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Exhibit 10.8
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RYDER FUNDING LP,
as Program Lessee,
and
RYDER VEHICLE LEASE TRUST 1999-A,
as Program Lessor
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PROGRAM OPERATING LEASE
Dated as of October 1, 1999
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................................... 2
Section 1.02. Interpretive Provisions....................................... 4
ARTICLE TWO
LEASE OF 99% VEHICLE SUBI CERTIFICATE
Section 2.01. Lease of Vehicle SUBI Certificate............................. 5
Section 2.02. Representations and Warranties of the Program Lessor.......... 5
Section 2.03. Program Lessee's Rights....................................... 6
Section 2.04. Pledge and Grant of Security Interest in 99% 1999-A Lease
SUBI Certificate............................................ 6
ARTICLE THREE
LEASE TERM AND PAYMENTS
Section 3.01. Term. ........................................................ 7
Section 3.02. Payments...................................................... 7
Section 3.03. Form of Payment............................................... 7
Section 3.04. Tax Treatment................................................. 7
Section 3.05. No Rights to Sublease or Renewal.............................. 7
ARTICLE FOUR
UNCONDITIONAL OBLIGATION; ADDITIONAL COLLATERAL
Section 4.01. Unconditional Obligation...................................... 8
Section 4.02. Assignment and Pledge of Certain Other Assets................. 9
ARTICLE FIVE
LIENS; LOCATION AND INSPECTION
Section 5.01. Liens........................................................ 10
Section 5.02. Change of Location........................................... 10
Section 5.03. Inspection and Information................................... 10
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Page
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ARTICLE SIX
LEASE DEFAULTS
Section 6.01. Lease Defaults............................................... 11
ARTICLE SEVEN
REMEDIES
Section 7.01. Remedies..................................................... 12
Section 7.02. No Release................................................... 13
Section 7.03. Remedies Cumulative.......................................... 13
Section 7.04. Exercise of Other Rights or Remedies......................... 13
ARTICLE EIGHT
ASSIGNMENT OF PROGRAM OPERATING LEASE
Section 8.01. Assignment of Program Operating Lease by Program Lessor...... 14
ARTICLE NINE
MISCELLANEOUS
Section 9.01. Notices...................................................... 15
Section 9.02. Distribution of Vehicle SUBI Assets.......................... 15
Section 9.03. Successors and Assigns....................................... 15
Section 9.04. Right to Perform for Program Lessee.......................... 15
Section 9.05. Amendments................................................... 15
Section 9.06. No Petition.................................................. 16
Section 9.07. Survival..................................................... 16
Section 9.08. Severability................................................. 16
Section 9.09. Original..................................................... 16
Section 9.10. Single Transaction........................................... 17
Section 9.11. Table of Contents and Headings............................... 17
Section 9.12. Governing Law................................................ 17
Section 9.13. Counterparts................................................. 17
Section 9.14. Limitation of Liability of Owner Trustee..................... 17
Signatures................................................................. 18
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PROGRAM OPERATING LEASE
This Program Operating Lease, dated as of October 1, 1999, is between
Ryder Vehicle Lease Trust 1999-A, a Delaware business trust (the "Issuer"), as
lessor (in such capacity, the "Program Lessor"), and Ryder Funding LP, a
Delaware limited partnership, as lessee (the "Program Lessee").
RECITALS
WHEREAS, 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 U.S. Bank National Association ("U.S. Bank"), as trust
agent, have entered into that certain second amended and restated trust
agreement, dated as of February 1, 1998 (the "Origination Trust Agreement"),
pursuant to which Ryder Truck Rental LT, a Delaware business trust (the
"Origination Trust") was created to, among other things, take assignments and
conveyances of, and hold in trust and deal in various Trust Assets (as such
term is defined in the Origination Trust Agreement);
WHEREAS, in connection with the 1999-A Supplement to the Origination
Trust Agreement, dated as of October 1, 1999 (the "1999-A SUBI Supplement",
and, together with the Origination Trust Agreement, the "SUBI Trust
Agreement"), two special units of beneficial interest (each a "1999-A SUBI"
and, collectively, the "1999-A SUBIs") will be created;
WHEREAS, in connection with the 1999-A SUBI Supplement, a separate
portfolio of leases and certain related assets of the Origination Trust (the
"1999-A Leases") will be allocated to one 1999-A SUBI (the "1999-A Lease
SUBI"), and the vehicles that are leased under the 1999-A Leases and certain
other related assets of the Origination Trust (the "1999-A Vehicles") will be
allocated to the other 1999-A SUBI (the "1999-A Vehicle SUBI");
