasonable time and from time to time at
the reasonable request of SPV, any Holder of a Fleet Receivable SUBI
Certificate or any pledgee or
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assignee thereof, the Originator shall permit such Person as SPV or
such Holder or pledgee or assignee, as the case may be, may
designate, at such Person's expense, to conduct audits or visit and
inspect any of the properties of the Originator to examine the
Records, internal controls and procedures maintained by the
Originator with respect to the Transferred Fleet Receivables and
take copies and extracts therefrom, and to discuss matters relating
to the Transferred Fleet Receivables or the Originator's performance
under this Agreement or the Originator's affairs, finances and
accounts with its officers, employees, agents and, upon notice to
the Originator, independent accountants. The Originator hereby
authorizes such officers, employees, agents and independent
accountants to discuss with SPV and any Holder of a Fleet SUBI or
any pledgee or assignee thereof and their designees such matters and
the affairs, finances and accounts of the Originator. Any audit
provided for herein shall be conducted in accordance with the
Originator's rules respecting safety and security on its premises
and without materially disrupting operations.
(c) Compliance With Policies. The Originator shall originate
the Fleet Receivables in accordance with the Policies and comply in
all material respects with the Policies applicable to each
Transferred Fleet Receivable and the Fleet Service Contracts
therefor, and with the terms of such Fleet Receivables and Fleet
Service Contracts.
(d) Assignment. The Originator agrees that SPV may assign
all of its right, title and interest in, to and under the Transferred
Fleet Receivables, the Receivables Property and this Agreement,
including its right to exercise the remedies set forth in Section
4.4, to the Origination Trust pursuant to the Contribution Agreement
and agrees that the Origination Trust may create and issue to SPV a
special unit of beneficial interest in the Transferred Fleet
Receivables, the Receivables Property and this Agreement (the "Fleet
Receivable SUBI"), a portion of which will be represented by a
certificate issued by the Origination Trust and retained by SPV (the
"SPV Fleet Receivable SUBI Certificate") and a portion of which will
be represented by another certificate issued by the Origination Trust
(the "Fleet Receivable SUBI Certificate") which will be transferred
by SPV to the Issuer pursuant to the Transfer Agreement and pledged
by the Issuer to the Indenture Trustee under the Indenture. The
Originator agrees that, upon any such assignment and pledge to the
Issuer, as holder of the Fleet Receivables SUBI Certificate, or the
Indenture Trustee, as the pledgee thereof, may enforce directly,
without joinder of SPV, all of the obligations of such Originator
hereunder, including any obligations of the Originator set forth in
Sections 4.2(j), 4.4, 5.1 and 6.13.
(e) Compliance With Agreements and Applicable Laws. The
Originator shall perform each of its obligations under this Agreement
and the other Transaction Documents and comply with all federal,
state and local laws and regulations applicable to it and the Fleet
Receivables, including those relating to truth in lending, retail
installment sales, fair credit billing, fair credit reporting, equal
credit opportunity, fair debt collection practices, privacy,
licensing, taxation, ERISA and labor matters, except to the extent
that the failure to so comply, individually or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
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(f) Maintenance of Existence and Conduct of Business. The
Originator shall preserve and maintain its limited liability company
existence, rights, franchise and privileges in the jurisdiction of
its organization, and qualify and remain qualified in good standing
as a foreign limited liability company in each jurisdiction where the
failure to preserve and maintain such existence, rights, franchises,
privileges and qualification would have a Material Adverse Effect.
(g) Notice of Material Event. The Originator shall promptly
inform SPV, the Issuer and the Indenture Trustee in writing of the
occurrence of any of the following, in each case setting forth the
details thereof and what action, if any, the Originator proposes to
take with respect thereto:
(i) any Litigation commenced or threatened against
the Originator which could reasonably be expected to have a
Material Adverse Effect or with respect to or in connection
with all or any portion of the Transferred Fleet
Receivables;
(ii) the commencement of a case or proceeding by or
against the Originator seeking a decree or order in respect
of the Originator (A) under the Bankruptcy Code or any other
applicable federal, state or foreign bankruptcy or other
similar law, (B) appointing a custodian, receiver,
liquidator, assignee, trustee or sequestrator (or similar
official) for the Originator or for any substantial part of
such Person's assets, or (C) ordering the winding-up or
liquidation of the affairs of the Originator;
(iii) the receipt of notice that (A) the Originator is
being placed under regulatory supervision, (B) any license,
permit, charter, registration or approval is to be, or may
be, suspended or revoked, which suspension or revocation may
have a Material Adverse Effect, or (C) the Originator is to
cease and desist any practice, procedure or policy employed
by the Originator in the conduct of its business if such
cessation which could reasonably be expected to have a
Material Adverse Effect;
(iv) (A) any Adverse Claim made or asserted against
any of the Transferred Fleet Receivables of which it becomes
aware or (B) any determination that a Transferred Fleet
Receivable was not an Eligible Receivable on the Transfer
Date therefor; or
(v) any other event, circumstance or condition that
has had or could reasonably be expected to have a Material
Adverse Effect.
