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Exhibit 10.1
EXECUTION COPY
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RYDER TRUCK RENTAL I LP
and
RYDER TRUCK RENTAL II LP,
as Grantors and UTI Beneficiaries,
RYDER TRUCK RENTAL, INC.,
as Administrative Agent,
RTRT, INC.,
as Trustee,
DELAWARE TRUST CAPITAL MANAGEMENT, INC.,
as Delaware Trustee,
and, for certain limited purposes only,
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
RYDER TRUCK RENTAL LT
SECOND AMENDED AND RESTATED TRUST AGREEMENT
Dated as of February 1, 1998
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions.................................................................................. 2
Section 1.02. Interpretive Provisions...................................................................... 14
ARTICLE TWO
THE TRUST
Section 2.01. General...................................................................................... 15
Section 2.02. Offices...................................................................................... 15
Section 2.03. Purposes..................................................................................... 15
Section 2.04. Conveyance of Trust Assets................................................................... 15
Section 2.05. Document Execution and Performance........................................................... 16
Section 2.06. Securitization Holders....................................................................... 16
ARTICLE THREE
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. Creation of UTI; UTI Pledges................................................................. 17
Section 3.02. SUBI Certificates............................................................................ 18
Section 3.03. UTI Certificates............................................................................. 19
Section 3.04. Registration and Transfer of Certificates; Validity.......................................... 19
Section 3.05. Beneficiaries; Action Upon Instruction....................................................... 20
Section 3.06. Filings...................................................................................... 20
Section 3.07. Allocation of Expenses and Indemnification................................................... 21
Section 3.08. Insurance Policies........................................................................... 21
ARTICLE FOUR
PAYMENTS; TRUST ACCOUNTS
Section 4.01. Payments from Trust Assets Only.............................................................. 23
Section 4.02. Trust Accounts............................................................................... 23
Section 4.03. Distribution of Funds; Default with Respect to UTI Pledge.................................... 24
Section 4.04. SUBI Lease Accounts.......................................................................... 24
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ARTICLE FIVE
THE TRUSTEE
Section 5.01. Duties and Powers of Trustee................................................................. 26
Section 5.02. Duty of Care................................................................................. 27
Section 5.03. Certain Matters Affecting the Trustee........................................................ 28
Section 5.04. Trustee Not Liable for Certificates or Leases................................................ 29
Section 5.05. Indemnification of Trustee and Trust Agents.................................................. 30
Section 5.06. Trustee's Right Not to Act................................................................... 30
Section 5.07. Qualification of Trustee..................................................................... 30
Section 5.08. Resignation or Removal of Trustee............................................................ 31
Section 5.09. Successor Trustee............................................................................ 31
Section 5.10. Merger or Consolidation of Trustee........................................................... 32
Section 5.11. Co-Trustees, Separate Trustees, Nominee and Trust Agents..................................... 32
Section 5.12. Representations, Warranties and Covenants of Trustee......................................... 34
Section 5.13. Trustee's Fees and Expenses.................................................................. 35
Section 5.14. Trustee Stock................................................................................ 35
Section 5.15. Limitation of Liability of Trustee........................................................... 37
ARTICLE SIX
THE ADMINISTRATIVE AGENT
Section 6.01. Duties of the Administrative Agent........................................................... 38
Section 6.02. Liability of Administrative Agent; Indemnities............................................... 39
Section 6.03. Merger of Administrative Agent; Appointment of Nominee....................................... 40
Section 6.04. Limitation on Liability of Administrative Agent and Others................................... 40
Section 6.05. Administrative Agent Not to Resign; Delegation of Duties..................................... 40
Section 6.06. Servicing Compensation....................................................................... 41
Section 6.07. Powers of Attorney........................................................................... 41
Section 6.08. Protection of Title to Trust................................................................. 41
ARTICLE SEVEN
TERMINATION AND DISSOLUTION
Section 7.01. Dissolution of the Trust..................................................................... 43
Section 7.02. Termination of Sub-Trusts.................................................................... 43
Section 7.03. Beneficiary or Special Purpose Affiliate Bankruptcy.......................................... 44
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Article Eight
MISCELLANEOUS
Section 8.01. Amendment.................................................................................... 45
Section 8.02. Governing Law................................................................................ 45
Section 8.03. Notices...................................................................................... 45
Section 8.04. Severability of Provisions................................................................... 46
Section 8.05. Counterparts................................................................................. 46
Section 8.06. Successors and Assigns....................................................................... 46
Section 8.07. No Petition.................................................................................. 46
Section 8.08. Table of Contents and Headings............................................................... 46
Section 8.09. Tax Reporting and Characterization........................................................... 47
Section 8.10. Certificates Nonassessable and Fully Paid.................................................... 47
ARTICLES NINE AND TEN
[Reserved]
Signatures....................................................................................................... 49
EXHIBITS
Exhibit A - Form of Certificate of Trust...................................................................... A-1
Exhibit B - UTI Certificate................................................................................... B-1
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SECOND AMENDED AND RESTATED TRUST AGREEMENT
This Second Amended and Restated Trust Agreement, dated as of February
1, 1998 (the "Agreement"), is among Ryder Truck Rental I LP and Ryder Truck
Rental II LP, each a Delaware limited partnership, as grantors and initial
beneficiaries (in such capacities, the "Grantors" and the "UTI Beneficiaries",
respectively), Ryder Truck Rental, Inc., a Florida corporation, as
administrative agent (the "Administrative Agent"), RTRT, Inc., a Delaware
corporation, as trustee (the "Trustee"), Delaware Trust Capital Management,
Inc., a Delaware banking corporation, as Delaware trustee, and, for the limited
purposes set forth herein, U.S. Bank National Association, a national banking
association ("U.S. Bank"), as trust agent (the "Trust Agent").
RECITALS
WHEREAS, Ryder Truck Rental LT, a Delaware business trust, has been
created pursuant to (i) a trust agreement, dated as of June 1, 1997, among the
Grantors and UTI Beneficiaries, the Administrative Agent and the Trustee, as
amended and restated by an amended and restated trust agreement, dated as of
August 1, 1997 (the "Original Trust Agreement"), among the Grantors and UTI
Beneficiaries, the Administrative Agent, the Trustee and Delaware Trust Capital
Management, Inc., as Delaware trustee, and (ii) a certificate of trust filed
with the Secretary of State of the State of Delaware on July 24, 1997; and
WHEREAS, the parties hereto desire to amend and restate the Original
Trust Agreement in its entirety for the purpose of taking assignments and
conveyances of and holding in trust various assets described herein.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and of other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
Article One
DEFINITIONS
Section 1.01. Definitions. Whenever used herein, unless the context
otherwise requires, the following words and phrases shall have the following
meanings:
"Administration Agreement" means any administration agreement, as
amended, restated or supplemented from time to time.
"Administration Supplement" means either a UTI Administration
Supplement or a SUBI Administration Supplement, as the context may require.
"Administrative Agent" means the entity named as such in an
Administration Agreement and its permitted successors and assigns.
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"Affected Trust Assets" has the meaning set forth in Section 3.07(b).
"Affiliate" of any Person means any other Person that (i) directly or
indirectly controls, is controlled by or is under common control with such
Person (excluding any trustee under, or any committee with responsibility for
administering, any employee benefit plan) or (ii) is an officer, director,
member or partner of such Person. For purposes of this definition, a Person
shall be deemed to be "controlled by" another Person if such other Person
possesses, directly or indirectly, the power (i) to vote 5% or more of the
securities (on a fully diluted basis) having ordinary voting power for the
election of directors, members or managing partners of such Person or (ii) to
direct or cause the direction of the management and policies of such Person,
whether by contract or otherwise.
"Agreement" means this Second Amended and Restated Trust Agreement, as
amended, restated or supplemented from time to time.
"Base Jurisdiction" means, in the case of Vehicles registered under the
IRP, the jurisdiction in which such Vehicle is registered pursuant to the IRP.
"Beneficiaries" means, collectively, the Related Beneficiaries of all
Sub-Trusts, and "Beneficiary" means any of such Beneficiaries.
"Business Day" means any day other than a Saturday, Sunday or a day on
which banking institutions in the States of Delaware, Florida, Illinois or New
York are authorized or obligated by law, executive order or government decree to
be closed.
"Capital Contribution" means any capital contribution to the Trust made
by a Beneficiary, the Administrative Agent or any of their respective
Affiliates.
"Cash Value" means, with respect to any Trust Assets on any date, the
sum of all cash and the Net Book Values of the Vehicles comprising such Trust
Assets on such date.
"Certificate" means a UTI Certificate or a SUBI Certificate, as the
context may require.
"Certificate of Title" means a certificate of title or other evidence
of ownership of a Vehicle issued by the Registrar of Titles in (i) the
jurisdiction in which such Vehicle is registered or (ii) in the case of Vehicles
registered under the IRP, the Base Jurisdiction.
"Certificate of Trust" means the certificate of trust for the Trust,
substantially in the form of Exhibit A, filed with the office of the Delaware
Secretary of State pursuant to Section 3810 of the Delaware Act.
"Claims" means all liabilities, claims and expenses (including
reasonable legal and other professional fees and expenses).
"Co-Trustee Agreement" means any instrument or agreement pursuant to
which the Trustee appoints a co-trustee pursuant to Section 5.07(b).
"Code" means the Internal Revenue Code of 1986, as amended.
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"Collection Account" means, with respect to any Sub-Trust, the account
created, designated and maintained as such pursuant to Section 4.02(a).
"Control" has the meaning set forth in Section 8-106 of the UCC.
"Cutoff Date" shall have the meaning set forth in the related
Supplement.
"Delaware Act" means the Delaware Business Trust Act, specifically, the
provisions of 12 Del. C. Section 3801 et seq., as amended.
"Delaware Secretary of State" means the Secretary of State of the State
of Delaware.
"Delaware Trustee" means the trustee meeting the requirements of
Section 3807 of the Delaware Act and designated in the Certificate of Trust (and
its successors), in such capacity as set forth in the Certificate of Trust, and
shall initially be Delaware Trust Capital Management, Inc.
"Disposition Expenses" shall have the meaning set forth in the related
Administration Agreement.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co., and its
successors.
"Effective Date" means February 1, 1998.
"Eligible Lease" means a Lease as to which the following are true as of
the date such Lease is assigned to the Trust:
(i) was originated in the United States by Ryder for a Lessee
with a United States address in the ordinary course of Ryder's
business;
(ii) is a United States dollar-denominated obligation;
(iii) has been (or, within any applicable Titling Grace
Period, will be) validly assigned to the Trust by Ryder;
(iv) provides for Fixed Charge payments to be made by the
related Lessee over the Lease Term;
(v) is a Lease as to which no selection procedure was used
that was believed to be adverse to any Holders;
(vi) was created in compliance in all material respects with
all applicable federal and state laws, including disclosure laws;
(vii) (A) is the legal, valid and binding payment obligation
of the related Lessee, enforceable against such Lessee in accordance
with its terms, as amended, (B) has not been satisfied, subordinated,
rescinded, canceled or terminated, (C) is a Lease as to which no right
of rescission, setoff, counterclaim or defense has been asserted or
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threatened in writing and (D) is a Lease as to which no written default
notice has been transmitted to Ryder;
(viii) has an original term of not less than 12 months and a
remaining term of not greater than 120 months;
(ix) is a Lease as to which an executed copy of the
documentation associated therewith is located at Ryder's business
premises;
(x) is a Lease as to which Ryder has retained, or the related
Lessee has obtained, physical damage insurance covering the risk of
loss or damage to the related Vehicle as required under such Lease;
(xi) is a Lease as to which Ryder or the related Lessee has
obtained liability insurance covering the related Vehicle as required
under such Lease;
(xii) does not have a Total Monthly Payment that is more than
60 days past due; and
(xiii) has not had any Liens or Claims filed on or against it
for work, labor or materials.
"Entitlement Holder" has the meaning set forth in Section 8-102(a)(7)
of the UCC.
"Event of Default" means any event of default (after the expiration of
any applicable notice or cure periods), as such term (or similar term) is
defined in any Administration Agreement or any Securitized Financing Document.
"Excess Funds" means, as of any date of determination, the amount of
monies on deposit in all UTI Accounts or otherwise held by the Trustee in
respect of the UTI in excess of the amount required to (i) meet all existing
Liabilities of the Trust to be paid by or on behalf of the Holders of the UTI
Certificates or the UTI Beneficiaries (after taking into account any transfers
from one or more SUBI Accounts to the UTI Collection Account to be made on such
date) and (ii) be retained as reserves for reasonably anticipated Liabilities of
the Trust (after taking into account all transfers to be made from any such SUBI
Accounts to the UTI Collection Account in respect of such SUBI's proportionate
share of such anticipated Liability).
"FDIC" means the Federal Deposit Insurance Corporation, and its
successors.
"Financial Component" means the portion of the Fixed Charge component
of Total Monthly Payments with respect to each Lease representing the financing
cost and depreciation of the related Vehicle.
"Fitch" means Fitch IBCA, Inc., and its successors.
"Fixed Charge" means, with respect to a Lease, the component of Total
Monthly Payments that is a fixed dollar amount due every month during the Lease
Term regardless of the actual usage of the related Vehicle by the related
Lessee.
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"FNMA" means the Federal National Mortgage Association, and its
successors.
"Grantor" has the meaning set forth in the Preamble.
"Holder" means, with respect to any Certificate, the Person listed in
the registration books maintained by the Trustee pursuant to Section 3.04(a) as
the registered owner thereof; provided, that a Registered Pledgee shall be
entitled to exercise any or all of the rights or powers of a Holder of a
Certificate hereunder, including receiving distributions, providing notices or
giving consents, to the extent such entitlement is set forth in such Holder's
registration of pledge or the documents relating to such pledge.
"Insurance Expenses" means any Insurance Proceeds (i) applied to the
repair of a Vehicle, (ii) released to the related Lessee in accordance with
applicable law or the customary servicing procedures of the Administrative Agent
or (iii) representing other related expenses incurred by the Administrative
Agent not otherwise included in Disposition Expenses and recoverable by the
Administrative Agent under an Administration Agreement.
"Insurance Policy" means, with respect to any Lease, Lessee or Vehicle,
any policy (including any self-insurance) of comprehensive, collision, public
liability, physical damage, personal liability, credit health or accident,
credit life or employment insurance, or any other form of insurance or
self-insurance.
"Insurance Proceeds" means, with respect to any Vehicle, Lease or
Lessee, recoveries paid to the Administrative Agent, the Trust or the Trustee on
behalf of the Trust under an Insurance Policy and any rights thereunder or
proceeds therefrom (including any self-insurance).
"IRP" means the International Registration Plan, as in effect in the
respective jurisdiction.
"Issuer" shall have the meaning set forth in the related Securitized
Financing Documents.
"Lease" means any lease contract that has been assigned to the Trust,
as such lease contract pertains to a particular Vehicle, consisting of a Truck
Lease and Service Agreement between the Lessor and Lessee and a Schedule A
thereto listing the vehicle identification number and other information
regarding such Vehicle; provided, however, that the UTI Master Lease shall not
be a Lease for purposes of this definition.
"Lease Term" means the term of each Lease.
"Lessee" means each Person that is a lessee under a Lease, including
any Person that executes a guarantee on behalf of such lessee.
"Lessor" means each Person that is the lessor under a Lease or the
assignee thereof, including the Trust.
"Liability" means any liability or expense, including any
indemnification obligation.
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"Lien" means any security interest, lien, charge, pledge, equity or
encumbrance of any kind, other than tax liens, mechanics' liens, any liens that
attach to property by operation of law and statutory purchase liens to the
extent not past due.
"Liquid Trustee Assets" means the face value of any cash or cash
equivalents held by the Trustee for its own account, up to but not exceeding its
net worth as set forth on its financial books and records.
"Loss" means any loss, liability, claim, damage or reasonable expense,
including reasonable fees and expenses of counsel and reasonable expenses of
litigation.
"Moody's" means Xxxxx'x Investors Service, Inc., and its successors.
"Net Book Value" means, with respect to a Vehicle, the value of such
Vehicle on Ryder's books.