WHEREAS, the Origination Trust has issued to Ryder Truck Rental I LP
("RTR I LP") and Ryder Truck Rental II LP ("RTR II LP" and, together with RTR I
LP, the "UTI Beneficiaries") certificates respectively representing 99% and 1%
interests in each 1999-A SUBI;
WHEREAS, the certificates representing the 99% interest in the 1999-A
Vehicle SUBI (the "99% 1999-A Vehicle SUBI Certificate") and the 99% interest
in the 1999-A Lease SUBI (the "99% 1999-A Lease SUBI Certificate", and together
with the 99% 1999-A Vehicle SUBI Certificate, the "99% 1999-A SUBI
Certificates") evidence beneficial interests in the 1999-A SUBI Assets,
including the right to receive 99% of certain payments relating to the 1999-A
SUBI Assets;
WHEREAS, pursuant to that certain transfer agreement, dated as of
October 1, 1999 (the "SUBI Certificate Transfer Agreement"), between RTR I LP,
as transferor, and the Program Lessee, as transferee, RTR I LP transferred the
99% 1999-A Vehicle SUBI Certificate and the 99% 1999-A Lease SUBI Certificate
to the Program Lessee;
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WHEREAS, the Issuer was formed pursuant to that certain trust
agreement, dated as of June 21, 1999, as amended and restated as of October 1,
1999 (the "Trust Agreement"), between the Program Lessee and Chase Manhattan
Bank Delaware, as trustee (the "Owner Trustee");
WHEREAS, pursuant to that certain transfer agreement, dated as of
October 1, 1999 (the "Issuer SUBI Certificate Transfer Agreement"), between the
Program Lessee, as transferor (the "Transferor"), and the Issuer, the Program
Lessee transferred the 99% 1999-A Vehicle SUBI Certificate to the Issuer;
WHEREAS, pursuant to that certain indenture, dated as of ________,
1999 (the "Indenture"), between the Indenture Trustee and the Program Lessor,
the Program Lessor has granted a security interest in the 99% 1999-A Vehicle
SUBI Certificate to U.S. Bank, as trustee (in such capacity, the "Indenture
Trustee");
WHEREAS, the Program Lessee desires to obtain from the Program Lessor
certain rights in and relating to the 1999-A Vehicles evidenced by the 99%
1999-A Vehicle SUBI Certificate, including all rights to payments on or in
respect of the 99% 1999-A SUBI Certificates during the term hereof, and the
Program Lessor is willing to grant to the Program Lessee such rights for the
period specified herein on the terms and conditions set forth herein; and
WHEREAS, the Program Lessee, as pledgor, has agreed to pledge the 99%
1999-A Lease SUBI Certificate to the Program Lessor pursuant to this Agreement
to secure the performance of its obligations as Program Lessee hereunder;
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. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement, the Indenture, the SUBI Trust Agreement or the Administration
Agreement, as the case may be. Whenever used in this Agreement, unless the
context otherwise requires, the following words and phrases shall have the
following meanings:
"Administration Agreement" means the Basic Administration Agreement as
supplemented by the Administration Supplement, as amended or supplemented from
time to time.
"Administration Supplement" means that certain 1999-A Supplement to
the Basic Administration Agreement, dated as of October 1, 1999, among the
parties to the Administration Agreement.
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"Agreement" means this Program Operating Lease, as amended or
supplemented from time to time.
"Basic Administration Agreement" means that certain administration
agreement, dated as of February 1, 1998, among the UTI Beneficiaries, the
Administrative Agent, the Maintenance Provider and the Origination Trustee.
"Indenture" has the meaning set forth in the Recitals.
"Lease Default" has the meaning set forth in Section 6.01.
"Lease Default Notice" has the meaning set forth in Section 7.01.
"Lease Payment" means the payment made by the Program Lessee on each
Deposit Date, in an amount equal to the payments made on or in respect of the
1999-A Leases and 1999-A Vehicles during the related Collection Period as
comprise (i) the Financial Component of the Fixed Charge received from the
related Lessees as part of the Total Monthly Payment and (ii) Termination Value
Payments made by Lessees following the exercise of the Annual Termination
Option.
"1999-A Leases" has the meaning set forth in the Recitals.
"1999-A Lease SUBI" has the meaning set forth in the Recitals.
"1999-A Lease SUBI Pledge" has the meaning set forth in Section
2.01(b).
"1999-A SUBI" and "1999-A SUBIs" have the meanings set forth in the
Recitals.
"1999-A SUBI Assets" means the 1999-A Vehicles and the 1999-A Leases.
"1999-A Vehicles" has the meaning set forth in the Recitals.
"1999-A Vehicle SUBI" has the meaning set forth in the Recitals.
"99% 1999-A Lease SUBI Certificate" has the meaning set forth in the
Recitals.
"99% 1999-A SUBI Certificates" has the meaning set forth in the
Recitals.
"99% 1999-A Vehicle SUBI Certificate" has the meaning set forth in the
Recitals.
"Lease Term" means the term of this Agreement.
"Leased Assets" has the meaning set forth in Section 2.01(a).
"Permitted Liens" means the respective rights and interests of the
Program Lessor and the Indenture Trustee in and to the 99% 1999-A SUBI
Certificates and this Agreement pursuant to the Basic Documents, including the
rights of any permitted assignee of the Program Lessor or the Indenture
Trustee.