(h) Separate Identity. The Originator shall take all actions
required to maintain SPV's status as a separate legal entity,
including (i) not holding SPV out to third parties as other than an
entity with assets and liabilities distinct from the Originator and
the Originator's other Subsidiaries; (ii) not holding itself out to
be responsible for the Indebtedness of SPV or, other than by reason
of owning, membership interests in SPV,
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for any decisions or actions relating to SPV; (iii) preparing
separate financial statements for SPV; (iv) taking such other
actions as are necessary on its part to ensure that all procedures
required by its and SPV's respective limited liability company
agreement and certificate of formation are duly and validly taken;
(v) keeping correct and complete records and books of account and
minutes; and (vi) not acting in any manner that could foreseeably
mislead others with respect to SPV's separate identity. In addition
to the foregoing, the Originator and SPV shall take such actions as
shall be required in order that:
(i) The Originator shall maintain records and books
of account separate from those of SPV.
(ii) The resolutions, agreements and other
instruments underlying the transactions described in this
Agreement shall be continuously maintained by the Originator
as official records.
(iii) The Originator shall maintain an arm's-length
relationship with SPV and shall not hold itself out as being
liable for the Indebtedness of SPV.
(iv) The Originator shall keep its assets and
liabilities wholly separate from those of SPV.
(v) The Originator shall not mislead third parties
by conducting or appearing to conduct business on behalf of
SPV or expressly or impliedly representing or suggesting
that the Originator is liable or responsible for the
Indebtedness of SPV or that the assets of the Originator are
available to pay the creditors of SPV.
(vi) The Originator shall at all times have
stationery and other business forms and a mailing address
and telephone number separate from those of SPV.
(vii) The Originator shall at all times limit its
transactions with SPV only to those expressly permitted
hereunder or under any other Transaction Document.
(viii) The Originator shall comply with (and cause to
be true and correct) each of the facts and assumptions
relating to the Originator and SPV contained in the no
substantive consolidation opinion of White & Case LLC
delivered on the Closing Date.
(i) Payment, Performance and Discharge of Obligations. (i)
Subject to Section 4.2(i)(ii), the Originator shall pay, perform and
discharge or cause to be paid, performed and discharged all of its
obligations and liabilities, including all taxes, assessments and
governmental charges upon its income and properties and all lawful
claims for labor, materials, supplies and services, promptly when
due, except to the extent that the failure to so act, individually or
in the aggregate, could not reasonably be expected to have a Material
Adverse Effect.
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(ii) The Originator may in good faith contest, by
appropriate proceedings, the validity or amount of any
charges or claims described in Section 4.2(i)(i); provided,
that (A) adequate reserves with respect to such contest are
maintained on the books of the Originator, in accordance
with GAAP, (B) such contest is maintained and prosecuted
continuously and with diligence, (C) none of the Transferred
Fleet Receivables may become subject to forfeiture or loss
as a result of such contest, and (D) no Lien may be imposed
to secure payment of such charges or claims other than
inchoate tax liens.
(j) Adjustments to Sale Price. If on any day the Billed
Amount of any Sold Fleet Receivable or Contributed Fleet Receivable
is reduced as a result of any Dilutions, the Originator shall, on or
prior to the next following Settlement Date, make a cash payment to
SPV in the amount of such reduction by remitting such amount to the
Collection Account.
