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RYDER FUNDING II LP,
as Transferor,
and
CHASE MANHATTAN BANK USA, NATIONAL ASSOCIATION,
as Owner Trustee
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AMENDED AND RESTATED TRUST
AGREEMENT
Dated as of February 1, 2001
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms......................................................................... 1
Section 1.02. Interpretive Provisions................................................................... 10
ARTICLE TWO
ORGANIZATION
Section 2.01. Name and Status........................................................................... 11
Section 2.02. Office.................................................................................... 11
Section 2.03. Purposes and Powers....................................................................... 11
Section 2.04. Appointment of Owner Trustee.............................................................. 12
Section 2.05. Initial Capital Contribution of Owner Trust Estate........................................ 12
Section 2.06. Declaration of Trust...................................................................... 12
Section 2.07. Liability of the Transferor............................................................... 13
Section 2.08. Title to Trust Property................................................................... 13
Section 2.09. Situs of Issuer........................................................................... 13
Section 2.10. Representations and Warranties of the Transferor.......................................... 14
ARTICLE THREE
TRUST CERTIFICATES, SUBORDINATED NOTES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership......................................................................... 16
Section 3.02. The Trust Certificates and the Subordinated Notes......................................... 16
Section 3.03. Authentication and Delivery of Trust Certificates and Subordinated Notes.................. 17
Section 3.04. Registration of Transfer and Exchange..................................................... 17
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates or Subordinated Notes............. 21
Section 3.06. Persons Deemed Trust Certificateholders or Subordinated Noteholder........................ 21
Section 3.07. Access to List of Trust Certificateholders' Names and Addresses........................... 21
Section 3.08. Maintenance of Office or Agency........................................................... 22
Section 3.09. Appointment of Paying Agent............................................................... 22
Section 3.10. Ownership of Transferor Trust Certificate and Subordinated Notes.......................... 22
Section 3.11. Trust Certificates held by Issuer, Transferor or their Affiliates......................... 23
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Trust Certificateholders with Respect to Certain Matters.................. 24
Section 4.02. Action by Trust Certificateholders with Respect to Certain Matters........................ 24
Section 4.03. Action by Owner Trustee with Respect to Bankruptcy........................................ 25
Section 4.04. Restrictions on Trust Certificateholders' Power........................................... 25
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Section 4.05. Majority Control.......................................................................... 25
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Distribution Account and Reserve Fund........................ 26
Section 5.02. Application of Trust Funds................................................................ 27
Section 5.03. Method of Payment......................................................................... 30
Section 5.04. Accounting and Reports.................................................................... 30
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority......................................................................... 31
Section 6.02. General Duties............................................................................ 31
Section 6.03. Action Upon Instruction................................................................... 31
Section 6.04. No Duties Except as Specified............................................................. 32
Section 6.05. No Action Unless Specifically Authorized.................................................. 33
Section 6.06. Restrictions.............................................................................. 33
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties........................................................... 34
Section 7.02. Furnishing of Documents................................................................... 35
Section 7.03. Representations and Warranties............................................................ 35
Section 7.04. Reliance; Advice of Counsel............................................................... 36
Section 7.05. Not Acting in Individual Capacity......................................................... 36
Section 7.06. Owner Trustee Not Liable for Trust Certificates or Subordinated Notes..................... 36
Section 7.07. Owner Trustee May Own Trust Certificates and Notes........................................ 37
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Compensation and Indemnification.......................................... 38
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement............................................................ 39
Section 9.02. Dissolution upon Bankruptcy of the Transferor............................................. 40
Section 9.03. Purchase of the 99% 2001-A Vehicle SUBI Certificate; Redemption of the Subordinated
Notes; Repayment of the Trust Certificates................................................ 40
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee................................................ 42
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Section 10.02. Resignation or Removal of Owner Trustee................................................... 42
Section 10.03. Successor Owner Trustee................................................................... 43
Section 10.04. Merger or Consolidation of Owner Trustee.................................................. 43
Section 10.05. Appointment of Co-Trustee or Separate Trustee............................................. 43
ARTICLE ELEVEN
TAX MATTERS
Section 11.01. Tax and Accounting Characterization....................................................... 45
Section 11.02. Signature on Returns; Tax Matters Partner................................................. 45
Section 11.03. Tax Reporting............................................................................. 46
ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Amendments................................................................................ 47
Section 12.02. No Legal Title to Owner Trust Estate...................................................... 48
Section 12.03. Limitations on Rights of Others........................................................... 48
Section 12.04. Notices................................................................................... 49
Section 12.05. Severability.............................................................................. 49
Section 12.06. Counterparts.............................................................................. 49
Section 12.07. Successors and Assigns.................................................................... 49
Section 12.08. No Petition............................................................................... 49
Section 12.09. No Recourse............................................................................... 50
Section 12.10. Headings.................................................................................. 50
Section 12.11. Governing Law............................................................................. 50
Section 12.12. Trust Certificates Nonassessable and Fully Paid........................................... 50
EXHIBITS
Exhibit A - Form of Trust Certificate..................................................................... A-1
Exhibit B - Form of Subordinated Note..................................................................... B-1
Exhibit C - Form of Rule 144A Certificate................................................................. C-1
Exhibit D - Form of Investment Letter .................................................................... D-1
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of February 1,
2001, is between Ryder Funding II LP, a Delaware limited partnership, as
transferor (the "Transferor"), and Chase Manhattan Bank USA, National
Association, a national banking association, as trustee (the "Owner Trustee").
WHEREAS, the parties hereto entered into that certain initial trust
agreement dated as of December 19, 2000 (the "Initial Trust Agreement") pursuant
to which the Ryder Vehicle Lease Trust 2001-A was created; and
WHEREAS, the parties hereto are entering into this Agreement pursuant
to which, among other things, the Initial Trust Agreement will be amended and
restated and $_____________ aggregate principal amount of ____% Asset Backed
Certificates and $_____________ aggregate principal amount of ____% Asset Backed
Subordinated Notes will be issued.
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. Capitalized Terms. Capitalized terms used herein that are
not otherwise defined shall have the meanings ascribed thereto in the SUBI Trust
Agreement, the Administration Agreement or the Indenture, as the case may be.
Whenever used herein, unless the context otherwise requires, the following words
and phrases shall have the following meanings:
"Accrual Period" has the meaning set forth in the Indenture.
"Adjusted Fair Market Value" means with respect to any item
constituting part of the Owner Trust Estate, the greater of (i) the fair market
value of such asset or (ii) the amount of any non-recourse indebtedness to which
such asset is subject within the meaning of Section 7701(g) of the Code.
"Administration Agreement" means the Basic Administration Agreement, as
supplemented by the 2001-A administration supplement, dated as of February 1,
2001, among the parties to the Basic Administration Agreement, as amended or
supplemented from time to time.
"Administration Fee" has the meaning set forth in the Administration
Agreement.
"Administrative Agent" means Ryder, as Administrative Agent under the
Administration Agreement, and its successors.
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"Administrative Agent Default" has the meaning set forth in the
Administration Agreement.
"Administrator" means Ryder, as Administrator under the Issuer
Administration Agreement, and its successors in such capacity.
"Advance" has the meaning set forth in the Administration Agreement.
"Affiliate" has the meaning set forth in the Origination Trust
Agreement
"Agreement" means this Amended and Restated Trust Agreement, as amended
or supplemented from time to time.
"Authenticating Agent" means any Person authorized by the Owner Trustee
to act on behalf of the Owner Trustee to authenticate and deliver the Trust
Certificates and the Subordinated Notes.
"Available Funds" has the meaning set forth in the Indenture.
"Back-up Security Agreement" has the meaning set forth in the
Indenture.
"Basic Administration Agreement" means that certain administration
agreement, dated as of February 1, 1998, among Ryder Truck Rental I LP and Ryder
Truck Rental II LP, each as UTI Beneficiaries, the Origination Trust, Ryder, as
Administrative Agent, and Ryder, as Maintenance Provider, as amended from time
to time.
"Basic Documents" has the meaning set forth in the SUBI Trust
Agreement.
"Benefit Plan" means (i) an employee benefit plan, as defined in
Section 3(3) of ERISA, that is subject to Title I of ERISA, (ii) a plan
described in Section 4975(e)(1) of the Code, (iii) a governmental plan, as
defined in Section 3(32) of ERISA, subject to any federal, state or local law
which is, to a material extent, similar to the provisions of Section 406 of
ERISA or Section 4975 of the Code, (iv) an entity whose underlying assets
include plan assets by reason of a plan's investment in the entity (within the
meaning of Department of Labor Regulation 29 C.F.R. Section 2510.3-101) or (v) a
person investing "plan assets" of any such plan (including, for purposes of this
clause, any insurance company general account but excluding any entity
registered under the Investment Company Act).
"Business Day" has the meaning set forth in the Indenture.
"Business Trust Statute" means Chapter 38 of Title 12 of the Delaware
Code, 12 Del. C.ss.3801 et seq., as the same may be amended from time to time.
"Capital Contribution" means the amount of cash or the Gross Asset
Value of property contributed to the Issuer by any Trust Certificateholder. Upon
initial sale of the Trust Certificates, the Capital Contribution of each Trust
Certificateholder (other than the Transferor) shall equal the amount paid by
such Trust Certificateholder for its Trust Certificates.
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"Certificate Balance" means, as of any date, the aggregate principal
amount of the Trust Certificates as of such date.
"Certificate Distribution Account" means the account established
pursuant to Section 5.01(a).
"Certificate Factor" means, with respect to the Trust Certificates on
any Payment Date, the seven digit decimal equivalent of a fraction the numerator
of which is the Certificate Balance on such Payment Date (after giving effect to
any payment of principal on such Payment Date) and the denominator of which is
the Certificate Balance on the Closing Date.
"Certificate Rate" means ____% per annum (computed on the basis of a
360-day year of twelve 30-day months).
"Certificate Register" and "Certificate Registrar" means the register
mentioned in and the registrar appointed pursuant to Section 3.04.
"Certificate of Trust" means the Certificate of Trust filed for the
Issuer pursuant to Section 3810(a) of the Business Trust Statute.
"Closing Date" has the meaning set forth in the Indenture.
"Code" has the meaning set forth in the Origination Trust Agreement.
"Collection Period" has the meaning set forth in the Administration
Agreement.
"Control Agreement" means that certain control agreement, dated as of
February 1, 2001, among the Transferor, the Issuer, the Indenture Trustee and
U.S. Bank National Association, as securities intermediary, as amended or
supplemented from time to time.
"Cutoff Date" means February 1, 2001 as of the opening of business.
"Depreciation" means, for each fiscal or other period, an amount equal
to the depreciation, amortization or other cost recovery deductions allowable
with respect to an asset for such fiscal or other period under the Code, except
that if the Gross Asset Value of an asset differs from its adjusted basis for
federal income tax purposes at the beginning of such fiscal or other period,
Depreciation shall be an amount which bears the same ratio to such beginning
Gross Asset Value as the federal income tax depreciation, amortization or other
cost recovery deduction for such year or other beginning adjusted tax basis;
provided, however, that if the federal income tax depreciation, amortization or
other cost recovery deduction for such fiscal or other period is zero,
Depreciation shall be determined with reference to such beginning Gross Asset
Value or any reasonable method selected by the Transferor.
"Distribution Account" means either the Note Distribution Account or
the Certificate Distribution Account, as the context may require.
"Distribution Statement" has the meaning set forth in Section 5.02(c).
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"Eligible Account" has the meaning set forth in the Indenture.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Expenses" means all liabilities, obligations, losses, damages, taxes,
claims, actions and suits, and any and all reasonable costs, expenses and
disbursements (including reasonable legal fees and expenses) of any kind and
nature whatsoever.
"Grantor" has the meaning set forth in the Origination Trust Agreement.
"Gross Asset Value" means, with respect to any asset, such asset's
adjusted basis for federal income tax purposes except as follows:
(i) the initial Gross Asset Value of any asset contributed by a
Trust Certificateholder to the Issuer shall be the gross fair market
value of such asset at the time of contribution, as determined by the
contributing Trust Certificateholder and the Transferor;
(ii) the Gross Asset Values of all Issuer assets shall be adjusted
to equal their respective Adjusted Fair Market Values, as reasonably
determined by the Transferor as of the liquidation of the Issuer within
the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury
Regulations;
(iii) if the Gross Asset Value of an asset has been determined or
adjusted pursuant to clause (i), (ii) or (iv) of this definition, such
Gross Asset Value shall thereafter be adjusted by the Depreciation
taken into account with respect to such asset for purposes of computing
income, gain, loss and deduction to be allocated to the Capital
Accounts of the Trust Certificateholders and the Transferor; and
(iv) for purposes of allocating Gross Asset Values with respect to
Issuer assets, the Transferor shall make such allocation in accordance
with the respective Adjusted Fair Market Values of such assets, and
such allocations shall be effective for all purposes under this
Agreement.
"Holder" has the meaning set forth in the Origination Trust Agreement.
"Indemnified Parties" has the meaning set forth in Section 8.01(a).
"Indenture" means that certain indenture, dated as of February 1, 2001,
between the Issuer and U.S. Bank National Association, as Indenture Trustee, as
amended or supplemented from time to time.
"Indenture Trustee" means U.S. Bank National Association, as Indenture
Trustee under the Indenture, and its successors.
"Initial Deposit" means the Transferor's deposit to the reserve fund,
on or before the Closing Date, of $______________.
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"Initial Purchaser" means Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, as initial purchaser pursuant to the Purchase Agreement.
"Initial Securities Balance" means the initial principal amount of the
Securities.
"Interest" means, as of any date, the ownership interest of a Trust
Certificateholder (including the Transferor as holder of the Transferor Trust
Certificate) in the Issuer as of such date, including the right of such Trust
Certificateholder to any and all benefits to which such Trust Certificateholder
may be entitled as provided in this Agreement, together with the obligations of
such Trust Certificateholder to comply with all the terms and provisions of this
Agreement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Issuer" means the Ryder Vehicle Lease Trust 2001-A, and its
successors.
"Issuer Administration Agreement" means that certain issuer
administration agreement, dated as of February 1, 2001, among the Issuer, the
Indenture Trustee, the Transferor and the Administrator, as amended or
supplemented from time to time.
"Issuer SUBI Certificate Transfer Agreement" means that certain issuer
SUBI certificate transfer agreement, dated as of February 1, 2001, between the
Transferor and the Issuer, as amended or supplemented from time to time.
"Lien" has the meaning set forth in the Origination Trust Agreement.
"Note" means either a Senior Note or a Subordinated Note, as the
context may require.
"Note Distribution Account" has the meaning set forth in the Indenture.
"Note Factor" has the meaning set forth in the Indenture.
"Noteholder" means a Senior Noteholder or the Subordinated Noteholder,
as the context may require.
"Offered Securities" means the Senior Notes and the Trust Certificates
(other than the Transferor Trust Certificate).
"Offering Circular" means the Offering Circular, dated February __,
2001, relating to the offering of the Trust Certificates, as amended or
supplemented from time to time.
"Opinion of Counsel" means one or more written opinions of counsel who
may, except as otherwise expressly provided in this Agreement, be employees of
or counsel to the Transferor, the Administrator or any of their respective
Affiliates, and which opinions shall be addressed to, and in form and substance
satisfactory to, the Owner Trustee.
"Optimal Principal Distribution Amount" has the meaning set forth in
the Indenture.
"Optional Purchase" has the meaning set forth in Section 9.03(a).
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"Optional Purchase Price" has the meaning set forth in Section 9.03(a).
"Origination Trust" means Ryder Truck Rental LT.
"Origination Trust Agreement" means that certain second amended and
restated trust agreement, dated as of February 1, 1998, among Ryder Truck Rental
I LP and Ryder Truck Rental II LP, each as Grantors and UTI Beneficiaries, RTRT,
Inc., as trustee, Delaware Trust Capital Management, Inc., as Delaware trustee,
and U.S. Bank National Association, as trust agent, as amended from time to
time.
"Origination Trustee" means RTRT, Inc., in its capacity as trustee of
the Origination Trust, or any successor thereto in such capacity.
"Other SUBI" has the meaning set forth in the Origination Trust
Agreement.
"Outstanding Subordinated Notes" means, with respect to the
Subordinated Notes, as of any date, all Subordinated Notes theretofore
authenticated and delivered under this Agreement except (i) Subordinated Notes
theretofore canceled or delivered for cancellation pursuant to this Agreement;
(ii) Subordinated Notes or portions thereof for whose payment or redemption cash
in the necessary amount has been theretofore irrevocably deposited with the
Owner Trustee or any Paying Agent in trust for the holders of such Subordinated
Notes; and (iii) Subordinated Notes in exchange for or in lieu of which other
Subordinated Notes have been authenticated and delivered pursuant to this
Agreement unless proof satisfactory to the Owner Trustee is presented that any
such Subordinated Notes are held by a bona fide purchaser.
"Owner Corporate Trust Office" means the principal office of the Owner
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000-0000; or at such other
address as the Owner Trustee may designate from time to time by notice to the
Trust Certificateholders and the Indenture Trustee, or the principal corporate
trust office of any successor Owner Trustee (the address of which the successor
Owner Trustee shall notify the Trust Certificateholders and the Indenture
Trustee).
"Owner Trust Estate" means the property of the Issuer, consisting of
(i) the 99% 2001-A Vehicle SUBI Certificate (transferred pursuant to the Issuer
SUBI Certificate Transfer Agreement), evidencing a 99% beneficial interest in
the assets allocated to the 2001-A Vehicle SUBI, including the right to payments
thereunder from certain Sales Proceeds on deposit in the SUBI Collection Account
and the Residual Value Surplus Account and investment earnings, net of losses
and investment expenses, on amounts on deposit in the SUBI Collection Account
and the Residual Value Surplus Account; (ii) the rights of the Issuer under the
Program Operating Lease; (iii) the rights of the Issuer as secured party under
the Back-up Security Agreement; (iv) the rights of the Issuer as pledgee of the
99% 2001-A Lease SUBI Certificate; (v) the rights of the Issuer to the funds on
deposit from time to time in the Note Distribution Account and any other account
or accounts established pursuant to the Indenture and all cash, investment
property and other property from time to time deposited or credited thereto;
(vi) the rights of the Transferor, as transferee, under the SUBI Certificate
Transfer Agreement; (vii) the rights of the Issuer, as transferee, under the
Issuer SUBI Certificate Transfer Agreement; (viii) the rights of
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the Issuer as a third-party beneficiary under the Administration Agreement,
including rights to certain Advances, and the SUBI Trust Agreement; (ix) the
security interest of the Issuer in the Subordinated Notes and the Reserve Fund
(including investment earnings, net of losses and investment expenses, on
amounts on deposit therein); and (x) all proceeds of the foregoing.