"99% UTI Beneficiary" means the UTI Beneficiary to which the UTI
Certificate representing a 99% ownership interest in the UTI is initially issued
and its permitted successors and assigns, including the UTI Beneficiary of any
UTI Certificate evidencing a lesser remaining ownership interest in the UTI
following the transfer of a portion of such UTI Certificate to an additional 1%
UTI Beneficiary designated pursuant to Section 7.03(b).
"Officer's Certificate" means a certificate signed by the Chairman of
the Board of Directors, the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary of any specified
Person (which, in the case of (i) a limited liability company, shall be any of
the foregoing officers of a member or (ii) a partnership, shall be any of the
foregoing officers of the managing general partner or, if there is no managing
general partner, any general partner) and delivered to any other specified
Person.
"1% UTI Beneficiary" means the UTI Beneficiary to which the UTI
Certificate representing the 1% ownership interest in the UTI is initially
issued, and its permitted successors and assigns, or any additional UTI
Beneficiary to which a UTI Certificate representing a 1% ownership interest in
the UTI is issued pursuant to Section 7.03(b).
"Opinion of Counsel" means a written opinion of counsel who may, except
as otherwise expressly provided in the Trust Documents or related Securitized
Financing Documents, be counsel for a Beneficiary, the Administrative Agent or
any of their respective Affiliates (including, in each case, in-house counsel),
which counsel, in the case of opinions delivered to the Trustee, shall be
reasonably satisfactory to the Trustee.
"Original Trust Agreement" has the meaning set forth in the Recitals.
"Other SUBI" means, with respect to a SUBI, any SUBI other than such
SUBI.
"Other SUBI Assets" means all Trust Assets allocated to an Other SUBI.
"Other SUBI Certificate" means a SUBI Certificate relating to an Other
SUBI.
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"Permitted Investments" means, at any time with respect to a Sub-Trust,
any one or more of the following obligations, instruments and securities:
(i) obligations of, and obligations fully guaranteed as to
timely payment of principal and interest by, the United States or any
agency thereof, provided such obligations are backed by the full faith
and credit of the United States;
(ii) general obligations of or obligations guaranteed by FNMA
or any State; provided that, if any related Rated Securities are
outstanding, such obligations have the highest available credit rating
from each Rating Agency for such obligations;
(iii) securities bearing interest or sold at a discount issued
by any corporation incorporated under the laws of the United States or
of any State; provided, that if any related Rated Securities are
outstanding at the time of such investment or contractual commitment
providing for such investment, either (a) the long-term unsecured debt
of such corporation has the highest available rating from each Rating
Agency for such obligations or (b) the commercial paper or other
short-term debt of such corporation that is then rated has the highest
available credit rating of each Rating Agency for such obligations;
(iv) certificates of deposit issued by any depository
institution or trust company (including the Trust Agent or, if there is
no Trust Agent, the Trustee) incorporated under the laws of the United
States or any State and subject to supervision and examination by
banking authorities of one or more of such jurisdictions; provided
that, if any related Rated Securities are outstanding, the short-term
unsecured debt obligations of such depository institution or trust
company has the highest available credit rating of each Rating Agency
for such obligations;
(v) certificates of deposit that are issued by any bank, trust
company, savings bank or other savings institution and fully insured by
the FDIC;
(vi) investments in money market funds (including funds for
which the Trustee, the Trust Agent or any of their respective
Affiliates is investment manager or advisor) having a rating from
Standard & Poor's of AAA-m or AAAm-G and from Moody's of Aaa;
(vii) repurchase obligations held by the Trustee or, if there
is a Trust Agent, by the Trust Agent, with respect to any obligation or
security described in clauses (i), (ii) or (viii) hereof or any other
obligation or security issued or guaranteed by any other agency or
instrumentality of the United States, in either case entered into with
a federal agency or a depository institution or trust company (acting
as principal) described in clause (iv) above; and
(viii) such other obligations, instruments and securities as
may be directed by the Administrative Agent; provided, that if any
Rated Securities are outstanding, such obligations, instruments and
securities shall be acceptable to each Rating Agency, as evidenced by a
letter from each Rating Agency to the Trustee to the effect that the
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making of such investments will not result in the qualification,
downgrading or withdrawal of the rating then assigned to any Rated
Securities by such Rating Agency;
provided, that except as provided in a related Supplement or Administration
Agreement, each of the foregoing obligations, instruments and securities shall
mature no later than the Business Day prior to the date on which such funds are
required to be available for application pursuant to any related Trust Document
or Securitized Financing Document (other than in the case of the investment of
monies in obligations, instruments and securities of which the entity at which
the related account is located is the obligor, which may mature on such date),
and shall be required to be held to such maturity.
Notwithstanding the foregoing, (i) no Permitted Investment may be
purchased at a premium and (ii) no obligation or security may be a "Permitted
Investment" unless (a) the Trustee has Control over such obligation or security
and (b) at the time such obligation or security was delivered to the Trustee or
the Trustee became the related Entitlement Holder, the Trustee did not have
notice of any adverse claim with respect thereto within the meaning of Section
8-105 of the UCC.
For purposes of this definition, any reference to the highest available
credit rating of an obligation shall mean the highest available credit rating
for such obligation (excluding any "+" signs associated with such rating) or
such lower credit rating (as approved in writing by each Rating Agency) as will
not result in the qualification, downgrading or withdrawal of the rating then
assigned to the Rated Securities relating to a particular Securitized Financing
by such Rating Agency.
"Person" means any legal person, including any individual, corporation,
partnership, joint venture, association, limited liability company, joint stock
company, trust, business trust, bank, trust company, estate (including any
beneficiaries thereof), unincorporated organization or government or any agency
or political subdivision thereof.
"Proceeding" means any suit or action at law or in equity or any other
judicial or administrative proceeding, including any bankruptcy proceeding.
"Rated Securities" means, with respect to a Securitized Financing, each
class or series of Securities that has been rated by one or more Rating Agencies
at the request of a Grantor, a Beneficiary or any of their respective
Affiliates.
"Rating Agency" means each nationally recognized rating agency that
issues a rating on Rated Securities at the request of a Grantor, a Beneficiary
or any of their respective Affiliates, as identified in a related Supplement.
"Registered Pledgee" means, with respect to any Certificate, the Person
listed in the registration books maintained by the Trustee pursuant to Section
3.04(a) as the registered pledgee of such Certificate.
"Registrar of Titles" means the applicable department, agency or
official in a State responsible for accepting applications and maintaining
records relating to Certificates of Title and Liens thereupon.
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"Related Beneficiary" means, with respect to (i) the UTI, the UTI
Beneficiaries and (ii) a SUBI, the Person or Persons designated as a Beneficiary
of such SUBI in the related SUBI Supplement, in each case together with their
permitted successors and assigns.
"Related Trust Assets" means, with respect to a Sub-Trust, the related
Leases, Vehicles and other Trust Assets held by the Trust as nominee holder of
legal title for the benefit of the Related Beneficiary and the Holders of the
related Certificates.
"Rental Vehicle" means a Vehicle that is not subject to a Lease.
"Required Deposit Rating" means, with respect to any entity, that (i)
the short-term unsecured debt obligations of such entity are rated in the
highest short-term rating category by each Rating Agency or (ii) such entity is
a depository institution or trust company having a long-term unsecured debt
rating acceptable to each Rating Agency and corporate trust powers and the
related Trust Account is maintained in the corporate trust department of the
related entity.
"Residual Value" means, (i) for Vehicles subject to a Lease (a)
represented by a SUBI, the estimated sales proceeds at the related Maturity Date
as determined on or before the appropriate Cutoff Date for such SUBI or (b) not
represented by a SUBI, the salvage value at the related Maturity Date as
recorded by Ryder on Ryder's books and records or (ii) for Rental Vehicles, the
salvage value at the end of such Rental Vehicle's depreciable life as recorded
by Ryder on Ryder's books and records.
"Responsible Officer" means, when used with respect to the Trustee or a
Trust Agent, any officer in the corporate trust office of the Trust Agent or, if
there is no Trust Agent, the corporate trust office of the Trustee, including
any president, vice president, assistant vice president, trust officer,
secretary, assistant secretary or any other officer thereof customarily
performing functions similar to those performed by the individuals who at the
time shall be such officers, respectively, or to whom any corporate trust matter
is referred because of his or her knowledge of or familiarity with the
particular subject.
"Ryder" means Ryder Truck Rental, Inc., and its successors.
"Schedule A" means the schedule that, combined with a TL&SA,
constitutes a Lease.
"Schedule of Vehicles" means the microfiche, microfilm or paper list of
Leases and Vehicles that are included as Trust Assets, as such list may be
revised and supplemented from time to time pursuant to Section 6.01, and which
shall set forth, to the extent applicable, the following information with
respect to each such Lease and Vehicle in separate columns:
Vehicle Number Assigned by Ryder
Vehicle Identification Number
Fixed Charge
Financial Component
Net Book Value
Residual Value
Sub-Trust to which Vehicle is assigned
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"Securitization Holder" means any entity that, in connection with a
Securitized Financing, becomes a Holder by being, pursuant to the related
Securitized Financing Documents, the Holder (or a Registered Pledgee authorized
to exercise certain rights of a Holder) of a Certificate solely in a trust
capacity.
"Securitized Financing" means any (i) financing transaction undertaken
by a Beneficiary or a Special Purpose Affiliate that is secured, directly or
indirectly, by Trust Assets or the UTI, a SUBI or any interest therein and any
financing undertaken in connection with the issuance, pledge or assignment of
the UTI or a SUBI and the related Certificate, (ii) sale, lease or other
transfer by a Beneficiary or a Special Purpose Affiliate of an interest in the
UTI or a SUBI or (iii) other asset securitization, secured loan or similar
transaction involving Trust Assets or any beneficial interest therein or in the
Trust.
"Securitized Financing Documents" means, with respect to a Securitized
Financing, each indenture, trust agreement, pooling and servicing agreement,
administration agreement, servicing agreement, program operating lease,
assignment or transfer agreement and each other operative document relating to
such Securitized Financing.
"Security" means, with respect to a Securitized Financing, any security
issued by or on behalf of the related Issuer.
"Special Purpose Affiliate" means a special purpose entity that is an
Affiliate of a Beneficiary and was created for the purpose of one or more
Securitized Financings.
"Standard & Poor's" means Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., and its successors.
"State" means any state of the United States, Puerto Rico or the
District of Columbia.
"Sub-Trust" has the meaning set forth in Section 3.01(b).
"SUBI" has the meaning set forth in Section 3.01(a).
"SUBI Account" means each Trust Account created with respect to a
particular SUBI.
"SUBI Administration Supplement" means any supplement or amendment to
an Administration Agreement entered into from time to time relating to a SUBI or
SUBI Certificate, which supplement or amendment sets forth any special
responsibilities or obligations the Administrative Agent may be required to
undertake in connection therewith.
"SUBI Assets" means the SUBI Leases and SUBI Vehicles and all proceeds
arising therefrom or in connection therewith.
"SUBI Certificate" has the meaning set forth in Section 3.02(a).
"SUBI Collection Account" means a Collection Account established
pursuant to Section 4.02(a) with respect to a SUBI.
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"SUBI Lease" means a Lease that has been allocated to a SUBI pursuant
to a Securitized Financing.
"SUBI Lease Account" has the meaning set forth in Section 4.04.
"SUBI Supplement" means any supplement or amendment to this Agreement
executed from time to time in connection with the creation and issuance of a
particular SUBI.
"SUBI Vehicle" means a Vehicle that has been allocated to a SUBI
pursuant to a Securitized Financing.
"Subsidiary" means any corporation or other entity, with respect to
which capital stock or other ownership interests having ordinary voting power to
elect a majority of the board of directors, members or other Persons performing
similar functions, is at the time directly or indirectly owned by the Trust
Agent either directly or through Subsidiaries.
"Supplement" means either a UTI Supplement or a SUBI Supplement.
"Tax" or "Taxes" means any and all taxes, including but not limited to,
net income, franchise, value added, ad valorem, gross income, gross receipts,
sales, use, property (personal and real and tangible and intangible), stamp
taxes, levies, imposts, duties, charges, assessments or withholdings of any
nature whatsoever, together with any and all penalties, fines, additions to tax
and interest imposed by any federal, state, local or foreign government or
political subdivision thereof.
"Titling Grace Period" means, with respect to a Sub-Trust, the period
of time by the end of which any related Vehicles that are not yet titled in the
name of the Trust or the Trustee on behalf of the Trust must be titled in the
name of the Trust or in the name of the Trustee on behalf of the Trust as set
forth in the related Supplement in order to be included in such Sub-Trust. If a
Supplement does not contain a Titling Grace Period, no such grace period shall
apply with respect to the related Sub-Trust and the Related Trust Assets.
"Total Monthly Payment" means, with respect to any Lease, the total
monthly payment payable by the related Lessee under such Lease.
"Truck Lease and Service Agreement" or "TL&SA" means a single unitary
contract between Ryder and the Lessee that, when taken together with a Schedule
A, requires such Lessee, among other things, to make monthly payments for a
predetermined number of months in exchange for the use of one or more Vehicles
covered by such contract.
"Trust" means Ryder Truck Rental LT, and its successors.
"Trust Account" means a Collection Account, a SUBI Lease Account or
such other account as may be specified in a related Supplement or Administration
Agreement, as the context may require.
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"Trust Agency Agreement" means an agency agreement entered into
pursuant to Section 5.11(d) between the Trustee and a Trust Agent pursuant to
which a Trust Agent is appointed by the Trustee.
"Trust Agent" means U.S. Bank, in its capacity as initial Trust Agent,
and any other Person with which the Trustee contracts to act as its agent with
respect to carrying out its duties pursuant to a Trust Agency Agreement.
"Trust Asset Transfer" means the allocation, in connection with a
Securitized Financing and in accordance with the terms of the related
Securitized Financing Documents, of any Leases and Vehicles from previously
unallocated Trust Assets to a SUBI after such SUBI's initial creation; provided,
that such allocation will not, in and of itself, cause or result in an Event of
Default under such Securitized Financing Documents.
"Trust Assets" means UTI Assets or SUBI Assets, as the context may
require.
"Trust Documents" means this Agreement, the Certificate of Trust, any
Supplement, any Administration Agreement, any Administration Supplement, any
Co-Trustee Agreement and any Trust Agency Agreement.
"Trust Expenses" means, for any period, all expenses of the Trust other
than servicing compensation payable to and expenses incurred by the
Administrative Agent, including fees and expenses of the Trustee, any
co-trustee, separate trustee or nominee holder of legal title, the Trust Agent
and the Delaware Trustee (excluding Taxes payable in respect of income earned by
any thereof), and, if not paid by the Administrative Agent, Insurance Expenses
and Taxes relating to Trust Assets, in each case incurred during or with respect
to such period.
"Trust Office" means the principal office of the Trust, which initially
shall be in care of the Administrative Agent at 0000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx 00000.
"Trustee" means RTRT, Inc., a Delaware corporation, as trustee of the
Trust, and its successors.
"Trustee Stock" means the issued and outstanding capital stock of the
Trustee as of the Effective Date, together with any additional capital stock of
the Trustee that may be issued from time to time thereafter.
"UCC" means the Uniform Commercial Code as in effect in the applicable
jurisdiction.
"United States" means the United States of America, its territories and
possessions and areas subject to its jurisdiction.
"U.S. Bank" has the meaning set forth in the Preamble.
"UTI" has the meaning set forth in Section 3.01(a).
"UTI Account" means each Trust Account created with respect to the UTI.
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"UTI Administration Supplement" means any supplement or amendment to an
Administration Agreement entered into from time to time relating to the UTI or a
UTI Certificate, which supplement or amendment sets forth any special
responsibilities or obligations the Administrative Agent may be required to
undertake in connection therewith.
"UTI Assets" means: (i) cash capital; (ii) UTI Vehicles (excluding any
proceeds arising therefrom or in connection therewith, unless such proceeds
arise from UTI Leases); (iii) UTI Leases and all of Ryder's rights as Lessor
thereunder, including the right to proceeds arising therefrom or in connection
therewith; provided, however, that the Trust shall assign the right to all such
proceeds to Ryder; and (iv) the Trust's rights as lessor under the UTI Master
Lease, including rights to receive all rental payments owed to the lessor
thereunder.