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"SUBI Trust Agreement" has the meaning set forth in the Recitals.
"Termination Date" means the date of the termination of this
Agreement, which shall be 60 days after the latest Maturity Date of any 1999-A
Lease as of the Cutoff Date.
"Trust Agreement" has the meaning set forth in the Recitals.
Section 1.02. Interpretive Provisions.
(a) 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 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
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement, (iv) the term
"include" and all variations thereof shall mean "include without limitation"
and (v) the term "or" shall include "and/or".
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
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ARTICLE TWO
LEASE OF 99% VEHICLE SUBI CERTIFICATE
Section 2.01. Lease of Vehicle SUBI Certificate.
(a) Subject to the terms and conditions hereof, the Program Lessor
hereby agrees to lease to the Program Lessee, and the Program Lessee hereby
agrees to lease from the Program Lessor, for the Lease Term, the Program
Lessor's 99% undivided beneficial interest in the 1999-A Vehicles and the 99%
1999-A Vehicle SUBI Certificate representing that interest, including the right
to receive all payments made on or in respect of the 1999-A Vehicles and the
99% 1999-A Vehicle SUBI Certificate and all proceeds thereof during the Lease
Term (collectively, the "Leased Assets"). Notwithstanding the foregoing, this
Agreement is subject to the security interest herein granted pursuant to the
Indenture by the Program Lessor to the Indenture Trustee.
(b) The 99% 1999-A Vehicle SUBI Certificate shall be delivered to the
Program Lessor in connection with the execution of the Issuer SUBI Certificate
Transfer Agreement. The 99% 1999-A Lease SUBI Certificate shall be pledged and
delivered to the Program Lessor pursuant to Section 2.04 hereof (the "1999-A
Lease SUBI Pledge"). Possession of the 99% 1999-A SUBI Certificates shall then
immediately be delivered to the Indenture Trustee. Thereafter, until the Lien
of the Indenture is released, the Indenture Trustee will maintain physical
possession of the 99% 1999-A SUBI Certificates for the benefit of the Senior
Noteholders; provided, that the Program Lessee shall continue to have all
rights with respect to the 99% 1999-A Vehicle SUBI Certificate set forth in
this Agreement and, subject to the lien of the 1999-A Lease SUBI Pledge and the
Indenture, all rights with respect to the 99% 1999-A Lease SUBI Certificate. To
the extent the Program Lessee has physical possession of the 99% 1999-A Vehicle
SUBI Certificate, the Program Lessee shall at the end of the Lease Term deliver
the 99% 1999-A Vehicle SUBI Certificate to the Program Lessor. Upon such
delivery, the Program Lessee shall be deemed to transfer, assign, set over and
otherwise convey to the Program Lessor, without recourse, representation or
warranty, all right, title and interest of the Program Lessee in and to the
Leased Assets, including the 99% 1999-A Vehicle SUBI Certificate, all monies
due or to become due with respect thereto after the date of such delivery and
all proceeds thereof. Such delivery shall satisfy the Program Lessee's
obligations pursuant to this Agreement.
(c) At the time of the return of the Leased Assets by the Program
Lessee to the Program Lessor, the 99% 1999-A Vehicle SUBI Certificate shall, at
the cost and expense of the Program Lessee, be free and clear of all Liens,
other than Permitted Liens.
Section 2.02. Representations, Warranties and Covenants of Program
Lessor. As of the date hereof, the Program Lessor hereby represents and
warrants to the Program Lessee that (i) immediately prior to the lease of the
Leased Assets to the Program Lessee, it had good title to and was the sole
legal and beneficial owner of the 99% 1999-A Vehicle SUBI Certificate and it's
interest in the Leased Assets was free and clear of Liens other than Permitted
Liens and (ii) during the Lease Term, so long as no Lease Default shall have
occurred and be continuing, the Program Lessee's receipt and quiet enjoyment of
the benefits of the payments on or in respect of the 99% 1999-A SUBI
Certificates (subject to the 1999-A Lease SUBI Pledge and the Lien of the
Indenture) shall not be interrupted or disturbed by the Program Lessor or any
Person claiming by, through or under the Program Lessor.
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Section 2.03. Program Lessee's Rights. So long as no Lease Default
shall have occurred and be continuing, in exchange for the payment of the Lease
Payments, the Program Lessee shall enjoy all of the rights to the Leased Assets
and, except as otherwise provided in the Basic Documents, shall have the
exclusive claim (subject to the Lien of the Indenture) to receive all
distributions and proceeds with respect to the Leased Assets, including the 99%
1999-A Vehicle SUBI Certificate. Such Lease Payments shall be applied by the
Program Lessor to make any payment required to be made by the Program Lessor
under the Basic Documents. For purposes of the SUBI Trust Agreement, the
parties hereto and each of their respective permitted assigns shall each be
deemed a Holder, but the Program Lessee and its permitted assigns shall
indemnify the Program Lessor against any Liabilities pursuant to Section 3.07
of the SUBI Trust Agreement. Upon the occurrence and during the continuance of
a Lease Default, the Program Lessee shall no longer have any right to vote or
direct actions with respect to any of the Basic Documents.