"Owner Trustee" has the meaning set forth in the preamble.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.09, and shall initially be The Chase Manhattan Bank, a New
York banking corporation.
"Payment Date" has the meaning set forth in the SUBI Trust Agreement.
"Payment Date Advance Reimbursement" has the meaning set forth in the
Administration Agreement.
"Payment Date Certificate" has the meaning set forth in the Indenture.
"Permitted Investment" has the meaning set forth in the Origination
Trust Agreement.
"Person" has the meaning set forth in the Origination Trust Agreement.
"Principal Carryover Shortfall" has the meaning set forth in the
Indenture.
"Proceeding" means any suit in equity, action at law or other judicial
or administrative proceeding.
"Program Operating Lease" means that certain program operating lease,
dated as of February 1, 2001, between the Issuer and the Transferor, as amended
or supplemented from time to time.
"Purchase Agreement" means that certain purchase agreement, dated
February ___, 2001, between the Initial Purchaser and the Transferor.
"Qualified Institutional Buyer" has the meaning ascribed thereto in
Rule 144A.
"Rating Agency" has the meaning set forth in the SUBI Trust Agreement.
"Rating Agency Condition" has the meaning set forth in the Indenture.
"Rating Event" has the meaning set forth in the Indenture.
"Record Date" means, with respect to any Payment Date, the close of
business on the Business Day immediately preceding such Payment Date.
"Repayment Price" means an amount equal to the unpaid principal amount
of the Trust Certificates plus accrued and unpaid interest thereon at the
Certificate Rate to but excluding the related Payment Date.
"Reserve Fund" means the account established pursuant to Section
5.01(b).
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"Reserve Fund Deposit Amount" has the meaning set forth in the
Indenture.
"Reserve Fund Draw Amount" has the meaning set forth in the Indenture.
"Reserve Fund Property" means the Reserve Fund and all cash, investment
property and other property from time to time deposited or credited to the
Reserve Fund and all proceeds thereof, including the Initial Deposit and all
payments of interest on and principal of the Subordinated Notes.
"Reserve Fund Requirement" has the meaning set forth in the Indenture.
"Residual Value Loss" has the meaning set forth in the Administration
Agreement.
"Residual Value Surplus Account" has the meaning set forth in the SUBI
Trust Agreement.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144A Information" means information requested of the Transferor,
in connection with the proposed transfer of a Trust Certificate, to satisfy the
requirements of paragraph (d)(4) of Rule 144A.
"Ryder" means Ryder Truck Rental, Inc., a Florida corporation, and its
successors.
"Secretary of State" means the Secretary of State of the State of
Delaware, and its successors.
"Secured Obligations" has the meaning set forth in Section 5.02(f).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities" means the Notes and the Trust Certificates.
"Securities Balance" means, as of any date, the unpaid principal amount
of the Securities as of such date.
"Securitization Value" has the meaning set forth in the Administration
Agreement.
"Security" means either a Note or a Trust Certificate, as the context
may require.
"Securityholder" means each registered holder of a Security.
"Senior Note" has the meaning set forth in the Indenture.
"Senior Note Outstanding Amount" has the meaning set forth in the
Indenture.
"Senior Noteholder" has the meaning set forth in the Indenture.
"Special Event Purchase" has the meaning set forth in the
Administration Agreement.
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"SUBI" has the meaning set forth in the Origination Trust Agreement
"SUBI Certificate Transfer Agreement" means the SUBI certificate
transfer agreement, dated as of February 1, 2001, between RTR I LP, as
transferor, and the Transferor, as transferee, as amended or supplemented from
time to time.
"SUBI Certificates" has the meaning set forth in the SUBI Trust
Agreement.
"SUBI Collection Account" has the meaning set forth in the Origination
Trust Agreement.
"SUBI Collections" has the meaning set forth in the Administration
Agreement.
"SUBI Trust Agreement" means the Origination Trust Agreement as
supplemented by the Origination Trust Supplement, dated as of February 1, 2001,
among the parties to the Origination Trust Agreement, as amended from time to
time.
"Subordinated Note Factor" means, with respect to the Subordinated
Notes on any Payment Date, the seven digit decimal equivalent of a fraction the
numerator of which is the Subordinated Note Outstanding Amount on such Payment
Date (after giving effect to any payment of principal on such Payment Date) and
the denominator of which is the Subordinated Note Outstanding Amount on the
Closing Date.
"Subordinated Note Outstanding Amount" means, as of any date, the
aggregate principal amount of all Outstanding Subordinated Notes as of such
date.
"Subordinated Note Rate" means ____% per annum (computed on the basis
of a 360-day year of twelve 30-day months).
"Subordinated Note Redemption Price" means an amount equal to the
unpaid principal amount of the Subordinated Notes redeemed plus accrued and
unpaid interest thereon at the Subordinated Note Rate to but excluding the
related Payment Date.
"Subordinated Noteholder" means the Transferor, as registered holder of
the Subordinated Notes.
"Subordinated Notes" means the ____% Subordinated Notes issued pursuant
to this Agreement, substantially in the form of Exhibit B.
"Transferor" has the meaning set forth in the preamble.
"Transferor Trust Certificate" means the Trust Certificate issued to
the Transferor representing at least 1% of the Certificate Balance.
"Treasury Regulations" means regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
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"Trust Certificateholder" means the Person in whose name a Trust
Certificate is registered on the Certificate Register.
"Trust Certificates" means the ____% Asset Backed Certificates issued
pursuant to this Agreement, substantially in the form of Exhibit A.
"2001-A Lease" has the meaning set forth in the SUBI Trust Agreement.
"2001-A Lease SUBI" has the meaning set forth in the SUBI Trust
Agreement.
"2001-A Lease SUBI Certificate" has the meaning set forth in the SUBI
Trust Agreement.
"2001-A SUBI Assets" has the meaning set forth in the SUBI Trust
Agreement.
"2001-A SUBI Certificates" has the meaning set forth in the SUBI Trust
Agreement.
"2001-A Vehicle" has the meaning set forth in the SUBI Trust Agreement.
"2001-A Vehicle SUBI" has the meaning set forth in the SUBI Trust
Agreement.
"2001-A Vehicle SUBI Certificate" has the meaning set forth in the SUBI
Trust Agreement.
"UCC" has the meaning set forth in the Origination Trust Agreement.
"UTI" has the meaning set forth in the Origination Trust Agreement.
"UTI Beneficiary" has the meaning set forth in the Origination Trust
Agreement.
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" or
an Article such as "Article Eleven" shall refer to the applicable Section or
Article of this Agreement, (iv) the term "include" and all variations thereof
shall mean "include without limitation", (v) the term "or" shall include
"and/or" and (vi) the term "proceeds" shall have the meaning ascribed to such
term in the UCC.
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, 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
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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
ORGANIZATION
Section 2.01. Name and Status. The trust created hereby shall be known
as "Ryder Vehicle Lease Trust 2001-A," in which name the Issuer may engage in
activities as permitted by the Basic Documents, make and execute contracts and
other instruments and xxx and be sued, to the extent provided herein. It is the
intention of the parties hereto that the Issuer shall be a business trust under
the Business Trust Statute, and that this Agreement shall constitute the
governing instrument of that business trust.
Section 2.02. Office. The chief executive office and principal place of
business of the Issuer shall be in care of the Owner Trustee, initially at the
Owner Corporate Trust Office and thereafter at such other address as the Owner
Trustee may designate by written notice to the Trust Certificateholders and the
Transferor.
Section 2.03. Purposes and Powers.
(a) The purposes of the Issuer are: (i) at the direction of the Trust
Certificateholders, to take assignments and conveyances of certain assets from
time to time, to hold such assets in trust and to collect and disburse the
periodic income therefrom for the benefit of the Trust Certificateholders, (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 be employed for any purpose except as duly authorized in accordance with the
provisions of this Agreement.
(b) The initial sole purpose of the Issuer is to conserve the Owner
Trust Estate and collect and disburse the periodic income therefrom for the use
and benefit of the Trust Certificateholders, and in furtherance of such purpose
to engage in the following ministerial activities:
(i) to issue the Senior Notes pursuant to the Indenture and the
Subordinated Notes and the Trust Certificates pursuant to this
Agreement and to sell the Notes and the Trust Certificates upon the
written order of the Transferor;
(ii) to acquire the 99% 2001-A Vehicle SUBI Certificate from the
Transferor and the other property of the Owner Trust Estate, using the
proceeds from the sale of the Offered Securities to third party
investors and from the issuance of the Subordinated Notes and the
Transferor Trust Certificate to the Transferor;
(iii) subject to the Lien of the Indenture, to lease the 99%
2001-A Vehicle SUBI Certificate to the Transferor pursuant to the
Program Operating Lease and as security therefor to obtain the pledge
of the 99% 2001-A Lease SUBI Certificate from the Transferor;
(iv) to pay interest on and principal of the Securities;
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(v) to assign, grant, transfer, pledge mortgage and convey the
Owner Trust Estate pursuant to the Indenture to the Indenture Trustee
as security for the Senior Notes and to hold, manage and distribute to
the Subordinated Noteholder and the Trust Certificateholders pursuant
to the terms of this Agreement any portion of the Owner Trust Estate
released from the Lien of, and remitted to the Issuer pursuant to, the
Indenture;
(vi) to enter into and perform its obligations under the Basic
Documents to which the Issuer is a party;
(vii) to engage in other transactions, including entering into
agreements, that are necessary, suitable or convenient to accomplish
the foregoing or that are incidental thereto or connected therewith;
and
(viii) subject to compliance with the Basic Documents, to engage
in such other activities as may be required in connection with
conservation of the Owner Trust Estate and the making of distributions
to the Trust Certificateholders and the Noteholders.
(c) The Issuer shall not engage in any activity other than in
connection with the foregoing or other than as required or authorized by the
terms of this Agreement or the other Basic Documents.
Section 2.04. Appointment of Owner Trustee. The Transferor hereby
appoints the Owner Trustee as trustee of the Issuer effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
Section 2.05. Initial Capital Contribution of Owner Trust Estate. The
Transferor hereby sells, assigns, transfers, conveys and sets over to the Owner
Trustee, as of the date hereof, the sum of $1.00. The Owner Trustee hereby
acknowledges receipt in trust from the Transferor, as of the date hereof, of the
foregoing contribution, which shall constitute the initial Owner Trust Estate
and shall be deposited in the Certificate Distribution Account. The Transferor
shall pay organizational expenses of the Issuer as they may arise or shall, upon
the request of the Owner Trustee, promptly reimburse the Owner Trustee for any
such expenses paid by the Owner Trustee.
Section 2.06. Declaration of Trust. The Owner Trustee hereby declares
that it will hold the Owner Trust Estate in trust upon and subject to the
conditions set forth herein for the sole purpose of conserving the Owner Trust
Estate and collecting and disbursing the periodic income therefrom for the use
and benefit of the Trust Certificateholders, who are intended to be "beneficial
owners" within the meaning of the Business Trust Statute, subject to the Lien of
the Indenture Trustee and the obligations of the Issuer under the Basic
Documents. Effective as of the date hereof, the Owner Trustee shall have all
rights, powers and duties set forth herein and under Delaware law for the sole
purpose and to the extent necessary to accomplish the purpose of the Issuer as
set forth in Section 2.03(a) and 2.03(b).
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Section 2.07. Liability of the Transferor.
(a) The Transferor, as holder of the Transferor Trust Certificate and
the Subordinated Notes, shall be liable directly to (other than payment of
principal and interest on the Securities) and shall indemnify any party entitled
thereto for all Expenses of the Issuer incurred in connection with the 2001-A
SUBI Assets to the extent that the Transferor, as holder of the Transferor Trust
Certificate and the Subordinated Notes, would be liable if the Issuer were a
partnership under the Delaware Revised Uniform Limited Partnership Act (or the
Delaware Uniform Partnership Law) in which the Transferor were a general partner
(other than losses incurred by Senior Noteholders in their capacity as holders
of limited recourse debt secured by the Owner Trust Estate or incurred by the
Subordinated Noteholder or the Trust Certificateholders if such losses would
nevertheless have been incurred if the Subordinated Noteholder and the Trust
Certificateholders were holders of limited recourse debt secured by the Owner
Trust Estate). In addition, any third party creditors of the Issuer (other than
the Subordinated Noteholder and the Trust Certificateholders, to the extent they
are not indemnified for investment losses, as set forth above) shall be deemed
to be third party beneficiaries of this paragraph. The Transferor, as holder of
the Transferor Trust Certificate and the Subordinated Notes, shall make no claim
upon the Owner Trust Estate for the reimbursement of amounts paid pursuant to
this Section.
(b) The Transferor, as holder of the Transferor Trust Certificate and
the Subordinated Notes, shall defend, indemnify and hold harmless the Issuer,
the Owner Trustee and each Paying Agent from and against any and all taxes that
may at any time be asserted against the Issuer or the Owner Trustee with respect
to the transactions contemplated herein, including any sales, use, gross
receipts, general corporation, tangible personal property, privilege, license or
income taxes, taxes on or measured by income or any state or local taxes
assessed on the Issuer, the Owner Trustee or any Paying Agent resulting from the
location of assets of the Issuer or the presence of the Owner Trustee or any
Paying Agent and costs and Expenses in defending against the same; provided,
however, that the foregoing indemnity shall not include income taxes on any fees
payable to, or Expenses reimbursed to, the Owner Trustee or any Paying Agent.
(c) No Trust Certificateholder, other than the Transferor (as holder of
the Transferor Trust Certificate and the Subordinated Notes), shall have any
personal liability for any liability or obligation of the Issuer.
Section 2.08. Title to Trust Property. Legal title to the Owner Trust
Estate shall be vested at all times in the Issuer as a separate legal entity,
except where applicable law in any jurisdiction requires title to any part of
the Owner Trust Estate to be vested in a trustee, in which case title shall be
deemed to be vested in the Owner Trustee, a co-trustee or a separate trustee, as
the case may be.
Section 2.09. Situs of Issuer. The Issuer shall be located and
administered in the State of Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Issuer shall be located in Florida, Delaware or New
York. The Issuer shall not have any employees in any state other than Delaware;
provided, however, that nothing herein shall restrict or prohibit the Owner
Trustee from having employees within or without the State of Delaware. Payments
shall be received by the Issuer only in Delaware, Florida or New York and
payments shall be made by
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the Issuer only from Delaware, Florida or New York. The only office of the
Issuer shall be at the Owner Corporate Trust Office.
Section 2.10. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Owner Trustee that:
(a) Organization and Good Standing. The Transferor has been duly
organized and validly existing as a limited partnership in good
standing under the laws of the State of Delaware, with the power and
authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently
conducted.
(b) Due Qualification. The Transferor has been duly qualified to
do business as a limited partnership in good standing, and has obtained
all necessary licenses and approvals in all jurisdictions in which the
conduct of its business requires such qualifications except when the
failure to have any such license, approval or qualification would not
have a material adverse effect on the condition, financial or
otherwise, of the Transferor or would not have a material adverse
effect on the ability of the Transferor to perform its obligations
under this Agreement.
(c) Power and Authority. The Transferor has (i) the power and
authority to execute and deliver this Agreement and to carry out its
terms; (ii) good title to and is the sole legal and beneficial owner of
the 99% SUBI Certificates, free and clear of Liens and claims; (iii)
full power and authority to transfer the 99% 2001-A Vehicle SUBI
Certificate and pledge the 99% 2001-A Lease SUBI Certificate to and
deposit each of the same with the Issuer; (iv) duly authorized such
transfer and deposit to the Issuer by all necessary action; and (v)
duly authorized the execution, delivery and performance of this
Agreement by all necessary action.
(d) Binding Obligation. This Agreement constitutes a legal, valid
and binding obligation of the Transferor, enforceable in accordance
with its terms, except as such enforceability may be subject to or
limited by bankruptcy, insolvency, reorganization, moratorium,
liquidation, fraudulent conveyance or other similar laws affecting the
enforcement of creditors' rights in general and by general principles
of equity, regardless of whether such enforceability shall be
considered in a proceeding in equity or in law.
(e) No Violation. The consummation of the transactions
contemplated by this Agreement and the fulfillment of the terms of this
Agreement do not conflict with or breach any of the terms or provisions
of, or constitute (with or without notice or lapse of time) a default
under, any material indenture, agreement or other instrument to which
the Transferor is a party or by which it shall be bound; nor result in
the creation or imposition of any material Lien upon any of its
properties pursuant to the terms of any such indenture, agreement or
other instrument (other than this Agreement); nor violate any law or,
to the best of the Transferor's knowledge, any order, rule or
regulation applicable to the Transferor of any court or of any federal
or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties.
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(f) No Proceedings. There are no proceedings or investigations
pending, or to the Transferor's knowledge, threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or its
properties: (i) asserting the invalidity of this Agreement or any of
the other Basic Documents; (ii) seeking to prevent the issuance of the
Notes or the Trust Certificates or the consummation of any of the
transactions contemplated by this Agreement or any of the other Basic
Documents; (iii) seeking any determination or ruling that might
materially and adversely affect the performance by the Transferor of
its obligations under, or the validity or enforceability of, this
Agreement or any of the other Basic Documents; or (iv) relating to the
Transferor and that might adversely affect the federal income tax or
state income or franchise tax attributes of the Notes or the Trust
Certificates.
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ARTICLE THREE
TRUST CERTIFICATES, SUBORDINATED NOTES
AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership. Upon the formation of the Issuer by
the contribution by the Transferor pursuant to Section 2.05 and until the
issuance of the Trust Certificates, the Transferor shall be the sole beneficiary
of the Issuer.
Section 3.02. The Trust Certificates and the Subordinated Notes.
(a) The Trust Certificates shall be substantially in the form set forth
in Exhibit A, in minimum denominations of $250,000 and integral multiples of
$1,000 in excess thereof; provided, however, that the Transferor Trust
Certificate shall be issued to the Transferor pursuant to Section 3.10(a) in
such denominations as to represent in the aggregate at least 1% of the
Certificate Balance. The Subordinated Notes shall be issued substantially in the
form set forth in Exhibit B, in minimum denominations of $250,000 and integral
multiples of $1,000 in excess thereof. Except for (i) the issuance of the Trust
Certificates to the Initial Purchaser and the subsequent transfer to the Trust
Certificateholders as contemplated by the Purchase Agreement, (ii) the issuance
of the Transferor Trust Certificate to the Transferor, (iii) the issuance of the
Subordinated Notes to the Transferor and (iv) the assignment and pledge of the
Subordinated Notes to the Issuer, no Trust Certificate or Subordinated Note may
be sold, pledged or otherwise transferred to any Person except in accordance
with Sections 3.04 and 3.10 and any attempted sale, pledge or transfer in
violation of such Sections shall be null and void. Each Trust Certificate (other
than the Transferor Trust Certificate) shall be issued in the name of the
Initial Purchaser; provided, however, that upon delivery to the Initial
Purchaser, the Owner Trustee and the Certificate Registrar of a letter in the
form of Exhibit D, such Trust Certificate (other than the Transferor Trust
Certificate) shall be reissued in the name and in the denomination set forth in
such letter.