"UTI Beneficiary" means (i) Ryder Truck Rental I LP or Ryder Truck
Rental II LP, each a Delaware limited partnership, each in its capacity as an
initial beneficiary of the Trust, and its permitted successors and assigns or
(ii) any other UTI Beneficiary that becomes a party to this Agreement pursuant
to Section 7.03(b).
"UTI Certificates" has the meaning set forth in Section 3.03.
"UTI Collection Account" means, with respect to the UTI, the account
created, designated and maintained as such pursuant to Section 4.02(a).
"UTI Lease" means a Lease that has not been allocated to a SUBI.
"UTI Master Lease" means that certain sale and lease agreement, dated
as of September 1, 1997, between Ryder, as lessee, and the Trust, as owner, as
amended, restated or supplemented from time to time.
"UTI Pledge" means a pledge of and a grant of a security interest in
the UTI, a UTI Certificate or any interest therein in connection with a
Securitized Financing.
"UTI Pledge Default Notice" means that the Trustee has actual knowledge
or has received notice from the Administrative Agent or the Registered Pledgee
of a UTI Pledge to the effect that there is a default with respect to a
Securitized Financing secured by such UTI Pledge.
"UTI Supplement" means any supplement or amendment to this Agreement
executed from time to time in connection with a UTI Pledge pursuant to Section
3.03.
"UTI Vehicle" means a Vehicle that has not been allocated to a SUBI.
"Vehicle" means a truck, tractor or trailer, together with all
accessories, parts and additions constituting a part thereof and all accessions
thereto, that is owned by the Trust.
Section 1.02. Interpretive Provisions. For all purposes of this
Agreement, except as otherwise expressly provided or unless the context
otherwise requires, (i) terms used herein include, as appropriate, all genders
and the plural as well as the singular, (ii) references to this Agreement
include all Exhibits hereto, (iii) references to words such as "herein",
"hereof" and the like shall refer to this Agreement as a whole and not to any
particular part, Article or Section herein, (iv) references to an Article or
Section such as "Article One" or "Section 1.01" shall refer to the applicable
Article or Section
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of this Agreement, (v) the term "include" and all variations thereof shall mean
"include without limitation", (vi) the term "or" shall include "and/or" and
(vii) the term "proceeds" shall have the meaning ascribed to such term in the
UCC.
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Article Two
THE TRUST
Section 2.01. General. The Trustee may engage, in the name of the Trust
or in its own name on behalf of the Trust, in the activities of the Trust, make
and execute contracts and other instruments on behalf of the Trust and xxx and
be sued. The parties hereto intend that the Trust be a business trust under the
Delaware Act and that this Agreement shall constitute the governing instrument
of the Trust. The Trustee shall have all rights, powers and duties set forth
herein and in the Delaware Act with respect to accomplishing the purposes of the
Trust.
Section 2.02. Offices. The principal office of the Trust, and such
additional offices as the Trustee may establish, shall be located at such place
or places, inside or outside of the State of Delaware, as the Trustee may
designate from time to time by written notice to each Beneficiary, each Holder,
each Registered Pledgee and the Administrative Agent. Initially, such principal
office shall be in care of the Administrative Agent at the Trust Office.
Section 2.03. Purposes. The purposes of the Trust are: (i) at the
direction of the UTI Beneficiaries, to take assignments and conveyances of, hold
in trust and release its ownership interest in, the Trust Assets as nominee
holder of legal title for the benefit of the Beneficiaries and the Holders, (ii)
to engage in any of the other activities described or authorized in this
Agreement, any Supplement or any amendment hereto or thereto and (iii) to engage
in any and all activities that are necessary or appropriate to accomplish the
foregoing or that are incidental thereto or connected therewith. The Trust shall
not engage in any activity other than the foregoing or other than as required or
authorized by applicable law or the Trust Documents.
Section 2.04. Conveyance of Trust Assets.
(a) The UTI Beneficiaries shall from time to time assign, transfer,
grant or convey (or cause to be assigned, transferred, granted or conveyed) to
the Trust or the Trustee on behalf of the Trust, in trust, Eligible Leases,
Vehicles and other Trust Assets. In connection therewith, the Vehicles shall be
titled in the name of the Trust or the Trustee on behalf of the Trust and the
Trustee shall accept such designation and, subject to the other terms of this
Agreement (including each applicable Supplement), shall permit the related
Certificates of Title to be issued in the name of the Trust or the Trustee on
behalf of the Trust. If so provided in an applicable Supplement, all or part of
the Vehicles allocated to a Sub-Trust may be titled in the name of the Trust or
the Trustee on behalf of the Trust during a Titling Grace Period. Legal title to
all Trust Assets shall be vested in the Trust or the Trustee on behalf of the
Trust as a separate legal entity except to the extent otherwise specifically
provided herein or in any other Trust Document or where applicable state law
requires any Trust Asset to be vested otherwise, in which case the Trustee
shall, at the direction of the UTI Beneficiaries or the Administrative Agent,
cause legal title to be held as required thereby.
(b) The Trustee hereby accepts and agrees to hold in trust all Trust
Assets conveyed to it hereunder, for the use and benefit of, and as nominee
holder of legal title for, the Beneficiaries and the Holders and their
respective successors and assigns as may be designated
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pursuant to the terms hereof or as may otherwise succeed to the rights of a
Beneficiary or Holder hereunder.
Section 2.05. Document Execution and Performance. The Grantors and the
Beneficiaries hereby authorize and direct the Trustee, and the Trustee hereby
agrees, to: (i) at the request of the UTI Beneficiaries or the Administrative
Agent, execute and deliver all agreements, instruments or documents necessary or
advisable to accept the designation as nominee holder of legal title to Leases,
Vehicles and other Trust Assets as described herein and cause the related
Certificates of Title to be in the name of the Trust or the Trustee on behalf of
the Trust; (ii) take action that is required or authorized to be taken by the
Trustee pursuant to applicable law as specified in the Trust Documents; (iii)
exercise its rights and perform its duties as Trustee as specified in the Trust
Documents; (iv) at the direction of the Related Beneficiary and the
Administrative Agent (and, with respect to Trust Assets that are the subject of
a Securitized Financing, subject to any additional requirements imposed by the
related Securitized Financing Documents), (a) release, discharge, sell, assign,
transfer, pledge, convey or otherwise dispose of any right, title or interest in
and to any portion of the Related Trust Assets, (b) amend or revoke the terms
hereof with respect to all or any portion of the Related Trust Assets and (c)
enter into any agreements or instruments affecting all or any portion of the
Related Trust Assets or affecting any other provision hereof; and (v) appoint
the Administrative Agent as the attorney-in-fact for the Trust as contemplated
hereby or by any Administration Agreement and direct the Administrative Agent to
perform such administrative duties on behalf of the Trust as are set forth
herein and therein.
Section 2.06. Securitization Holders. To the extent that any entity
becomes a Securitization Holder, (i) such Securitization Holder shall exercise
its rights as a Holder hereunder only as directed or authorized pursuant to the
related Securitized Financing Documents and (ii) except with respect to a Claim
based on such Securitization Holder's willful misconduct, bad faith or
negligence, or to the extent otherwise expressly provided in such Securitized
Financing Documents, no recourse shall be had against the institution serving as
such Securitization Holder.
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Article Three
BENEFICIAL INTERESTS IN THE TRUST
Section 3.01. Creation of UTI; UTI Pledges.
(a) Subject to Section 3.02, as directed in writing by the UTI
Beneficiaries from time to time, the Trustee shall establish one or more
"special units of beneficial interest" in the Trust (each, a "SUBI") and
allocate or cause to be allocated to each such SUBI on the books and records of
the Trust such SUBI Assets as shall be identified by the UTI Beneficiaries. Each
SUBI shall be established pursuant to a SUBI Supplement and shall have the name
and initial Related Beneficiary designated by the UTI Beneficiaries. The Trustee
shall hold the related SUBI Assets for the benefit of the Holders from time to
time of the related SUBI Certificates. All Trust Assets that have not been
allocated from time to time to a SUBI shall be identified on the books and
records of the Trust as being allocated to the beneficial interest in the Trust
constituting the "undivided trust interest" (the "UTI"). The Trustee shall hold
the UTI Assets for the benefit of the Holders from time to time of the UTI
Certificates.
(b) The UTI and each SUBI shall each constitute a separate series of
the Trust pursuant to Section 3806(b)(2) of the Delaware Act (each, a
"Sub-Trust"). The Administrative Agent shall maintain separate records for each
Sub-Trust, and the Related Trust Assets shall be held and accounted for
separately from Trust Assets allocated to any other Sub-Trust. Subject to the
right of the Trustee to allocate certain Liabilities, costs, charges and
reserves as may be provided in the Supplements, and in accordance with Section
3804(a) of the Delaware Act or to the extent otherwise permitted by applicable
law, all debts, Liabilities and obligations incurred, contracted for or
otherwise existing with respect to a Sub-Trust shall be enforceable against the
Related Trust Assets only, and not against Trust Assets allocated to any other
Sub-Trust. Every note, bond, contract or other undertaking issued by or on
behalf of a Sub-Trust (including each related Certificate) shall include a
recitation limiting the obligation represented thereby to the related Sub-Trust
and the Related Trust Assets. The Certificate of Trust shall include notice of
the limitation of liabilities of each Sub-Trust in accordance with Section
3804(a) of the Delaware Act. Except as otherwise provided for in this Agreement
or a Supplement, all payments made on or in respect of the Trust Assets
allocated to each Sub-Trust shall be paid to or upon the order of the Holders of
Certificates relating to such Sub-Trust.
(c) Except as provided in Section 7.03(b), neither the UTI nor any UTI
Certificate shall be transferred or assigned and, to the fullest extent
permitted by applicable law, any such purported transfer or assignment shall be
deemed null, void and of no effect under this Agreement. Notwithstanding the
foregoing, the UTI or one or more UTI Certificates may be pledged in connection
with a Securitized Financing, and a security interest therein granted, and may
be transferred or assigned absolutely to or by the pledgee thereof solely in
connection with the exercise of remedies with respect to an Event of Default
under or with respect to such Securitized Financing; provided, that any such
pledgee must (i) give a non-petition covenant substantially similar to that set
forth in Section 8.07 and (ii) execute an agreement in favor of the Holders from
time to time of any SUBI Certificates to release all Claims to the related SUBI
Assets and, in the event that such release is not given effect, to fully
subordinate all Claims such pledgee may be deemed to have against such SUBI
Assets.
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Section 3.02. SUBI Certificates.
(a) Upon allocation to a SUBI, the related SUBI Assets shall no longer
be UTI Assets unless and until reallocated to the UTI. Each SUBI shall
constitute a beneficial interest solely in the related SUBI Assets, and shall be
represented by one or more Certificates (each, a "SUBI Certificate") issued
pursuant to a SUBI Supplement. The Trustee shall deliver each SUBI Certificate
to or upon the order of the UTI Beneficiaries. Each SUBI Certificate and the
interest in the SUBI evidenced thereby shall constitute a "security" within the
meaning of Section 8-102(15) of the UCC.
(b) Notwithstanding anything to the contrary contained in this Section,
if a UTI Pledge exists, the Trustee shall create a new SUBI and issue to or upon
the order of the UTI Beneficiaries a new SUBI and one or more related SUBI
Certificates only (i) upon receipt of an Officer's Certificate of the UTI
Beneficiaries, dated as of the date of issuance of the related SUBI Certificate,
to the effect that after giving effect to the creation of such SUBI, the
transfer to the Related Beneficiary (and, if applicable, a Special Purpose
Affiliate) of any SUBI Certificate in connection therewith and the application
by such Related Beneficiary (and, if applicable, a Special Purpose Affiliate) of
any net proceeds from any Securitized Financing involving such SUBI and SUBI
Certificate, no Event of Default under any Securitized Financing secured by a
UTI Pledge has occurred and is continuing and (ii) provided that, as of the date
of issuance of such SUBI Certificate, the Trustee shall not have received a UTI
Pledge Default Notice.
(c) Each SUBI Certificate shall contain (i) an express waiver of any
Claim by the Holder thereof to any proceeds or assets of the Trustee and to all
Trust Assets other than those from time to time allocated to the related SUBI as
SUBI Assets and (ii) an express subordination in favor of the Holder of any
Other SUBI Certificate or a UTI Certificate by the Holder of such SUBI
Certificate of any Claim to any Other SUBI Asset or UTI Asset, respectively,
that, notwithstanding such waiver, may be determined to exist.
(d) No SUBI or SUBI Certificate shall be transferred or assigned except
to the extent specified in this Agreement or in any related Supplement and, to
the fullest extent permitted by applicable law, any such purported transfer or
assignment other than as so specified shall be deemed null, void and of no
effect under this Agreement. Notwithstanding the foregoing, any SUBI Certificate
and the interest in the SUBI evidenced thereby may be (i) transferred, assigned
or pledged to any Special Purpose Affiliate or (ii) transferred, assigned or
pledged by the Related Beneficiary or a Special Purpose Affiliate to or in favor
of (A) a trustee for one or more trusts or (B) one or more other entities, in
either case solely for the purpose of securing or otherwise facilitating one or
more Securitized Financings. Notwithstanding the foregoing, the related
transferee, assignee or pledgee in each case must (i) give a non-petition
covenant substantially similar to that set forth in Section 8.07 and (ii)
execute an agreement in favor of each Holder from time to time of a UTI
Certificate and any Other SUBI Certificate to release all Claims to the UTI
Assets and the related Other SUBI Assets, respectively, and, in the event such
release is not given effect, to fully subordinate all Claims it may be deemed to
have against the UTI Assets or such Other SUBI Assets, as the case may be.
(e) The UTI Beneficiaries shall at all times maintain a minimum
collective net worth (excluding the value of any UTI Certificates of which the
UTI Beneficiaries are the Holders)
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equal to 10% of the net Capital Contributions made by all UTI Beneficiaries to
the UTI. Each Related Beneficiary and related Special Purpose Affiliate shall
maintain such minimum collective net worth or interest in a SUBI as may be
required by the related SUBI Supplement. For the purposes of this paragraph, all
Trust Assets conveyed as or acquired with the proceeds of Capital Contributions
pursuant to Section 2.04(a) shall be deemed Capital Contributions to the
Sub-Trust to which such Trust Assets are allocated as of the date on which the
related net worth calculation is made.
(f) Each SUBI shall be created pursuant to a SUBI Supplement, which
shall amend this Agreement only with respect to the SUBI to which it relates.
Section 3.03. UTI Certificates. The UTI shall initially be represented
by two Certificates (the "UTI Certificates") respectively representing a 99%
(registered in the name of Ryder Truck Rental I LP) and a 1% (registered in the
name of Ryder Truck Rental II LP) ownership interest in the UTI. The Trustee
shall deliver to or upon the order of each UTI Beneficiary its respective UTI
Certificate. Notwithstanding the foregoing and subject to Section 3.01(c), at
the request of any UTI Beneficiary (but only with the consent of the Registered
Pledgee of any UTI Pledge), the UTI may be represented by one or more additional
Certificates that in the aggregate represent the entire UTI. Any such additional
Certificates shall be issued pursuant to a UTI Supplement, which may specify any
terms or conditions relevant to the issuance thereof. Each UTI Certificate shall
be substantially in the form of Exhibit B hereto, with such appropriate
insertions, omissions, substitutions and other variations as are required by
this Agreement, and may have such letters, numbers or other marks of
identification and such legends and endorsements consistent with this Agreement
as may be directed by the UTI Beneficiaries. Each UTI Certificate and the
interest in the UTI evidenced thereby shall constitute a "security" within the
meaning of Section 8-102(15) of the UCC. Any portion of a UTI Certificate may be
set forth on the reverse thereof, in which case the following text shall be
inserted on the face thereof, in relative proximity to and prior to the
signature of the Trustee executing such UTI Certificate:
Reference is hereby made to the further provisions of this UTI
Certificate set forth on the reverse hereof, which provisions shall for
all purposes have the same effect as if set forth at this place.