(k) Annual Opinion of Counsel. On or before March 31 of each
calendar year, commencing with March 31, 2000, Originator shall
furnish to the SPV, the Issuer and the Indenture Trustee an Opinion
of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing,
re-recording and refiling of this Agreement, the Receivables
Assignments and any other requisite documents and with respect to the
execution and filing of any financing statements and continuation
statements as are necessary to maintain SPV's perfected ownership
interest in the Transferred Fleet Receivables and Receivables
Property sold by this Agreement and the Receivables Assignments and
reciting the details of such action or stating that in the opinion of
such counsel no such action is necessary to maintain the perfection
of such ownership interest. Such Opinion of Counsel shall also
describe the recording, filing, re-recording and refiling of this
Agreement and the Receivables Assignments and any other requisite
documents and the execution and filing of any financing statements
and continuation statements that will, in the opinion of such
counsel, be required to maintain the perfection of the SPV's
ownership interest in the Transferred Fleet Receivables and
Receivables Property until March 31 in the following calendar year.
(l) Protection of Title. (i) Originator shall execute and
file such financing statements, and cause to be executed and filed
such continuation and other statements, all in such manner and in
such places as may be required by law fully to perfect and preserve
the transfer, assignment and conveyance hereunder to the SPV of the
Transferred Fleet Receivables and Receivables Property and in the
proceeds thereof. The Originator shall deliver (or cause to be
delivered) to the SPV, the Issuer and the Indenture Trustee file
stamped copies of, or filing receipts for, any document filed as
provided above, as soon as available following such filing.
(ii) The Originator shall not change its name,
identity or limited liability company structure in any
manner that would, could or might make any financing
statement or continuation statement or continuation
statement filed by the Originator in accordance with this
Agreement seriously misleading within the meaning of Section
9-402(7) of the New York UCC, unless it shall have given
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SPV, the Issuer and the Indenture Trustee at least 30 days
prior written notice thereof and shall file such financing
statements or amendments as may be necessary to continue
the perfection of the Issuer's interest in all Transferred
Fleet Receivables and Receivables Property sold,
transferred, conveyed and assigned hereunder.
(iii) The Originator shall give SPV, the Issuer and
the Indenture Trustee at least 30 days prior written notice
of any relocation of its principal executive office if, as a
result of such relocation, the applicable provisions of the
UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of
any new financing statement. The Originator shall at all
times maintain its principal executive office within the
United States of America.
(m) Computer Files Marked. The Originator shall, at its own
expense, on or prior to each Transfer Date, indicate in its computer
files created in connection with the Transferred Fleet Receivables
and Receivables Property for such Transfer Date that such Transferred
Fleet Receivables and Receivables Property have been transferred,
assigned and conveyed to SPV pursuant to this Agreement.
Section 4.3 Negative Covenants of the Originator. The Originator
covenants and agrees that, without the prior written consent of SPV, from and
after the Closing Date:
(a) Sale of Assets. The Originator shall not sell, transfer,
convey, assign (by operation of law or otherwise) or otherwise
dispose of, or assign any Transferred Fleet Receivable, Receivables
Property or Fleet Service Contract therefor (except as otherwise
expressly permitted by this Agreement or any of the other Transaction
Documents).
(b) Liens. The Originator shall not create, incur, assume or
permit to exist any Adverse Claim on or with respect to the
Transferred Fleet Receivables or the Receivables Property except for
Permitted Liens.
(c) Modifications of Fleet Receivables or Fleet Service
Contracts. The Originator shall not extend, amend, forgive,
discharge, compromise, cancel or otherwise modify the terms of any
Transferred Fleet Receivable, or amend, modify or waive any payment
term or condition of any Fleet Service Contract therefor as it
applies to any outstanding Fleet Receivable except in accordance with
the Policies to the extent permitted by Section 4.2(j).
(d) Sale Characterization. The Originator shall not make
statements or disclosures or prepare any financial statements for any
purpose, including for federal income tax, reporting or accounting
purposes, that shall account for the transactions contemplated by
this Agreement in any manner other than, with respect to the Sale of
each Sold Fleet Receivable and the Transfer of each Contributed Fleet
Receivable, as a true sale and/or absolute assignment of its full
right, title and ownership interest in such Transferred Fleet
Receivable and the Receivables Property to SPV.