The Subordinated Notes shall be originally issued in the name of the
Transferor. Except as otherwise contemplated by the Basic Documents, neither the
Subordinated Notes nor any beneficial interest therein may be transferred to any
Person, and any attempted transfer thereof shall be null and void; provided,
that upon a dissolution of or termination of the Transferor, any Subordinated
Notes held by the Transferor may be distributed to Ryder.
The Trust Certificates and the Subordinated Notes may be in printed or
in typewritten form, and may be executed on behalf of the Issuer by manual or
facsimile signature of an Authenticating Agent. Trust Certificates and
Subordinated Notes bearing the manual or facsimile signatures of individuals who
were, at the time when such signatures shall have been affixed, authorized to
sign on behalf of the Issuer, 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 Trust Certificates or Subordinated Notes or did not hold such offices at
the date of authentication and delivery of such Trust Certificates or
Subordinated Notes. If registration of a transfer of a Trust Certificate is
permitted pursuant to Section 3.04, the transferee of such Trust Certificate
shall become a Trust Certificateholder, and shall be entitled to the rights and
subject to the obligations of a Trust
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Certificateholder hereunder, upon due registration of such Trust Certificate in
such transferee's name pursuant to Section 3.04.
(b) Interest shall accrue during each Accrual Period on (i) the
Subordinated Notes at the Subordinated Note Rate based on the Subordinated Note
Outstanding Amount until the principal amount of the Subordinated Notes has been
paid in full and (ii) the Trust Certificates at the Certificate Rate based on
the Certificate Balance until the principal amount of the Trust Certificates has
been paid in full. Interest accrued during each Accrual Period on the
Subordinated Notes and the Trust Certificates shall be due and payable on the
related Payment Date. Interest shall be calculated on the basis of a 360-day
year consisting of twelve 30-day months. To the extent that interest on the
Subordinated Notes or the Trust Certificates is accrued but not paid in full on
any Payment Date, such overdue interest shall be due on the next Payment Date
together with interest on such amount (to the extent lawful) at the Subordinated
Note Rate or the Certificate Rate, as the case may be. Payments of interest and
principal shall be payable to the Subordinated Noteholder and the Trust
Certificateholders in accordance with Section 5.02.
Section 3.03. Authentication and Delivery of Trust Certificates and
Subordinated Notes. Concurrently with the transfer of the 99% 2001-A Vehicle
SUBI Certificate and the pledge of the 99% 2001-A Lease SUBI Certificate to the
Issuer, the Owner Trustee shall cause to be executed on behalf of the Issuer (i)
Trust Certificates in an aggregate principal amount equal to $_____________ and
(ii) Subordinated Notes in an aggregate principal amount equal to
$_____________, in each case authenticated and delivered to or upon the written
order of the Transferor, in authorized denominations. No Trust Certificate or
Subordinated Note shall entitle its holder to any benefit under this Agreement,
or shall be valid for any purpose, unless there shall appear on such Security a
certificate of authentication, substantially in the form set forth in Exhibit A
or Exhibit B, as the case may be, executed by the Owner Trustee or its
Authenticating Agent, by manual signature; such authentication shall constitute
conclusive evidence that such Trust Certificate or Subordinated Note shall have
been duly authenticated and delivered hereunder. All Trust Certificates and
Subordinated Notes shall be dated the date of their authentication. Upon
issuance, execution and delivery pursuant to the terms hereof, the Subordinated
Notes and the Trust Certificates shall be entitled to the benefits of this
Agreement.
Section 3.04. Registration of Transfer and Exchange.
(a) The Certificate Registrar shall cause to be kept a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Certificate Registrar shall provide for the registration of
Trust Certificates and Subordinated Notes and, if and to the extent transfers
and exchanges are permitted pursuant to Section 3.04(b) (in the case of the
Trust Certificates) or the Basic Documents (in the case of the Subordinated
Notes), the registration of transfers of Trust Certificates or Subordinated
Notes. No transfer of a Trust Certificate or Subordinated Note shall be
recognized except upon registration of such transfer. The Chase Manhattan Bank
is hereby appointed as the initial "Certificate Registrar." Upon any resignation
of the Certificate Registrar, the Owner Trustee shall promptly appoint a
successor. The Subordinated Notes may not be transferred, except as permitted by
the Basic Documents.
(b) Each Trust Certificate (other than the Transferor Trust
Certificate) shall bear a legend regarding reoffers, resales, pledges and
transfers to the effect of the legend on the form of Trust
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Certificate attached as Exhibit A hereto, unless determined otherwise by the
Administrative Agent (as certified to the Certificate Registrar in an Officer's
Certificate) consistent with applicable law.
As a condition to the registration of any transfer of a Trust
Certificate, the prospective transferee shall be required to represent in
writing to the Owner Trustee, the Transferor and the Certificate Registrar the
following:
(i) It has neither acquired nor will it transfer any Trust
Certificate it purchases (or any interest therein) or cause any such
Trust Certificates (or any interest therein) to be marketed on or
through an "established securities market" within the meaning of
Section 7704(b)(1) of the Code, including an over-the-counter-market or
an interdealer quotation system that regularly disseminates firm buy or
sell quotations.
(ii) It either (A) is not, and will not become, a partnership,
Subchapter S corporation or grantor trust for U.S. federal income tax
purposes or (B) is such an entity, but none of the direct or indirect
beneficial owners of any of the interests in such transferee have
allowed or caused, or will allow or cause, 50% or more (or such other
percentage as the Transferor may establish prior to the time of such
proposed transfer) of the value of such interests to be attributable to
such transferee's ownership of Trust Certificates.
(iii) It understands that no subsequent transfer of the Trust
Certificates is permitted unless (A) such transfer is of a Trust
Certificate with a denomination of at least $250,000, (B) it causes its
proposed transferee to provide to the Issuer, the Certificate Registrar
and the Initial Purchaser a letter substantially in the form of Exhibit
D hereto, or such other written statement as the Transferor shall
prescribe and (C) the Transferor consents in writing to the proposed
transfer, which consent shall be granted unless the Transferor
determines that such transfer would create a risk that the Issuer or
the Origination Trust would be classified for federal or any applicable
state tax purposes as an association (or a publicly traded partnership)
taxable as a corporation; provided, however, that any attempted
transfer that would either cause (1) the number of registered holders
of Trust Certificates and Subordinated Notes to exceed 100 or (2) the
number of holders of direct or indirect interests in the Origination
Trust to exceed 50, shall be a void transfer.
(iv) It understands that the Opinion of Counsel to the Issuer
that the Issuer is not a publicly traded partnership taxable as a
corporation is dependent in part on the accuracy of the representations
in paragraphs (i), (ii) and (iii) above.
(v) It is not a Benefit Plan nor will it acquire or hold the
Trust Certificates being transferred on behalf of or with "plan assets"
of a Benefit Plan.
(vi) It is a Person who is either (A)(1) a citizen or resident of
the United States, (2) a corporation, partnership or other entity
organized in or under the laws of the United States or any political
subdivision thereof or (3) a Person not described in (A)(1) or (2)
whose ownership of the Trust Certificates is effectively connected with
such
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Person's conduct of a trade or business within the United States
(within the meaning of the Code) and its ownership of any interest in a
Trust Certificate will not result in any withholding obligation with
respect to any payments with respect to the Trust Certificates by any
Person (other than withholding, if any, under Section 1446 of the Code)
or (B) an estate or trust the income of which is includible in gross
income for federal income tax purposes, regardless of source or a trust
if a court within the United States is able to exercise primary
supervision of the administration of the trust and one or more U.S.
Persons (as such term is defined in the Code) have the authority to
control all substantial decisions of the Issuer. It agrees that it will
provide a certification of non-foreign status signed under penalty of
perjury and, alternatively, that if it is a Person described in clause
(A)(3) above, it will furnish to the Transferor and the Owner Trustee a
properly executed IRS Form W-8 ECI and a new IRS Form W-8 ECI upon the
expiration or obsolescence of any previously delivered form (and such
other certifications, representations or Opinions of Counsel as may be
requested by the Transferor and the Owner Trustee).
(vii) It understands that any purported transfer of any Trust
Certificate (or any interest therein) in contravention of any of the
restrictions and conditions in this Section shall be void, and the
purported transferee in such transfer shall not be recognized by the
Issuer or any other Person as a Trust Certificateholder for any
purpose.
(c) By acceptance of any Trust Certificate, the related Trust
Certificateholder specifically agrees with and represents to the Transferor, the
Issuer and Certificate Registrar that no transfer of such Trust Certificate
shall be made unless the registration requirements of the Securities Act and any
applicable state securities laws are complied with, or such transfer is exempt
from the registration requirements under the Securities Act because the transfer
satisfies one of the following:
(i) Such transfer is in compliance with Rule 144A, to a
transferee who the transferor reasonably believes is a Qualified
Institutional Buyer that is purchasing for its own account or for the
account of a Qualified Institutional Buyer and to whom notice is given
that such transfer is being made in reliance upon Rule 144A and (A) the
transferor thereof executes and delivers to the Transferor and the
Certificate Registrar, a Rule 144A certificate substantially in the
form attached as Exhibit C and (B) the transferee executes and delivers
to the Transferor and the Certificate Registrar an investment letter
substantially in the form attached as Exhibit D.
(ii) After the appropriate holding period, such transfer is
pursuant to an exemption from registration under the Securities Act
provided by Rule 144 under the Securities Act and the transferee, if
requested by the Transferor, the Certificate Registrar or the Initial
Purchaser, delivers an Opinion of Counsel in form and substance
satisfactory to the Transferor and the Initial Purchaser.
(iii) Such transfer is to an institutional accredited investor as
defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated
under the Securities Act in a transaction exempt from the registration
requirements of the Securities Act, such transfer is in accordance with
any applicable securities laws of any state or any other jurisdiction,
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and such investor executes and delivers to the Issuer and the
Certificate Registrar an investment letter substantially in the form
attached as Exhibit D.
(d) The Transferor shall make the Rule 144A Information available to
the prospective transferor and transferee of a Trust Certificate. The Rule 144A
Information shall include any or all of the following items requested by the
prospective transferee:
(i) the Offering Circular, as amended or supplemented to the
date of such transfer;
(ii) each Payment Date Certificate delivered to Trust
Certificateholders on each Payment Date preceding such request; and
(iii) such other information as is reasonably available to the
Transferor in order to comply with requests for information pursuant to
Rule 144A.
None of the Transferor, the Certificate Registrar or the Owner Trustee
is under an obligation to register any Trust Certificate under the Securities
Act or any state securities laws.
(e) Upon surrender for registration of transfer or exchange of any
Trust Certificate at the office of the Certificate Registrar and upon compliance
with the provisions of this Agreement relating to such transfer or exchange,
provided that the requirements of Section 8-401(a) of the UCC are met, the Owner
Trustee shall execute and shall, or shall cause the Authenticating Agent to,
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Trust Certificates in authorized denominations of a
like aggregate face amount dated the date of such authentication or the Trust
Certificates that the Trust Certificateholder making the exchange is entitled to
receive, as the case may be.
The Certificate Registrar shall require that every Trust Certificate
presented or surrendered for registration of transfer or exchange shall be
accompanied by a written instrument of transfer and accompanied by IRS Form
W-8ECI (or successor form) or W-9 or such other form as may be reasonably
required in form satisfactory to the Certificate Registrar duly executed by the
Trust Certificateholder or such Person's attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Trust Certificates, but the Owner Trustee or the Certificate
Registrar may require payment of a sum sufficient to cover any tax or
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Trust Certificates.
The Certificate Registrar shall cancel and retain or destroy, in
accordance with the Certificate Registrar's retention policy then in effect, all
Trust Certificates surrendered for registration of transfer or exchange and
shall upon written request certify to the Transferor as to such retention or
destruction.
(f) The provisions of this Section generally are intended, among other
things, to prevent the Issuer from being characterized as a "publicly traded
partnership" within the meaning of Section 7704 of the Code, in reliance on
Treasury Regulations Section 1.7704-1(e) and (h), and
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the Transferor shall take such intent into account in determining whether or not
to consent to any proposed transfer of any Trust Certificate.
The preceding provisions of this Section notwithstanding, the Owner
Trustee shall not make and the Certificate Registrar shall not register any
transfer or exchange of Trust Certificates for a period of 15 days preceding the
due date for any payment with respect to the Trust Certificates.
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates
or Subordinated Notes. If any mutilated Trust Certificate or Subordinated Note
is surrendered to the Certificate Registrar, or if the Certificate Registrar
evidence to its satisfaction of the destruction, loss or theft of any Trust
Certificate or Subordinated Note and (ii) there is delivered to the Certificate
Registrar and the Owner Trustee such security or indemnity as may be required by
it to hold save each of them harmless, then (and in the case of the Trust
Certificates, in the absence of notice to the Certificate Registrar and the
Owner Trustee that such Trust Certificate has been acquired by a "protected
purchaser", as contemplated by Article Eight of the UCC), and provided that the
requirements of Section 8-405 of the UCC are met, the Owner Trustee on behalf of
the Issuer shall execute and the Authenticating Agent shall authenticate and
deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or
stolen Trust Certificate or Subordinated Note, a new Trust Certificate or
Subordinated Note of like tenor and denomination; provided, however, that if any
such destroyed, lost or stolen Trust Certificate or Subordinated Note (but not a
mutilated Trust Certificate or Subordinated Note ) shall have become or within
seven days shall become due and payable, or shall have been called for
redemption, instead of issuing a replacement Trust Certificate or Subordinated
Note, the Issuer may pay such destroyed, lost or stolen Trust Certificate or
Subordinated Note when so due or payable or upon the Redemption Date without the
surrender thereof. If, after the delivery of such replacement Trust Certificate
or Subordinated Note or payment of a destroyed, lost or stolen Trust Certificate
or Subordinated Note pursuant to the proviso to the preceding sentence, a
"protected purchaser" (as contemplated by Article Eight of the UCC) of the
original Trust Certificate or Subordinated Note in lieu of which such
replacement Trust Certificate or Subordinated Note was issued presents for
payment such original Trust Certificate or Subordinated Note, the Issuer, the
Owner Trustee or the Certificate Registrar shall be entitled to recover such
replacement Trust Certificate or Subordinated Note (or such payment) from the
Person to whom it was delivered or any Person taking such replacement Trust
Certificate or Subordinated Note from such Person to whom such replacement Trust
Certificate or Subordinated Note was delivered or any assignee of such Person,
except a "protected purchaser" (as contemplated by Article Eight of the UCC),
and shall be entitled to recover upon the security or indemnity provided
therefor to the extent of any loss, damage, cost or expense incurred by the
Issuer, the Owner Trustee or the Certificate Registrar in connection therewith.
In connection with the issuance of any new Trust Certificate or Subordinated
Note under this Section, the Owner Trustee or the Certificate Registrar may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith. Any replacement Trust
Certificate issued pursuant to this Section shall constitute conclusive evidence
of an ownership interest in the Issuer, and any duplicate Subordinated Note
issued pursuant to this Section shall constitute conclusive evidence of an
additional contractual obligation of the Issuer, in each case as if originally
issued, whether or not the lost, stolen or destroyed Trust Certificate or
Subordinated Note shall be found at any time.
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Section 3.06. Persons Deemed Trust Certificateholders or Subordinated
Noteholder. Prior to due presentation of a Trust Certificate for registration of
transfer, the Owner Trustee, the Certificate Registrar, any Paying Agent and any
of their respective agents may treat the Person in whose name any Trust
Certificate or Subordinated Note is registered in the Certificate Register as
the owner of such Trust Certificate or Subordinated Note for the purpose of
receiving distributions pursuant to Section 5.02 and for all other purposes
whatsoever, and none of the Owner Trustee, the Certificate Registrar, any Paying
Agent or any of their respective agents shall be affected by any notice to the
contrary.
Section 3.07. Access to List of Trust Certificateholders' Names and
Addresses. The Owner Trustee shall furnish or cause to be furnished to the
Administrative Agent and the Transferor, or to the Indenture Trustee, as the
case may be, within 15 days after receipt by the Owner Trustee of a request
therefor from the Administrative Agent, the Transferor or the Indenture Trustee
in writing, a list, in such form as the requesting party may reasonably request,
of the names and addresses of the Trust Certificateholders as of the most recent
Record Date. If (i) two or more Trust Certificateholders or (ii) one or more
Trust Certificateholders evidencing not less than 25% of the Certificate Balance
apply in writing to the Owner Trustee, and such application states that the
applicants desire to communicate with other Trust Certificateholders with
respect to their rights under this Agreement or under the Trust Certificates and
such application is accompanied by a copy of the communication that such
applicants propose to transmit, then the Owner Trustee shall, within five
Business Days after the receipt of such application, afford such applicants
access during normal business hours to the current list of Trust
Certificateholders. Each Trust Certificateholder, by receiving and holding a
Trust Certificate, shall be deemed to have agreed not to hold either the
Transferor, the Owner Trustee or the Indenture Trustee, as the case may be,
accountable by reason of the disclosure of its name and address, regardless of
the source from which such information was derived.