Each UTI Certificate shall be printed, lithographed, typewritten, mimeographed,
photocopied or otherwise produced in any manner as may, consistently with this
Agreement, be determined by the UTI Beneficiaries.
Section 3.04. Registration and Transfer of Certificates; Validity.
(a) The Trustee shall keep or cause to be kept at the corporate trust
office of the Trustee (or the Trust Agent, if applicable) sufficient books for
the registration of transfer or pledge of Certificates, which shall at all times
be open to inspection by the Related Beneficiaries and the related Holders.
Subject to Sections 3.01(c) and 3.02(d) and any other restrictions on transfer
or pledge specified in a related Certificate or related Supplement, upon
presentation for such purpose, provided that the requirements of Section 8-401
of the UCC have been met, the Trustee shall, under such reasonable regulations
as it may prescribe, register or cause to be registered on such books the
transfer or pledge of such Certificate, accompanied by a written
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instrument of transfer or pledge conforming to the requirements specified in
such Certificate, presented for registration of transfer or pledge by the Holder
thereof in conformity with such additional requirements as may be specified in
such Certificate.
(b) A Certificate bearing the manual or facsimile signatures of
individuals who were at the time such signatures were affixed authorized to sign
on behalf of the Trust shall be validly issued and entitled to the benefits of
this Agreement, notwithstanding that such individuals or any of them shall have
ceased to be so authorized prior to the authentication and delivery of such
Certificate or did not hold such offices at the date of such Certificate.
Section 3.05. Beneficiaries; Action Upon Instruction.
(a) A Beneficiary may be a Holder of a Certificate relating to any
Sub-Trust and thereby acquire all rights accorded to a Holder under this
Agreement, any related Supplement or any other applicable Trust Document,
subject to such restrictions on voting or other rights as may be contained
therein.
(b) Subject to Article Five, each Beneficiary may direct the Trustee to
take action or refrain from taking action with respect to the Related Trust
Assets, except to the extent such action or inaction would conflict with any
other provision of this Agreement, the other Trust Documents or any related
Securitized Financing Documents. Such direction shall be accompanied by an
Officer's Certificate of such Beneficiary delivered to the Trustee certifying
that such direction is authorized by or not in conflict with this Agreement, the
other Trust Documents or any related Securitized Financing Documents. Such
action may include, among other things, delivering or distributing to or upon
the order of the Related Beneficiary all or any number of related Leases or
Vehicles or other Related Trust Assets.
Section 3.06. Filings. The Grantors, the Beneficiaries and the Trustee
shall undertake all other and future actions and activities as may be deemed
reasonably necessary by the Administrative Agent or a Related Beneficiary to
perfect (or evidence) and confirm the foregoing allocations of Trust Assets to
the UTI and any SUBIs, including filing or causing to be filed UCC financing
statements and executing and delivering any related filings, documents or
writings hereunder or under the other Trust Documents or any related Securitized
Financing Documents. Notwithstanding the foregoing, except as otherwise provided
in a Supplement or any related Securitized Financing Documents, in no event
shall the Grantors, any Beneficiary or the Trustee be required to take any
action to perfect (i) any allocation of UTI Assets in connection with a UTI
Pledge or (ii) any security interest that may be deemed to be held by any Person
in any UTI Vehicle. The Grantors and the Beneficiaries each hereby revocably
makes and appoints each of the Trustee and the Administrative Agent, and any of
their respective officers, employees or agents, as its true and lawful
attorney-in-fact (which appointment is coupled with an interest and is revocable
but, in the case of the Administrative Agent, only for so long as such
Administrative Agent is acting in such capacity) with power to sign on behalf of
the Grantors or the Beneficiaries any financing statements, continuation
statements, security agreements, mortgages, assignments, affidavits, letters of
authority, notices or similar documents necessary or appropriate to be executed
or filed pursuant to this Section.
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Section 3.07. Allocation of Expenses and Indemnification.
(a) Except as otherwise provided in a Supplement, the UTI Beneficiaries
shall be liable for all Liabilities arising with respect to the UTI Assets or
the operation of the UTI; provided, however, that any Liability of the Grantors
with respect to any Securitized Financing shall be as set forth in the related
Securitized Financing Documents. To the extent that a Grantor (or its general
partner, if such Grantor is a partnership) shall have paid or suffered any
Liability with respect to the UTI Assets or the operation of the UTI, and to the
extent such Liability was not caused by the willful misconduct or bad faith of
such Grantor (or such general partner, if such Grantor is a partnership), such
Grantor shall be indemnified, defended and held harmless out of the UTI Assets
in accordance with Section 3.07(b) against any such Liability (including
reasonable attorneys' and other professionals' fees and expenses).
(b) Notwithstanding any other provision of this Agreement or any other
Trust Document, to the extent that a Liability shall be incurred or suffered
with respect to, or is attributable to, any Trust Assets (the "Affected Trust
Assets") allocated to one or more Sub-Trusts, each such Sub-Trust shall, from
and to the extent of monies from time to time on deposit in the related
Collection Accounts, bear in full such Liability pro rata in the ratio of the
aggregate Cash Value of the Affected Trust Assets in all such Sub-Trusts and, in
accordance with Section 3804(a) of the Delaware Act, all other Sub-Trusts shall
bear none of such Liability; provided, however, that to the extent any such
Liability is suffered with respect to all Trust Assets generally, each Sub-Trust
shall, from and to the extent of monies from time to time on deposit in the
related Collection Accounts, bear such Liability in proportion to the ratio of
the aggregate Cash Value of the Trust Assets in such Sub-Trust to the aggregate
Cash Value of all Trust Assets. In each case in which more than one Sub-Trust is
to bear any such Liability, the Trustee shall, at the direction of the
Administrative Agent, transfer periodically from each related Collection Account
to the UTI Collection Account or such Trust Account as may be designated by a
related SUBI Supplement, as the case may be, the share of such Liability borne
by each such Sub-Trust.
(c) If, notwithstanding the provisions of this Agreement and Section
3804 of the Delaware Act, a third party Claim against the Trust Assets is
satisfied out of the Trust Assets in proportions other than as provided in
Section 3.07(b), then, notwithstanding anything to the contrary contained
herein, the Administrative Agent shall promptly identify and reallocate (or
cause the Trustee to identify and reallocate) the remaining Trust Assets among
each Sub-Trust such that each Sub-Trust shall bear the expense of such Claim as
nearly as possible as if such Claim had been allocated as provided in Section
3.07(b).
Section 3.08. Insurance Policies.
(a) Except as otherwise provided in a Supplement, the Related
Beneficiary (or Special Purpose Affiliate, if applicable) shall cause to be
maintained, and no Beneficiary or Special Purpose Affiliate shall, without the
prior written consent of the Administrative Agent of the Related Trust Assets,
which consent may not be unreasonably withheld, cause the termination of one or
more excess liability or umbrella Insurance Policies providing coverage against
third party Claims that may be raised against the Trust, the Trustee on behalf
of the Trust or the Trust Agent with respect to each Vehicle, including vehicle
liability coverage in an
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amount at least equal to $5 million per occurrence (which policy may be a
blanket Insurance Policy covering the Related Beneficiary or Special Purpose
Affiliate, as applicable, and one or more Affiliates).
(b) The Related Beneficiary or Special Purpose Affiliate, as
applicable, shall cause each Insurance Policy required to be maintained by it
pursuant to this Section to name the Trust or the Trustee on behalf of the Trust
as an additional insured or loss payee.
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Article Four
PAYMENTS; TRUST ACCOUNTS
Section 4.01. Payments from Trust Assets Only.
(a) Except as otherwise provided in this Agreement and the other Trust
Documents, all payments, if any, to be made by the Trustee other than amounts
(i) owing by the Trustee arising from its willful misfeasance, bad faith or
negligence or (ii) advanced by the Administrative Agent, shall be made only from
any then available Trust Assets, and only to the extent the Trustee shall have
received income or proceeds therefrom to make such payments in accordance with
the terms hereof.
(b) Except as otherwise provided in this Agreement and the other Trust
Documents, all amounts payable to a Holder shall be paid or caused to be paid by
the Trustee or the Administrative Agent, as the case may be, to or for the
account of such Holder in immediately available funds by wire transfer.
Section 4.02. Trust Accounts.
(a) The Trustee shall establish and maintain with respect to each
Sub-Trust (i) a collection account (each, a "Collection Account") and (ii) such
other Trust Accounts as are specified in a related Supplement or Administration
Agreement. Except as otherwise provided in a related Supplement or
Administration Agreement, each of such Trust Accounts shall be a segregated
trust account established and maintained with the Trustee or the Trust Agent in
the name of the Trustee, provided that the Trustee or the Trust Agent, as the
case may be, maintains the Required Deposit Rating. Except as otherwise provided
in this Agreement, the other Trust Documents and any applicable Securitized
Financing Documents, none of the Grantors, the Administrative Agent, the
Beneficiaries, any Special Purpose Affiliate or any Holder shall have any right
to withdraw funds from any Trust Account without the express written consent of
the Trustee; provided, however, that the Trustee, with the express written
consent of the Related Beneficiary or a Special Purpose Affiliate (if
applicable), shall so consent as to each Trust Account to the extent provided
for in any Supplement, Administration Supplement or related Securitized
Financing Documents. The Trustee may authorize the Related Beneficiary, any
Special Purpose Affiliate (if applicable) or any Administrative Agent to make
deposits into and disbursements from any Trust Account in accordance with the
terms and provisions of this Agreement, the other Trust Documents and any
related Securitized Financing Documents. All amounts held in the Trust Accounts
shall be invested by the Trustee at the direction of the Administrative Agent in
Permitted Investments until distributed or otherwise applied in accordance with
this Agreement, the other Trust Documents or any related Securitized Financing
Documents. Except as otherwise provided herein or in a related Supplement or
Administration Agreement, all earnings from the investment of monies in a Trust
Account shall be deposited upon receipt into such Trust Account and any Loss on
such investment shall be charged to such Trust Account. If the Trustee or the
Trust Agent, as the case may be, at any time does not have the Required Deposit
Rating, the Administrative Agent shall, with the assistance of the Trustee or
the Trust Agent, as necessary, cause the related Trust Account to be moved to a
depository
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institution or trust company that (i) is organized under the laws of the United
States or any State and (ii) has the Required Deposit Rating.
(b) Each SUBI Account shall relate solely to the related SUBI and each
UTI Account shall relate solely to the UTI, and any funds therein shall not be
commingled with any other monies, except as otherwise provided for or
contemplated in this Agreement, the other Trust Documents or any applicable
Securitized Financing Documents. The Trustee shall account for and record
separately all amounts received by the Trustee relating to each Trust Account
from the Related Trust Assets and proceeds relating thereto.
Section 4.03. Distribution of Funds; Default with Respect to UTI
Pledge.
(a) Except as otherwise provided in any Administration Agreement, the
Trustee, promptly upon receipt of an Officer's Certificate of the Administrative
Agent as to the amount of Excess Funds, shall pay to the Holders of the UTI
Certificates, upon the request of such Holders, any or all Excess Funds so
requested.
(b) In the event of a UTI Pledge Default Notice, the Trustee shall (i)
not create any new SUBI and (ii) direct the Administrative Agent to ensure that
no additional Leases or Vehicles are assigned to the Trust (other than (A) as
provided for in Section 4.04 or (B) those Leases and Vehicles the initial net
investment value of which on the books of the Trust does not exceed the sum of
any capital contributions made to the Grantors (and Capital Contributions made
by the Grantors) specifically to fund the acquisition by the Trust of such
Leases and Vehicles for allocation to the UTI).
Section 4.04. SUBI Lease Accounts. In the event that for any reason
(i)(a) one or more different Administrative Agents shall be engaged to service
one or more Sub-Trusts or (b) circumstances with respect to any Securitized
Financing secured by a UTI Pledge are such that (1) there has been a UTI Pledge
Default Notice or (2) the Trustee has given the Administrative Agent notice that
a Trust Asset Transfer into one or more SUBIs would cause an Event of Default to
occur in any Securitized Financing secured by such UTI Pledge and (ii) at such
time the Trustee, acting pursuant to any SUBI Supplement and at the direction of
the Related Beneficiary, would otherwise be causing the Administrative Agent to
effect Trust Asset Transfers from the UTI into one or more SUBIs: (a) the
Trustee shall establish and maintain in its name for each SUBI a separate "SUBI
Lease Account", each of which shall be a Trust Account and a SUBI Account; (b)
to the extent the Trustee would, but for clause (i) above, cause the transfer of
funds from any SUBI Collection Account to the UTI Collection Account in
connection with any Trust Asset Transfer, the Trustee shall instead cause the
transfer of such funds from such SUBI Collection Account to the related SUBI
Lease Account; (c) the Trustee shall direct the Administrative Agent then
servicing the related SUBI to acquire on behalf of the Trust, for the account of
such SUBI rather than for the UTI, Leases and Vehicles; and (d) the Trustee
shall apply any such funds in any such SUBI Lease Account directly to reimburse
the Administrative Agent then servicing such SUBI for any payments made by it to
honor drafts in respect of such Leases and Vehicles. In the event Leases and
Vehicles are being acquired by any Administrative Agent on behalf of the Trust
both with respect to the UTI and any SUBI simultaneously, then the Trustee shall
first allocate all such Leases and Vehicles to such SUBI
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until funds available for such purpose in the related SUBI Lease Account are
exhausted, and shall then allocate all remaining Leases and Vehicles to the UTI.
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Article Five
THE TRUSTEE
Section 5.01. Duties and Powers of Trustee.
(a) The Trustee undertakes to perform such duties and engage in such
activities, and only such duties and activities, as are specified in this
Agreement, in any other Trust Document or as may be directed from time to time
by the Related Beneficiary in a manner not contrary to the terms hereof or
thereof from time to time, including in connection with (i) a Securitized
Financing; (ii) sales or pledges of Leases, Vehicles and other Trust Assets to
the extent permitted by the terms of the related Securitized Financings
(provided that the Certificate of Title to any Vehicle so sold is amended to
reflect the transfer of ownership thereof from the Trust or the Trustee on
behalf of the Trust, unless applicable law permits the transfer of ownership of
a vehicle without an amendment to such vehicle's certificate of title); and
(iii) activities ancillary thereto. The Trustee shall have such powers as are
necessary and appropriate to the conduct of its duties as set forth in this
Agreement and any Supplement.
(b) Except as otherwise provided in this Agreement and the other Trust
Documents, neither the Trust nor the Trustee shall: (i) issue interests in or
securities of the Trust, other than the UTI, the UTI Certificates, one or more
SUBIs and any SUBI Certificates; (ii) borrow money, except from Ryder or the UTI
Beneficiaries in connection with funds used to acquire Leases and Vehicles;
(iii) make loans; (iv) invest in or underwrite securities; (v) offer securities
in exchange for Trust Assets (other than Certificates); (vi) repurchase or
otherwise reacquire any Certificate (other than for purposes of cancellation)
except as permitted by or in connection with any Securitized Financing; or (vii)
grant any security interest in or Lien upon any Trust Assets.
(c) At the direction of the Related Beneficiary or the Administrative
Agent, the Trustee shall undertake the following ministerial activities: (i)
apply for and maintain (or cause to be applied for and maintained) all licenses,
permits and authorizations necessary or appropriate to carry on its duties as
Trustee hereunder in each jurisdiction that the Related Beneficiary or the
Administrative Agent deems appropriate; (ii) when required by applicable state
law or administrative practice, file (or cause to be filed) applications for
Certificates of Title as are necessary or appropriate so as to cause the Trust
or the Trustee on behalf of the Trust to be recorded as the holder of legal
title of record to the Vehicles (and execute and deliver to the Administrative
Agent a power of attorney sufficient to allow the Administrative Agent to so
record the Trust or the Trustee on behalf of the Trust as the holder of legal
title to such Vehicles); (iii) file (or cause to be filed), in each jurisdiction
that the Related Beneficiary or the Administrative Agent deems appropriate,
notice reports and other required filings; (iv) be the assignee of the original
lessor with respect to the Leases; and (v) pay (or cause to be paid) all
applicable taxes and fees properly due and owing in connection with the
Trustee's activities. The Administrative Agent or the Related Beneficiary, as
applicable, shall pay, or make an advance to the Trustee to pay, the costs and
expenses of the foregoing, subject to reimbursement to the extent provided in a
related Administration Agreement.