Section 2.04. Pledge and Grant of Security Interest in 99% 1999-A
Lease SUBI Certificate. In order to secure payment by the Program Lessee of the
Lease Payments required pursuant to Section 3.02, the Program Lessee hereby
pledges and assigns to the Program Lessor and grants to the Program Lessor a
security interest in, all of Program Lessee's right, title and interest in and
to the 99% 1999-A Lease SUBI Certificate, together with all rights appurtenant
thereto and proceeds thereof.
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ARTICLE THREE
LEASE TERM AND PAYMENTS
Section 3.01. Term. The Lease Term shall begin as of the Closing Date
and shall end on the Termination Date. Notwithstanding the foregoing, this
Agreement shall expire with respect to each 1999-A Lease and the related 1999-A
Vehicle on the earliest to occur of (i) the related Maturity Date, (ii) the
effective date of the exercise by the Administrative Agent or the related
Lessee of the Annual Termination Option, (iii) the date of the Administrative
Agent's termination of such 1999-A Lease pursuant to a Special Event Purchase,
(iv) the date on which such 1999-A Lease becomes a Default Termination Lease,
(v) the date on which such 1999-A Lease becomes a Casualty Termination Lease or
(vi) the date on which the Administrative Agent is required to purchase such
1999-A Vehicle pursuant to Section 11.03(b)(ii), 11.03(b)(iii) or 11.03(c) of
the Administration Supplement.
Section 3.02. Payments.
(a) During the Lease Term, (i) the Program Lessee shall pay the Lease
Payment due on each Deposit Date to the Program Lessor and (ii) on any Deposit
Date, a Lease Payment shall be deemed to have been made by the Program Lessee
to the extent an amount equal to such Lease Payment has been deposited in the
SUBI Collection Account during the related Collection Period by the
Administrative Agent with respect of the 1999-A Leases and 1999-A Vehicles as
comprise (A) the Financial Component of the Fixed Charge received from the
related Lessees as part of the Total Monthly Payment and (B) Termination Value
Payments made by Lessees following the exercise of the Annual Termination
Option.
(b) Only rights to the Financial Component portion of the Fixed Charge
with respect to each 1999-A Lease shall be available to the Program Lessee to
make payments in respect of this Agreement. Payments in respect of the
Maintenance Component of Total Monthly Payments will be retained by or
otherwise paid to the Maintenance Provider as compensation for acting as
Maintenance Provider with respect to the 1999-A Vehicles, and will not be
available to make Lease Payments or to pay any other amounts payable by the
Program Lessee under this Agreement.
Section 3.03. Form of Payment. All payments due under this Agreement
shall be made to the Program Lessor, or to the Indenture Trustee in lieu of the
Program Lessor, in immediately available funds prior to 5:00 p.m., New York
City time, on the applicable Deposit Date.
Section 3.04. Tax Treatment. For federal and State income and
franchise tax purposes, the parties hereto agree (i) to treat the 99% 1999-A
SUBI Certificates as being owned by the Program Lessee and (ii) that the
Program Lessee is intended to be the owner of the 99% 1999-A SUBI Certificates.
Section 3.05. No Rights to Sublease or Renewal. Except as set forth in
Section 8.01, the Program Lessee shall not assign, pledge, sell, transfer,
sublease or otherwise dispose of its interest in the 99% 1999-A Vehicle SUBI
Certificate at any time. Except as provided pursuant to the Basic Documents,
the Program Lessee shall not transfer possession or relinquish control of the
99% 1999-A Vehicle SUBI Certificate. The Program Lessee may not renew the Lease
Term.
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ARTICLE FOUR
UNCONDITIONAL OBLIGATION; ADDITIONAL COLLATERAL
Section 4.01. Unconditional Obligation. The Program Lessee hereby
acknowledges and agrees that its obligation to make Lease Payments due
hereunder, and the rights of the Program Lessor in and to such Lease Payments,
shall be absolute and unconditional and shall not be affected by any
circumstance of any character, including:
(a) any set-off, abatement, counterclaim, suspension, recoupment,
reduction, defense or other right or claim that the Program Lessee may
have against the Program Lessor, the Origination Trustee, Indenture
Trustee, any Securityholder or any other Person for any reason
whatsoever;
(b) the breach or failure of any warranty or representation made
in, or the failure to perform or comply with any of the terms of, this
Agreement by the Program Lessor, the Origination Trustee, the
Indenture Trustee, any Securityholder or any other Person;
(c) any amendment or other change of, or any assignment of rights
under, this Agreement or any other Basic Document, or any waiver,
action or inaction under or in respect of this Agreement, or any
exercise or non-exercise of any right or remedy under this Agreement,
including the exercise of any foreclosure or other remedy under the
Indenture, this Agreement or the sale of any 99% 1999-A SUBI
Certificates or any part thereof or interest therein;
(d) any insolvency, bankruptcy or similar law affecting
creditors' rights generally;
(e) any claims as a result of any other business dealings by the
Program Lessor, the Program Lessee or their respective Affiliates or
the Indenture Trustee or the Origination Trustee;
(f) any defect in or any Lien on the title to any 99% 1999-A SUBI
Certificates or any part thereof;
(g) any change, waiver, extension, indulgence or other act or
omission in respect of any obligation or liability of the Program
Lessor or the Program Lessee;
(h) any alleged failure on the part of the Program Lessor to
perform or comply with any of the terms of any other Basic Document;
(i) any invalidity or unenforceability or disaffirmance of this
Agreement or any provision hereof or any of the other Basic Documents;
(j) any assignment, novation, merger, consolidation, sale or
transfer of assets, leasing or other similar transaction of or
affecting the Program Lessee or the Program Lessor, whether with or
without the approval of the Indenture Trustee, except as expressly
provided in this Agreement; or
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(k) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing.