Section 3.08. Maintenance of Office or Agency. The Owner Trustee shall
maintain in The Borough of Manhattan, The City of New York, an office or offices
or agency or agencies where Trust Certificates may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Owner Trustee in respect of the Trust Certificates and the other Basic
Documents to which the Issuer is a party may be served. The Owner Trustee
initially designates The Chase Manhattan Bank, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 0000-0000, as its office for such purposes. The Owner Trustee shall
give prompt written notice to the Transferor and the other Trust
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
Section 3.09. Appointment of Paying Agent. The Paying Agent shall make
distributions to Trust Certificateholders and to the Subordinated Noteholder
pursuant to Section 5.02, and shall report the amounts of such distributions to
the Owner Trustee. Any Paying Agent shall have the revocable power to withdraw
funds from the Certificate Distribution Account for the purpose of making the
distributions referred to above. The Paying Agent initially shall be The Chase
Manhattan Bank. The Owner Trustee may revoke such power and remove the Paying
Agent if the Owner Trustee determines in its sole discretion that the Paying
Agent has failed to perform its obligations under this Agreement in any material
respect. Any co-paying agent chosen by the Transferor and acceptable to the
Owner Trustee shall also be a Paying Agent. Each Paying Agent may resign upon 30
days' written notice to the Owner Trustee. In the event
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that a Paying Agent may no longer act as Paying Agent, the Owner Trustee shall
appoint a successor to act as Paying Agent (which shall be a bank or trust
company). The Owner Trustee shall cause such successor Paying Agent or any
additional Paying Agent appointed by the Owner Trustee to execute and deliver to
the Owner Trustee an instrument in which such successor Paying Agent or
additional Paying Agent shall agree with the Owner Trustee that as Paying Agent,
such successor Paying Agent or additional Paying Agent shall hold all sums, if
any, held by it for payment to the Subordinated Noteholder or the Trust
Certificateholders in trust for the benefit of the Subordinated Noteholder or
the Trust Certificateholders entitled thereto until such sums are paid to the
Transferor or such Trust Certificateholders. The Paying Agent shall return all
unclaimed funds to the Owner Trustee and upon removal of a Paying Agent such
Paying Agent shall also return all funds in its possession to the Owner Trustee.
The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall apply to the Owner
Trustee also in its role as Paying Agent, for so long as the Owner Trustee shall
act as Paying Agent and, to the extent applicable, to any other paying agent
appointed hereunder.
Section 3.10. Ownership of Transferor Trust Certificate and
Subordinated Notes.
(a) On the Closing Date, the Transferor shall acquire and retain
beneficial and record ownership of the Transferor Trust Certificate and the
Subordinated Notes. Except as set forth in the Basic Documents, any attempted
transfer of the Transferor Trust Certificate by the Transferor shall be null and
void. Notwithstanding the foregoing, upon a dissolution or termination of the
Transferor, the Trust Certificates held by it shall be distributed to Ryder
without regard to the provisions of Section 3.02. The Owner Trustee shall cause
the Transferor Trust Certificate to bear a legend stating "THIS TRUST
CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE DISSOLUTION,
TERMINATION OR BANKRUPTCY OF RYDER FUNDING II LP WHEN IT IS HOLDER HEREOF, AND
ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID."
(b) On the Closing Date, the Transferor shall acquire beneficial and
record ownership of the entire initial principal amount of the Subordinated
Notes. On and after the Closing Date, the Transferor shall be required to retain
beneficial and record ownership of the Subordinated Notes. Any attempted
transfer of the Subordinated Notes shall be null and void, except as permitted
under the Basic Documents. Notwithstanding the foregoing, upon a dissolution or
termination of the Transferor, the Subordinated Notes shall be distributed to
Ryder without regard to the provisions of Section 3.02.
Section 3.11. Trust Certificates held by Issuer, Transferor or their
Affiliates. Any Trust Certificates owned by the Issuer, the Transferor or any of
their respective Affiliates shall be entitled to the benefits under this
Agreement equally and proportionately to the benefits afforded other owners of
the Trust Certificates, except that such Trust Certificates shall be deemed not
to be outstanding for the purpose of determining whether the requisite
percentage of Securityholders have given any request, demand, authorization,
direction, notice, consent or other action under the Basic Documents (other than
the commencement by the Issuer of a voluntary proceeding in bankruptcy).
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Trust Certificateholders with Respect to
Certain Matters. Subject to the provisions and limitations of Section 4.04, with
respect to the following matters, the Owner Trustee shall not take action unless
the Owner Trustee has notified the Trust Certificateholders and the Rating
Agencies in writing of the proposed action at least 30 days before the taking of
such action and Trust Certificateholders representing at least 25% of the
Certificate Balance have not notified the Owner Trustee in writing prior to the
30th day after such notice is given that such Trust Certificateholders have
withheld consent or provided alternative direction:
(a) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than an action brought by the Administrative Agent on
behalf of the Origination Trust and Persons having interests in the
2001-A SUBI Certificates to collect amounts owed under a 2001-A Lease
or in respect of a 2001-A Vehicle);
(b) the election by the Issuer to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed
under the Business Trust Statute);
(c) the amendment of the Indenture in circumstances where the
consent of any Senior Noteholder is required;
(d) the amendment of the Indenture in circumstances where the
consent of any Senior Noteholder is not required and such amendment
materially and adversely affects the interests of the Trust
Certificateholders;
(e) the amendment of any other Basic Document unless the Owner
Trustee is furnished an Opinion of Counsel to the effect that such
amendment does not materially and adversely affect the interests of the
Trust Certificateholders;
(f) the amendment, change or modification of the Issuer
Administration Agreement, except to cure any ambiguity or to amend or
supplement any provision in a manner or add any provision that would
not materially adversely affect the interests of the Trust
Certificateholders; or
(g) the appointment of a successor Owner Trustee or Indenture
Trustee.
Section 4.02. Action by Trust Certificateholders with Respect to
Certain Matters. Subject to the provisions and limitations of Section 4.04, to
the extent the Owner Trustee or the Issuer is deemed to be the Holder of the 99%
2001-A Vehicle SUBI Certificate pursuant to the SUBI Trust Agreement, the Owner
Trustee or Issuer, as the case may be, shall take such actions as directed in
writing by Trust Certificateholders holding Trust Certificates evidencing an
interest of at least 66 2/3% of the Certificate Balance; provided, however, that
so long as the Lien of the Indenture is outstanding, such direction shall be
subject to the consent of the Indenture Trustee. The Owner Trustee may not,
except upon the occurrence of an Administrative Agent
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Default or a Maintenance Provider Default subsequent to the payment in full of
the Senior Notes and in accordance with the written directions of Trust
Certificateholders holding 66 2/3% of the Certificate Balance, remove the
Administrative Agent or the Maintenance Provider, as the case may be, with
respect to the 2001-A SUBI Assets or appoint a successor Administrative Agent or
Maintenance Provider, as the case may be, with respect thereto.
Section 4.03. Action by Owner Trustee with Respect to Bankruptcy. The
Owner Trustee shall not have the power to commence a voluntary proceeding in
bankruptcy with respect to the Issuer except in accordance with Section 12.08.
Section 4.04. Restrictions on Trust Certificateholders' Power. The
Trust Certificateholders shall not direct the Owner Trustee to take or refrain
from taking any action if such action or inaction would be contrary to any
obligation of the Issuer or the Owner Trustee under this Agreement or any of the
other Basic Documents or would be contrary to the purpose of the Issuer as set
forth in Section 2.03, nor shall the Owner Trustee be obligated to follow any
such direction, if given.
Section 4.05. Majority Control. Except as expressly provided herein,
any action that may be taken by the Trust Certificateholders under this
Agreement may be taken by the Trust Certificateholders holding not less than a
majority of the Certificate Balance. Except as expressly provided herein, any
written notice of the Trust Certificateholders delivered pursuant to this
Agreement shall be effective if signed by Trust Certificateholders holding not
less than a majority of the Certificate Balance at the time of delivery of such
notice.
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ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Distribution Account and
Reserve Fund.
(a) The Owner Trustee, at the direction of the Transferor and for the
benefit of the Trust Certificateholders and the Subordinated Noteholder, shall
establish and maintain an Eligible Account with and in the name of the Owner
Trustee which shall be designated the "Certificate Distribution Account." The
Certificate Distribution Account shall be held in trust for the benefit of the
Trust Certificateholders and the Subordinated Noteholder, and shall bear a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Trust Certificateholders and the Subordinated Noteholder.
The Owner Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Certificate Distribution Account and
in all proceeds thereof. Except as otherwise provided herein, the Certificate
Distribution Account shall be under the sole dominion and control of the Owner
Trustee for the benefit of the Trust Certificateholders and the Subordinated
Noteholder. If at any time the Certificate Distribution Account ceases to be an
Eligible Account, the Owner Trustee (or the Transferor on behalf of the Owner
Trustee, if the Certificate Distribution Account is not then held by the Owner
Trustee or an Affiliate thereof) shall, within ten Business Days following
notification of such occurrence (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent), establish a new
Certificate Distribution Account as an Eligible Account and shall transfer any
cash or investments to such new Certificate Distribution Account.
(b) The Transferor shall establish and maintain an Eligible Account
(initially at U.S. Bank National Association) in the name of the Indenture
Trustee until the Senior Note Outstanding Amount is reduced to zero, and
thereafter, in the name of the Owner Trustee, which is designated as the
"Reserve Fund." The Reserve Fund shall be held for the benefit of the
Securityholders, and shall bear a designation clearly indicating that the funds
on deposit therein are held for the benefit of the Securityholders.
The Reserve Fund shall be under the sole dominion and control of the
Indenture Trustee until the Senior Note Outstanding Amount has been reduced to
zero, and thereafter under the sole dominion and control of the Owner Trustee.
On the Closing Date, the Transferor shall cause the Initial Deposit to be
deposited into the Reserve Fund from the net proceeds of the sale of the Notes
and the Trust Certificates. The Transferor hereby acknowledges that the Initial
Deposit and all other Reserve Fund Property, including investment earnings
thereon, are owned directly by it pending application thereof to the Secured
Obligations or release to the Transferor or its designee pursuant to Section
8.04(c) of the Indenture or Section 5.02 hereof, as applicable. The Transferor
hereby agrees to treat the same as its assets (and earnings) for federal income
tax and other purposes. All deposits to and withdrawals from the Reserve Fund
shall be made only upon the terms and conditions of the Basic Documents.
(c) Each of the Transferor and the Issuer shall take or cause to be
taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further
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documents and instruments (including the Control Agreement or any UCC financing
statements) as may be determined to be reasonably necessary by the Transferor,
in order to perfect the interests created by Section 5.01(b)and otherwise fully
to effectuate the purposes, terms and conditions of this Section. The Transferor
(or the Administrator on behalf of the Transferor) shall:
(i) promptly execute, deliver and file any financing statements,
amendments, continuation statements, assignments, certificates and
other documents with respect to such interests and perform all such
other acts as may be necessary in order to perfect or to maintain the
perfection of the Issuer's security interest in the Reserve Fund
Property; and
(ii) make the necessary filings of financing statements or
amendments thereto within five days after the occurrence of any of the
following (and promptly notify the Issuer and the Owner Trustee of each
such filing): (A) any change in the Transferor's corporate name or any
trade name, (B) any change in the location of its chief executive
office or principal place of business or (C) any merger or
consolidation or other change in its identity or corporate structure.
Section 5.02. Application of Trust Funds.
(a) Until the Senior Note Outstanding Amount has been reduced to zero,
on each Payment Date, the Paying Agent (or the Owner Trustee, if there is no
Paying Agent) shall pay, to the extent of funds available, the amount required
to be deposited by the Origination Trustee and by the Indenture Trustee into the
Certificate Distribution Account pursuant to Section 8.04 of the Indenture for
the payment of interest on and, after the payment in full of the Notes,
principal of the Trust Certificates on such Payment Date, pro rata to the Trust
Certificateholders of record at the close of business on the Record Date with
respect to such Payment Date. Pursuant to Section 5.02(f), on each Payment Date
all interest and principal distributable in respect of the Subordinated Notes
shall be deposited directly to the Reserve Fund.
(b) On and after the date on which the Senior Note Outstanding Amount
has been reduced to zero, pursuant to the Indenture and the Control Agreement,
dominion and control over the Reserve Fund shall be transferred to the Owner
Trustee. On each Payment Date thereafter, all amounts distributable to the Trust
Certificateholders and the Subordinated Noteholder from the Reserve Fund shall
be distributed by the Owner Trustee in the order and priority set forth in
Section 8.04(b) of the Indenture and the Owner Trustee shall comply with Section
8.04(c) and 8.05(a) of the Indenture.
On the Payment Date on which the Certificate Balance has been reduced
to zero, the Owner Trustee shall release to the Transferor, without recourse,
representation or warranty (except as set forth in Section 7.03), all of the
Issuer's right, title, and interest in, to and under the Reserve Fund Property.
In addition, on or following the Payment Date on which the Certificate Balance
has been reduced to zero, the Transferor may direct the Owner Trustee in writing
to distribute to it, and upon receipt of such direction the Owner Trustee shall
distribute to the Transferor, the remaining assets of the Issuer.
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(c) On each Payment Date, the Owner Trustee shall send to each Trust
Certificateholder and to the Subordinated Noteholder a report (the "Distribution
Statement") provided by the Administrative Agent, based on information in the
Payment Date Certificate delivered pursuant to Section 8.03 of the Indenture,
that shall include the following information:
(i) the amount of SUBI Collections for the related Collection
Period and the amounts allocable to the 99% 2001-A SUBI Certificates
and the 1% 2001-A SUBI Certificates;
(ii) the Certificate Balance on the immediately preceding
Payment Date, or if the current Payment Date is the first Payment Date,
on the Closing Date;
(iii) the aggregate amount of interest accrued and paid on the
Senior Notes, the Trust Certificates and the Subordinated Notes during
the related Accrual Period;
(iv) the aggregate amount of principal paid with respect to the
Senior Notes, the Trust Certificates and the Subordinated Notes on such
Payment Date, the Principal Carryover Shortfall, if any, and the
Optimal Principal Distribution Amount;
(v) the Senior Note Outstanding Amount, the Subordinated Note
Outstanding Amount of the Subordinated Notes and the Certificate
Balance on the day immediately preceding such Payment Date;
(vi) the Subordinated Note Factor, the Note Factors of each
Class of Senior Notes and the Certificate Factor (after giving effect
to payments made on such Payment Date);
(vii) the Available Funds deposited into the SUBI Collection
Account, including amounts with respect to each item of the definition
thereof;
(viii) the Reserve Fund Deposit Amount, the amount on deposit in
the Reserve Fund and the Reserve Fund Requirement, each as of the
beginning and end of the related Collection Period;
(ix) the Reserve Fund Draw Amount, if any;
(x) the Administration Fee and the Payment Date Advance
Reimbursement for the related Collection Period;
(xi) the amount of Residual Value Losses for the immediately
preceding Collection Period; and
(xii) the amount of Special Event Purchases made during the
related Collection Period and the aggregate Securitization Value as of
the Cutoff Date of all 2001-A Leases relating to Special Event
Purchases made (A) during the related calendar year or (B) since the
Closing Date.
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The information required to be delivered by such Distribution Statement
may be included with such other information or reports furnished by the
Administrative Agent to the Owner Trustee in connection with the making of
payments pursuant to the other Basic Documents.
(d) In the event that any withholding tax is imposed on the Issuer's
payment (or, if the Issuer is treated as a partnership for federal income tax
purposes, allocations of income) to a Trust Certificateholder, such tax shall
reduce the amount otherwise distributable to such Trust Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain from amounts otherwise distributable to such Trust
Certificateholders, sufficient funds for the payment of any withholding tax that
is legally owed by the Issuer (but such authorization shall not prevent the
Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to a
Trust Certificateholder shall be treated as cash distributed to such Trust
Certificateholders, at the time it is withheld by the Issuer for remittance to
the appropriate taxing authority. If the Owner Trustee determines that there is
a possibility that withholding tax is payable with respect to a distribution,
the Owner Trustee may in its sole discretion withhold such amounts in accordance
with this Section. In the event that a Trust Certificateholder wishes to apply
for a refund of any such withholding tax, the Owner Trustee shall reasonably
cooperate with such Trust Certificateholder in making such claim so long as such
Trust Certificateholder agrees to reimburse the Owner Trustee for any
out-of-pocket expenses incurred.
(e) Subject to Section 6.07 of the Indenture and 6.01 hereof, as the
case may be, neither the Indenture Trustee nor the Owner Trustee, as the case
may be, shall in any way be held liable by reason of any insufficiency in the
Reserve Fund resulting from any loss on any Permitted Investment included
therein, except for losses attributable to the Indenture Trustee's or Owner
Trustee's, as the case may be, failure to make payments on any such Permitted
Investments issued by the Indenture Trustee or Owner Trustee, as the case may
be, in its commercial capacity as principal obligor and not as trustee, in
accordance with their terms.
(f) In order to assure that sufficient amounts are available to make
the payments to Securityholders pursuant to Section 8.04 of the Indenture and
this Section (collectively, the "Secured Obligations") the Transferor:
(i) hereby pledges and assigns and grants a security interest in
all of its right, title and interest in the Subordinated Notes to the
Issuer, to secure the Secured Obligations;
(ii) acknowledges that the Issuer has assigned or will assign its
security interest in the Subordinated Notes to the Indenture Trustee to
secure payment of the Senior Notes and directs the Issuer to deliver
such Subordinated Notes directly to the Indenture Trustee for
redelivery by the Indenture Trustee to the custody unit of the
Indenture Trustee located in New York in order to perfect the security
interest therein;
(iii) agrees that on each Payment Date, all payments of interest
on and principal of the Subordinated Notes shall be deposited directly
into the Reserve Fund; and
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(iv) hereby pledges and assigns and grants a security interest in
all of its right, title and interest in the Reserve Fund Property to
the Issuer, to secure the Secured Obligations.
Section 5.03. Method of Payment. Subject to Section 9.01(c) respecting
the final payment upon retirement of the Trust Certificates, distributions
required to be made to Trust Certificateholders on any Payment Date shall be
made to each Trust Certificateholder of record on the related Record Date by
check mailed to the addresses of such Securityholders as they appear on the
Certificate Register. As set forth in Section 5.02(f), payments to be made to
the Subordinated Noteholder shall be deposited directly in the Reserve Fund.
Notwithstanding the foregoing, the final payment on the Trust Certificates or
the Subordinated Notes shall be made only upon presentation and surrender of
such Trust Certificates or Subordinated Notes at the office or agency specified
in the notice of final payment to the Trust Certificateholders or the
Subordinated Noteholder. The Owner Trustee or a Paying Agent shall, upon receipt
of at least 45 days' notice from the Issuer or the Administrator as set forth in
the Indenture, provide such notice to the Subordinated Noteholder and to Trust
Certificateholders of record not more than 30 days and not less than 15 days
prior to the date on which such final payment is expected to occur.
Section 5.04. Accounting and Reports.
(a) The Owner Trustee shall, based on information provided by the
Transferor, (i) maintain (or cause to be maintained) the books of the Issuer on
a calendar year basis on the accrual method of accounting (except as required by
Article Eleven), (ii) deliver to each Trust Certificateholder and the
Subordinated Noteholder not later than the latest date permitted by law (A) a
statement of the amounts provided for in Section 8.04 of the Indenture and (B)
such information as may be required by the Code and applicable Treasury
Regulations with respect to instruments such as the Trust Certificates or the
Subordinated Notes, as the case may be, that is consistent with the position
that the Trust Certificates (other than the Transferor Trust Certificate) will
be treated as debt for federal income tax and state income and franchise tax
purposes and (iii) in addition to the Owner Trustee's rights under Section 5.02,
take such action as instructed by the Transferor, as holder of the Transferor
Trust Certificate, to collect or cause to be collected and paid over to
applicable authorities any withholding tax as described in and in accordance
with Section 5.02 and Article Eleven with respect to income or distributions to
Trust Certificateholders. The Owner Trustee shall make all elections pursuant to
Article Eleven as directed by the Transferor.