(d) The Trustee shall establish accounts and receive, maintain, invest
and disburse funds in accordance with Article Four and the other Trust
Documents.
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(e) The Trustee, upon receipt of each resolution, certificate,
statement, opinion, report, document, order or other instrument furnished to the
Trustee as shall be specifically required to be furnished pursuant to any
provision of the Trust Documents, shall examine such instrument to determine
whether it conforms to the requirements of the Trust Documents.
(f) Neither the Administrative Agent nor any Beneficiary shall take, or
direct the Trustee to take, any action that (i) is inconsistent with the
purposes of the Trust as set forth in Section 2.03 or (ii) would result in the
treatment of the Trust for federal income tax purposes as an association (or a
publicly traded partnership) taxable as a corporation.
(g) The Trustee agrees to perform or cause to be performed the
obligations of the Trust, the Trustee and the Trustee on behalf of the Trust as
set forth in any Administration Agreement or other Trust Document to which the
Trust is a party, on the terms and subject to the conditions set forth therein.
Section 5.02. Duty of Care.
(a) Except during the continuance of an Event of Default, the Trustee
need perform only those duties specifically set forth in this Agreement and the
other Trust Documents. During the continuance of an Event of Default, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and the other Trust Documents and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such prudent person's own affairs. No provision
of this Agreement shall be construed to relieve the Trustee from Liability for
its own negligent action, its own negligent failure to act, its own bad faith or
its own willful misconduct; provided, however, that the Trustee shall not be
personally liable:
(i) for any action taken, suffered or omitted by it or any
error of judgment, in each case made in good faith by any Responsible
Officer of the Trustee or the Trust Agent customarily performing
functions similar to those performed by such officers or to whom any
corporate trust matter is referred because of such individual's
knowledge of or familiarity with the particular subject, unless it
shall be proved that the Trustee or Trust Agent was negligent or acted
with bad faith or willful misconduct in performing its duties in
accordance with the terms of this Agreement; and
(ii) with respect to any action taken, suffered or omitted to
be taken in good faith in accordance with the express direction of (A)
to the extent relating to the UTI, a UTI Beneficiary or any Registered
Pledgee of a UTI Pledge or (B) to the extent relating to a SUBI, the
Holder or Registered Pledgee of a related SUBI Certificate, in each
case only to the extent such Registered Pledgee is authorized to give
such direction, in connection with a Securitized Financing relating to
the exercise of any power conferred upon the Trustee under this
Agreement.
(b) Notwithstanding Section 5.02(a), the Trustee shall not be required
to expend or risk its own funds or otherwise incur Liability in the performance
of any of its duties under this Agreement or the other Trust Documents, or in
the exercise of any of its rights or powers, if there shall be reasonable
grounds for believing that the repayment of such funds or adequate indemnity
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against such risk or Liability is not reasonably assured to it, and none of the
provisions contained herein or therein shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any of the
obligations of an Administrative Agent hereunder or under any Administration
Agreement except during such time, if any, as the Trustee shall be successor to,
and be vested with the rights, duties, powers and privileges of, the
Administrative Agent in accordance with this Agreement or any other Trust
Document.
(c) Except as otherwise authorized by the Trust Documents, the Trustee
shall take no action as to which it has been notified by a Beneficiary or a
Special Purpose Affiliate, or has actual knowledge, that such action would
impair the beneficial interests in the Trust, impair the value of any Trust
Asset or adversely affect the rating of any Rated Securities.
(d) All information obtained by the Trustee regarding the other parties
hereto or any of their respective Affiliates or the administration of the Trust,
the Lessees, the Vehicles or the Leases, whether upon the exercise of its rights
under this Agreement, any other Trust Document or otherwise, shall be maintained
by the Trustee in confidence and shall not be disclosed to any Person other than
to the Trust Agent, the Grantors, the Beneficiaries, the Administrative Agent or
any Special Purpose Affiliate, unless such disclosure is required by any
applicable law or regulation or pursuant to valid legal process, or unless such
information is already otherwise publicly available.
Section 5.03. Certain Matters Affecting the Trustee. Except as
otherwise provided in this Agreement:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties; provided, that it shall be obligated to examine any
certificates or opinions specifically required to be furnished to it
pursuant to the Trust Documents to determine whether they conform to
the requirements of this Agreement or the other Trust Documents, as
applicable. In particular, whenever any Trust Document provides that
the Trustee shall receive or may rely upon the instructions or
directions of a Beneficiary or a Holder, any written instruction or
direction purporting to bear the signature of any officer of such
Beneficiary or Holder reasonably believed by the Trustee to be genuine
may be deemed by the Trustee to have been signed or presented by the
proper party.
(b) The Trustee may consult with counsel, and any opinion of
counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in
good faith and in accordance with such opinion of counsel.
(c) Subject to Section 5.02(a), the Trustee shall be under no
obligation to exercise any of the discretionary rights or powers vested
in it by this Agreement or by any other Trust Document, or to
institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of one or more Beneficiaries
or Holders pursuant to this Agreement or any other Trust Document,
unless such requesting Person
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shall have offered the Trustee reasonable security or indemnity against
any Liability, including reasonable fees and expenses of counsel, that
may be incurred therein or thereby.
(d) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing to do so by one or more Beneficiaries or Holders.
Notwithstanding the foregoing, if the payment within a reasonable time
to the Trustee of the Liability likely to be incurred by it in the
making of such investigation is, in the opinion of the Trustee, not
reasonably assured to it by the security afforded it by the terms of
this Agreement or any other Trust Document, the Trustee may require
reasonable indemnity against such Liability as a condition to so
proceeding. The reasonable Liability relating to each such examination
shall be paid by the Person requesting such examination or, if paid by
the Trustee, shall be reimbursed as a Trust Expense.
(e) The Trustee may execute any of the trusts or powers or
perform any duties under this Agreement or under the other Trust
Documents either directly or by or through agents, attorneys, Trust
Agents or custodians and shall not be liable for the negligence or
willful misconduct of such agents, attorneys, Trust Agents or
custodians appointed with due care.
(f) The Trustee shall make a copy of this Agreement available
for examination by the Holders and the Beneficiaries during normal
business hours at the address specified in Section 8.03(iv), or at such
other address as shall be designated by the Trustee in a written notice
in accordance with Section 8.03(xi).
Section 5.04. Trustee Not Liable for Certificates or Leases. The
Trustee shall not have any obligation to perform any of the duties of the
Grantors or the Administrative Agent unless explicitly set forth in this
Agreement or any other Trust Document to which the Trustee is a party. The
Trustee shall not at any time have any responsibility or Liability for or with
respect to: (i) the legality, validity and enforceability of any security
interest in any Trust Asset; (ii) the perfection or priority of such a security
interest or the maintenance of any such perfection and priority; (iii) the
efficacy of the Trust or its ability to generate the payments to be distributed
to the Holders under the Trust Documents, including the existence, condition,
location and ownership of any Trust Asset; (iv) the existence and enforceability
of any Insurance Policy; (v) the existence and contents of any Lease or any
computer or other record thereof; (vi) the validity of the assignment of any
Trust Asset to the Trust or the Trustee on behalf of the Trust or of any
intervening assignment; (vii) the completeness, performance or enforcement of
any Lease; (viii) the compliance by the Grantors or the Administrative Agent
with any covenant or the breach by a Grantor, any Beneficiary or the
Administrative Agent of any warranty or representation in any Trust Document and
the accuracy of any such warranty or representation prior to the Trustee's
receipt of notice or other discovery of any noncompliance therewith or any
breach thereof; (ix) any investment of monies at the direction of the
Administrative Agent or any Loss resulting therefrom; (x) the acts or omissions
of any Person in connection with the origination of any Lease; (xi) any action
of the Administrative Agent taken in the name of the Trustee; or (xii) any
action by the Trustee taken at the instruction of the Administrative Agent;
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provided, however, that the foregoing shall not relieve the Trustee of its
obligation to perform its duties under this Agreement or the other Trust
Documents to which the Trustee is a party. Except with respect to a Claim based
on the Trustee's willful misconduct, bad faith or negligence, (i) no recourse
shall be had against the institution serving as Trustee in its individual
capacity for any Claim based on any provision of this Agreement or any such
other Trust Document, a Certificate or any Trust Asset or assignment thereof and
(ii) the Trustee shall not have any personal obligation, Liability or duty
whatsoever to any Holder or any other Person with respect to any such Claim, and
any such Claim shall be asserted solely against the Trust Assets or any
indemnitor that shall furnish indemnity as provided for in this Agreement or in
the other Trust Documents. The Trustee shall not be accountable for the use or
application by a Holder or a Special Purpose Affiliate of any Certificate or the
proceeds thereof, or for the use or application of any funds properly paid to
the Administrative Agent pursuant to any Administration Agreement.
Section 5.05. Indemnification of Trustee and Trust Agents. The Trustee
(and the Trust Agent, as applicable) shall be indemnified and held harmless out
of and to the extent of the Trust Assets with respect to any Loss incurred by
the Trustee arising out of or incurred in connection with (i) any Trust Assets
(including any Loss relating to Leases, Vehicles, misrepresentation or deceptive
and unfair trade practices, and including any other Loss relating to personal
injury or property damage Claims arising with respect to any Vehicle or any Loss
relating to any Tax arising with respect to any Trust Asset) or (ii) acceptance
or performance by the Trustee of the trusts and duties contained in this
Agreement or any other Trust Document, with any allocation of such
indemnification among the Trust Assets to be made as provided for in Section
3.07 or in a Supplement; provided, however, that the Trustee shall not be
indemnified or held harmless out of the Trust Assets as to any such Loss (a) for
which the Administrative Agent shall be liable pursuant to Section 6.02 or a
corresponding section of any Supplement (unless (1) the Administrative Agent
would be entitled to reimbursement of such Loss from Trust Assets pursuant to a
related Administration Agreement or (2) the Administrative Agent shall not have
paid such Loss upon the final determination of its liability therefor), (b)
incurred by reason of the Trustee's willful misconduct, bad faith or negligence
or (c) incurred by reason of the Trustee's breach of Section 5.07(a)(i), Section
5.12 or its representations and warranties pursuant to any Administration
Agreement.
Section 5.06. Trustee's Right Not to Act. Notwithstanding anything to
the contrary contained herein, the Trustee shall have the right to decline to
act in any particular manner otherwise provided for herein or in the other Trust
Documents if the Trustee, being advised in writing by counsel, determines in
good faith that such action may not lawfully be taken or would subject it to
personal Liability or be unduly prejudicial to the rights of any Holder; and
provided further, that nothing in this Agreement shall impair the right of the
Trustee to take any action deemed proper by it that is not inconsistent with
such otherwise required acts.
Section 5.07. Qualification of Trustee.
(a) Except as otherwise provided in this Agreement, the Trustee shall
at all times be (i) a corporation organized under the laws of any State or the
United States (which corporation shall not be a Beneficiary or any Affiliate
thereof), (ii) qualified to do business in the States
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requested in writing by the Administrative Agent and (iii) otherwise acceptable
to each Rating Agency.
(b) In the event the Trustee complies with Section 5.07(a) but has its
principal place of business outside of the State of Delaware, then there shall
at all times be a co-trustee appointed to act as the Delaware Trustee pursuant
to Section 3807 of the Delaware Act. The Delaware Trustee shall serve as such
for the sole purpose of satisfying the requirement of Section 3807 of the
Delaware Act that the Trust have at least one trustee with a principal place of
business in Delaware. It is understood and agreed by the parties hereto and the
Holders that the Delaware Trustee shall have none of the duties or Liabilities
of the Trustee. The duties of the Delaware Trustee shall be limited to (i)
accepting legal process served on the Trust in the State of Delaware and (ii)
the execution of any certificates required to be filed with the Delaware
Secretary of State that the Delaware Trustee is required to execute under
Section 3811 of the Delaware Act. To the extent that, at law or in equity, the
Delaware Trustee has duties (including fiduciary duties) or Liabilities relating
thereto to the Trust or the Holders, it is hereby understood and agreed by the
parties hereto and the Holders that such duties and Liabilities are replaced by
the duties and Liabilities of the Delaware Trustee expressly set forth in this
Agreement.
Section 5.08. Resignation or Removal of Trustee.
(a) The Trustee may not at any time resign without the express written
consent of the UTI Beneficiaries, which consent shall not be unreasonably
withheld.
(b) The UTI Beneficiaries may remove the Trustee (i) if (A) at any time
the Trustee shall cease to be qualified in accordance with Section 5.07, (B) any
representation or warranty made by the Trustee pursuant to Section 5.12 shall
prove to have been untrue in any material respect when made, but the Trustee
shall fail to resign after written request therefor by the UTI Beneficiaries,
(C) at any time the Trustee shall be legally unable to act, or shall be adjudged
bankrupt or insolvent, (D) a receiver of the Trustee or of its property shall be
appointed or (E) any public officer shall take charge or control of the Trustee
or its property or affairs for the purpose of rehabilitation, conservation or
liquidation or (ii) at their discretion, subject to Section 5.14(b). Upon the
removal of the Trustee, the UTI Beneficiaries shall promptly appoint a successor
Trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the Trustee so removed and one copy to the successor Trustee,
together with payment of all fees owed to the outgoing Trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall not become effective until
acceptance of appointment by the successor Trustee.
Section 5.09. Successor Trustee. Any successor Trustee appointed as
provided in Section 5.08 shall execute, acknowledge and deliver to the
Administrative Agent, the predecessor Trustee and each Beneficiary an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of such predecessor Trustee shall become effective and such successor
Trustee, without any further act, deed or conveyance, shall become fully vested
with all the rights, powers, duties and obligations of its predecessor under
this Agreement and the other Trust Documents to which the Trustee is a party,
with like effect as if
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originally named as Trustee. The predecessor Trustee shall deliver to the
successor Trustee all documents held by it under this Agreement and the other
Trust Documents, and the predecessor Trustee and the other parties to the Trust
Documents shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Trustee all such rights, powers, duties and obligations. No successor
Trustee shall accept appointment as provided in this Section unless, at the time
of such acceptance, such successor Trustee shall be eligible under Section 5.07.
Upon acceptance of appointment by a successor Trustee as provided in this
Section, the successor Trustee shall mail notice of its appointment under this
Agreement to each Beneficiary at the address and in the manner provided for in
Section 8.03, and each Beneficiary shall mail notice of the successor of such
Trustee under this Agreement to each related Holder. If a Beneficiary fails to
mail such notice within ten days after acceptance of appointment by the
successor Trustee, such successor Trustee shall cause such notice to be mailed
at the expense of such Beneficiary.
Section 5.10. Merger or Consolidation of Trustee. The Trustee shall not
merge or consolidate with, or sell all or any substantial part of its assets to,
any other entity or Person without the express written consent of the UTI
Beneficiaries. Any corporation (i) into which the Trustee may be merged or
consolidated, (ii) that may result from any merger, conversion or consolidation
to which the Trustee shall be a party or (iii) that may succeed to the corporate
trust business of the Trustee, and in each case that executes an agreement of
assumption to perform every obligation of the Trustee under this Agreement,
shall be the successor of the Trustee hereunder, provided such corporation shall
be eligible pursuant to Section 5.07, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto other
than the written consent of the UTI Beneficiaries. The Trustee shall give notice
to each Rating Agency prior to effecting any merger, conversion, consolidation
or other transaction described in this Section.
Section 5.11. Co-Trustees, Separate Trustees, Nominee and Trust Agents.