Each Lease Payment made by the Program Lessee hereunder shall be final
and, absent manifest error, the Program Lessee shall not seek to have any right
to recover all or any part of such payment from the Program Lessor for any
reason whatsoever. Notwithstanding the foregoing, in the event any Lessee under
a 1999-A Lease continues to make Monthly Payments after this Agreement has
expired with respect to the related 1999-A Vehicle pursuant to Section 3.01,
the Program Lessor shall credit such amounts against subsequent Lease Payments
due. The Program Lessee hereby waives, to the extent permitted by applicable
law, any and all rights it may now have or that at any time hereafter may be
conferred upon it, by statute or otherwise, to terminate, cancel, quit or
surrender this Agreement except in accordance with the express terms hereof.
Section 4.02. Assignment and Pledge of Certain Other Assets. The
Program Lessee acknowledges that its interest in the Leased Assets and the
related accounts under this Agreement is subject to the prior pledge by the
Program Lessor to the Indenture Trustee under the Indenture. The Program Lessee
hereby pledges and assigns and grants a security interest to the Issuer in any
and all of its right, title and interest in the 99% 1999-A SUBI Certificates to
secure its obligations under this Agreement.
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ARTICLE FIVE
LIENS; LOCATION AND INSPECTION
Section 5.01. Liens. The Program Lessee shall not directly or
indirectly create, assume or suffer to exist any Lien on or with respect to the
Leased Assets, any title thereto or any interest therein (including any rights
to payment), other than Permitted Liens. The Program Lessee shall promptly, at
its own expense, take such action as may be necessary to duly discharge any
such Lien (other than Permitted Liens).
Section 5.02. Change of Location. If, following the payment in full of
the Senior Notes and the release of the Lien of the Indenture, the Program
Lessee shall have obtained possession of the 99% 1999-A Vehicle SUBI
Certificate, then the Program Lessee shall provide the Program Lessor with
written notice of its intention to relocate the 99% 1999-A Vehicle SUBI
Certificate in accordance with the terms hereof at least one month prior to the
date such relocation is commenced. Notwithstanding the foregoing, no relocation
of the 99% 1999-A Vehicle SUBI Certificate by the Program Lessee shall be
commenced or made if a Lease Default shall have occurred and be continuing.
Section 5.03. Inspection and Information. At reasonable intervals
during the Lease Term and at any time at which a Lease Default has occurred and
is continuing, the Program Lessor and its representatives shall have the right,
but not the duty, to inspect the 99% 1999-A Vehicle SUBI Certificate and all
records relating thereto, including all records relating to the receipt or
distribution of funds with respect to the 99% 1999-A Vehicle SUBI Certificate.
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ARTICLE SIX
LEASE DEFAULTS
Section 6.01. Lease Defaults. Any of the following acts or occurrences
shall constitute a default hereunder (each, a "Lease Default"):
(a) on any Deposit Date, the Program Lessee shall fail to make,
or cause to be made, to the Program Lessor, or the Indenture Trustee
or Origination Trustee, as the case may be, in lieu of the Program
Lessor, the Lease Payment due on such Deposit Date, and such default
shall continue for a period of 15 days or more after written notice
thereof shall have been given to the Program Lessee by the Program
Lessor;
(b) the Program Lessee shall breach a material representation or
warranty, or fail to perform any covenant contained in Articles Two or
Five;
(c) the Program Lessee shall default in the due performance and
observance of any of its covenants or agreements in this Agreement,
which default materially and adversely affects the rights of the
Program Lessor or its interest in the 99% 1999-A Vehicle SUBI
Certificate or the 99% 1999-A Lease SUBI Certificate, and such default
shall continue for a period of 30 days after written notice thereof
shall have been given to the Program Lessee by the Program Lessor;
(d) any representation, warranty or statement of the Program
Lessee made in this Agreement or any other Basic Document, or any
certificate, report or other writing delivered pursuant to this
Agreement or an Administration Supplement shall prove to have been
incorrect when made, which has a material adverse effect on the
Program Lessor or its interest in the 99% 1999-A Vehicle SUBI
Certificate or the 99% 1999-A Lease SUBI Certificate and such material
adverse effect shall continue for a period of 30 days after written
notice thereof shall have been given to the Program Lessee by the
Program Lessor or by the Indenture Trustee;
(e) (i) the existence of any proceeding or action involving, or
the entry of a decree or order for relief by a court or regulatory
authority having jurisdiction over the Program Lessee in, an
involuntary case under the federal bankruptcy laws, as now or
hereafter in effect, or the appointment of a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official
of the Program Lessee or of any substantial part of its property, or
the ordering of the winding up or the liquidation of the affairs of
the Program Lessee and the continuance of any such action, proceeding,
decree or order unstayed and, in the case of any such order or decree,
in effect for a period of 60 consecutive days or (ii) the commencement
by the Program Lessee of a voluntary case under the federal bankruptcy
laws, as now or hereafter in effect, or the consent by the Program
Lessee to the appointment of or taking of possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Program Lessee or of any substantial part of
its property or the making by the Program Lessee of an assignment for
the benefit of creditors or the failure by the Program Lessee
generally to pay its debts as such debts become due or the taking of
action by the Program Lessee in furtherance of any of the foregoing;
or
(f) there shall occur an Indenture Default.