(b) The Transferor shall maintain such books and records, and shall
prepare and file such reports and returns, as are required pursuant to Sections
2.10 and 5.02.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority. The Owner Trustee shall administer the
Issuer in the interest of the Trust Certificateholders, subject to the Lien of
the Indenture Trustee and the obligations of the Issuer under the Subordinated
Notes, in accordance with the Basic Documents. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver on behalf of the Issuer the Basic Documents to
which the Issuer is to be a party and each certificate or other document
attached as an exhibit to or contemplated by the Basic Documents to which the
Issuer is to be a party, in each case in such form as the Transferor shall
approve as evidenced conclusively by the Owner Trustee's execution thereof and
the Transferor's execution of this Agreement, and to direct the Indenture
Trustee to authenticate and deliver Senior Notes in the aggregate principal
amount not to exceed $___________ (except as otherwise contemplated by Section
3.05). In addition to the foregoing, the Owner Trustee is authorized to take all
actions required of the Issuer pursuant to the Basic Documents. The Owner
Trustee is further authorized from time to time to take such action on behalf of
the Issuer as is permitted by the Basic Documents and that the Administrative
Agent or the Administrator recommends with respect to the Basic Documents,
except to the extent this Agreement expressly requires the consent of the Trust
Certificateholders or the Subordinated Noteholder for such action.
Section 6.02. General Duties. Subject to the provisions and limitations
of Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge or cause to be discharged all of its responsibilities pursuant to the
terms of the Basic Documents to which the Issuer is a party and to administer
the Issuer in the interest of the Trust Certificateholders, subject to the Lien
of the Indenture Trustee and to the obligations of the Issuer under the
Subordinated Notes, and in accordance with provisions of the Basic Documents.
Notwithstanding the foregoing, the Owner Trustee shall be deemed to have
discharged its duties and responsibilities hereunder and under the other Basic
Documents to the extent the Administrator has agreed in the Issuer
Administration Agreement to perform any act or to discharge any duty of the
Issuer or the Owner Trustee hereunder or under any other Basic Document, and the
Owner Trustee shall not be held liable for the default or failure of the
Administrator to carry out its obligations under the Issuer Administration
Agreement.
Section 6.03. Action Upon Instruction.
(a) Subject to Article Four, the Transferor, as holder of the
Transferor Trust Certificate, may by written instruction direct the Owner
Trustee in the administration of the Issuer subject to, and in accordance with,
the terms of the Basic Documents; provided that such instruction shall not, as
evidenced by an Opinion of Counsel, materially adversely affect any
Securityholder.
(b) The Owner Trustee shall not be required to take any action
hereunder or under any other Basic Document if the Owner Trustee shall have
reasonably determined, or shall have been advised by counsel, that such action
is likely to result in liability on the part of the Owner Trustee, is contrary
to the terms hereof or of any other Basic Document or is otherwise contrary to
law or any obligation of the Owner Trustee or the Issuer.
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(c) Whenever the Owner Trustee is unable to decide between alternative
courses of action permitted or required by the terms of this Agreement or any
other Basic Document, the Owner Trustee shall promptly give notice (in such form
as shall be appropriate under the circumstances) to the Trust Certificateholders
requesting instruction as to the course of action to be adopted, and to the
extent the Owner Trustee acts in good faith in accordance with any written
instruction of Trust Certificateholders holding not less than a majority of the
Certificate Balance, the Owner Trustee shall not be liable on account of such
action to any Person. If the Owner Trustee shall not have received appropriate
instruction within ten days of such notice (or within such shorter period of
time as reasonably may be specified in such notice as may be necessary under the
circumstances), it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement or the other Basic
Documents as it shall deem to be in the best interests of the Trust
Certificateholders, and shall have no liability to any Person for such action or
inaction.
(d) In the event the Owner Trustee is unsure as to the application of
any provision of this Agreement or any other Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement or any other Basic Document permits any determination by the Owner
Trustee or is silent or is incomplete as to the course of action the Owner
Trustee is required to take with respect to a particular set of facts, the Owner
Trustee may give notice (in such form as shall be appropriate under the
circumstances) to the Trust Certificateholders requesting instruction and, to
the extent the Owner Trustee acts or refrains from acting in good faith in
accordance with any such instruction received from Trust Certificateholders
holding not less than a majority of the Certificate Balance and in accordance
with Sections 6.04 and 6.05, the Owner Trustee shall not be liable, on account
of such action or inaction, to any Person. If the Owner Trustee shall not have
received appropriate instruction within ten days of such notice (or within such
shorter period of time as reasonably may be specified in such notice or as may
be necessary under the circumstances) it may, but shall be under no duty to,
take or refrain from taking such action, not inconsistent with this Agreement or
the other Basic Documents, as it shall deem to be in the best interests of the
Trust Certificateholders, and shall have no liability to any Person for such
action or inaction.
(e) Notwithstanding the foregoing, the right of the Transferor or the
Trust Certificateholders to take any action affecting the Owner Trust Estate
shall be subject to the rights of the Indenture Trustee under the Indenture.
Section 6.04. No Duties Except as Specified. The Owner Trustee shall
not be required to perform any of the obligations of the Issuer under this
Agreement or the other Basic Documents that are required to be performed by (i)
the Administrative Agent under the Administration Agreement or the SUBI
Supplement, (ii) the Transferor under this Agreement, the SUBI Certificate
Transfer Agreement, the Back-Up Security Agreement or the Program Operating
Lease, (iii) the Administrator under the Issuer Administration Agreement or (iv)
the Indenture Trustee under the Indenture. The Owner Trustee shall not have any
duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or in connection with,
any document contemplated hereby to which the Issuer is a party, except as
expressly provided by the terms of this Agreement or in any document or written
instruction
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received by the Owner Trustee pursuant to Section 6.03; and no implied duties or
obligations shall be read into this Agreement or any other Basic Document
against the Owner Trustee. The Owner Trustee shall have no responsibility for
filing any financing or continuation statement in any public office at any time
or to otherwise perfect or maintain the perfection of any ownership or security
interest in the Owner Trust Estate or to record this Agreement or any other
Basic Document. The Owner Trustee nevertheless agrees that it will, at its own
cost and expense, promptly take all action as may be necessary to discharge any
Liens (other than the Lien of the Indenture) on any part of the Owner Trust
Estate that result from actions by or claims against the Owner Trustee in its
individual capacity that are not related to the ownership or the administration
of the Owner Trust Estate.
Section 6.05. No Action Unless Specifically Authorized. The Owner
Trustee shall not manage, control, use, sell, dispose of or otherwise deal with
any part of the Owner Trust Estate except in accordance with (i) the powers
granted to and the authority conferred upon the Owner Trustee pursuant to this
Agreement, (ii) the other Basic Documents to which the Issuer or the Owner
Trustee is a party and (iii) any document or instruction delivered to the Owner
Trustee pursuant to Section 6.03. In particular, the Owner Trustee shall not
transfer, sell, pledge, assign or convey the 99% 2001-A Vehicle SUBI Certificate
except as specifically required or permitted by the Basic Documents.
Section 6.06. Restrictions. The Owner Trustee shall not take any action
(i) that is contrary to the purposes of the Issuer set forth in Section 2.03 or
(ii) that, to the actual knowledge of the Owner Trustee, would (a) affect the
treatment of the Senior Notes as debt for federal income tax purposes, (b) be
deemed to cause a taxable exchange of the Senior Notes for federal income tax
purposes or (c) cause the Issuer, the Transferor or the Origination Trust or any
portion thereof to be taxable as an association (or a publicly traded
partnership) taxable as a corporation for federal or state income or franchise
tax purposes. The Trust Certificateholders, the Subordinated Noteholder and the
Transferor shall not direct the Owner Trustee to take action that would violate
the provisions of this Section. The Owner Trustee may not (i) initiate or settle
any claim or lawsuit involving the Issuer (unless brought by the Administrative
Agent to collect amounts owed under a 2001-A Lease), (ii) amend this Agreement
where Trust Certificateholder consent is required, (iii) amend this Agreement
where Trust Certificateholder consent is not required if such amendment
materially adversely affects the Trust Certificateholders or (iv) amend any
Basic Document other than this Agreement if such amendment materially adversely
affects the Trust Certificateholders, unless (a) the Owner Trustee provides 30
days' written notice thereof to the Trust Certificateholders and each Rating
Agency and (b) Trust Certificateholders holding at least 25% of the Certificate
Balance do not object in writing to any such proposed amendment within 30 days
of such notice. Notwithstanding anything herein to the contrary, the Transferor,
the Administrative Agent and their respective Affiliates may maintain normal
commercial banking relationships with the Owner Trustee and its Affiliates.
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ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all monies actually received by it constituting
part of the Owner Trust Estate upon the terms of the Basic Documents to which
the Issuer or the Owner Trustee is a party. The Owner Trustee shall not be
answerable or accountable hereunder or under any other Basic Document under any
circumstances, except (i) for its own willful misconduct, bad faith or
negligence or (ii) in the case of the inaccuracy of any representation or
warranty contained in Section 7.03 made by the Owner Trustee. In particular, but
not by way of limitation, and subject to the exceptions set forth in the
preceding sentence:
(a) the Owner Trustee shall not be liable for any error in
judgment of a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the
instructions of any Trust Certificateholder, the Transferor (as holder
of the Subordinated Notes), the Indenture Trustee, the Transferor, the
Administrator or the Administrative Agent;
(c) no provision of this Agreement or any other Basic Document
shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights
or powers hereunder or under any other Basic Document if the Owner
Trustee shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured or provided to it;
(d) under no circumstances shall the Owner Trustee be liable for
indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Notes or the Trust
Certificates;
(e) the Owner Trustee shall not be responsible for or in respect
of the validity or sufficiency of this Agreement or for the due
execution hereof by the Transferor or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust
Estate or for or in respect of the validity or sufficiency of the other
Basic Documents, other than the execution of and the certificate of
authentication on the Trust Certificates and the Subordinated Notes,
and the Owner Trustee shall in no event be deemed to have assumed or
incurred any liability, duty or obligation to any Securityholder or any
third party dealing with the Issuer or the Owner Trust Estate, other
than as expressly provided for herein and in the other Basic Documents;
(f) the Owner Trustee shall not be liable for the misfeasance,
malfeasance or nonfeasance of the Administrative Agent, the
Administrator, the Transferor or the Indenture Trustee under any of the
Basic Documents or otherwise, and the Owner Trustee
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shall have no obligation or liability to perform the obligations of the
Issuer or the Transferor under this Agreement or the Basic Documents
that are required to be performed by the Administrative Agent under the
Administration Agreement or the SUBI Trust Agreement, the Transferor
under the Program Operating Lease, the Administrator under the Issuer
Administration Agreement or the Indenture Trustee under the Indenture;
and
(g) the Owner Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement, or to
institute, conduct or defend any litigation under this Agreement or
otherwise or in relation to this Agreement or any other Basic Document,
at the request, order or direction of any of the Trust
Certificateholders or the Subordinated Noteholder unless such Trust
Certificateholders or the Subordinated Noteholder have offered to the
Owner Trustee security or indemnity satisfactory to it against the
Expenses that may be incurred by the Owner Trustee therein or thereby;
the right of the Owner Trustee to perform any discretionary act
enumerated in this Agreement or in any other Basic Document shall not
be construed as a duty, and the Owner Trustee shall not be answerable
for other than its bad faith, negligence or willful misconduct in the
performance of any such act.
Section 7.02. Furnishing of Documents. The Owner Trustee shall furnish
to any Trust Certificateholder or the Subordinated Noteholder promptly upon
receipt of a written request by such Trust Certificateholder or the Subordinated
Noteholder (at the expense of the requesting Trust Certificateholder or the
Subordinated Noteholder) therefor, duplicates or copies of all reports, notices,
requests, demands, certificates and any other instruments furnished to the Owner
Trustee under the Basic Documents.
Section 7.03. Representations and Warranties. The Owner Trustee hereby
represents and warrants to the Transferor, the Trust Certificateholders and the
Subordinated Noteholder, that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It
has all requisite corporate power and authority to execute, deliver and
perform its obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize the
execution and delivery by it of this Agreement, and this Agreement will
be executed and delivered by one of its officers who is duly authorized
to execute and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated
hereby nor compliance by it with any of the terms or provisions hereof
will contravene any federal or Delaware law, governmental rule or
regulation governing the banking or trust powers of the Owner Trustee
or any judgment or order binding on it, or constitute any default under
its charter documents or bylaws or any indenture, mortgage, contract,
agreement or instrument to which it is a party or by which any of its
properties may be bound or result in the creation or imposition of any
Lien, charge or encumbrance on the Owner Trust Estate resulting
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from actions by or claims against the Owner Trustee individually that
are unrelated to this Agreement or the other Basic Documents.
(d) This Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding agreement of it, enforceable
against the Owner Trustee in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors' rights in
general and by general principles of equity, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
Section 7.04. Reliance; Advice of Counsel.
(a) The Owner Trustee may rely upon, shall be protected in relying upon
and shall incur no liability to anyone in acting or refraining from acting upon,
any signature, instrument, notice, resolution, request, consent, order,
certificate, report, opinion, bond or other document or paper believed by it to
be genuine and believed by it to be signed by the proper party or parties. The
Owner Trustee may accept a certified copy of a board resolution or documents of
any other governing body of any corporate party as conclusive evidence that such
board resolution or other document has been duly adopted by such body and that
the same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by the president, any
vice president, the treasurer, any assistant treasurer or any other authorized
officers of the relevant party as to such fact or matter, and such certificate
shall constitute full protection to the Owner Trustee for any action taken or
omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in
the performance of its duties and obligations under this Agreement and the other
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or misconduct of such agents or
attorneys if such agents or attorneys shall have been selected by the Owner
Trustee with reasonable care and (ii) may consult with counsel, accountants and
other skilled Persons to be selected with reasonable care and employed by it.
The Owner Trustee shall not be liable for anything done, suffered or omitted in
good faith by it in accordance with the opinion or advice of any such counsel,
accountants or other such Persons and not contrary to this Agreement or any
other Basic Document.
Section 7.05. Not Acting in Individual Capacity. Except as provided in
this Article, in accepting the trusts hereby created, Chase Manhattan Bank USA,
National Association acts solely as Owner Trustee hereunder and not in its
individual capacity and all Persons having any claim against the Owner Trustee
by reason of the transactions contemplated by this Agreement or any Basic
Document shall look only to the Owner Trust Estate for payment or satisfaction
thereof.
Section 7.06. Owner Trustee Not Liable for Trust Certificates or
Subordinated Notes. The recitals contained herein and in the Trust Certificates
and the Subordinated Notes (other than the signature of the Owner Trustee and
the certificate of authentication on the Trust Certificates and the Subordinated
Notes and its representations and warranties in Section 7.03) shall be taken
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as the statements of the Transferor and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, any other
Basic Document or the Trust Certificates or the Subordinated Notes (other than
the signature of the Owner Trustee and the certificate of authentication on the
Trust Certificates and the Subordinated Notes) or the Senior Notes or any
offering document relating to either of them. The Owner Trustee shall at no time
have any responsibility or liability for or with respect to the legality,
validity or enforceability of any Basic Document to which the Owner Trustee is
to be a party (except for enforceability against the Owner Trustee), or the
perfection and priority of any security interest created by or under any Basic
Document, or the maintenance of any such perfection and priority, or for or with
respect to the sufficiency of the Owner Trust Estate or its ability to generate
the payments to be distributed to Trust Certificateholders or to the
Subordinated Noteholder under this Agreement or the Senior Noteholders under the
Indenture, the validity of the transfer of the 99% 2001-A Vehicle SUBI
Certificate or the pledge of the 99% 2001-A Lease SUBI Certificate to the Issuer
or of the lease by the Issuer of the 99% 2001-A Vehicle SUBI Certificate to the
Transferor pursuant to the Program Operating Lease, or for the compliance by the
Transferor, the Administrator or the Administrative Agent with any warranty or
representation made under any Basic Document or for the accuracy of any such
warranty or representation or for any action of the Administrator, the
Administrative Agent or the Indenture Trustee taken in the name of the Owner
Trustee.
Section 7.07. Owner Trustee May Own Trust Certificates and Notes. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of Trust Certificates or Notes and may deal with the Transferor, the
Administrative Agent, the Administrator, the Indenture Trustee and their
respective Affiliates, in banking transactions with the same rights as it would
have if it were not the Owner Trustee.
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ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Compensation and Indemnification.
(a) The Owner Trustee, the Certificate Registrar and any Paying Agent
shall receive as compensation from the Administrator for its services hereunder
such fees as have been separately agreed upon before the date hereof between the
Transferor or the Administrator and the Owner Trustee, the Certificate Registrar
or the Paying Agent. The Transferor, as holder of the Transferor Trust
Certificate, shall be liable as primary obligor for, and shall indemnify the
Owner Trustee, the Certificate Registrar and any Paying Agent and their
respective successors, assigns, agents, servants, officers and employees
(collectively, the "Indemnified Parties") from and against, any Expenses that
may at any time be imposed on, incurred by or asserted against the Owner Trustee
or any other Indemnified Party in any way relating to or arising out of the
Basic Documents, the Owner Trust Estate, the administration of the Owner Trust
Estate or the action or inaction of the Owner Trustee hereunder, except only
that the Transferor, as holder of the Transferor Trust Certificate and the
Subordinated Notes, shall not be liable for or required to indemnify any
Indemnified Party from and against Expenses arising or resulting from any of the
matters described in the third sentence of Section 7.01 or for any income taxes
on any fees payable to any Indemnified Party as set forth in Section 2.07. The
indemnities contained in this Section shall survive the resignation or
termination of the Owner Trustee, the Certificate Registrar or any Paying Agent
or the termination of this Agreement. In any event of any claim, action or
proceeding for which indemnity will be sought pursuant to this Section, the
Indemnified Party's choice of legal counsel shall be subject to the approval of
the Transferor, which approval shall not be unreasonably withheld. Neither the
Transferor nor the Administrator shall make any claim upon the Owner Trust
Estate for the payment of such Expenses.