(a) Notwithstanding any other provision of this Agreement, at any time,
for the purpose of meeting any legal requirements of any jurisdiction in which
any Trust Assets may at the time be located or within which such Trust Assets
are to be acquired, the UTI Beneficiaries and the Trustee, acting jointly, shall
have the power to execute and deliver all instruments to appoint one or more
Persons to act as co-trustee, jointly with the Trustee, or as a separate trustee
or nominee holder of legal title, of all or any part of such Trust Assets, and
to vest in such Person, in such capacity and for the benefit of the Related
Beneficiary, the Holders and their permitted assigns, such title to such Trust
Assets, or any part thereof, and, subject to the other provisions of this
Section, such powers, duties, obligations, rights and trusts as the UTI
Beneficiaries and the Trustee may consider necessary or desirable. No such
co-trustee, separate trustee or nominee holder of legal title shall be required
to meet the terms of eligibility as a successor trustee pursuant to Section
5.09, except that no such co-trustee, separate trustee or nominee holder of
legal title under this Agreement may be a Beneficiary or any Affiliate thereof.
(b) Each co-trustee, separate trustee and nominee holder of legal title
shall, to the extent permitted by law, be appointed and act subject to the
following provisions and conditions:
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(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred upon and exercised or
performed by the Trustee and such co-trustee, separate trustee or
nominee holder of legal title jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately
without the Trustee joining in such act), except to the extent that
under any law of any jurisdiction in which any particular act or acts
are to be performed (whether as Trustee under this Agreement or as
successor to the Administrative Agent under this Agreement or any
Administration Agreement), the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the
Trust Assets or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such co-trustee, separate trustee or
nominee holder of legal title, but solely at the direction of the
Trustee;
(ii) no trustee or nominee holder of legal title hereunder
shall be personally liable by reason of any act or omission of any
other trustee or nominee holder of legal title hereunder; and
(iii) the UTI Beneficiaries and the Trustee, acting jointly,
may at any time accept the resignation of or remove any co-trustee,
separate trustee or nominee holder of legal title.
(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each co-trustee, separate trustee and nominee
holder of legal title, as effectively as if given to each of them. Every
instrument appointing any co-trustee, separate trustee or nominee holder of
legal title shall refer to this Agreement and the conditions of this Section.
Each co-trustee, separate trustee and nominee holder of legal title, upon its
acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions of this
Agreement, specifically including every provision relating to the conduct of,
affecting the Liability of or affording protection to the Trustee. Each such
instrument shall be filed with the Trustee and a copy thereof given to the
Administrative Agent and each Related Beneficiary.
Any co-trustee, separate trustee or nominee holder of legal title may
at any time and shall, at the request of the Trustee, appoint the Trustee or the
Trust Agent its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any co-trustee, separate trustee or
nominee holder of legal title shall die, become incapable of acting, resign or
be removed, then all of its estates, properties, rights, remedies and trusts
relating to this Agreement and the Trust Assets shall vest in and be exercised
by the Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee. Notwithstanding anything to the contrary in this
Agreement, the appointment of any co-trustee, separate trustee or nominee holder
of legal title shall not relieve the Trustee of its obligations and duties under
this Agreement.
(d) The Trustee may enter from time to time into one or more Trust
Agency Agreements with a Trust Agent that is by experience and expertise
qualified to act in a trustee capacity and otherwise acceptable to the UTI
Beneficiaries. The Trustee shall provide prompt
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notice of the appointment of each Trust Agent (other than the initial Trust
Agent) to each Person and in the manner specified in Section 8.03. Except as
otherwise provided herein or in any related Trust Agency Agreement, the Trust
Agent shall be responsible for all duties and obligations of the Trustee
hereunder and under each other Trust Document to which the Trustee is a party,
and the Trustee hereby delegates to the Trust Agent all power and authority
delegable by the Trustee hereunder and thereunder in order better to be able to
carry out its duties as Trust Agent. Each Trust Agency Agreement shall specify
the duties, powers, Liabilities, obligations and compensation of the Trust Agent
to carry out on behalf of the Trustee all of its obligations as Trustee arising
under this Agreement or the other Trust Documents to which the Trustee is a
party, and shall contain a non-petition covenant substantially identical to that
set forth in Section 8.07; provided, however, that nothing contained in any
Trust Agency Agreement shall excuse, limit or otherwise affect any power, duty,
obligation, Liability or compensation otherwise applicable to the Trustee
hereunder. Notwithstanding the foregoing or the provisions of any Trust Agency
Agreement, the Trustee shall replace any Trust Agent if (i) in the judgment of
the Related Beneficiary, the compensation or level of service of such Trust
Agent shall no longer be reasonably competitive with those of any alternative
agent reasonably proposed by the Related Beneficiary, (ii) the Trust Agent has
materially breached its obligations under the related Trust Agency Agreement and
the UTI Beneficiaries or any Holder have given written notice to the Trustee and
the Trust Agent of such breach and the Trust Agent has not cured such breach in
all material respects within 30 Business Days thereafter or (iii) any Rating
Agency shall require the replacement of such Trust Agent. The Trustee hereby
engages U.S. Bank as the initial Trust Agent, and U.S. Bank hereby accepts such
engagement, with Section 8.07 and all provisions of this Section relating to
Trust Agents constituting a Trust Agency Agreement between it and the Trustee,
subject to any amendment or supplement thereto between such parties not
inconsistent herewith. So long as the Trustee is a Subsidiary of the Trust
Agent, the Trustee shall pay the Trust Agent reasonable compensation for its
services and shall provide such reimbursement of expenses as are separately
agreed to by the Trustee and the Trust Agent.
The Trust Agent shall be entitled to all of the benefits, protections,
indemnities and rights of reliance set forth in this Agreement with regard to
the Trustee. The Trust Agent may resign hereunder upon giving 30 days' prior
written notice to the Trustee, each related Holder and each Related Beneficiary.
Notwithstanding the foregoing, unless otherwise agreed to by the Trustee and the
UTI Beneficiaries, such resignation shall be effective only upon the appointment
of a successor Trust Agent in accordance with the terms hereof.
Section 5.12. Representations, Warranties and Covenants of Trustee. The
Trustee hereby makes the following representations, warranties and covenants on
which the other parties hereto, their respective permitted assignees and
pledgees, each Holder (and beneficial owner of any portion of the related
Certificate in connection with a Securitized Financing) and each Beneficiary may
rely:
(a) The Trustee is a corporation, duly organized, validly
existing and in good standing under the laws of the State of Delaware
and is qualified to do business as a foreign corporation and is in good
standing in each State identified in an Officer's Certificate of the
Administrative Agent delivered on the Effective Date. The Trustee shall
promptly take or cause to be taken all such actions and execute and
file or cause to be executed and filed all such instruments and
documents, the cost of which shall be a
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Trust Expense, as may reasonably be required in order for the Trustee
to qualify to do business and be in good standing in each other State
identified in writing from time to time by a Beneficiary or the
Administrative Agent.
(b) The Trustee has full power, authority and right to
execute, deliver and, assuming that the filings set forth on an
Officer's Certificate of the Administrative Agent delivered on the
Effective Date are sufficient to allow the Trustee to act as a trustee
with respect to the Trust Assets, perform this Agreement in all
material respects, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement.
(c) This Agreement has been duly executed and delivered by the
Trustee, and is a legal, valid and binding instrument enforceable
against the Trustee in accordance with its terms.
(d) Neither the execution and delivery of this Agreement or
the other Trust Documents to which the Trustee is a party, the
consummation of the transactions herein or therein contemplated nor
compliance with the provisions hereof or thereof, will conflict with or
result in a breach of or constitute a default (with notice or passage
of time or both) under any provision of any judgment, decree or order
binding upon the Trustee or the certificate of incorporation or bylaws
of the Trustee or any provision of any mortgage, indenture, contract,
agreement or other instrument to which the Trustee is a party or by
which it is bound.
(e) The Trustee has not engaged, is not currently engaged and
will not engage during the term of this Agreement, in any activity
other than serving as Trustee and such ancillary activities as are
necessary and proper in order to act as Trustee pursuant to this
Agreement and the other Trust Documents.
Section 5.13. Trustee's Fees and Expenses. Except as otherwise provided
in the other Trust Documents, the Administrative Agent shall, subject to
reimbursement to the extent provided in a related Administration Agreement, (i)
pay the Trustee and the Delaware Trustee reasonable compensation as shall be
agreed upon from time to time by the Trust or the Delaware Trustee, as the case
may be, and the Administrative Agent (and which shall not be limited by any
provision of law in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee or the Delaware Trustee, as the case
may be, in the execution of the Trust and in the exercise and performance of any
of the powers and duties under this Agreement and the other Trust Documents to
which it is a party and (ii) reimburse the Trustee and the Delaware Trustee for
all reasonable expenses (including reasonable attorneys' fees) for the Trustee's
or the Delaware Trustee's costs of qualification, periodic maintenance of
corporate franchises and qualifications (excluding Taxes payable in respect of
income earned by the Trustee or the Delaware Trustee), annual board of
directors' meetings and all necessary corporate filings.
Section 5.14. Trustee Stock. U.S. Bank hereby makes the following
representations, warranties and covenants on which the other parties hereto,
their respective permitted pledgees
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and assigns and each Holder (and beneficial owner of any portion of the related
Certificate in connection with a Securitized Financing) and Beneficiary may
rely:
(a) All of the Trustee Stock is owned by U.S. Bank free and
clear of any Lien or other restriction, agreement or commitment of any
kind (other than as provided for in this Agreement) that would in any
way restrict its ability freely to transfer, convey and assign the
Trustee Stock. All such Trustee Stock currently outstanding is (and any
Trustee Stock that may be issued in the future will be) validly issued,
fully paid and nonassessable and has not been (and will not be) issued
in violation of any preemptive, first refusal or other subscription
rights of any Person. There are no outstanding options, warrants,
conversion rights, subscription rights, preemptive rights, exchange
rights or other rights, agreements or commitments of any kind
obligating U.S. Bank to sell any Trustee Stock or to issue any
additional Trustee Stock to any Person. No additional Trustee Stock may
be issued without the express written consent of the UTI Beneficiaries.
(b) For so long as U.S. Bank is acting as a Trust Agent
pursuant to this Agreement or any Trust Agency Agreement, but subject
to any applicable legal or regulatory requirements, it shall retain
ownership of all of the Trustee Stock. If at any time (and for any
reason, including U.S. Bank's resignation or termination as Trust Agent
or the dissolution of the Trust) U.S. Bank either is no longer acting
as a Trust Agent, is no longer able, due to legal or regulatory
changes, to own the Trustee Stock, or the Trustee would have to be
removed pursuant to Section 5.08(b) as a result of its being owned by
U.S. Bank, U.S. Bank shall (i) notify the UTI Beneficiaries of such
event and (ii) sell to the designee of the UTI Beneficiaries (which
shall not be a Beneficiary or an Affiliate thereof), at the option of
such UTI Beneficiaries, without recourse except with respect to the
representations, warranties and covenants contained herein, all of the
Trustee Stock for the sum of $10 plus all Liquid Trustee Assets. Such
designee shall have 120 days from the date of receipt of such notice in
which to exercise such option and to consummate such acquisition,
during which time U.S. Bank shall not sell or offer for sale any
Trustee Stock to any other Person. If such designee does not consummate
such acquisition within such period, U.S. Bank may sell or offer for
sale to any Person any or all of the Trustee Stock or may dissolve the
Trustee; provided, however, that if, upon or in connection with U.S.
Bank no longer being a Trust Agent, a successor Trust Agent shall be
appointed by the Trustee, U.S. Bank shall next grant to such successor
Trust Agent an option for it or its designee to buy the Trustee Stock
without recourse except with respect to the representations, warranties
and covenants contained herein, for the sum specified above. Such
successor Trust Agent or its designee shall have 120 days from the date
of receipt of such offer in which to exercise such option and
consummate such acquisition, during which time no Trustee Stock may be
offered for sale or sold to any Person other than such successor Trust
Agent or its designee. Upon any timely exercise of the foregoing option
to acquire the Trustee Stock, U.S. Bank shall promptly tender all such
Trustee Stock to such buyer at a time and place determined by the
buyer, duly endorsed in blank or with duly endorsed stock powers
attached, against payment of the purchase price. U.S. Bank shall pay
any transfer or similar taxes arising from a transfer of the Trustee
Stock as contemplated herein; provided, that the UTI Beneficiaries
shall pay such amounts if the Trustee is removed pursuant to Section
5.08(b)(ii).
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Section 5.15. Limitation of Liability of Trustee.
(a) Notwithstanding anything contained herein to the contrary, in no
event shall RTRT, Inc., in its individual capacity, or any Trust Agent appointed
hereunder have any Liability for the representations, warranties, covenants,
agreements or other obligations of the Trust hereunder (other than any
certificate of authentication), as to all of which recourse shall be had solely
to the Trust Assets.
(b) For all purposes of this Agreement, in the performance of any
duties or obligations of the Trust hereunder, the Trustee and the Trust Agent
shall be subject to, and entitled to the benefits of, the terms and provisions
of Article Five.
(c) Except as otherwise indicated by context, any reference herein to
actions taken or amounts received in trust by the Trustee shall be deemed to
mean the Trustee acting on behalf of the Trust and all Beneficiaries.
(d) The Trustee hereby acknowledges and agrees that Ryder owns all
rights to the name RTRT, Inc.
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Article Six
THE ADMINISTRATIVE AGENT
Section 6.01. Duties of the Administrative Agent. The Administrative
Agent is hereby appointed and authorized to act as attorney-in-fact for the
Trust, and in such capacity shall manage, service, administer, dispose of and
make collections on the Trust Assets with reasonable care, using that degree of
skill and attention that it exercises with respect to comparable assets that it
services for itself or others. The Trustee shall enter into any agreement as a
Beneficiary may, with the consent of the Administrative Agent, direct in order
to add, delete or amend any or all of the obligations of the Administrative
Agent hereunder in respect of all or any portion of the Related Trust Assets.
The Administrative Agent shall follow its customary standards, policies and
procedures, as the same may change from time to time, and, unless otherwise
indicated herein or in any Administration Agreement, shall have full power and
authority, acting alone, to take any action in connection with such managing,
servicing, administering, disposing of and collecting that it may deem necessary
or desirable in the interest of the Trust. Without limiting the generality of
the foregoing, the Administrative Agent is hereby authorized and empowered by
the Beneficiaries and the Trust to execute and deliver, on behalf of the Trust,
any instrument, certificate or other document necessary or advisable to record
and maintain title to the Vehicles in the name of the Trust or the Trustee on
behalf of the Trust and to release interests of the Trust, the Trustee and the
Beneficiaries in any Vehicle in connection with the sale or other disposition of
such Vehicle as contemplated by this Agreement and the other Trust Documents.
The Administrative Agent also shall be responsible for creating, maintaining and
amending the Schedule of Vehicles. The Administrative Agent shall deliver to the
Trustee (i) with respect to the UTI, upon request, and (ii) with respect to any
SUBI, as specified in the related Supplement, a revised Schedule of Vehicles.
The Administrative Agent is hereby authorized, in its own name, in the name of
the Trust or in the name of the Trustee on behalf of the Trust, to commence,
defend against or otherwise participate in a Proceeding relating to or involving
the protection or enforcement of the interest of the Trust, the Trustee on
behalf of the Trust, a Beneficiary or a Holder in any Lease, Vehicle or other
Trust Asset. If the Administrative Agent shall commence, defend against or
otherwise participate in a Proceeding in its own name, then the Trust, the
Trustee on behalf of the Trust, such Holder or such Beneficiary shall thereupon
be deemed to have automatically assigned its interest in (including legal title
to) each related Lease, Vehicle or other Trust Asset to the Administrative Agent
to the extent necessary for purposes of such Proceeding. The Administrative
Agent is authorized and empowered by the Trust to execute and deliver in the
Administrative Agent's name any notices, demands, claims, complaints, responses,
affidavits or other documents or instruments in connection with any such
Proceeding. The Trustee shall furnish the Administrative Agent with any powers
of attorney and other documents and take any other steps the Administrative
Agent may deem necessary or appropriate to enable it to carry out its duties
under this Agreement and the other Trust Documents. If in any Proceeding it
shall be held that the Administrative Agent may not enforce the rights of the
Trust, the Trustee on behalf of the Trust, a Holder or a Beneficiary in any
Lease, Vehicle or other Trust Asset on the grounds that it is not the real party
in interest or a holder entitled to enforce such Lease or other relevant
document or instrument, then the Trustee, on behalf of the Trust, shall, at the
direction of the Administrative Agent, take steps to enforce the interest of the
Trust, the Trustee on behalf of the Trust, a Holder or a Beneficiary in such
Lease,
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Vehicle or other Trust Asset, including bringing suit in its own name or in the
name of the Related Beneficiary or related Holder. The Administrative Agent
shall advance the costs or expenses of any such action to the Trustee, subject
to reimbursement to the extent provided in any related Administration Agreement.
