EXHIBIT 10.17
VEHICLE TITLE NOMINEE AGREEMENT
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THIS VEHICLE TITLE NOMINEE AGREEMENT (this "Agreement") is made as of
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this 17th day of October, 1996, by and between Ryder Truck Rental, Inc., a
Florida corporation ("Seller"), and RCTR, Inc., a Delaware corporation ("Buyer")
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and a wholly-owned subsidiary of Ryder TRS, Inc. (f/k/a RCTR Holdings, Inc.), a
Delaware corporation ("Ryder TRS"). Except as otherwise specified, capitalized
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terms used but not defined herein have the respective meanings set forth in the
Purchase Agreement (as defined herein).
WHEREAS, the execution and delivery of this Agreement is a condition
to each of Seller's and Ryder TRS's obligation to conclude the transactions
contemplated by the Asset and Stock Purchase Agreement, dated as of September
19, 1996, by and between Seller and Ryder TRS (the "Purchase Agreement");
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WHEREAS, at the Closing and pursuant to the terms of the Purchase
Agreement, (a) Ryder TRS will assume certain liabilities of Seller, (b) Ryder
TRS will acquire certain of the operating assets of Seller's Consumer Truck
Rental Division, other than the Trucks and the car carriers owned by Seller at
the Closing and included in the Assets sold (the "Vehicles"), and (c) Buyer will
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acquire the Vehicles;
WHEREAS, due to the administrative impossibility and the prohibitive
costs associated with the transfer of the voluminous number of titles to the
Vehicles, title to the Vehicles will not be transferred to Buyer at the Closing,
but instead, from and after the Closing, Seller will act as Buyer's nominee
title holder of the Vehicles pursuant to the terms hereof; and
WHEREAS, Seller and Buyer desire to confirm their respective interests
in and obligations with respect to the Vehicles and to provide for certain other
matters relating to the use and disposition of the Vehicles;
NOW THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer, intending to be
legally bound, hereby agree as follows:
1. Term. This Agreement will commence on the Closing and will remain in
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full force and effect until such date and time as none of the Vehicles are
titled in the name of Seller; provided that the terms and provisions of Section
6 shall survive indefinitely.
2. Appointment of Seller as Nominee Title Holder; Power of Attorney.
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(a) Buyer hereby appoints Seller as nominee title holder of the Vehicles
and Seller hereby agrees to serve as Buyer's designated agent in such
capacity as described herein.
(b) Seller hereby grants Buyer a power of attorney substantially in the
form of Exhibit A attached hereto to (i) transfer the title to any Vehicle
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from the name of Seller to the name of Buyer or the name of a third party,
(ii) reflect on the certificate of title of any Vehicle the interest of any
lienholder and (iii) execute such other documents and instruments as may be
necessary to effect any such transfer or reflect any such interest.
3. Interests in the Vehicles. Notwithstanding the fact that title to the
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Vehicles will remain in the name of Seller on and after the Closing, Seller and
Buyer hereby acknowledge that, on and after the Closing:
(a) except as set forth in subsection (b) below, Buyer is entitled to
and shall have all incidents, benefits and risks of ownership of the
Vehicles, including, without limitation, the sole right to operate, rent,
sell and otherwise transfer and dispose of the Vehicles; and
(b) Seller has no direct or indirect ownership or other interest in the
Vehicles, except such rights and obligations with respect to the Vehicles
as are required by Buyer's appointment of Seller as nominee title holder of
the Vehicles as set forth herein.
4. Transfer of Vehicle Titles.
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(a) General. Seller and Buyer agree that Buyer may (i) transfer title
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to any Vehicle from the name of Seller to the name of Buyer or a third
party (but in no event, once transferred, re-register title from Buyer to
Seller) or (ii) reflect on the certificate of title of any Vehicle the
interest in such Vehicle of any lienholder.
(b) Transfer as Required by Seller.