(b) Notwithstanding the foregoing, the Owner Trustee shall not be
liable for (i) any error of judgment made by an officer of the Owner Trustee,
(ii) any action taken or omitted to be taken in accordance with the instructions
of any Trust Certificateholder or the Subordinated Noteholder, the Indenture
Trustee, the Transferor, the Administrator or the Administrative Agent, (iii)
the interest on or principal of the Securities or (iv) the default or misconduct
of the Administrator, the Administrative Agent, the Transferor or the Indenture
Trustee.
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ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement.
(a) This Agreement (other than Article Eight) and the Issuer shall
terminate and be of no further force or effect, (i) upon the final distribution
by the Owner Trustee of all funds or other property or proceeds of the Owner
Trust Estate in accordance with the terms of the Indenture and this Agreement
and (ii) at the times provided in Section 9.02 or 9.03. The bankruptcy,
liquidation, dissolution, or termination, death or incapacity of any Trust
Certificateholder, other than the Transferor, as holder of the Transferor Trust
Certificate, as described in Section 9.02 or 9.03, shall not (i) operate to
terminate this Agreement or the Issuer, (ii) entitle such Trust
Certificateholder's legal representatives or heirs to claim an accounting or to
take any action or proceeding in any court for a partition or winding up of all
or any part of the Issuer or Owner Trust Estate nor (iii) otherwise affect the
rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Transferor nor
any other Trust Certificateholder shall be entitled to revoke or terminate the
Issuer.
(c) Notice of any termination of this Agreement pursuant to Section
9.01(a) shall be given by the Owner Trustee by letter to Trust
Certificateholders and the Subordinated Noteholder mailed within five Business
Days of receipt of notice of such termination from the Administrator, stating
(i) the Payment Date upon or with respect to which final payment of the Trust
Certificates and the Subordinated Notes shall be made upon presentation and
surrender of the Trust Certificates and the Subordinated Notes at the office of
the Paying Agent therein designated, (ii) the amount of any such final payment
and (iii) that the Record Date otherwise applicable to such Payment Date is not
applicable, payments being made only upon presentation and surrender of the
Trust Certificates and the Subordinated Notes at the office of the Paying Agent
therein specified. The Owner Trustee shall give such notice to the Certificate
Registrar (if other than the Owner Trustee) and the Paying Agent at the time
such notice is given to Trust Certificateholders and the Transferor. Upon
presentation and surrender of the Trust Certificates and the Subordinated Notes,
the Paying Agent shall cause to be distributed to Trust Certificateholders and
the Subordinated Noteholder (which amounts shall be deposited into the Reserve
Fund), amounts distributable on such Payment Date pursuant to Section 5.02. The
Owner Trustee shall promptly notify each Rating Agency upon the final payment of
the Trust Certificates.
(d) In the event that all of the Trust Certificateholders or the
Subordinated Noteholder shall not surrender their Trust Certificates or
Subordinated Notes for cancellation within six months after the date specified
in the above-mentioned written notice, the Owner Trustee shall give a second
written notice to the remaining Trust Certificateholders or the Subordinated
Noteholder to surrender their Trust Certificates or Subordinated Notes for
cancellation and receive the final distribution with respect thereto. If within
one year after the second notice, all of the Trust Certificates or Subordinated
Notes shall not have been surrendered for cancellation, the Owner Trustee may
take appropriate steps, or may appoint an agent to take appropriate steps, to
contact the remaining Trust Certificateholders or the Subordinated Noteholder
concerning
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surrender of their Trust Certificates or Subordinated Notes, and the cost
thereof shall be paid out of the funds and other assets that shall remain
subject to this Agreement. Any funds remaining in the Issuer after exhaustion of
such remedies shall be distributed by the Owner Trustee to the Administrator.
(e) Upon the winding up of the Issuer and its termination, the Owner
Trustee shall cause the Certificate of Trust to be cancelled by filing a
certificate of cancellation with the Secretary of State in accordance with
Section 3810 of the Business Trust Statute.
Section 9.02. Dissolution upon Bankruptcy of the Transferor. In the
event that a bankruptcy or insolvency shall occur with respect to the
Transferor, this Agreement and the Issuer shall terminate in accordance with
Section 9.01. Promptly after the occurrence of any bankruptcy, insolvency or
termination with respect to the Transferor, (i) the Transferor shall give the
Indenture Trustee, the Owner Trustee and the Rating Agencies written notice of
such event, (ii) the Owner Trustee shall, upon the receipt of such written
notice from the Transferor, give prompt written notice to the Trust
Certificateholders of the occurrence of such event and (iii) the Indenture
Trustee shall, upon receipt of written notice of such event from the Owner
Trustee, give prompt written notice to the Senior Noteholders of the occurrence
of such event; provided, however, that any failure to give a notice required by
this sentence shall not prevent or delay, in any manner, a termination of the
Issuer pursuant to the first sentence of this Section. Upon the receipt of such
notice or actual knowledge of a termination pursuant to this Section, the Owner
Trustee shall promptly sell, or if the Lien of the Indenture is outstanding
shall direct the Indenture Trustee promptly to sell, the Owner Trust Estate
(other than amounts on deposit in the Distribution Accounts) in a commercially
reasonable manner and on commercially reasonable terms. In connection with any
such sale, the 2001-A SUBI Assets shall be distributed out of the Origination
Trust as provided in Section 12.05(b) of the SUBI Trust Agreement. The Owner
Trustee will have no liability with respect to the procedures of the Indenture
Trustee in connection with such sale or the sufficiency or adequacy of the
proceeds therefrom.
Section 9.03. Purchase of the 99% 2001-A Vehicle SUBI Certificate;
Redemption of the Subordinated Notes; Repayment of the Trust Certificates.
(a) The Transferor shall be permitted at its option (the "Optional
Purchase") to purchase the 99% 2001-A Vehicle SUBI Certificate from the Issuer
and to terminate the pledge of the 2001-A Lease SUBI Certificate on any Payment
Date if, either before or after giving effect to any payment of principal
required to be made on such Payment Date, the Securities Balance is less than or
equal to 10% of the Initial Securities Balance. The purchase price for the 99%
2001-A Vehicle SUBI Certificate and the termination of the pledge of the 2001-A
Lease SUBI Certificate shall equal the Securities Balance, together with the
interest thereon accrued during the related Accrual Period (the "Optional
Purchase Price"), which amount shall be deposited by the Transferor into the
SUBI Collection Account on the Deposit Date related to such Payment Date. If the
Transferor exercises the Optional Purchase, the Senior Notes shall be redeemed,
the Trust Certificates shall be repaid and the Subordinated Notes shall be
redeemed, in each case in whole but not in part on the related Payment Date, and
thereupon the pledge of the 2001-A Lease SUBI shall be discharged and released
and the 99% 2001-A Lease SUBI Certificate shall be returned to the Transferor.
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(b) Upon deposit of the Subordinated Note Redemption Price in the
Reserve Fund and the Repayment Price in the Certificate Distribution Account,
the Trust Certificates and the Subordinated Notes shall be due and payable on
the related Payment Date, upon furnishing of a notice complying with Section
9.03(c) to each Trust Certificateholder and the Subordinated Noteholder. The
Administrator or the Owner Trustee shall furnish each Rating Agency notice of
such repayment or redemption.
(c) Notice of repayment or redemption under Section 9.03(b) shall be
given by the Owner Trustee by facsimile or by first-class mail, postage prepaid,
transmitted or mailed at least 30 days prior to the related Payment Date to each
Trust Certificateholder or the Subordinated Noteholder, respectively as of such
date, at such Trust Certificateholder's or the Transferor's address appearing in
the Certificate Register.
All notices of redemption or repayment shall state:
(i) the related Payment Date for the repayment or redemption, as
the case may be;
(ii) the Repayment Price or Subordinated Note Redemption Price,
as the case may be;
(iii) the place where the Subordinated Notes to be redeemed or the
Trust Certificates to be repaid, as the case may be, are to be
surrendered for payment of the Subordinated Note Redemption Price or
the Repayment Price, respectively (which shall be the office or agency
of the Owner Trustee to be maintained as provided in Section 3.08); and
(iv) that on the related Payment Date, the Repayment Price or the
Subordinated Note Redemption Price, as the case maybe, will become due
and payable upon each such Trust Certificate or Subordinated Note, as
the case may be, and that interest thereon shall cease to accrue from
and after the related Payment Date.
Notice of redemption of the Subordinated Notes and of repayment of the
Trust Certificates shall be given by the Owner Trustee in the name and at the
expense of the Issuer. Failure to give notice of redemption or repayment, as the
case may be, or any defect therein, to the Subordinated Noteholder or any Trust
Certificateholder shall not impair or affect the validity of the repayment of
any Trust Certificate or redemption of the Subordinated Notes.
(d) The Subordinated Notes to be redeemed shall, following notice of
redemption as required by Section 9.03(c), on the related Payment Date become
due and payable at the Subordinated Note Redemption Price and (unless the Issuer
shall default in the payment of the Subordinated Note Redemption Price) no
interest shall accrue on the Subordinated Note Redemption Price for any period
from and including the related Payment Date. The Trust Certificates to be repaid
shall, following notice of repayment as required by Section 9.03(c) on the
related Payment Date, become due and payable at the Repayment Price and (unless
the Issuer shall default in the payment of the Repayment Price) no interest
shall accrue on the Repayment Price for any period from and including the
related Payment Date.
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ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND
ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee. The Owner
Trustee shall (i) be a corporation satisfying the provisions of Section 3807(a)
of the Business Trust Statute; (ii) at all times be able and authorized to
exercise corporate trust powers; (iii) have a long-term debt rating of "A" or
higher or be otherwise acceptable to each Rating Agency; (iv) have combined
capital and surplus of at least $50,000,000; and (v) be subject to supervision
or examination by federal or state authorities. If the Owner Trustee shall
publish reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section, the combined capital and surplus of the Owner Trustee
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. In case at any time the Owner Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Owner Trustee shall resign immediately in the manner and with the effect
specified in Section 10.02.
Section 10.02. Resignation or Removal of Owner Trustee. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator, the Administrative Agent,
each Rating Agency, the Transferor, the Indenture Trustee and the Trust
Certificateholders. Upon receiving such notice of resignation, the Transferor
shall promptly appoint a successor Owner Trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Owner Trustee and one copy to the successor Owner Trustee. If no successor Owner
Trustee shall have been so appointed and have accepted appointment within 30
days after the giving of such notice of resignation, the resigning Owner Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 10.01 and shall fail to resign after
written request therefor by the Administrator, the Transferor or Trust
Certificateholders holding not less than a majority of the Certificate Balance,
or if at any time the Owner Trustee shall be legally unable to act, or shall be
adjudged bankrupt or insolvent, or a receiver of the Owner Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Owner Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Transferor or such Trust
Certificateholders may remove the Owner Trustee. If the Owner Trustee shall be
removed pursuant to the preceding sentence, the Transferor shall promptly
appoint a successor Owner Trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the outgoing Owner Trustee so removed
and one copy to the successor Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Transferor shall provide written notice of such
resignation or removal of the Owner Trustee to each Rating
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Agency. Any appointment of a successor Owner Trustee is subject to satisfaction
of the Rating Agency Condition.
Section 10.03. Successor Owner Trustee. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective and such successor Owner
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, with like effect as if originally named as Owner Trustee. The
predecessor Owner Trustee shall, upon payment of its fees and expenses, deliver
to the successor Owner Trustee all documents and statements and monies held by
it under this Agreement; and the Transferor, the Administrator and the
predecessor Owner Trustee 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 Owner Trustee all such rights, powers, duties and
obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Transferor shall mail notice of the successor of such Owner
Trustee to all Trust Certificateholders, the Indenture Trustee and each Rating
Agency. If the Transferor shall fail to mail such notice within ten days after
acceptance of appointment by the successor Owner Trustee, the successor Owner
Trustee shall cause such notice to be mailed at the expense of the Transferor.
Section 10.04. Merger or Consolidation of Owner Trustee. Any Person (i)
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, (ii) resulting from any merger, conversion or consolidation to
which the Owner Trustee shall be a party or (iii) succeeding to all or
substantially all of the corporate trust business of the Owner Trustee, shall be
the successor of the Owner Trustee hereunder, without the execution or filing of
any instrument or any further act on the part of any of the parties hereto,
provided, that such Person shall be eligible pursuant to Section 10.01 anything
herein to the contrary notwithstanding. The Owner Trustee shall mail notice of
such merger, conversion, or consolidation to each Rating Agency, the Indenture
Trustee and the Trust Certificateholders.
Section 10.05. Appointment of Co-Trustee or Separate Trustee.
Notwithstanding any other provision of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Owner Trust Estate may at the time be located, the Transferor and the
Owner Trustee acting jointly shall have the power and shall execute and deliver
all instruments to appoint one or more Persons to act as co-trustee, jointly
with the Owner Trustee, or separate trustee or separate trustees, of all or any
part of the Owner Trust Estate, and to vest in such Person, in such capacity,
such title to the Issuer, or any part thereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Transferor and the Owner Trustee may consider necessary or desirable. If
the Transferor shall not have joined in such appointment within 15 days after
the receipt by it of a request to do so,
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the Owner Trustee alone shall have the power to make such appointment. No
co-trustee or separate trustee under this Agreement shall be required to meet
the terms of eligibility as a trustee pursuant to Section 10.01 and no notice of
the appointment of any co-trustee or separate trustee shall be required pursuant
to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by
law, be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed by the
Owner Trustee and such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not authorized to act
separately without the Owner 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, the Owner 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 Estate or any portion
thereof in any such jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the direction of the Owner
Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement; and
(c) the Transferor and the Owner Trustee acting jointly may at any time
accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Owner Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article. Each separate trustee and co-trustee, 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 Owner
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to the Owner Trustee. Each such instrument shall be filed with the Owner Trustee
and a copy thereof given to the Administrator, the Administrative Agent and the
Transferor.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee, 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 separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor trustee.
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ARTICLE ELEVEN
TAX MATTERS
Section 11.01. Tax and Accounting Characterization.
(a) It is the intent of the parties hereto that the Issuer not
constitute a separate entity for federal income tax or state income or franchise
tax purposes. It is the intent of the Transferor, the Senior Noteholders and
Trust Certificateholders that the Senior Notes and the Trust Certificates be
treated as indebtedness of the Transferor secured by the 2001-A Vehicles and the
payments on the 2001-A Leases for federal income tax and state income and
franchise tax purposes. If, however, the Trust Certificates are characterized as
equity in the Issuer and the Issuer is characterized as a separate entity for
federal income tax purposes, it is the intention of the parties that it qualify
as a partnership, with the assets of the partnership being the Owner Trust
Estate and the partners of the partnership being the Trust Certificateholders
(including the Transferor as owner of the Subordinated Notes and the Transferor
Trust Certificate) and the Notes being debt of the partnership. The parties
agree that, unless otherwise required by appropriate tax authorities, the Issuer
shall not file or cause to be filed annual returns, reports or other forms and
will treat the Issuer in a manner consistent with the characterization that the
Issuer is not a separate entity for tax purposes.
The Transferor and the Trust Certificateholders, by acceptance of a
Trust Certificate, agree to take no action inconsistent with the tax treatment
of the Trust Certificates as indebtedness.
(b) It is the intent of the Transferor that the Subordinated Notes be
treated as a direct ownership interest in the assets of the Issuer for purposes
of federal income tax and state income and franchise tax purposes. If, however,
the Issuer is characterized as a separate entity for federal income tax
purposes, it is the intention of the parties that the Issuer qualify as a
partnership for such purposes and the Transferor, as the holder of the
Subordinated Notes, will be treated as a partner in such partnership. The
Transferor, as Subordinated Noteholder, agrees to take no action inconsistent
with tax treatment of the Subordinated Notes as a direct ownership interest in
the assets of the Issuer for all tax purposes.
(c) It is the intent of the Transferor to treat the Trust Certificates
as equity interests in the Issuer for financial accounting purposes.
Section 11.02. Signature on Returns; Tax Matters Partner.
(a) In the event that the Issuer shall be required to file federal or
other income tax returns as a partnership, such returns shall be signed by an
authorized signatory for the Transferor, as holder of the Transferor Trust
Certificate, or such other Person as shall be required by law to sign such
returns of the Issuer.
(b) By acceptance of its beneficial interest in a Trust Certificate,
each Trust Certificateholder agrees that in the event that the Issuer is
classified as a partnership for federal income tax purposes, the Transferor, as
holder of the Transferor Trust Certificate and the Subordinated Notes, shall be
the "tax matters partner" of the Issuer pursuant to the Code.
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Section 11.03. Tax Reporting. Unless otherwise required by appropriate
tax authorities, the Issuer shall not file or cause to be filed annual or other
income or franchise tax returns and shall not be required to obtain any taxpayer
identification number.
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ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Amendments.
(a) This Agreement may be amended by the Transferor and the Owner
Trustee without the consent of any of the Securityholders to cure any ambiguity,
correct or supplement any provision herein that may be inconsistent with any
other provision herein, add any other provisions with respect to matters or
questions arising under this Agreement that are not inconsistent with the
provisions of this Agreement or add or amend any provision herein in connection
with permitting transfers of the Subordinated Notes or the Trust Certificates;
provided, however, that such action shall not, as evidenced by an Opinion of
Counsel, materially adversely affect the interests of any Holder of a 2001-A
SUBI Certificate (which, so long as any Senior Notes are outstanding, shall
include the Indenture Trustee) or any Securityholder.
(b) This Agreement may also be amended from time to time by the
Transferor and the Owner Trustee, with prior written notice to the Rating
Agencies and subject to the satisfaction of the Rating Agency Condition, with
the consent of the Senior Noteholders holding a majority of the Senior Note
Outstanding Amount of the Senior Notes and, to the extent affected thereby, the
consent of (i) the Subordinated Noteholder and (ii) Trust Certificateholders
holding not less than a majority of the Certificate Balance, for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Agreement or of modifying in any manner the rights of the
Senior Noteholders, the Trust Certificateholders or the Subordinated Noteholder.