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(e) Actions Affecting Rights. The Originator shall not (i)
take any action, or fail to take any action, if such action or
failure to take action may interfere with the enforcement of any
material rights hereunder or under the other Transaction Documents,
including rights with respect to the Transferred Fleet Receivables
and the Receivables Property (except as provided in clause (ii)
below); (ii) waive or alter any rights with respect to the
Transferred Fleet Receivables (or any agreement or instrument
relating thereto) except in accordance with the Policies; or (iii)
fail to pay any tax, assessment, charge, fee or other obligation of
the Originator with respect to the Transferred Fleet Receivables and
the Receivables Property , or fail to defend any action, if such
failure to pay or defend may adversely affect the priority or
enforceability of the perfected title of SPV to and the sole record
and beneficial ownership interest of SPV in the Transferred Fleet
Receivables and the Receivables Property, or prior to their Transfer
hereunder, the Originator's right, title or interest therein.
(f) Change to Policies. No change that in any respect
materially adversely affects the collectibility of the Fleet
Receivables or otherwise has a Material Adverse Effect shall be made
to the Policies without the prior written consent of SPV, the Issuer
and, while any Series of Investor Notes are outstanding, the
Indenture Trustee.
(g) No Proceedings. From and after the Closing Date and
until the date one year plus one day following the date on which each
Series of Investor Notes and each series of Preferred Membership
Interests have been indefeasibly paid in full in cash, the Originator
shall not, directly or indirectly, institute or cause to be
instituted against SPV any bankruptcy, insolvency or other similar
proceeding.
(h) Separate Identity. The Originator shall not take any
action that is inconsistent with the terms of Section 4.2(h) hereof,
Section 6.18 of the Transfer Agreement, Section 9.6 of the
Origination Trust Agreement or Section 8.24 of the Indenture.
Section 4.4 Breach of Representations, Warranties or Covenants. Upon
discovery by the Originator, SPV, the Issuer or the Indenture Trustee of any
breach of any representation, warranty or covenant described in Sections 4.1,
4.2 or 4.3, which breach is reasonably likely to have a material adverse
effect on the value of a Transferred Fleet Receivable or the interests of SPV
or the Issuer therein, the party discovering the same shall give prompt
written notice thereof to the other party hereto. The Originator shall, on or
prior to the next succeeding Settlement Date upon the Originator's, SPV's or
the Issuer's discovery of (or otherwise obtaining actual knowledge of) any
breach of such representation, warranty or covenant, either (a) repurchase
such Transferred Fleet Receivable from the Origination Trust for cash, by
remitting the purchase price to the Servicer in such manner as will permit the
Servicer to deposit the same on such date into the Collection Account in
accordance with the terms of the Servicing Agreement (or if the Originator is
then the Servicer, by remitting the purchase price to the Collection Account),
(b) transfer ownership of a new Eligible Receivable or new Eligible
Receivables to SPV on such Settlement Date (or such Business Day in exchange
for such Transferred Fleet Receivable), or (c) make a capital contribution in
cash to SPV by remitting the amount of such capital contribution to the
Collection Account, in each case in an amount
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(the "Rejected Amount") equal to the Billed Amount of such Transferred Fleet
Receivable minus the Collections received by SPV or its assignees in respect
thereof.
ARTICLE V.
INDEMNIFICATION
Section 5.1 Indemnification. Without limiting any other rights that
SPV or the Issuer or any of their respective officers, directors, employees,
attorneys, agents or representatives (each, an "SPV Indemnified Person") may
have hereunder or under applicable law, the Originator hereby agrees to
indemnify and hold harmless each SPV Indemnified Person from and against any
and all Indemnified Amounts that may be claimed or asserted against or
incurred by any such SPV Indemnified Person, including any and all legal costs
and expenses arising out of or incurred in connection with disputes between or
among any parties to any of the Transaction Documents, relating to or
resulting from:
(a) reliance on any representation or warranty made or
deemed made by the Originator (or any of its officers) under or in
connection with this Agreement or any other Transaction Document to
which it is a party or on any other information delivered by the
Originator pursuant hereto or thereto that shall have been incorrect
in any material respect when made or deemed made or delivered;
(b) the failure by the Originator to comply with any term,
provision or covenant contained in this Agreement, any other
Transaction Document to which it is a party or any agreement executed
in connection herewith or therewith, any applicable law, rule or
regulation with respect to any Transferred Fleet Receivable or Fleet
Service Contract therefor or other Receivables Property, or the
nonconformity of any Transferred Fleet Receivable or the Fleet
Service Contract therefor with any such applicable law, rule or
regulation;
(c) the failure to vest and maintain vested in SPV, or to
Transfer to SPV, valid and properly perfected title to and sole
record and beneficial ownership of the Fleet Receivables that
constitute Transferred Fleet Receivables, together with all
Collections and in respect thereof or other Receivables Property,