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(i) On or After the Six-Month Anniversary of the Closing. Buyer will
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take all necessary action to insure that no Vehicles remain titled in the
name of Seller on or after
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the six-month anniversary of the Closing. In connection therewith, on the
six-month anniversary of the Closing, Buyer will submit to Seller an
officer's certificate of Buyer (A) stipulating that no Vehicles remain
titled in the name of Seller or (B) in the event any Vehicles remain titled
in the name of Seller, a schedule of all such Vehicles by vehicle
identification number and, upon Seller's request, all title documents with
respect to such Vehicles. Buyer hereby agrees that the power of attorney
granted to Buyer pursuant to Section 2(b) shall expire upon the six-month
anniversary hereof and that after such xxxx Xxxxxx shall have the exclusive
power and authority to transfer title to any Vehicle that remains titled in
the name of Seller to the name of Buyer (whether or not such Vehicle is
scheduled in the officer's certificate referred to in the preceding
sentence).
(ii) Prior to the Six-Month Anniversary of the Closing. Prior to the
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six-month anniversary of the Closing (but during the term of this
Agreement), Seller may require Buyer to transfer title of any or all of the
Vehicle(s) from the name of Seller to the name of Buyer by delivering
written notice of such request to Buyer. Within 15 business days of receipt
of such written notice, Buyer agrees to use its reasonable best efforts to
transfer title of any such Vehicle(s) from the name of Seller to the name
of Buyer. If Buyer fails to transfer title of any such Vehicle(s) from the
name of Seller to the name of Buyer within such 15 business days, (i) Buyer
will immediately deliver to Seller all title documents with respect to such
Vehicle(s), and (ii) Seller shall have the power and authority to transfer
title to any such Vehicle(s) that remains titled in the name of Seller to
the name of Buyer. Upon and after such title transfer, Seller shall
immediately deliver to Buyer all title documents with respect to such
Vehicle(s).
5. Insurance. During the term of this Agreement, Buyer will maintain the
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types of insurance, in the coverage limits, listed in the insurance policy
schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
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Type of Insurance Policy Coverage Limits
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Standard Automobile Liability Twenty-Five Million and no/100
Insurance Policy (the "Auto- Dollars ($25,000,000,000.00)
mobile Liability Insurance Per Occurrence with an excess
Policy") layer of at least Fifty Million
and no/100 Dollars
($50,000,000.00) aggregate
Commercial General Liability Seventy-Five Million and no/100
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Insurance Policy with Broad Dollars ($75,000,000.00)
Form Contractual Liability
Insurance Coverage (the "CGL
Insurance Policy")
Workers Compensation Statutory
Employer's Liability Five Million and/100 Dollars
($5,000,000.00)
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, Buyer shall cause the coverage provided by
each such policy to be kept in place for a period of one (1) year after the
effective date of termination or expiration of this Agreement.
Buyer may self insure up to One Million Dollars ($1,000,000) as a
deductible.
Insurance Policy Requirements.
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1. Each Liability Insurance Policy shall:
(1) be written by an insurance company reasonably acceptable to
Seller (it being understood that an insurance company rated
A- or better by A.M. Best & Company is acceptable);
(2) name Buyer as insureds, and be amended to name Seller, its
employees, officers, directors, contractors, agents and
affiliates (each an "Additional Insured") as additional
insureds as their interests may appear;
(3) provide that if such insurance is canceled, or any material
change is made in the coverage which affects the interest of
any Additional Insured, such cancellation or change shall
not be effective as to the Additional Insured for thirty
(30) days after receipt by the Additional Insured of written
notice from such insurers of such cancellation or change;
(4) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to,
any Additional Insured;
(5) provide that in respect of the interests of any Additional
Insured in such policies, the insurance shall not be
invalidated by any
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action or inaction of Buyer or any other Person and shall
insure each Additional Insured regardless of any breach or
violation of any warranty, declaration or condition
contained in such policies by Buyer or any other Person;
(6) shall expressly provide that all of the provisions thereof,
except the limits of liability, shall operate in the same
manner as if there were a separate policy covering each
Additional Insured; and
(7) in accordance with the terms and conditions of the
contractual liability coverage provided by such Insurance
Policy, insure the obligations of Buyer to indemnify the
Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of automobile liability
insurance and general liability insurance shall be on an occurrence form. The
first Twenty-Five Million Dollars of automobile liability insurance shall not be
subject to any annual aggregate limit of liability.