Section 6.02. Liability of Administrative Agent; Indemnities.
(a) The Administrative Agent shall be liable in accordance with this
Agreement and the other Trust Documents only to the extent of the obligations
specifically undertaken by the Administrative Agent and shall have no other
obligations or Liabilities hereunder or thereunder. Such obligations shall
include, with respect to this Agreement, the obligation to indemnify, defend and
hold harmless the following parties; provided, that the Trustee and the Trust
Agent shall not receive payments hereunder to the extent they have been
otherwise reimbursed for such amounts:
(i) the Trust, the Trustee and the Trust Agent, from and
against (A) any Loss arising out of or resulting from the use or
operation of any Vehicle by the Administrative Agent or any Affiliate
thereof and (B) any Taxes that may at any time be asserted against the
Trust, the Trustee or the Trust Agent with respect to the transactions
contemplated by this Agreement (other than Taxes based on income
payable to such Persons hereunder), including any sales, gross
receipts, general corporation, tangible personal property, privilege or
license Taxes and costs and expenses in defending against the same;
(ii) the Trust, the Trustee, the Trust Agent, the
Beneficiaries and the Holders, from and against any Loss to the extent
such Loss arose out of or was imposed upon such Persons by reason of
(A) the performance by the Administrative Agent of its duties or (B)
the disregard by the Administrative Agent of its obligations and
duties, in each case hereunder or under any Administration Agreement;
and
(iii) the Trustee and the Trust Agent, from and against any
Loss arising out of or incurred in connection with their acceptance or
performance of the trusts and duties contained in this Agreement or any
other Trust Document, except to the extent any such Loss (A) is due to
the willful misfeasance, bad faith or negligence (except for good faith
errors in judgment) of the Trustee or the Trust Agent, (B) arises from
the material breach by the Trustee or the Trust Agent of any of its
obligations, representations or warranties set forth in this Agreement
or in any Trust Agency Agreement or (C) arises out of or is incurred in
connection with the performance by the Trustee of the duties of
successor Administrative Agent hereunder or under any Administration
Agreement.
(b) If the Administrative Agent has made any indemnity payments
pursuant to this Section and the recipient thereafter collects any such amounts
from others, the recipient shall promptly repay such amounts collected to the
Administrative Agent, without interest. Indemnification under this Section shall
survive (i) any transaction described in Section 6.03 with respect to any Trust
Assets as of the date of such transaction and any act, occurrence or transaction
related thereto, whether arising before or after the date of such transaction
and (ii) the termination of this Agreement and the other Trust Documents.
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Section 6.03. Merger of Administrative Agent; Appointment of Nominee.
Any corporation (i) into which the Administrative Agent may be merged or
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Administrative Agent may be a party, (iii) succeeding to the business
of the Administrative Agent or (iv) more than 50% of the voting stock of which
is owned directly or indirectly by Ryder and that is otherwise servicing vehicle
leases, which corporation in any of the foregoing cases executes an agreement of
assumption to perform every obligation of the Administrative Agent, shall be the
successor to the Administrative Agent without the execution or filing of any
paper or any further act on the part of any of the parties to this Agreement.
Section 6.04. Limitation on Liability of Administrative Agent and
Others.
(a) Except as otherwise provided in this Agreement and the other Trust
Documents, neither the Administrative Agent nor any of its directors, officers,
employees or agents shall have any Liability to the Trust, the Trustee, the
Trust Agent, any Beneficiary, any Holder, any Registered Pledgee or any Special
Purpose Affiliate for any action taken or for refraining from the taking of any
action pursuant hereto or thereto, or for any error in judgment. Notwithstanding
the foregoing, this provision shall not protect the Administrative Agent or any
such Person against any Liability that would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence (except errors in judgment) in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder or thereunder. The Administrative Agent and its directors,
officers, employees and agents may rely in good faith on the advice of counsel
or on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder or thereunder, and in so
doing, shall not be acting in bad faith or with negligence, willful misfeasance
or reckless disregard.
(b) Except as otherwise provided in this Agreement and the other Trust
Documents, the Administrative Agent shall be under no obligation to appear in,
prosecute or defend any Proceeding that is not incidental to its duties to
service the Trust Assets in accordance herewith or therewith and that in its
opinion may involve it in any Liability. Notwithstanding the foregoing, the
Administrative Agent may undertake any reasonable action that it may deem
necessary or desirable in respect of this Agreement and the other Trust
Documents and the rights and duties of the parties hereto or thereto and the
interests of any Beneficiary hereunder or thereunder. In such event, any Loss
resulting from such action shall be (i) a Trust Expense of the related Sub-Trust
and (ii) a Reimbursable Expense to the extent paid by the Administrative Agent,
and in each case shall be allocated to the Related Trust Assets.
Section 6.05. Administrative Agent Not to Resign; Delegation of Duties.
(a) Subject to Section 6.03, the Administrative Agent shall not resign
from the obligations and duties imposed on it by this Agreement as
Administrative Agent except upon a determination that the performance of its
duties under this Agreement is no longer permissible under applicable law. Any
such determination permitting the resignation of the Administrative Agent shall
be evidenced by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until a successor administrative
agent shall have assumed the responsibilities and obligations of the
Administrative Agent. Neither the Trustee nor the
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Trust Agent shall be obligated to serve as successor administrative agent under
this Agreement except upon its prior written consent.
(b) Except as otherwise provided in this Agreement and the other Trust
Documents, the Administrative Agent may not assign any of its rights, powers,
duties or obligations under this Agreement. Notwithstanding the foregoing, the
Administrative Agent may make such an assignment in connection with a
consolidation, merger, conversion or other event made in compliance with Section
6.03.
(c) Except as otherwise provided in this Agreement and the other Trust
Documents, the duties and obligations of the Administrative Agent under this
Agreement shall continue until this Agreement has been terminated as provided in
Section 7.01, and shall survive the exercise by the Trustee of any right or
remedy under, or the enforcement by the Trustee of any provision of, this
Agreement or any other Trust Document.
Section 6.06. Servicing Compensation. The Administrative Agent shall
receive such fees and reimbursement for expenses with respect to the Trust
Assets relating to the UTI or a SUBI, as applicable, as may be agreed to from
time to time between the Administrative Agent and the Related Beneficiary.
Section 6.07. Powers of Attorney. The Administrative Agent is hereby
designated by each of the Trust and the Trustee as its true and lawful
attorney-in-fact, with full power and authority to perform any act relating to
managing, servicing, administering, disposing of and collecting all or any part
of the Trust Assets and any act otherwise required or permitted to be performed
by the Administrative Agent under this Agreement and the other Trust Documents.
The Administrative Agent is hereby authorized and empowered to execute and
deliver, on behalf and in the name of the Trustee or the Trust, any instrument,
certificate or other document relating thereto. The Administrative Agent shall
also have the right, power and authority to designate in writing other Persons
as true and lawful attorneys-in-fact for and on behalf of the Trustee and the
Trust to do anything that the Administrative Agent has the power to do under
this Agreement and the other Trust Documents. Without limiting the generality of
the foregoing, the Administrative Agent or any such Person designated by the
Administrative Agent is hereby authorized and empowered by the Trustee and the
Trust to (i) apply for and maintain the licenses, permits and authorizations and
make the filings described in Section 5.01(c) and (ii) execute and deliver, on
behalf of the Trustee and the Trust, any applications for or duplicates of
Certificates of Title in the name of the Trust or the Trustee on behalf of the
Trust, any applications for registration of Vehicles or license plates, any
applications for transfers of Certificates of Title or transfers of registration
for Vehicles or license plates, and any other instruments, certificates or other
documents that the Administrative Agent may deem necessary or advisable to
record, hold or release title to or registration of Vehicles in the manner
provided for herein.
Section 6.08. Protection of Title to Trust.
(a) The Administrative Agent shall maintain accounts and records as to
legal title to the Trust Assets (including records identifying the Sub-Trust to
which each Trust Asset is allocated) and any other assets held by the Trust
accurately and in sufficient detail as to permit the reader thereof to know at
any time the status of such legal title.
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(b) The Administrative Agent shall maintain its computer systems such
that its master computer records (including any back-up archives) that refer to
any Vehicle indicate clearly that legal title to such Vehicle is held by the
Trust or the Trustee on behalf of the Trust as nominee holder of legal title for
the Related Beneficiary or the related Holders. Any reference to such legal
title shall be deleted from or modified on such computer systems when, and only
when, such legal title is no longer so held.
(c) If at any time the Administrative Agent or a Related Beneficiary
proposes to sell, grant a security interest in or otherwise transfer any
interest in any Vehicle to any prospective purchaser, lender or other
transferee, all computer tapes, records or print-outs (including any restored
from back-up archives) delivered by the Trustee to such prospective purchaser,
lender or other transferee that refer in any manner whatsoever to such Vehicle
shall indicate clearly that legal title to such Vehicle is held in the name of
the Trust or the Trustee on behalf of the Trust for the benefit of the Related
Beneficiary or the related Holder.
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Article Seven
TERMINATION AND DISSOLUTION
Section 7.01. Dissolution of the Trust.
(a) Subject to Section 7.03(b), the Trust shall continue in full force
and effect until the payment to each Holder or its designee of all amounts
required to be paid to it pursuant to this Agreement and the related
Certificates and the expiration or termination of all Securitized Financings by
their respective terms.
(b) Upon the occurrence of the events described in Section 7.01(a),
after satisfaction of all obligations to creditors, if any, of the Trust, the
Trustee shall (i) distribute the Trust Assets to the Related Beneficiary or its
designee in accordance with this Agreement and the Supplements, (ii) together
with the Related Beneficiary, cause the Certificates of Title to any Vehicles so
distributed to such Related Beneficiary to be issued in the name of, or at the
direction of, such Related Beneficiary, and such Related Beneficiary shall pay
or cause to be paid all applicable titling and registration fees and taxes,
(iii) take such action as may be requested by a Related Beneficiary in
connection with the transfer of Related Trust Assets to such Related Beneficiary
or its designee, including the execution and delivery of assignment forms
appearing on the Certificates of Title or any other instruments of transfer or
assignment with respect to the related Vehicles and (iv) file or cause to be
filed a certificate of cancellation with the Delaware Secretary of State
pursuant to Section 3810(d) of the Delaware Act. Upon the filing described in
clause (iv), this Agreement shall terminate and the Trustee shall be discharged
from all duties and obligations hereunder.
(c) Notwithstanding any other provision of this Agreement, in no event
shall the Trust continue beyond the expiration of 21 years from the death of the
last survivor of the descendants of Xxxxxx X. Xxxxxxx, the late Ambassador of
the United States to the Court of St. James's, living on the date hereof.
Section 7.02. Termination of Sub-Trusts.
(a) Subject to Section 7.03, this Agreement shall terminate with
respect to the Trust Assets allocated to a Sub-Trust, and not, except as
otherwise provided in a Supplement, as to any Trust Assets allocated to any
other Sub-Trust, upon the written direction to the Trustee by the Related
Beneficiary to revoke and terminate such Sub-Trust, following the satisfaction
of all obligations to creditors, if any, of such Sub-Trust, the payment to each
related Holder or its designee of all amounts required to be paid to it pursuant
to this Agreement and such Holder's Certificate, and the expiration or
termination of all related Securitized Financings by their respective terms.
Following such direction with respect to a Sub-Trust and the delivery of the
related Certificates to the Trustee for cancellation, the Trustee shall
distribute to the Related Beneficiary or its designee all Related Trust Assets
and shall cause the Certificates of Title to the related Vehicles to be issued
in the name of, or at the direction of, such Related Beneficiary (which, in the
case of a SUBI, may include reallocation of the related SUBI Assets to the UTI).
The Related Beneficiary to which such Trust Assets are distributed shall pay or
cause to be paid all applicable titling and registration fees and taxes.
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(b) Upon the revocation and termination of a Sub-Trust, the related
Certificates shall be returned to the Trustee for cancellation. Such revocation
and termination shall not effect a revocation or termination of any other
Sub-Trust in existence at the time of such revocation and termination.
Section 7.03. Beneficiary or Special Purpose Affiliate Bankruptcy.
(a) The bankruptcy, insolvency, dissolution or similar occurrence of a
Beneficiary or a Special Purpose Affiliate shall not, except as otherwise
provided in Section 7.03(b) or a related Supplement, (i) cause the dissolution
of the Trust or the termination of this Agreement with respect to the Trust or
any Sub-Trust, (ii) entitle the legal representatives of such Beneficiary or
Special Purpose Affiliate to claim an accounting or to take any action in any
court for a partition or winding up of the Trust or any Trust Assets other than
the Related Trust Assets or (iii) otherwise affect the rights, obligations or
Liabilities of the parties hereto.
(b) Upon the bankruptcy, insolvency, dissolution or similar occurrence
of the 1% UTI Beneficiary, the UTI shall terminate unless, within 90 days of
such bankruptcy, insolvency, dissolution or similar occurrence, (i) the 99% UTI
Beneficiary (A) agrees in writing that the UTI shall not be terminated and (B)
designates an additional UTI Beneficiary to serve as the 1% UTI Beneficiary,
transfers to such additional UTI Beneficiary a 1% ownership interest in the UTI
and presents the UTI Certificate originally evidencing the 99% ownership
interest in the UTI to the Trustee for registration of transfer to such
additional UTI Beneficiary of a 1% ownership interest in the UTI, (ii) the
Trustee registers such transfer and issues new UTI Certificates to such UTI
Beneficiaries evidencing their respective ownership interests in the UTI and
(iii) such additional UTI Beneficiary delivers to the Administrative Agent, the
Trustee and the 99% UTI Beneficiary an agreement in form and substance
satisfactory to the Administrative Agent, the Trustee and the 99% UTI
Beneficiary.
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Article Eight
MISCELLANEOUS
Section 8.01. Amendment. This Agreement, including the terms of the UTI
Certificates, may be amended or supplemented by written agreement among the UTI
Beneficiaries, the Administrative Agent and the Trustee (and the Trust Agent, if
such amendment affects its rights or obligations hereunder as Trust Agent), with
the consent of each Beneficiary and Holder affected thereby; provided, however,
that the consent of a Holder shall not be required if (i) (A) the purpose of
such amendment or supplement is to cure any ambiguity, to correct or supplement
any provision of this Agreement that may be inconsistent with any other
provision of this Agreement, to add any provision that provides additional
rights to Holders or to ensure that none of the Trust or one or more
Beneficiaries is classified as an association (or a publicly traded partnership)
taxable as a corporation for federal income tax purposes and (B) such amendment
or supplement will not, in the good faith judgment of the UTI Beneficiaries and
the Administrative Agent, materially and adversely affect the interest of any
Holder or (ii) an Opinion of Counsel is delivered to the Trustee to the effect
that such amendment or supplement will not materially and adversely affect the
interest of any Holder. After the first Securitized Financing, any such
amendment shall require such additional approvals, if any, as may be required
under each related Securitized Financing.