free and clear of any Adverse Claim;
(d) any dispute, claim, offset or defense of any Obligor
(other than its discharge in bankruptcy) to the payment of any Fleet
Receivable that is the subject of a Transfer hereunder (including a
defense based on such Fleet Receivable or the Fleet Service Contract
therefor not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms, or any
other claim resulting from the sale of the merchandise or services
giving rise to such Fleet Receivable or the furnishing or failure to
furnish such merchandise or services or relating to collection
activities with respect to such Fleet Receivable (if such collection
activities were performed by the Originator acting as Servicer),
except to the extent that such dispute, claim, offset or defense
results solely from any action or inaction on the part of SPV;
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(e) any products liability claim or other claim
arising out of or in connection with merchandise, insurance or
services that is the subject of any Fleet Service Contract;
(f) any failure by the Originator to cause the filing of, or
any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction
or any other applicable laws with respect to any Fleet Receivable and
any other Receivables Property that is the subject of a Transfer
hereunder, whether at the time of any such Transfer or at any
subsequent time;
(g) any failure by the Originator or the Servicer to
perform, keep or observe any of their respective duties or
obligations hereunder, under any other Transaction Document to which
it is a party or under any Fleet Service Contract related to a
Transferred Fleet Receivable, including the commingling of
Collections with respect to Transferred Fleet Receivables by the
Originator or the Servicer at any time with the funds of any other
Person;
(h) any investigation, Litigation or proceeding related to
this Agreement or the use of the Sale Price obtained in connection
with any Sale or the ownership of Fleet Receivables or Collections or
any other Receivables Property with respect thereto or in respect of
any Fleet Receivable or Fleet Service Contract or any other
Receivables Property, except to the extent any such investigation,
Litigation or proceeding relates to a matter involving an SPV
Indemnified Person for which neither the Originator nor any of its
Affiliates is at fault, as finally determined by a court of competent
jurisdiction; or
(i) any claim brought by any Person other than an SPV
Indemnified Person arising from any activity by the Originator or any
of its Affiliates in servicing, administering or collecting any
Transferred Fleet Receivables or any other Receivables Property;
provided, that the Originator shall not be liable for any indemnification to
an SPV Indemnified Person to the extent that any such Indemnified Amounts
result from (i) such SPV Indemnified Person's gross negligence or willful
misconduct, (ii) recourse for uncollectible or uncollected Transferred Fleet
Receivables (except to the extent resulting from a breach or default by
Obligor under this Agreement) or (iii) any income tax or franchise tax
incurred by any SPV Indemnified Person, except to the extent that the
incurrence of any such tax results from a breach of or default by the
Originator under this Agreement or any other Transaction Document to which it
is a party.
ARTICLE VI.
MISCELLANEOUS
Section 6.1 Notices. Except as otherwise provided herein, whenever
it is provided herein that any notice, demand, request, consent, approval,
declaration or other communication shall or may be given to or served upon any
of the parties by any other parties, or whenever any of the parties desires to
give or serve upon any other parties any communication with respect to this
Agreement, each such notice, demand, request, consent, approval, declaration
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or other communication shall be in writing and shall be deemed to have been
validly served, given or delivered (a) upon the earlier of actual receipt and
three Business Days after deposit in the United States mail, registered or
certified mail, return receipt requested, with proper postage prepaid, (b)
upon transmission, when sent by telecopy or other similar facsimile
transmission (with such telecopy or facsimile promptly confirmed by delivery
of a copy by personal delivery or United States mail as otherwise provided in
this Section 6.1, (c) one Business Day after deposit with a reputable
overnight courier with all charges prepaid or (d) when delivered, if
hand-delivered by messenger, all of which shall be addressed to the party to
be notified and sent to the address or facsimile number set forth under its
name on the signature page hereof or to such other address (or facsimile
number) as may be substituted by notice given as herein provided. The giving
of any notice required hereunder may be waived in writing by the party
entitled to receive such notice. Failure or delay in delivering copies of any
notice, demand, request, consent, approval, declaration or other communication
to any Person (other than SPV) designated in any written communication
provided hereunder to receive copies shall in no way adversely affect the
effectiveness of such notice, demand, request, consent, approval, declaration
or other communication. Notwithstanding the foregoing, whenever it is provided
herein that a notice is to be given to any other party hereto by a specific
time, such notice shall only be effective if actually received by such party
prior to such time, and if such notice is received after such time or on a day
other than a Business Day, such notice shall only be effective on the
immediately succeeding Business Day.