Each liability Insurance Policy and any all-risks Insurance Policy of
Buyer which covers Vehicles shall waive any rights of subrogation against the
Additional Insureds, except to the extent of Seller's obligations to indemnify
Buyer pursuant to Section 6(b) below.
Proof of Insurance. Upon execution of this Agreement, from time to
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time at Seller's request, and any time a new policy is to go into effect, Buyer
shall provide Seller with insurance certificates and other evidence, reasonably
satisfactory to Seller, that the benefits and coverage required by this Section
are in full force and effect. The certificate shall describe the perils covered
by each policy of insurance then in force, identify the insurer or insurers with
which such policies of insurance are carried and maintained, specify the amounts
of insurance coverage provided against each such peril, and describe the
provisions contained in such policies of insurance so as to evidence compliance
with the requirements of this Section. Seller shall have no duty to examine
such insurance certificates or the Insurance Policies to verify compliance.
Buyer shall provide a copy of its insurance policies to Seller promptly
following a request therefor, if available. Failure to keep such Insurance
Policies in effect while any Vehicle is in Seller's name will cause immediate
and irreparable harm for which monetary damages would be inadequate.
Accordingly, in the event of such a breach, Seller will be entitled to equitable
relief, including specific performance, which remedy shall not be exclusive, but
shall be in addition to, all other remedies available at law or in equity.
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6. Indemnification.
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(a) Buyer hereby agrees to indemnify and hold harmless Seller, its
employees, officers, directors, contractors, agents and affiliates (the
"Seller Indemnified Parties") from and against any actual or alleged claim,
damage, loss, liability, expense and tax (including, without limitation,
reasonable costs of investigation and attorney's fees and expenses)
(collectively, "Losses") (other than any matter for which Seller
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indemnifies or holds Buyer or Ryder TRS harmless hereunder or the Purchase
Agreement) in any way arising out of or related to the Vehicles from and
after the Closing, whether due to Seller's holding legal title to any
Vehicle, Seller's appointment as nominee title holder of the Vehicles or
Seller's performance under this Agreement, including, without limitation,
Losses arising out of or related to (i) Seller's grant of power of attorney
to Buyer pursuant to Section 2(b), (ii) claims for personal injury
(including death) or property damage involving any Vehicle from and after
the Closing, including, without limitation, any claims in excess of or not
otherwise covered by any Insurance Policy, and any vicarious liability,
ownership liability or similar such liability for such claims, (iii) any
personal property taxes payable with respect to the Vehicles subsequent to
the Closing and (iv) Seller's transfer of title to the name of Buyer on or
after the six-month anniversary of the Closing. Buyer will, at Seller's
option, defend the Seller Indemnified Parties from any Losses under this
Section 6(a) with counsel reasonably acceptable to the Seller.
b. Seller hereby agrees to indemnify and hold harmless Buyer, its
employees, officers, directors, contractors, agents and affiliates (the
"Buyer Indemnified Parties") from and against any Losses (other than any
matter for which Buyer or Ryder TRS indemnifies or holds Seller harmless
hereunder or the Purchase Agreement) arising out of or relating to any
claim by a creditor of, or purchaser of a Vehicle (other than Buyer or
Ryder TRS) from, Seller with respect to a Vehicle or any proceeds thereof
as a result of (i) Seller's retention of legal title to any Vehicle on or
after the Closing, (ii) Seller's appointment as nominee title holder of the
Vehicles or (iii) Seller's breach under this Agreement, whether direct or
indirect, and whether any such Losses are incurred by Buyer or the
Collateral Agent; provided, however, that such indemnity shall not extend
to any Losses arising out of or relating to any claim made on a Vehicle by
a purchaser purchasing such Vehicle from or at the direction of Buyer,
Ryder TRS or the Collateral Agent. "Collateral Agent" means Citicorp,
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U.S.A., Inc. and its successors and assigns, as collateral agent. Seller
will, at Buyer's option, defend the Buyer Indemnified Parties from
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any Losses under this Section 6(b) with counsel reasonably acceptable to
the Buyer.