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ARTICLE SEVEN
REMEDIES
Section 7.01. Remedies. Upon the occurrence and during the continuance
of a Lease Default, the Program Lessor (or, if the Lien of the Indenture is
outstanding, the Indenture Trustee as assignee of the Issuer) may, with respect
to any Lease Default described in Section 6.01(a), (b), (c), (d) and (f), at
its option, declare this Agreement to be in default by written notice to such
effect given to the Program Lessee (a "Lease Default Notice"), and upon the
occurrence of a Lease Default described in Section 6.01(e), this Agreement
shall automatically be in default, and at any time thereafter the Program
Lessor may, to the extent permitted by law, exercise one or more of the
following remedies as the Program Lessor in its sole discretion shall elect:
(a) by notice to the Program Lessee, rescind or terminate this
Agreement;
(b) demand, if the Program Lessee has possession of the 99%
1999-A Vehicle SUBI Certificate (or the 99% 1999-A Lease SUBI
Certificate) that the Program Lessee, and the Program Lessee shall
upon such demand, redeliver the 99% 1999-A Vehicle SUBI Certificate
(or the 99% 1999-A Lease SUBI Certificate) to the Program Lessor;
(c) subject to the terms of the Trust Agreement and the
Indenture, sell (which action may be taken by the Indenture Trustee,
subject to Section 5.04(a) of the Indenture) the 99% 1999-A Vehicle
SUBI Certificate or the 99% 1999-A Lease SUBI Certificate at public or
private sale, as the Program Lessor may determine, in its sole
discretion free and clear of any rights of the Program Lessee in the
99% 1999-A Vehicle SUBI Certificate or the 99% 1999-A Lease SUBI
Certificate and without any duty to account to the Program Lessee with
respect to such action or inaction or any proceeds with respect
thereto; provided, that the Program Lessee shall be entitled to
receive any proceeds of such sale remaining after payment in full of
the expenses of such sale and any expenses of the Program Lessee, the
Program Lessor, the Indenture Trustee or the Origination Trustee that
have not been otherwise paid; or
(d) whether or not the Program Lessor shall have exercised or
shall thereafter at any time exercise its rights under Section
7.01(b), demand, by written notice to the Program Lessee, that the
Program Lessee, and the Program Lessee shall upon such demand, pay to
the Program Lessor, or, if the Lien of the Indenture is outstanding,
the Indenture Trustee as assignee of the Issuer, on the Payment Date
next succeeding such notice, any unpaid Lease Payments due through
such Payment Date; provided, however, that the Program Lessor may
exercise the remedy set forth in this paragraph only in the event the
Senior Notes have been declared immediately due and payable pursuant
to Section 5.02 of the Indenture, and such declaration has not been
rescinded or annulled.
Upon any termination of this Agreement, the Program Lessor shall
directly receive all distributions with respect to, or shall have the right to
sell, the 99% 1999-A Vehicle SUBI Certificate or the 99% 1999-A Lease SUBI
Certificate and to apply the funds received in respect thereof to pay interest
on and principal of the Securities, subject to the provisions of the other
Basic Documents.
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If the maturity of the Senior Notes has been accelerated following a
Lease Default, the Indenture Trustee, as assignee of the Issuer, shall be
entitled to demand that the Program Lessee pay all previously due but as yet
unpaid Lease Payments plus, as liquidated damages, an amount equal to the sum
of (i) any interest due and unpaid on the Securities, (ii) the unpaid principal
balance of the Securities and (iii) any other amounts payable by the Program
Lessee under the Basic Documents. Upon payment of such amounts, the Program
Lessee shall be entitled to receive the 99% 1999-A Vehicle SUBI Certificate and
the release of the pledged 99% 1999-A Lease SUBI Certificate.