Section 6.2 No Waiver; Remedies. SPV's failure, at any time or
times, to require strict performance by the Originator of any provision of
this Agreement or the Receivables Assignments shall not waive, affect or
diminish any right of SPV thereafter to demand strict compliance and
performance herewith or therewith. Any suspension or waiver of any breach or
default hereunder shall not suspend, waive or affect any other breach or
default whether the same is prior or subsequent thereto and whether the same
or of a different type. None of the undertakings, agreements, warranties,
covenants and representations of the Originator contained in this Agreement or
the Receivables Assignments, and no breach or default by the Originator
hereunder or thereunder, shall be deemed to have been suspended or waived by
SPV unless such waiver or suspension is by an instrument in writing signed by
an officer of or other duly authorized signatory of SPV and directed to the
Originator specifying such suspension or waiver. SPV's rights and remedies
under this Agreement shall be cumulative and nonexclusive of any other rights
and remedies that SPV may have under any other agreement, including the other
Transaction Documents, by operation of law or otherwise.
Section 6.3 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the Originator and SPV and their
respective successors and permitted assigns, except as otherwise provided
herein. The Originator may not assign, transfer, hypothecate or otherwise
convey its rights, benefits, obligations or duties hereunder without the prior
express written consent of SPV, the Issuer and the Indenture Trustee. Any such
purported assignment, transfer, hypothecation or other conveyance by the
Originator without the prior express written consent of SPV, the Issuer and
the Indenture Trustee shall be void. The Originator acknowledges that SPV may
assign its rights granted hereunder, including the benefit of any indemnities
under Article V and any Transferred Fleet Receivables and Receivables Property
acquired hereunder to the Origination Trust pursuant to the Contribution
Agreement and
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that SPV will transfer the Fleet Receivable SUBI Certificate (representing a
beneficial interest in Origination Trust assets consisting of rights under
this Agreement (including rights to indemnities and to Transferred Fleet
Receivables and Receivables Property)) to the Issuer pursuant to the Transfer
Agreement. The Issuer shall pledge the Fleet Receivable SUBI Certificate to
the Indenture Trustee for the benefit of the Investor Noteholders under the
Indenture. The Originator acknowledges that, upon such assignments and
pledges, the Issuer or the Indenture Trustee, as the case may be, may enforce
directly, without joinder of SPV, 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 SPV's rights and remedies under, this Agreement to the
same extent as if they were parties hereto.
Section 6.4 Termination; Survival of Obligations. (a) This Agreement
shall create and constitute the continuing obligations of the parties hereto
in accordance with its terms, and shall remain in full force and effect until
the payment in full of each series of Investor Notes and each series of
Preferred Membership Interests.
(b) Except as otherwise expressly provided herein or in any other
Transaction Document, no termination or cancellation (regardless of cause or
procedure) of any commitment made by SPV under this Agreement shall in any way
affect or impair the obligations, duties and liabilities of the Originator or
the rights of SPV relating to any unpaid portion of any and all recourse and
indemnity obligations of the Originator to SPV, including those set forth in
Sections 4.2(j), 4.4, 5.1 and 6.14, due or not due, liquidated, contingent or
unliquidated or any transaction or event occurring prior to such termination,
or any transaction or event, the performance of which is required after the
Termination Date. Except as otherwise expressly provided herein or in any
other Transaction Document, all undertakings, agreements, covenants,
warranties and representations of or binding upon the Originator, and all
rights of SPV hereunder, all as contained in the Transaction Documents, shall
not terminate or expire, but rather shall survive any such termination or
cancellation and shall continue in full force and effect until the Termination
Date; provided, that the rights and remedies pursuant to Sections 4.2(j), 4.4,
the indemnification and payment provisions of Article V, and the provisions of
Sections 4.3(h), 6.3, and 6.13 shall be continuing and shall survive any
termination of this Agreement.