No such amendment shall, however, (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, distributions that are required
to be made on the Notes or the Trust Certificates or (ii) reduce the percentage
of the Certificate Balance, the Subordinated Note Outstanding Amount or the
Senior Note Outstanding Amount required to consent to any such amendment,
without the consent of the holders of 100% of all outstanding Trust Certificates
(other than the Transferor Trust Certificate), and provided, further that an
Opinion of Counsel shall be furnished to the Indenture Trustee and the Owner
Trustee to the effect that such amendment shall not (A) affect the treatment of
the Senior Notes as debt for federal income tax purposes, (B) be deemed to cause
a taxable exchange of the Senior Notes for federal income tax purposes or (C)
cause the Issuer or the 2001-A SUBI Certificates to be classified as an
association (or a publicly traded partnership) taxable as a corporation for
federal income tax purposes. This Agreement may also be amended or supplemented
from time to time, at the request of Trust Certificateholders holding not less
than 75% of the Certificate Balance, to approve any trust purpose with respect
to the Issuer in addition to the purpose authorized pursuant to Section 2.03(b),
upon not less that 90 days notice to each Rating Agency and each Noteholder and
subject to each of (i) the prior written confirmation by each Rating Agency that
such action will not result in a Rating Event, and (ii) the consent of Senior
Noteholders holding at least 75% of the Senior Note Outstanding Amount, or, if
the Senior Notes have been paid in full and are no longer outstanding, by the
Subordinated Noteholder, and provided, further that an Opinion of Counsel shall
be furnished to the Indenture Trustee and the Owner Trustee to the effect that
such amendment or supplement shall not affect the treatment of any outstanding
Senior Notes or Subordinated Notes for federal income tax purposes, or cause the
Issuer or the
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2001-A SUBI Certificates to be classified as an association (or a publicly
traded partnership) taxable as a corporation for federal income tax purposes.
It shall not be necessary for the consent of Trust Certificateholders,
the Senior Noteholders or the Indenture Trustee pursuant to this Section to
approve the particular form of any proposed amendment or consent, but it shall
be sufficient if such consent shall approve the substance thereof. The manner of
obtaining such consents (and any other consents of Trust Certificateholders
provided for in this Agreement or in any other Basic Document) and of evidencing
the authorization of the execution thereof by Trust Certificateholders shall be
subject to such reasonable requirements as the Owner Trustee may prescribe.
(c) Notwithstanding Section 12.01(b), this Agreement may be
amended at any time by the parties hereto to the extent reasonably necessary to
assure that none of the Origination Trust, the Issuer or the Transferor will be
classified as an association (or a publicly traded partnership) taxable as a
corporation for federal income tax purposes.
(d) Prior to the execution of any amendment to this Agreement or
any other Basic Document, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and the other Basic Documents and that
all conditions precedent herein and in the other Basic Documents to the
execution and delivery of such amendment have been satisfied. The Owner Trustee
may, but shall not be obligated to, enter into any such amendment which affects
the Owner Trustee's own rights, duties or immunities under this Agreement or
otherwise.
(e) The Owner Trustee shall give the Trust Certificateholders 30
days' written notice of any proposed amendment or supplement hereto, unless the
Owner Trustee is furnished an Opinion of Counsel to the effect that such
amendment or supplement does not materially adversely affect the Trust
Certificateholders or if Senior Noteholder consent is required and this
Agreement provides that the Owner Trustee shall not enter into such amendment
unless a majority of the Certificate Balance of Trust Certificateholders consent
in writing.
Section 12.02. No Legal Title to Owner Trust Estate. Neither the
Trust Certificateholders nor the Subordinated Noteholder shall have legal title
to any part of the Owner Trust Estate. The Trust Certificateholders and the
Subordinated Noteholder shall be entitled to receive distributions with respect
to their Trust Certificates or Subordinated Notes, as the case may be, only in
accordance with Articles Five and Nine. No transfer, by operation of law or
otherwise, of any right, title or interest of (i) the Trust Certificateholders
to and in their ownership interest in the Owner Trust Estate or (ii) the
Subordinated Noteholder to and in the Subordinated Notes shall operate to
terminate this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.
Section 12.03. Limitations on Rights of Others. Except for Section
2.07, the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Transferor, the Trust Certificateholders, the Administrator, the
Administrative Agent, the Indenture Trustee and the Noteholders, and nothing in
this Agreement (other than Section 2.07), whether express or implied, shall be
construed to give to any other Person any legal or equitable right, remedy or
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claim in the Owner Trust Estate or under or in respect of this Agreement or any
covenants, conditions or provisions contained herein.
Section 12.04. 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 Owner Trustee, at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000 (telecopier no. (000) 000-0000); (ii) if to the Transferor, at
0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx, 00000 (telecopier no. (000) 000-0000),
Attention: Treasurer and Legal; (iii) if to Moody's, to 00 Xxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: ABS Monitoring Group (telecopier no. (212)
553-4600 or (000) 000-0000); (iv) if to Fitch, to Fitch Inc., 00 Xxxx Xxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxx Xxxxxxxx 00000 (telecopier no. (000) 000-0000),
Attention: Asset Backed Monitoring Group (Equipment Leases); or (v) 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.
Any notice required or permitted to be given to a Trust
Certificateholder or the Subordinated Noteholder shall be given by first-class
mail, confirmed, facsimile or overnight courier, postage prepaid, at the address
of such Trust Certificateholder or the Subordinated Noteholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
such Trust Certificateholder or the Subordinated Noteholder receives such
notice.
Section 12.05. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 12.06. Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 12.07. Successors and Assigns. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, the
Transferor, the Owner Trustee, each Trust Certificateholder and the Subordinated
Noteholder and their respective successors and permitted assigns, all to the
extent as herein provided. Any request, notice, direction, consent, waiver or
other instrument or action by the Subordinated Noteholder or a Trust
Certificateholder shall bind the successors and assigns of the Transferor or
such Trust Certificateholder.
Section 12.08. No Petition. The Owner Trustee, any Paying Agent, the
Transferor, each Trust Certificateholder by accepting a Trust Certificate and
the Subordinated Noteholder by accepting the Subordinated Notes, covenant 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, against the Transferor or the
Issuer, for a period of one year and a day after:
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(a) payment in full of all amounts due to each Holder in respect
of the UTI, the SUBI or any Other SUBI, against any UTI Beneficiary (or any
general partner of a UTI Beneficiary which is a partnership, the Origination
Trust and the Origination Trustee, without the consent of 100% of the Holders of
the 2001-A Vehicle SUBI, the 2001-A Lease SUBI and each Other SUBI (excluding
the UTI Beneficiaries, the Transferor or any of their respective Affiliates);
and
(b) payment in full of the Offered Securities;
provided, however, that 100% of the Senior Noteholders, or, if no Senior Notes
are then outstanding, the Subordinated Noteholder, or 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 12.09. No Recourse. Each Trust Certificate and each
Subordinated Note entitles the holder thereof to the respective rights and
benefits set forth in this Agreement and in the Trust Certificates or the
Subordinated Notes, as applicable. The Trust Certificates and the Subordinated
Notes do not represent interests in or obligations of the Administrative Agent,
the Transferor, the Owner Trustee, any Paying Agent, the Indenture Trustee or
any Affiliate thereof and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Trust Certificates, the Subordinated Notes or the other Basic Documents.
Section 12.10. Headings. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
Section 12.11. Governing Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware, without reference to its
conflicts of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
Section 12.12. Trust Certificates Nonassessable and Fully Paid.
Subject to Section 2.07, Trust Certificateholders shall not be personally liable
for obligations of the Issuer. The interests represented by the Trust
Certificates shall be nonassessable for any losses or expenses of the Issuer or
for any reason whatsoever, and, upon authentication thereof pursuant to Section
3.03, 3.04 and 3.05, the Trust Certificates shall be deemed fully paid.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Trust Agreement to be duly executed by their respective officers
hereunto duly authorized, as of the day and year first above written.
RYDER FUNDING II LP,
as Transferor
By: RYDER TRUCK RENTAL IV LLC,
as General Partner
By: RTR LEASING II, INC.,
as Manager
By:
--------------------------
Name:
Title:
CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Owner Trustee
By:
--------------------------
Name:
Title:
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EXHIBIT A
FORM OF TRUST CERTIFICATE
TRUST CERTIFICATE
SEE REVERSE FOR CERTAIN DEFINITIONS
[TO BE INSERTED ON TRUST CERTIFICATES OTHER THAN THE TRANSFEROR TRUST
CERTIFICATE:
THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR UNDER ANY
STATE SECURITIES OR BLUE SKY LAW. THE HOLDER HEREOF, BY PURCHASING THIS TRUST
CERTIFICATE, AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES ACT AND
OTHER APPLICABLE LAWS AND ONLY PURSUANT TO RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT THE HOLDER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"),
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, IN
EACH CASE WHOM THE HOLDER HAS INFORMED THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE
OWNER TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE FORM PROVIDED
IN THE TRUST AGREEMENT AND THE RECEIPT BY THE OWNER TRUSTEE AND THE TRANSFEROR
OF SUCH OTHER EVIDENCE ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT
SUCH REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE UNITED STATES AND SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE MAY
NOT BE PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA"), THAT IS SUBJECT TO THE REQUIREMENTS OF TITLE I OF ERISA OR
ANY "PLAN" AS DEFINED IN SECTION 4975(e)(1) THAT IS SUBJECT TO SECTION 4975 OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE "PLAN ASSETS" BY REASON OF THE PLANS INVESTMENT IN THE ENTITY OR
OTHERWISE (EACH A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS TRUST CERTIFICATE OR AN
INTEREST THEREIN, THE HOLDER HEREOF SHALL BE DEEMED TO REPRESENT AND WARRANT
THAT ITS ACQUISITION AND HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION
ON BENEFIT PLAN ASSETS.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY
TRANSFERRING THIS TRUST CERTIFICATE (EXCEPTING TRANSFERS BY THE
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58
INITIAL PURCHASER) DELIVERS TO THE OWNER TRUSTEE, THE TRANSFEROR, AND RTRT,
INC., AS TRUSTEE OF RYDER TRUCK RENTAL LT (THE "ORIGINATION TRUST"), AN OPINION
OF COUNSEL STATING THE CIRCUMSTANCES AND CONDITIONS UPON WHICH THIS TRUST
CERTIFICATE MAY BE TRANSFERRED AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL
NOT CAUSE EITHER THE ISSUER OR THE ORIGINATION TRUST TO BE CLASSIFIED AS AN
ASSOCIATION (OR A PUBLICLY TRADED PARTNERSHIP) TAXABLE AS A CORPORATION FOR
FEDERAL INCOME TAX PURPOSES. BASED UPON SUCH OPINION (IF REQUIRED), THE OWNER
TRUSTEE WILL NOTIFY THE HOLDER OF THIS TRUST CERTIFICATE THAT THIS TRUST
CERTIFICATE MAY BE TRANSFERRED IN ACCORDANCE WITH THE CONDITIONS SET FORTH IN
SUCH OPINION OF COUNSEL, AND THE HOLDER OF THIS TRUST CERTIFICATE MAY EXCHANGE
THIS TRUST CERTIFICATE FOR A NEW TRUST CERTIFICATE OF LIKE DENOMINATION AND
TENOR, WHICH NEW TRUST CERTIFICATE MAY BE TRANSFERRED IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH THEREON.]
[TO BE INSERTED ON THE TRANSFEROR TRUST CERTIFICATE:
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN THE EVENT OF THE
DISSOLUTION, TERMINATION OR BANKRUPTCY OF RYDER FUNDING II LP WHEN IT IS HOLDER
HEREOF, AND ANY TRANSFER IN VIOLATION OF THIS PROVISION SHALL BE NULL AND VOID.]
THE PRINCIPAL OF THIS TRUST CERTIFICATE IS DISTRIBUTABLE AS SET FORTH
IN THE TRUST AGREEMENT. ACCORDINGLY, THE OUTSTANDING CERTIFICATE BALANCE OF THIS
TRUST CERTIFICATE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
RYDER VEHICLE LEASE TRUST 2001-A
____% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the Issuer, as defined below, the property
of which includes, among other things, the 99% 2001-A Vehicle SUBI Certificate
(transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing a 99% beneficial interest in the 2001-A Vehicle SUBI Assets; the
property of the Issuer has been pledged to the Indenture Trustee pursuant to the
Indenture to secure the payment of the Senior Notes issued thereunder.
This Trust Certificate does not represent an interest in or obligation
of the Transferor, Ryder Truck Rental, Inc., the Owner Trustee or any of their
respective Affiliates, except to the extent described below.
NUMBER $__________
R-_________ CUSIP NO.______
This certifies that ____________________ is the registered owner of a
____________________ dollar nonassessable, fully-paid, beneficial ownership
interest in the
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Ryder Vehicle Lease Trust 2001-A (the "Issuer") formed by Ryder Funding II LP, a
Delaware limited partnership (the "Transferor").
The Issuer was created pursuant to a trust agreement, as amended and
restated as of February 1, 2001 (the "Trust Agreement"), between the Transferor
and Chase Manhattan Bank USA, National Association, as trustee (the "Owner
Trustee"), a summary of certain of the pertinent provisions of which is set
forth below. Capitalized terms used herein that are not otherwise defined shall
have the meanings assigned thereto in the Trust Agreement.
This Trust Certificate is one of the duly authorized Trust Certificates
designated as "____% Asset Backed Certificates" (the "Trust Certificates"). Also
issued under the Trust Agreement are the ____% Asset Backed Subordinated Notes
(the "Subordinated Notes"). Also issued under an indenture, dated as of February
1, 2001 (the "Indenture"), between the Issuer and U.S. Bank National
Association, as trustee (the "Indenture Trustee"), are the ____% Asset Backed
Notes, Class A-1 (the "Class A-1 Notes"), ____% Asset Backed Notes, Class A-2
(the "Class A-2 Notes"), ___% Asset Backed Notes, Class A-3 (the "Class A-3
Notes"), ___% Asset Backed Notes, Class A-4 (the "Class A-4 Notes"), and ___%
Asset Backed Notes, Class A-5 (the "Class A-5 Notes" and, together with the
Class A-1 Notes, Class A-2 Notes, Class A-3 Notes, and Class A-4 Notes, the
"Senior Notes"). This Trust Certificate is issued under and is subject to the
terms, provisions and conditions of the Trust Agreement, to which Trust
Agreement the holder of this Trust Certificate by virtue of the acceptance
hereof assents and by which such Trust Certificateholder is bound. The property
of the Issuer primarily includes, among other things, (i) the 99% 2001-A Vehicle
SUBI Certificate (transferred pursuant to the Issuer SUBI Certificate Transfer
Agreement), evidencing a 99% beneficial interest in the 2001-A Vehicle SUBI
Assets, (ii) the rights of the Issuer under the Program Operating Lease, (iii)
the security interest of the Issuer in the 2001-A Lease SUBI, the Subordinated
Notes and the Reserve Fund Property and (iv) all proceeds of the foregoing. The
rights of the Issuer in the foregoing property have been pledged by the Issuer
to the Indenture Trustee to secure the payment of the Senior Notes.
The Trust Certificates represent obligations of the Issuer only and do
not represent interests in, recourse to or obligations of the Transferor, the
UTI Beneficiaries or any of their respective Affiliates.
Under the Trust Agreement, there will be distributed on February 15,
May 15, August 15 and November 15 of each year or, as necessary, May 15, 20__
(or, if any such day is not a Business Day, the immediately succeeding Business
Day), commencing May 15, 2001 (each, a "Payment Date"), and ending no later than
May 15, 20__, to the Person in whose name this Trust Certificate is registered
at the close of business on the Business Day preceding each Payment Date (each,
a "Record Date") such Trust Certificateholder's percentage interest in the
amount to be distributed with respect to the Trust Certificates on such Payment
Date and any remaining amounts shall be distributed to the Transferor as holder
of the Transferor Trust Certificate pursuant to the terms of the Basic
Documents.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive payments in respect of this Trust Certificate are subordinated
to the rights of the Senior
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Noteholders as described in the Indenture and the Subordinated Noteholder as
described in the Trust Agreement, as applicable.
It is the intent of the Transferor and Trust Certificateholders that
the Trust Certificates be treated as indebtedness of the Transferor for purposes
of federal income tax or State income and franchise taxes. If, however, the
Issuer is characterized as a separate entity for federal income tax purposes, it
is the intention of the parties to the Trust Agreement that it qualify as a
partnership for such purposes and the Trust Certificateholders will be treated
as partners in that partnership. The Transferor and the other Trust
Certificateholders, by acceptance of a Trust Certificate, agree to take no
action inconsistent with such tax treatment of the Trust Certificates.
Each Trust Certificateholder by accepting a Trust Certificate,
covenants and agrees 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, against
the Transferor or the Trust, 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 SUBI or any Other SUBI, against any UTI Beneficiary (or any
general partner of a UTI Beneficiary which is a partnership, the Origination
Trust and the Origination Trustee, without the consent of 100% of the Holders of
the 2001-A Vehicle SUBI, the 2001-A Lease SUBI and each Other SUBI (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, or if no Subordinated Notes are 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.
Distributions on this Trust Certificate will be made as provided in the
Trust Agreement by the Owner Trustee by check mailed to the Trust
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Trust Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the
above, the final payment on this Trust Certificate will be made after due notice
by the Owner Trustee of the pendency of such payment and only upon presentation
and surrender of this Trust Certificate at the office or agency maintained for
the purpose by the Owner Trustee in The City of New York.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been
executed by an authorized officer of the Owner Trustee, by manual signature,
this Trust Certificate shall not entitle the holder hereof to any benefit under
the Trust Agreement or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO
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ITS CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Issuer and not
in its individual capacity, has caused this Trust Certificate to be duly
executed.
Dated: RYDER VEHICLE LEASE TRUST 2001-A
--------------------
By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION,
as Owner Trustee
By:
-----------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
CHASE MANHATTAN BANK USA, or CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as NATIONAL ASSOCIATION, as Owner
Owner Trustee Trustee
By: THE CHASE MANHATTAN BANK,
Authenticating Agent
By:
-----------------------
By:
-----------------------------
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[Reverse of Trust Certificate]
The Trust Certificates do not represent an obligation of or an interest
in the Transferor, the Administrative Agent, the Owner Trustee or any of their
respective Affiliates, and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated herein or in the
Trust Agreement or the other Basic Documents. In addition, this Trust
Certificate is not guaranteed by any governmental agency or instrumentality and
is limited in right of payment to certain collections and recoveries and certain
other amounts respecting the assets of the Issuer, all as more specifically set
forth in the Indenture. The Transferor will furnish, upon the request of any
holder of a Trust Certificate, such information as is specified in paragraph
(d)(4) of Rule 144A of the Securities Act of 1933, as amended, with respect to
the Issuer.
The Trust Agreement may be amended by the Transferor and the Owner
Trustee without the consent of any of the Securityholders to cure any ambiguity,
correct or supplement any provision therein that may be inconsistent with any
other provision therein, add any other provisions with respect to matters or
questions arising under the Trust Agreement that are not inconsistent with the
provisions of the Trust Agreement or add or amend any provision therein in
connection with permitting transfers of the Subordinated Notes or the Trust
Certificates; provided, however, that such action shall not, as evidenced by an
Opinion of Counsel, materially adversely affect the interests of any Holder of a
2001-A SUBI Certificate (which, so long as any Senior Notes are outstanding,
shall include the Indenture Trustee) or any Securityholder.