7. Acknowledgments by Seller. Seller hereby acknowledges and
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consents to the following:
(a) Buyer may, with notice to Seller, assign, pledge and grant to the
Collateral Agent a first priority, perfected security interest in all of
Buyer's right, title and interest in and to, among other things, (i) the
Vehicles, (ii) any repurchase program associated with any Vehicle, (iii)
the title documents for the Vehicles and (iv) this Agreement; and
(b) upon such assignment, the Collateral Agent as assignee of Buyer's
rights hereunder shall be entitled to enforce the indemnity set forth in
Section 5(b) above against Seller and Seller agrees to pay any amounts due
with respect to such indemnity directly to the Collateral Agent.
8. Remittance of Proceeds; Payment of License Fees. In the event
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that Seller receives any (a) payments in respect of Vehicles traded or sold to
manufacturers or auction dealers after the Closing representing repurchase
prices from such vehicle manufacturers or auction dealers under repurchase
programs, (b) proceeds from the sale of Vehicles (other than pursuant to a
repurchase program or a sale accomplished under the Used Truck Sale Agreement),
(c) insurance proceeds in respect of Vehicles payable with respect to insurable
events occurring after Closing, other than any proceeds received pursuant to an
Insurance Policy or (d) any other payment or proceeds in respect of Vehicles, in
each case, other than any payments received pursuant to Section 6(a) or pursuant
to an agreement between Seller and an affiliate of Buyer or which constitutes
Excluded Assets, it shall, promptly upon receipt, but in no event later than
seven days from receipt, forward such proceeds to a bank account designated by
Buyer. Buyer will, promptly after execution of this Agreement, set up a bank
account(s) for remittance of proceeds and with sufficient funds in it at all
times to pay for any licensing fees or other amounts for which Buyer is
responsible. Buyer will make the necessary arrangements so that Seller may draw
on such bank account(s) to cover such amounts.
9. Further Assurances. Each of Seller and Buyer will, from time to
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time, execute and deliver such further instruments and render such further
assistance as the other party may reasonably request in order to carry out the
transactions contemplated herein; provided, however, that such instruments will
be prepared by Buyer.
10. No Third Party Beneficiaries. This Agreement will not confer any
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rights or remedies upon any Person other than Seller, Buyer, the Seller
Indemnified Parties, the Buyer
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Indemnified Parties, the Collateral Agent and their respective successors and
permitted assigns.
11. Entire Agreement. This Agreement and the other agreements
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specifically referenced herein constitute the entire agreement between Seller
and Buyer with respect to the subject matter hereof (with the exception of other
agreements entered into pursuant to or in connection with the Purchase
Agreement) and supersede any prior understandings, agreements, or
representations by or among Seller and Buyer, written or oral.
12. Succession and Assignment. This Agreement will be binding upon
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and inure to the benefit of Seller, Buyer and their respective successors and
permitted assigns. Neither Seller nor Buyer may assign either this Agreement or
any of its rights, interests, or obligations hereunder without the prior written
approval of the other; provided, however, that (a) Seller may without the prior
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written approval of Buyer (i) assign any or all of its rights and interests
hereunder to one or more of its Affiliates and (ii) designate one or more of its
Affiliates to perform its obligations hereunder and (b) Buyer may without the
prior written approval of Seller assign any rights and interests hereunder as
provided in Section 7 (in either of which cases Buyer nonetheless will remain
liable and responsible for the performance of all of its obligations hereunder).
13. Counterparts. This Agreement may be executed in separate
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counterparts, each of which will be deemed an original but all of which together
will constitute one and the same instrument.
14. Headings. The section headings contained in this Agreement are
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inserted for convenience only and will not affect in any way the meaning or
interpretation of this Agreement.
15. Notices. All notices, requests, demands, claims and other
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communications hereunder will be in writing. Any notice, request, demand,
claim, or other communication hereunder will be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
If to Seller:
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Ryder Truck Rental, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
Telecopy:
With Copies to:
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Ryder System, Inc.