Section 6.5 Complete Agreement, Modification of Agreement. This
Agreement and the other Transaction Documents constitute the complete
agreement between the parties with respect to the subject matter hereof and
thereof, supersede all prior agreements and understandings relating to the
subject matter hereof and thereof, and may not be modified, altered or amended
except as set forth in Section 6.6.
Section 6.6 Amendments and Waivers. (a) This Agreement may be
amended from time to time by a written amendment duly executed and delivered
by the Originator and SPV, 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.
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(b) This Agreement may be amended from time to time by a written
amendment duly executed and delivered by the Originator and SPV, 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
Originator 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 Originator 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 6.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND EACH RECEIVABLES ASSIGNMENT AND THE OBLIGATIONS
ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS
OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR
FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN
THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY RELATED DOCUMENT; PROVIDED, THAT EACH PARTY HERETO
ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A
COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED
FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE
SPV FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION
TO REALIZE ON THE TRANSFERRED FLEET RECEIVABLES OR ANY OTHER SECURITY FOR THE
OBLIGATIONS OF THE ORIGINATOR ARISING HEREUNDER, OR TO ENFORCE A JUDGMENT OR
OTHER COURT ORDER IN FAVOR OF SPV. EACH PARTY HERETO SUBMITS AND CONSENTS IN
ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH
COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY
HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES
PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY
SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND
OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH
PARTY AT THE ADDRESS SET FORTH BENEATH ITS NAME ON THE SIGNATURE PAGES
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HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF
SUCH PARTY'S ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED
STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE
RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED
BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION,
THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT
OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
RELATED DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
Section 6.8 Counterparts. This Agreement may be executed in any
number of separate counterparts, each of which shall collectively and
separately constitute one agreement.
Section 6.9 Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity without
invalidating the remainder of such provision or the remaining provisions of
this Agreement.
Section 6.10 Section Titles. The section titles and table of
contents contained in this Agreement are provided for ease of reference only
and shall be without substantive meaning or content of any kind whatsoever and
are not a part of the agreement between the parties hereto.
Section 6.11 No Setoff. The Originator's obligations under this
Agreement shall not be affected by any right of setoff, counterclaim,
recoupment, defense or other right the Originator might have against SPV, the
Issuer or the Indenture Trustee, all of which rights are hereby expressly
waived by the Originator.
Section 6.12 Further Assurances. (a) The Originator 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 SPV or the Indenture Trustee 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) securing
all consents and approvals necessary or
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appropriate for the assignment to or for the benefit of SPV of any Transferred
Fleet Receivable and the Receivables Property, (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, SPV 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 SPV, the Issuer or the Indenture Trustee to exercise or enforce its
rights under this Agreement or any of the other Transaction Documents. The
Originator hereby authorizes SPV, the Issuer or the Indenture Trustee to file
any such financing or continuation statements without the signature of the
Originator 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 Transferred Fleet Receivables or any part thereof and
the Receivables Property 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 Transferred Fleet Receivables or Receivables Property 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 SPV immediately upon the Originator's receipt
thereof and promptly delivered to or at the direction of SPV.
(b) If the Originator fails to perform any agreement or obligation
under this Section 6.12, SPV, 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 SPV, the Issuer or the
Indenture Trustee incurred in connection therewith shall be payable by such
Originator upon demand of SPV, the Issuer or the Indenture Trustee.
Section 6.13 Fees, Expenses and Taxes. In addition to its
indemnification obligations pursuant to Article V, the Originator agrees to
pay all costs and expenses, if any (including attorneys' fees and expenses but
excluding any costs of enforcement or collection of the Transferred Fleet
Receivables), in connection with the enforcement of, or any actual or claimed
breach of, this Agreement. The Originator shall pay all filing fees, stamp
taxes and other similar taxes and expenses, if any, which may be incurred on
account of or arise out of this Agreement and the documents and transactions
entered into pursuant to this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Receivables
Purchase Agreement to be executed by their respective duly authorized
representatives, as of the date first above written.
PHH VEHICLE MANAGEMENT SERVICES LLC
By ________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
RAVEN FUNDING LLC
By _________________________________
Name:
Title:
Address: ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT 2.1(a)
to the
Receivables Purchase Agreement
FORM OF RECEIVABLES ASSIGNMENT
THIS RECEIVABLES ASSIGNMENT (the "Receivables Assignment") is
entered into as of __________, ____, by and between PHH Vehicle Management
Services LLC ("VMS") and Raven Funding LLC ("SPV").