Section 7.02. No Release. No (i) rescission or termination of this
Agreement in whole or in part, (ii) repossession of the 99% 1999-A Vehicle SUBI
Certificate or foreclosure of the lien on the 99% 1999-A Lease SUBI Certificate
or (iii) exercise of any remedy under Section 7.01 shall, except as
specifically provided therein, relieve the Program Lessee of any of its
liabilities or obligations hereunder. In addition, the Program Lessee shall be
liable, except as otherwise provided herein, for any and all unpaid Lease
Payments, if any, due hereunder before, after or during the exercise of the
foregoing remedies, including all reasonable legal fees and other costs and
expenses incurred by the Program Lessor.
Section 7.03. Remedies Cumulative. No remedy under Section 7.01 is
intended to be exclusive, but each shall, to the fullest extent permitted by,
but subject to any mandatory requirements of, any applicable law or government
regulation, be cumulative and in addition to any other remedy provided under
Section 7.01 or otherwise available to the Program Lessor at law or in equity.
No express or implied waiver by the Program Lessor of any Lease Default shall
in any way be, or be construed to be, a waiver of any future or subsequent
Lease Default. The failure or delay of the Program Lessor in exercising any
rights granted to it hereunder or under any other Basic Document upon any
occurrence of any of the contingencies set forth herein shall not constitute a
waiver of any such right upon the continuation or recurrence of any such
contingency or similar contingency, and any single or partial exercise of any
particular right by the Program Lessor shall not exhaust the same or constitute
a waiver of any other right provided herein.
Section 7.04. Exercise of Other Rights or Remedies. In addition to all
other rights and remedies provided in this Article, the Program Lessor may
exercise any other rights or remedies that may be available to it under
applicable law or proceed by appropriate court action to enforce the terms
hereof or to recover damages for the breach hereof.
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ARTICLE EIGHT
ASSIGNMENT OF PROGRAM OPERATING LEASE
Section 8.01. Assignment of Program Operating Lease by Program Lessor.
(a) The Program Lessee hereby acknowledges, and consents in all
respects to, the assignment of the interest of the Program Lessor in this
Agreement by the Program Lessor to the Indenture Trustee under and pursuant to
the Indenture, and agrees:
(i) to make each Lease Payment due or to become due hereunder
directly to the Indenture Trustee or Origination Trustee, as the case
may be, to the account specified by the Indenture Trustee, so long as
any Securities shall be outstanding and unpaid; and
(ii) not to seek to recover any payment (other than a payment
made in error) made to the Indenture Trustee or Origination Trustee,
as the case may be, in accordance with the Indenture once such payment
is made.
(b) The Program Lessee hereby consents to and acknowledges the
retention of possession by the Indenture Trustee of the 99% 1999-A SUBI
Certificates until such time as the Senior Notes are paid in full and the Lien
of the Indenture is released.
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ARTICLE NINE
MISCELLANEOUS
Section 9.01. Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered or mailed by registered or
certified first-class United States mail, postage prepaid, hand delivery,
prepaid courier service or by telecopier, and addressed in each case as
follows: (i) if to the Program Lessor, c/o Chase Manhattan Bank Delaware, at
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000 (telecopier no. (000) 000-0000),
Attention: Corporate Trust Department; (ii) if to the Program Lessee, at 0000
X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 (telecopier no. (000) 000-0000),
Attention: Treasurer; or (iii) at such other address as shall be designated by
any of the foregoing in a written notice to the other parties hereto. Delivery
shall occur only upon receipt or reported 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. All demands, notices and
communications hereunder shall, so long as the 99% 1999-A Vehicle SUBI
Certificate or the 99% 1999-A Lease SUBI Certificate is subject to the Lien of
the Indenture, be given to the Indenture Trustee as well as to the appropriate
party hereunder.
Section 9.02. Distribution of Vehicle SUBI Assets. The Program Lessor
and Program Lessee agree that each shall be a Holder of the 99% 1999-A Vehicle
SUBI Certificate and the 99% 1999-A Lease SUBI Certificate for purposes of the
SUBI Trust Agreement and that, for so long as this Agreement is in effect, each
shall exercise their joint rights provided for in the SUBI Trust Agreement only
with the consent of the other.
Section 9.03. Successors and Assigns. Neither the Program Lessor nor
the Program Lessee may assign its interest in this Agreement except as
permitted by Section 8.01. This Agreement, including all agreements, covenants,
representations and warranties, shall be binding upon and inure to the benefit
of the Program Lessor and its successors and permitted assigns and the Program
Lessee and its successors and permitted assigns.
Section 9.04. Right to Perform for Program Lessee. If the Program
Lessee shall fail to make any Lease Payment required to be made hereunder, or
shall fail to perform or comply with any of its other agreements contained
herein or in any other Basic Document or any other agreement entered into in
connection therewith, the Program Lessor may, but shall not be obligated to,
make such payment or perform or comply with such agreement, and the amount of
such payment and the amount of all costs and expenses (including, without
limitation, reasonable attorneys' and other professionals' fees and expenses)
of the Program Lessor incurred in connection with such payment or the
performance of or compliance with such agreement, as the case may be, together
with interest thereon, at the Class A-4 Interest Rate, shall be due and payable
by the Program Lessee upon demand.