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0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
If to Buyer:
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RCTR, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
With Copies to:
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Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
Any party hereto may give any notice, request, demand, claim, or other
communication hereunder using any other means (including personal delivery,
expedited courier, messenger service, telecopy, telex, ordinary mail, or
electronic mail), but no such notice, request, demand, claim, or other
communication will be deemed to have been duly given unless and until it
actually is received by the intended recipient. Any party hereto may change the
address to which notices, requests, demands, claims and other communications
hereunder are to be delivered by giving the other party notice in the manner
herein set forth.
16. Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
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IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
17. Amendments and Waivers. No amendment of any provision of this
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Agreement will be valid unless the same will be in writing and signed by each of
Seller and Buyer. No waiver by either Seller or Buyer of any default,
misrepresentation, or breach of warranty or covenant hereunder, whether
intentional or not, will be deemed to extend to any prior or subsequent default,
misrepresentation, or breach of warranty or covenant hereunder or affect in any
way any rights arising by virtue of any prior or subsequent such occurrence.
18. Severability. Any term or provision of this Agreement that is
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invalid or unenforceable in any situation in any jurisdiction will not affect
the validity or enforceability
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of the remaining terms and provisions hereof or the validity or enforceability
of the offending term or provision in any other situation or in any other
jurisdiction.
19. Construction.
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(a) General. The language used in this Agreement will be deemed to be
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the language chosen by Seller and Buyer to express their mutual intent, and
no rule of strict construction will be applied against either Seller or
Buyer.
(b) Title; Titling. As used in this Agreement, the term "title"
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refers to a certificate of title or other similar form of vehicle title and
is intended by Seller and Buyer to include the terms "vehicle registration"
and "vehicle license plate," unless specified otherwise. Similarly, unless
specified otherwise, "titling" will be deemed to include the acts of
registering a vehicle, including the registering of the license plates of a
vehicle.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this Vehicle
Title Nominee Agreement as of the date first above written.
RYDER TRUCK RENTAL, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Executive Vice President of
Development
RCTR, INC.
By: /s/ Xxxx Xxxxxxxx
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Name: Xxxx Xxxxxxxx
Title: Vice President and
Assistant Secretary
EXHIBIT A
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POWER OF ATTORNEY
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THIS POWER OF ATTORNEY is made as of this [ ] day of October, 1996
from Ryder Truck Rental, Inc., a Florida corporation ("Seller") to RCTR, Inc., a
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Delaware corporation ("Buyer"). Except as otherwise specified, capitalized
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terms used but not defined herein have the respective meanings set forth in the
Agreement (as defined herein).
WHEREAS, pursuant to the Vehicle Title Nominee Agreement made as of
the date hereof, by and between Seller and Buyer (the "Agreement"), Seller has
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agreed to grant to Buyer a power of attorney;
NOW THEREFORE, in consideration of the mutual promises contained in
the Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer intending to be
legally bound, hereby agree as follows:
1. Term. This Power of Attorney will commence on the Closing and
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will remain in full force and effect until the six-month anniversary of the
Closing or such date and time as none of the Vehicles are titled in the name of
Seller, whichever occurs first.
2. Power of Attorney.
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(a) Seller hereby irrevocably constitutes and appoints Buyer its
agent and attorney-in-fact to do or cause to be done any of the following
things:
(i) transfer the legal title to any Vehicle from the name of
Seller to the name of Buyer or to the name of a third party determined
by Buyer;
(ii) reflect on the certificate of title of any Vehicle the
interest of any lienholder;
(iii) file all reports required to be filed with respect to the
Vehicles with local governmental authorities (other than taxing
authorities); and
(iv) otherwise take all actions and do all things necessary or
proper, required, contemplated or deemed advisable or desirable by
Buyer in its discretion to effect the foregoing, including the
execution and delivery of such other documents and instruments as may
be necessary to effect any such transfer or reflect any such interest.
(b) All persons dealing with Buyer, as attorney-in-fact, may rely and
act upon any writing believed in good faith to be signed by Buyer.
(c) Buyer is hereby empowered to determine, in its discretion, the
time or times when, the purposes for which, and the manner in which, any power
herein conferred upon Buyer shall be exercised.
(d) Buyer shall not receive any compensation for any services rendered
hereunder.
RYDER TRUCK RENTAL, INC.
By:
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Name:
Title:
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