Section 8.02. Governing Law. This Agreement shall be created under and
governed by and construed under the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
Section 8.03. Notices. All demands, notices and communications under
this Agreement or any Supplement shall be in writing and shall be delivered or
mailed by registered or certified first class United States mail (postage
prepaid, return receipt requested), hand delivery, prepaid courier service or
telecopier, and addressed in each case as follows: (i) if to Ryder Truck Rental
I LP, at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (telecopier no. (305)
500-3641), Attention: Treasurer 2C, with a copy to Xxxxx X. Xxxxxx, Esq., Law
5C, at the same street address (telecopier no. (000) 000-0000); (ii) if to Ryder
Truck Rental II LP, at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (telecopier
no. (000) 000-0000), Attention: Treasurer 2C, with a copy to Xxxxx X. Xxxxxx,
Esq., Law 5C, at the same street address (telecopier no. (000) 000-0000); (iii)
if to the Administrative Agent, at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
(telecopier no. (000) 000-0000), Attention: Treasurer 2C, with a copy to Xxxxx
X. Xxxxxx, Esq., Law 5C, at the same street address (telecopier no. (305)
500-3198); (iv) if to the Trustee, in care of the Trust Agent at One Illinois
Center, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000 (telecopier
no. (000) 000-0000), Attention: Ryder Truck Leasing, with a copy (which shall
not constitute notice) to each Beneficiary; (v) if to the Trust Agent, at One
Illinois Center, 000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000
(telecopier no. (000) 000-0000), Attention: Ryder Truck Leasing; (vi) if to the
Delaware Trustee, at Three Beaver Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx, Xxxxxxxx
00000 (telecopier no. (000) 000-0000), Attention: Xxxxxxx X. Xxxxx; (vii) if
Standard & Poor's is a Rating Agency, to 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Asset Backed Surveillance Department; (viii) if Xxxxx'x
is a Rating Agency, to 00 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
ABS Monitoring Department; (ix) if Duff & Xxxxxx is a Rating Agency, to 00 Xxxx
Xxxxxx Xxxxxx, Xxxxxxx,
00
00
Xxxxxxxx 00000; (x) if Fitch is a Rating Agency, to Xxx Xxxxx Xxxxxx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000; or (xi) with respect to any of the foregoing Persons, at
such other address as shall be designated by such Person in a written notice to
the other foregoing Persons. Delivery shall occur only upon actual receipt or
rejected tender of such communication by an officer of the recipient entitled to
receive such notices located at the address of such recipient for notices
hereunder. A copy of all notices to the Trustee shall also be delivered to the
Trust Agent.
Section 8.04. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement (including any
amendment or Supplement hereto) shall be for any reason whatsoever held invalid
or unenforceable, then such covenants, agreements, provisions or terms shall be
deemed severable from the remaining covenants, agreements, provisions and terms
of this Agreement, as the same may be amended or supplemented, and shall in no
way affect the validity or enforceability of the other covenants, agreements,
provisions or terms of this Agreement or any amendment or Supplement hereto or
of any Certificate or the rights of any Holder.
Section 8.05. Counterparts. This Agreement may be executed in any
number of counterparts, each of which so executed and delivered shall be deemed
to be an original, but all of which counterparts shall together constitute but
one and the same instrument.
Section 8.06. Successors and Assigns. All covenants and agreements
contained in this Agreement shall be binding upon, and inure to the benefit of,
the parties hereto, the Holders and their respective permitted successors and
assigns. Any request, notice, direction, consent, waiver or other instrument or
action by a Holder shall bind the successors and assigns of such Holder.
Notwithstanding the foregoing, the Trustee may not assign or delegate any of its
rights or obligations under this Agreement, except as provided herein, without
the prior written consent of the UTI Beneficiaries.
Section 8.07. No Petition. Each of the parties hereto covenants and
agrees that prior to the date that is one year and one day after the date upon
which all obligations under each Securitized Financing have been paid in full,
it will not (and, to the fullest extent permitted by applicable law, the Trustee
shall not have the power to) institute against, or join any other Person in
instituting against, the Grantors, the Trustee, the Trust, any Special Purpose
Affiliate, any Beneficiary, any general partner of a Beneficiary or of a Special
Purpose Affiliate that is a partnership or any member of a Beneficiary or
Special Purpose Affiliate (or any of their respective general partners) that is
a limited liability company, any bankruptcy, reorganization, arrangement,
insolvency or liquidation Proceeding or other Proceeding under any federal or
state bankruptcy or similar law. This Section shall survive the complete or
partial termination of this Agreement, the resignation or removal of the Trustee
and the complete or partial resignation or removal of the Administrative Agent.
Section 8.08. Table of Contents and Headings. The Table of Contents and
Article and Section headings herein are for convenience of reference only and
shall not define or limit any of the terms or provisions hereof.
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51
Section 8.09. Tax Reporting and Characterization.
(a) Consistent with the treatment of the Trust and each Sub-Trust for
tax purposes as a mere nominee holder of legal title, unless otherwise required
by appropriate taxing authorities, neither the Trust nor any Sub-Trust shall
file or cause to be filed any annual or other tax returns. In the event the
Trust, any Sub-Trust or the Trustee on behalf of the Trust is required to file
any tax returns, the Administrative Agent shall prepare or cause to be prepared
such returns and shall deliver such returns to the Trustee for signature, unless
applicable law requires one or more Beneficiaries to sign such returns, in which
case the Administrative Agent shall deliver such returns to such Beneficiaries
for signature.
(b) The parties hereto (i) intend that neither the Trust nor any
Sub-Trust shall constitute a separate entity for federal income or state income
or franchise tax purposes and that each Beneficiary shall be treated for such
tax purposes as if it owned the Related Trust Assets directly, rather than
through the Trust, and (ii) agree to treat the Trust, each Sub-Trust and the
Related Trust Assets accordingly for federal income and state income and
franchise tax purposes. However, in the event the Trust or any Sub-Trust is
characterized as a separate entity for federal income or state income or
franchise tax purposes, the parties hereto intend that the Trust or such
Sub-Trust, as the case may be, shall qualify for such tax purposes as a
partnership that has elected out of partnership status under Section 761 of the
Code (and analogous state law tax provisions).
Section 8.10. Certificates Nonassessable and Fully Paid. Except as
otherwise provided in a Supplement, the interests represented by the
Certificates shall be nonassessable for any Loss of the Trust or for any reason
whatsoever and, upon authentication thereof by the Trustee, each Certificate
shall be deemed fully paid.
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52
ARTICLES NINE AND TEN
[Reserved]
48
53
IN WITNESS WHEREOF, the Grantors and UTI Beneficiaries, the
Administrative Agent, the Trustee, the Delaware Trustee and, solely for the
limited purposes set forth in Sections 5.03(e), 5.11(d), 5.14, 5.15, 8.01, 8.03
and 8.07, the Trust Agent, have caused this Agreement to be duly executed by
their respective officers as of the day and year first above written.
RYDER TRUCK RENTAL I LP,
as Grantor and UTI Beneficiary
By: RYDER TRUCK RENTAL I LLC,
as General Partner
By: ___________________________________
Name:
Title:
RYDER TRUCK RENTAL II LP,
as Grantor and UTI Beneficiary
By: RYDER TRUCK RENTAL II LLC,
as General Partner
By: ___________________________________
Name:
Title:
RYDER TRUCK RENTAL, INC.,
as Administrative Agent
By: ___________________________________
Name:
Title:
54
RTRT, INC.,
as Trustee
By: ___________________________________
Name:
Title:
DELAWARE TRUST CAPITAL MANAGEMENT, INC.,
as Delaware Trustee
By: ___________________________________
Name:
Title:
U.S. BANK NATIONAL ASSOCIATION,
as Trust Agent
By: ___________________________________
Name:
Title:
55
EXHIBIT A
CERTIFICATE OF TRUST OF RYDER TRUCK RENTAL LT
This Certificate of Trust of Ryder Truck Rental LT (the "Trust"), dated
as of June 1, 1997, is being duly executed and filed by Delaware Trust Capital
Management, Inc., a Delaware banking corporation, as Delaware trustee (the
"Delaware Trustee"), and RTRT, Inc., a Delaware corporation, as trustee, to form
a business trust under the Delaware Business Trust Act (12 Del. C. Section3801
et seq.).
(a) Name. The name of the business trust formed hereby is
Ryder Truck Rental LT.
(b) Delaware Trustee. The name and business address of the
Delaware Trustee in the State of Delaware is Delaware Trust Capital
Management, Inc., Xxxxx Xxxxxx Xxxxxx Xxxx, 0xx Xxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000.
(c) Series Trust. The Trust shall be a series trust and the
debts, liabilities, obligations and expenses incurred, contracted for
or otherwise existing with respect to a particular series shall be
enforceable against the assets of such series only, and not against the
assets of the Trust generally.
(d) Effective Date. This Certificate of Trust shall be
effective upon filing.
IN WITNESS WHEREOF, the undersigned, being the sole trustees of the
Trust, have executed this Certificate of Trust as of the date first above
written.
DELAWARE TRUST CAPITAL MANAGEMENT, INC.,
as Delaware Trustee
By: ___________________________________
Name:
Title:
RTRT, INC.,
as Trustee
By: ___________________________________
Name:
Title:
A-1
56
EXHIBIT B
THIS UTI CERTIFICATE MAY NOT BE TRANSFERRED OR ASSIGNED EXCEPT
UPON THE TERMS AND SUBJECT TO THE CONDITIONS SPECIFIED HEREIN.
RYDER TRUCK RENTAL LT
UNDIVIDED TRUST INTEREST CERTIFICATE
evidencing a fractional undivided interest in the UTI Assets of Ryder
Truck Rental LT, a business trust organized pursuant to the Delaware
Business Trust Act (the "Trust").
(This Certificate does not represent any interest in the SUBI Assets of
the Trust or an obligation of, or an interest in, Ryder Truck Rental I
LP, Ryder Truck Rental II LP, Ryder Truck Rental, Inc., RTRT, Inc. or
any of their respective Affiliates.)
Percentage Interest: [99%][1%]
Number U-____
THIS CERTIFIES THAT ______________________________ is the registered
owner of a nonassessable, fully-paid, fractional undivided [99%] [1%] interest
in the UTI Assets of the Trust. The Trust was created pursuant to a trust
agreement, dated as of June 1, 1997 (as amended, restated or supplemented from
time to time the "Agreement"), among Ryder Truck Rental I LP and Ryder Truck
Rental II LP, each a Delaware limited partnership, as grantors and initial
beneficiaries (in such capacities, the "Grantors" and the "UTI Beneficiaries",
respectively), Ryder Truck Rental, Inc., a Florida corporation, as
administrative agent (the "Administrative Agent"), RTRT, Inc., a Delaware
corporation, as trustee (the "Trustee"), Delaware Trust Capital Management,
Inc., a Delaware banking corporation, as Delaware trustee (the "Delaware
Trustee"), and, for certain limited purposes set forth therein, U.S. Bank
National Association, a national banking association, as trust agent (the "Trust
Agent"). A summary of certain provisions of the Agreement is set forth below.
Capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Agreement.
This UTI Certificate is one of the duly authorized Certificates issued
under the Agreement and designated as "Ryder Truck Rental LT Undivided Trust
Interest Certificates" (the "UTI Certificates"). This UTI Certificate is issued
under and is subject to the terms, provisions and conditions of the Agreement, a
copy of which may be examined by the Holder hereof during normal business hours
at the principal office of the Trustee, or at such other place as may be
designated by the Trustee. By acceptance of this UTI Certificate, the Holder
hereof assents to the terms and conditions of the Agreement and agrees to be
bound thereby.
This UTI Certificate represents an ownership interest in the "undivided
trust interest" (the "UTI") in the Trust. The UTI constitutes an undivided
beneficial interest in all Trust Assets that have not been allocated from time
to time to a special unit of beneficial interest (each, a "SUBI") in the Trust
(the "UTI Assets"). The UTI does not evidence a direct interest in the UTI
Assets, nor does it represent a beneficial interest in any Trust Assets other
than the UTI Assets. The
B-1
57
rights of the Holder of this UTI Certificate with respect to the UTI Assets,
including distributions in respect thereof, are set forth in the Agreement.
The Trust Assets consist generally of cash capital, Vehicles, Leases,
including all of Ryder's rights as Lessor thereunder, such other assets as may
from time to time be designated as "Trust Assets" under the Agreement and all
proceeds of the foregoing.
Pursuant to the Agreement, the Trustee will, from time to time, at the
direction of the UTI Beneficiaries and subject to the satisfaction of certain
conditions, establish one or more SUBIs and allocate or cause to be allocated to
each such SUBI on the books and records of the Trust such Trust Assets (the
"SUBI Assets") as shall have been identified to such SUBI by the UTI
Beneficiaries. Upon allocation to a SUBI, the related SUBI Assets will no longer
be UTI Assets unless and until reallocated to the UTI. Each SUBI will be
represented by one or more Certificates (each, a "SUBI Certificate") distributed
to or upon the order of the UTI Beneficiaries.
The UTI and each SUBI will each constitute a separate series of the
Trust pursuant to Section 3806(b)(2) of the Delaware Act for which separate and
distinct records will be maintained.
The UTI Certificates are limited in right of payment to certain
collections and recoveries in respect of Trust Assets not allocated to any SUBI,
all to the extent and as more specifically set forth in the Agreement.
By accepting this UTI Certificate, the Holder hereof expressly (i)
waives any Claim to any proceeds or assets of the Trustee and to all Trust
Assets other than UTI Assets and proceeds thereof and (ii) subordinates in favor
of each Holder of a SUBI Certificate any Claim to any related SUBI Asset that,
notwithstanding clause (i) of this sentence, may be determined to exist.
The Agreement, including the terms of this UTI Certificate, may be
amended or supplemented by written agreement upon the terms and subject to the
conditions set forth in the Agreement.
If approval by the Holder of this UTI Certificate is required for any
amendment or supplement to the Agreement or this UTI Certificate, any such
approval will be conclusive and binding upon such Holder and all future Holders
hereof and upon the Holders of any UTI Certificate issued upon the permitted
transfer or exchange hereof, whether or not notation of such consent is made on
this UTI Certificate or on any UTI Certificate issued upon any such permitted
transfer or exchange.
Neither the UTI nor any UTI Certificate may be transferred or assigned,
except upon the terms and subject to the conditions set forth in the Agreement.
To the fullest extent permitted by applicable law, any purported transfer or
assignment of the UTI or any UTI Certificate not complying with such
requirements will be deemed null, void and of no effect under the Agreement.
Without limitation of the foregoing, the UTI or one or more UTI Certificates may
be pledged in connection with a Securitized Financing, and a security interest
therein granted, and may be transferred or assigned absolutely to or by the
pledgee thereof solely in connection with the exercise of remedies with respect
to an Event of Default under or with respect to such
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58
Securitized Financing; provided, that any such pledgee must (i) give a
non-petition covenant as provided in the Agreement and (ii) execute an agreement
in favor of the Holders from time to time of any SUBI Certificates to release
all Claims to the related SUBI Assets and, in the event such release is not
given effect, to fully subordinate all Claims it may be deemed to have against
the related SUBI Assets.
Any permitted transfer of this UTI Certificate is registrable upon
surrender of this UTI Certificate for registration of transfer at the corporate
trust office of the Trustee (or the Trust Agent, if applicable), accompanied by
a written instrument of transfer in form satisfactory to the Trustee, duly
executed by the Holder hereof or such Holder's attorney duly authorized in
writing, and thereupon one or more new UTI Certificates of a like aggregate
fractional undivided interest will be issued to the designated permitted
transferee.
Prior to due presentation of this UTI Certificate for registration of a
permitted transfer, the Trustee, the certificate registrar and any of their
respective agents may treat the Person in the name of which this UTI Certificate
is registered as the owner hereof for the purpose of receiving distributions and
for all other purposes and, except as otherwise provided in the Agreement,
neither the Trustee, the certificate registrar nor any such agent will be
affected by any notice to the contrary.
The Trust or the UTI may terminate upon the terms and subject to the
conditions set forth in the Agreement. The UTI Certificates will be cancelled
upon delivery to the Trustee following termination of the UTI.
Unless this UTI Certificate shall have been executed and authenticated
by an authorized officer of the Trustee, by manual signature, this UTI
Certificate shall not entitle the Holder hereof to any benefit under the
Agreement or be valid for any purpose.
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59
IN WITNESS WHEREOF, the Trustee, on behalf of the Trust and not in its
individual capacity, has caused this UTI Certificate to be duly executed.
Dated: _________, 1998 RYDER TRUCK RENTAL LT
By: RTRT, INC.,
as Trustee
By: ___________________________________
Name:
Title:
This is one of the UTI Certificates referred to in the within-mentioned
Agreement.
RTRT, INC.,
as Trustee
By: ___________________________________
Name:
Title:
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