1. We refer to that certain Receivables Purchase Agreement
(as the same may from time to time be amended, restated, supplemented or
otherwise modified, the "Transfer Agreement") dated as of June 30, 1999
between VMS and SPV. All of the terms, covenants and conditions of the
Transfer Agreement are hereby made a part of this Receivables Assignment and
are deemed incorporated herein in full. Unless otherwise defined herein,
capitalized terms or matters of construction defined or established in the
Transfer Agreement shall be applied herein as defined or established therein.
2. [For good and valuable consideration, the receipt of which is
hereby acknowledged, VMS hereby sells, assigns, transfers and conveys to SPV,
without recourse, except as provided in the Transfer Agreement, all of VMS's
right, title and interest in, to and under all Fleet Receivables identified on
Schedule I hereto as "Sold Receivables" and the Receivables Property with
respect thereto.]
[For good and valuable consideration, the receipt of which is hereby
acknowledged, VMS hereby assigns, transfers and conveys to SPV as a capital
contribution, without recourse, except as provided in the Transfer Agreement,
all of VMS's right, title and interest in, to and under all Fleet Receivables
identified on Schedule I hereto as "Contributed Receivables" and the
Receivables Property with respect thereto.]
3. The Fleet Receivables being transferred by this Receivables
Assignment consist of [$______ in face amount of Sold Fleet Receivables for a
purchase price of $______] [$______ in face amount of Contributed Fleet
Receivables].
4. Subject to the terms and conditions of the Transfer Agreement,
VMS hereby covenants and agrees to sell or contribute, as applicable, execute
and deliver, or cause to be signed, sold or contributed, executed and
delivered, and to do or make, or cause to be done or made, upon request of SPV
and at VMS's expense, any and all agreements, instruments, papers, deeds, acts
or things, supplemental, confirmatory or otherwise, as may be reasonably
required by SPV for the purpose of or in connection with acquiring or more
effectively vesting in SPV or evidencing the vesting in SPV of the property,
rights, title and interests of VMS sold or contributed hereunder or intended
to be sold or contributed hereunder.
5. Wherever possible, each provision of this Receivables Assignment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any
provision of this Receivables Assignment shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Receivables Assignment.
6. THIS RECEIVABLES ASSIGNMENT SHALL BE GOVERNED BY, AND CONSTRUED
AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. The foregoing [sale,] assignment, transfer and conveyance does
not constitute and is not intended to result in any assumption by SPV of any
obligation of the undersigned to any other Person in connection with the
Transferred Fleet Receivables and Receivables Property described above or any
agreement or instrument relating to any of them.
8. The SPV and VMS intend that the transactions contemplated by this
assignment shall be treated as a [sale,] assignment, transfer and conveyance
by VMS of the Transferred Fleet Receivables and Receivables Property described
above and not a lending transaction. If this Assignment does not constitute a
valid [sale,] assignment, transfer and conveyance of all right, title and
interest of, in, to and under the Transferred Fleet Receivables and
Receivables Property described above despite the intent of the parties hereto,
VMS hereby grants a first priority "security interest" (as defined in the UCC
as in effect in the State of New York) in the Transferred Fleet Receivables
and Receivables Property and all proceeds thereof to the SPV and the parties
agree that this Assignment shall constitute a security agreement under the UCC
in effect in New York.
9. This Assignment is made pursuant to and based upon the
representations, warranties and agreements on the part of the undersigned
contained in the Transfer Agreement and is to be governed by the Transfer
Agreement.
IN WITNESS WHEREOF, the parties have caused this Receivables
Assignment to be executed by their respective officers thereunto duly
authorized, as of the day and year first above written.
PHH VEHICLE MANAGEMENT SERVICES LLC
By _______________________________
Name:
Title:
RAVEN FUNDING LLC
By _____________________________
Name:
Title:
-21-
Schedule I to Receivables Assignment
Sold Fleet Receivables
Contributed Fleet Receivables
SCHEDULE 4.1(b)
Executive Offices; Collateral Locations and
Names of Originator
1. Executive Office:
▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
2. Collateral Locations:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Code-▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
3. Names:
PHH Vehicle Management Services LLC
PHH Vehicle Management Services Corporation
PHH Fleet America Corporation
Avis Leasing Corporation