Section 9.05. Amendments. This Agreement may be amended without the
consent of the Securityholders; provided, however, (i) that such amendment may
not, as evidenced by an Opinion of Counsel, materially adversely affect the
interests of the Senior Noteholders or the Trust Certificateholders (unless
100% of the Senior Noteholders and the Trust Certificateholders materially
adversely affected consent thereto), (ii) subject to the satisfaction of the
Rating Agency Condition and (iii) an Opinion of Counsel is delivered to the
effect that after such amendment (a) the Origination Trust will not be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes and (b) the Trust Certificates will
properly be characterized as indebtedness that is secured by the assets of the
Origination Trust. Notwithstanding the foregoing, this Agreement may be amended
at any time by the parties hereto to the extent reasonably necessary to ensure
that none of the Origination Trust, the Issuer or the Program Lessee will be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes.
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Section 9.06. No Petition. Each of the parties hereto covenant and
agree that they will not institute, or join in instituting, any bankruptcy,
reorganization, arrangement, insolvency or liquidation Proceeding, or other
Proceeding under federal or State bankruptcy or similar laws for a period of
one year and a day after:
(a) payment in full of all amounts due to each Holder in respect
of the UTI, the 1999-A SUBIs or any Other SUBI, against any UTI
Beneficiary (or any general partner of any UTI Beneficiary which is a
partnership or any member of a UTI Beneficiary which is a limited
liability company), the Origination Trust and the Origination Trustee,
without the consent of 100% of the Holders of the 1999-A SUBIs and any
Other SUBIs (excluding the UTI Beneficiaries, the Transferor or any of
their respective Affiliates); and
(b) payment in full of the Offered Securities, against the
Transferor or the Issuer; provided, however, that 100% of the Senior
Noteholders, or, if no Senior Notes are then outstanding, the
Subordinated Noteholder and if no Subordinated Notes are then
outstanding, 100% of the Trust Certificateholders (in each case
excluding the Transferor and any of its Affiliates) may at any time
institute or join in instituting any bankruptcy, reorganization,
insolvency or liquidation proceeding against the Transferor or the
Issuer.
Section 9.07. Survival. All agreements, indemnities, representations
and warranties contained in this Agreement and the other Basic Documents or any
agreement, document or certificate delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery of
this Agreement and the expiration or other termination thereof.
Section 9.08. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement, and shall in no way affect the validity or
enforceability of the other covenants, agreements, provisions or terms of this
Agreement.
Section 9.09. Original. The single executed original of this Agreement
marked "Original" and containing the receipt of the Indenture Trustee thereon
shall be the "Original" of this Agreement. To the extent this Agreement
constitutes "chattel paper" as such term is defined in the UCC as in effect in
any applicable jurisdiction, no security interest in this Agreement may be
created through the transfer or possession of any counterpart other than the
"Original".
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Section 9.10. Single Transaction. The parties hereto acknowledge and
agree that the Basic Documents and any other agreements of the Program Lessee
entered into by the Program Lessee in connection with the transactions
contemplated by the Basic Documents are intended to be construed and treated
for all purposes as integral and constitutive elements of a single transaction
that cannot be separately assigned, assumed or rejected under the United States
bankruptcy code (Title 11 of the United States Code) or any other applicable
bankruptcy, insolvency or receivership laws.
Section 9.11. 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.
Section 9.12. Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to any otherwise applicable principles of conflicts of laws (other than
Section 5-1401 of the New York General Obligations Law).
Section 9.13. 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 9.14. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been executed by Chase Manhattan Bank Delaware not in its individual capacity
but solely in its capacity as Owner Trustee of the Issuer and in no event shall
Chase Manhattan Bank Delaware in its individual capacity or any beneficial
owner of the Issuer have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder, as to all
of which recourse shall be had solely to the assets of the Issuer. For all
purposes of this Agreement, in the performance of any duties or obligations of
the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Ten of the
Trust Agreement. Notwithstanding anything herein to the contrary, Section 2.07
of the Trust Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Program
Operating Lease to be duly executed by their respective officers hereunto duly
authorized, as of the day and year first above written.
RYDER FUNDING LP,
as Program Lessee
By: RYDER TRUCK RENTAL III LLC,
as General Partner
By: RTR LEASING II, INC.,
as Manager
By:
-------------------------------------------
Name:
Title:
RYDER VEHICLE LEASE TRUST 1999-A,
as Program Lessor
By: CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
-------------------------------------------
Name:
Title:
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Receipt of this original counterpart of this Agreement is hereby
acknowledged on this ____ day of ___________ 1999.
U.S. BANK NATIONAL ASSOCIATION,
as Indenture Trustee
By:
-------------------------------------------
Name:
Title:
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