The Trust Agreement may also be amended from time to time by the
Transferor and the Owner Trustee, with prior written notice to the Rating
Agencies, with the consent of the Senior Noteholders holding a majority of the
Senior Note Outstanding Amount and, to the extent affected thereby, the consent
of (i) the Subordinated Noteholder and (ii) Trust Certificateholders holding not
less than a majority of the Certificate Balance, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Trust Agreement or of modifying in any manner the rights of the Senior
Noteholders, the Trust Certificateholders or the Subordinated Noteholder. No
such amendment shall, however, (i) increase or reduce in any manner the amount
of, or accelerate or delay the timing of, distributions that are required to be
made on the Notes or the Trust Certificates or (ii) reduce the percentage of the
Certificate Balance, the Subordinated Note Outstanding Amount or the Senior Note
Outstanding Amount required to consent to any such amendment, without the
consent of the holders of 100% of all outstanding Trust Certificates (other than
the Transferor Trust Certificate), and provided, further that an Opinion of
Counsel shall be furnished to the Indenture Trustee and the Owner Trustee to the
effect that such amendment shall not (A) affect the treatment of the Senior
Notes as debt for federal income tax purposes, (B) be deemed to cause a taxable
exchange of the Senior Notes for federal income tax purposes or (C) cause the
Issuer or the 2001-A SUBI Certificates to be classified as an association (or a
publicly traded partnership) taxable as a corporation for federal income tax
purposes.
Notwithstanding the foregoing, the Trust Agreement may be amended at
any time by the parties hereto to the extent reasonably necessary to assure that
none of the Origination Trust, the Issuer or the Transferor will be classified
as an association (or a publicly traded partnership) taxable as a corporation
for federal income tax purposes.
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As provided in the Trust Agreement, and if the Transferor delivers an
Opinion of Counsel that the Trust Certificates are transferable in accordance
with the terms set forth therein, which opinion the Transferor has determined
can be given under the Internal Revenue Code and existing and proposed
regulations thereunder, the transfer of this Trust Certificate is registerable
in the Certificate Register upon surrender of this Trust Certificate for
registration of transfer at the offices or agencies of the Certificate Registrar
maintained by the Owner Trustee in the Borough of Manhattan, The City of New
York, accompanied by a written instrument of transfer in form satisfactory to
the Owner Trustee and the Certificate Registrar duly executed by the Trust
Certificateholder hereof or such Trust Certificateholder's attorney duly
authorized in writing, and thereupon one or more new Trust Certificates of the
same class and in authorized denominations evidencing the same aggregate
interest in the Issuer will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is The Chase Manhattan
Bank.
The Trust Certificates are issuable only as registered Trust
Certificates without coupons in minimum denominations of $250,000 or integral
multiples of $1,000 in excess thereof. As provided in the Trust Agreement and
subject to certain limitations therein set forth, Trust Certificates are
exchangeable for new Trust Certificates of authorized denominations evidencing
the same aggregate denomination, as requested by the Holder surrendering the
same. No service charge will be made for any such registration of transfer or
exchange, but the Owner Trustee or the Certificate Registrar may require payment
of a sum sufficient to cover any tax or governmental charge payable in
connection therewith.
The Owner Trustee, the Certificate Registrar and any agent of the Owner
Trustee or the Certificate Registrar may treat the Person in whose name this
Trust Certificate is registered as the owner hereof for all purposes, and none
of the Owner Trustee, the Certificate Registrar or any such agent shall be
affected by any notice to the contrary.
The obligations and responsibilities created by the Trust Agreement and
the trust created thereby shall terminate upon the payment to Trust
Certificateholders of all amounts required to be paid to them pursuant to the
Trust Agreement and the Indenture and the disposition of all property held as
part of the Owner Trust Estate.
Any prospective transferee of a Trust Certificate will be required to
deliver a letter to the Transferor, the Certificate Registrar and the Initial
Purchaser substantially in the form of Exhibit D to the Trust Agreement, which
letter includes a representation that such prospective transferee is not a
Benefit Plan Investor. The Trust Certificates may not be transferred, sold,
pledged or otherwise disposed to or for the account of a Benefit Plan Investor.
The Trust Certificates may not be acquired by a Benefit Plan. By
accepting and holding this Trust Certificate, the holder hereof shall be deemed
to have represented and warranted that it is not a Benefit Plan and is not
acquiring this Trust Certificate or an interest therein for the account of a
Benefit Plan.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
--------------------------------------------------------------------------------
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Please print or type name and address, including postal zip code, of assignee)
the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing ______________________________ attorney to transfer
said Trust Certificate on the books of the Certificate Registrar, with full
power of substitution in the premises.
Dated:
--------------------
*
-----------------------------------
Signature Guaranteed:
*
-----------------------------------
* NOTICE: The signatures(s) on this Assignment must correspond with the name(s)
as written on the face of the within Trust Certificate in every particular
without alteration, enlargement or any change whatsoever. Such signature must
be guaranteed by a member firm of the New York Stock Exchange or a commercial
bank or trust company.
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EXHIBIT B
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED
RYDER VEHICLE LEASE TRUST 2001-A
____% ASSET BACKED SUBORDINATED NOTE
Ryder Vehicle Lease Trust 2001-A (the "Issuer"), a trust created
pursuant to a trust agreement, as amended and restated as of February 1, 2001
(the "Trust Agreement") between Ryder Funding II LP, as transferor (the
"Transferor"), and Chase Manhattan Bank USA, National Association, as trustee
(the "Owner Trustee"), for value received, hereby promises to pay to the
Transferor, upon presentation and surrender of this Subordinated Note the
principal sum of $_____________ Dollars on May 15, 20__, or earlier, all in
accordance with the Trust Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Trust
Agreement.
The Issuer will pay interest on this Subordinated Note at the rate per
annum shown above on each Payment Date until the principal of this Subordinated
Note is paid or made available for payment, on the principal amount of this
Subordinated Note outstanding on the preceding Payment Date (after giving effect
to all payments of principal made on such preceding Payment Date) in accordance
with the Trust Agreement. To the extent that interest on this Subordinated Note
is accrued but not paid in full on any Payment Date, such overdue interest will
be due on the next Payment Date together with interest on such amount (to the
extent lawful) at the Subordinated Note Rate.
The holder of this Subordinated Note acknowledges and agrees that its
rights to receive payments in respect of this Subordinated Note are subordinated
to the rights of the Senior Noteholders to the extent described in the Indenture
and the Trust Agreement.
Unless the certificate of authentication hereon has been executed by
the Owner Trustee whose name appears below by manual signature, this
Subordinated Note shall not be entitled to any benefit under the Trust Agreement
or be valid or obligatory for any purpose.
THIS SUBORDINATE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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66
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed,
manually or in facsimile, by its Authorized Officer as of the date set forth
below.
Dated: RYDER VEHICLE LEASE TRUST 2001-A
---------------------- By: CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as
Owner Trustee
By:
-------------------------------
Name:
Title:
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Trust Certificates referred to in the
within-mentioned Trust Agreement.
CHASE MANHATTAN BANK USA, or CHASE MANHATTAN BANK USA,
NATIONAL ASSOCIATION, as NATIONAL ASSOCIATION, as Owner
Owner Trustee Trustee
By: THE CHASE MANHATTAN BANK,
Authenticating Agent
By:
------------------------
By:
-------------------------------
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EXHIBIT C
FORM OF RULE 144A CERTIFICATE
Dated: _______________
Ryder Funding II LP
c/o Ryder Truck Rental IV LLC
its General Partner
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Chase Manhattan Bank USA,
National Association,
as Owner Trustee
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
The Chase Manhattan Bank,
as Certificate Registrar
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 0000-0000
Ladies and Gentlemen:
This is to notify you as to the transfer of $____________ initial
principal balance of ____% Asset Backed Certificates (the "Trust Certificates")
of Ryder Vehicle Lease Trust 2001-A (the "Issuer").
The undersigned is the holder of the Trust Certificates and with this
notice hereby deposits with the Owner Trustee $____________ initial principal
balance of Trust Certificates and requests that Trust Certificates in the same
initial principal balance be issued, executed and authenticated and registered
to the purchaser on ____________, 200__, as specified in the Trust Agreement, as
follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
The undersigned represents and warrants that the undersigned (a)
reasonably believes the purchaser is a "qualified institutional buyer," as
defined in Rule 144A under the Securities Act of 1933, as amended (the "Act"),
(b) such purchaser has acquired the Trust Certificates in a transaction effected
in accordance with the exemption from the registration requirements of the Act
provided by Rule 144A and (c) if the purchaser has purchased the Trust
Certificates for one or more accounts for which it is acting as fiduciary or
agent, (i) each such account is a qualified institutional buyer and (ii) the
purchaser is acquiring Trust Certificates for its own account or for
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one or more institutional accounts for which it is acting as fiduciary or agent
in a minimum amount equivalent to not less than $250,000 for each such account.
Very truly yours,
--------------------------------------------
By:
--------------------------------------
Name:
Title:
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EXHIBIT D
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
_________________, ____
U.S. Bank National Association,
as Indenture Trustee
One Illinois Center
000 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Chase Manhattan Bank USA,
National Association,
as Owner Trustee
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
as Initial Purchaser
World Financial Center
Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ryder Funding II LP
c/o Ryder Truck Rental IV LLC
its General Partner
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
In connection with our proposed purchase of $__________________
aggregate principal amount of Certificates (the "Certificates") representing an
undivided interest in the Ryder Vehicle Lease Trust 2001-A (the "Trust"), the
investor on whose behalf the undersigned is executing this letter (the
"Purchaser") confirms that:
1. Reference is made to the Offering Circular, dated February __, 2001
(the "Offering Circular"), relating to the Certificates. Capitalized terms used
herein that are not otherwise defined shall have the meanings ascribed thereto
in the Offering Circular. The Purchaser has received a copy of the Offering
Circular and such other information as the Purchaser deems necessary in order to
make its investment decision and the Purchaser has been provided the opportunity
to ask questions of, and receive answers from, the Administrative Agent and
Ryder Funding II LP, as the Transferor, concerning the Administrative Agent, the
UTI Beneficiaries and the Transferor and the terms and conditions of the
offering described in the Offering
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Circular. The Purchaser has received and understands the above, and understands
that substantial risks are involved in an investment in the Certificates. The
Purchaser represents that in making its investment decision to acquire the
Certificates, the Purchaser has not relied on representations, warranties,
opinions, projections, financial or other information or analysis, if any,
supplied to it by any person, including you, the Administrative Agent, the
Transferor or the Owner Trustee or any of your or their affiliates, except as
expressly contained in the Offering Circular and in the other written
information, if any, discussed above. The Purchaser acknowledges that it has
read and agreed to the matters stated on pages (i) to (v) of such Offering
Circular and the information under the heading "Notice to Investors," including
the restrictions on duplication and circulation of such Offering Circular. The
Purchaser has such knowledge and experience in financial and business matters as
to be capable of evaluating the merits and risks of an investment in the
Certificates, and the Purchaser is able to bear the substantial economic risks
of such an investment. The Purchaser has relied upon its own tax, legal and
financial advisors in connection with its decision to purchase the Certificates.
2. The Purchaser is (A) a "Qualified Institutional Buyer" (as defined
in Rule 144A under the Securities Act of 1933, as amended (the "1933 Act")) and
has delivered to you a certificate substantially in the form attached hereto as
Annex I or Annex 2, as applicable and (B) acquiring the Certificates for its own
account or for the account of an investor of the type described in clause (A)
above as to each of which the Purchaser exercises sole investment discretion.
The Purchaser is purchasing the Certificates for investment purposes and not
with a view to, or for, the offer or sale in connection with, a public
distribution or in any other manner that would violate the 1933 Act or the
securities or blue sky laws of any state.
3. The Purchaser understands that the Certificates have not been and
will not be registered under the 1933 Act or under the securities or blue sky
laws of any state, and that (i) if it decides to resell, pledge or otherwise
transfer any Certificate, such Certificate may be resold, pledged or transferred
without registration only to an entity that has delivered to the Transferor and
the Owner Trustee a certification that it is a Qualified Institutional Buyer
that purchases (1) for its own account or (2) for the account of such a
Qualified Institutional Buyer, that is, in either case, aware that the resale,
pledge or transfer is being made in reliance on said Rule 144A and (ii) it will,
and each subsequent holder will be required to, notify any purchaser of any
Certificate from it of the resale restrictions referred to in clause (i) above.
4. The Purchaser understands that each Certificate will bear a legend
to the following effect, unless otherwise agreed by the Transferor and the Owner
Trustee:
"THIS TRUST CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR UNDER ANY STATE SECURITIES OR BLUE SKY
LAW. THE HOLDER HEREOF, BY PURCHASING THIS TRUST CERTIFICATE,
AGREES THAT THIS TRUST CERTIFICATE MAY BE REOFFERED, RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS AND ONLY PURSUANT TO
RULE 144A UNDER THE
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SECURITIES ACT ("RULE 144A") TO AN INSTITUTIONAL INVESTOR THAT
THE HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A (A "QIB"), PURCHASING
FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF A
QIB, IN EACH CASE WHOM THE HOLDER HAS INFORMED THAT THE
REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A SUBJECT TO THE RECEIPT BY THE OWNER
TRUSTEE AND THE TRANSFEROR OF A LETTER SUBSTANTIALLY IN THE
FORM PROVIDED IN THE TRUST AGREEMENT AND THE RECEIPT BY THE
OWNER TRUSTEE AND THE TRANSFEROR OF SUCH OTHER EVIDENCE
ACCEPTABLE TO THE OWNER TRUSTEE AND THE TRANSFEROR THAT SUCH
REOFFER, RESALE, PLEDGE OR TRANSFER IS IN COMPLIANCE WITH THE
SECURITIES ACT AND OTHER APPLICABLE LAWS OR IN EACH CASE IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED
STATES AND SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
AND ANY OTHER APPLICABLE JURISDICTION. THIS TRUST CERTIFICATE
MAY NOT BE PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE
BENEFIT PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"),
THAT IS SUBJECT TO THE REQUIREMENTS OF TITLE I OF ERISA OR ANY
"PLAN" AS DEFINED IN SECTION 4975(e)(1) THAT IS SUBJECT TO
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED,
OR ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY
REASON OF THE PLANS INVESTMENT IN THE ENTITY OR OTHERWISE
(EACH A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS TRUST
CERTIFICATE OR AN INTEREST THEREIN, THE HOLDER HEREOF SHALL BE
DEEMED TO REPRESENT AND WARRANT THAT ITS ACQUISITION AND
HOLDING IS IN COMPLIANCE WITH THE FOREGOING RESTRICTION ON
BENEFIT PLAN ASSETS.
THIS TRUST CERTIFICATE IS NOT TRANSFERABLE UNLESS THE PARTY
TRANSFERRING THIS TRUST CERTIFICATE (EXCEPTING TRANSFERS BY
THE INITIAL PURCHASER) DELIVERS TO THE OWNER TRUSTEE, THE
TRANSFEROR, AND RTRT, INC., AS TRUSTEE OF RYDER TRUCK RENTAL
LT (THE "ORIGINATION TRUST"), AN OPINION OF COUNSEL STATING
THE CIRCUMSTANCES
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AND CONDITIONS UPON WHICH THIS TRUST CERTIFICATE MAY BE
TRANSFERRED AND THAT SUCH TRANSFER AS DESCRIBED THEREIN WILL
NOT CAUSE EITHER THE ISSUER OR THE ORIGINATION TRUST TO BE
CLASSIFIED AS AN ASSOCIATION (OR A PUBLICLY TRADED
PARTNERSHIP) TAXABLE AS A CORPORATION FOR FEDERAL INCOME TAX
PURPOSES. BASED UPON SUCH OPINION (IF REQUIRED), THE OWNER
TRUSTEE WILL NOTIFY THE HOLDER OF THIS TRUST CERTIFICATE THAT
THIS TRUST CERTIFICATE MAY BE TRANSFERRED IN ACCORDANCE WITH
THE CONDITIONS SET FORTH IN SUCH OPINION OF COUNSEL, AND THE
HOLDER OF THIS TRUST CERTIFICATE MAY EXCHANGE THIS TRUST
CERTIFICATE FOR A NEW TRUST CERTIFICATE OF LIKE DENOMINATION
AND TENOR, WHICH NEW TRUST CERTIFICATE MAY BE TRANSFERRED IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH THEREON."
5. If the Purchaser is acquiring any Certificate as a fiduciary or
agent for one or more investor accounts, it has sole investment discretion with
respect to each such account and that it has full power to make the
acknowledgements, representations and agreements contained herein on behalf of
such account.
6. The purchaser is not (a) an employee benefit plan (as defined in
Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(b) a "plan," as defined in Section 4975(e)(1) of the Code, that is subject to
Section 4975 of the Code or otherwise, or (c) any entity whose underlying assets
include plan assets by reason of a plan's investment in such entity (each, a
"Benefit Plan").
7. The Purchaser has neither acquired nor will it transfer any
Certificate it purchases (or any interest therein) or cause any such
Certificates (or any interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b)(1) of the
Code, including, without limitation, an over-the-counter-market or an
interdealer quotation system that regularly disseminates firm buy or sell
quotations.
8. The Purchaser either (A) is not, and will not become, a partnership,
Subchapter S corporation or grantor trust for U.S. federal income tax purposes
or (B) is such an entity, but none of the direct or indirect beneficial owners
of any of the interests in such transferee have allowed or caused, or will allow
or cause, 50% or more (or such other percentage as the Transferor may establish
prior to the time of such proposed transfer) of the value of such interests to
be attributable to such transferee's ownership of Certificates.
9. The Purchaser understands that no subsequent transfer of the
Certificates is permitted unless (A) such transfer is of a Certificate with a
denomination of at least $250,000, (B) it causes its proposed transferee to
provide to the Transferor, the Certificate Registrar and the Initial Purchaser a
letter substantially in the form of Exhibit D to the Trust Agreement, as
applicable, or such other written statement as the Transferor shall prescribe
and (C) the Transferor consents in
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writing to the proposed transfer, which consent shall be granted unless the
Transferor determines that such transfer would create a risk that the Issuer or
the Origination Trust would be classified for federal or any applicable state
tax purposes as an association (or a publicly traded partnership) taxable as a
corporation; provided, however, that any attempted transfer that would either
cause (1) the number of registered holders of Certificates and Subordinated
Notes to exceed 100 or (2) the number of holders of direct or indirect interests
in the Origination Trust to exceed 50, shall be a void transfer.
10. The Purchaser understands that the opinion of counsel to the Issuer
that the Issuer is not a publicly traded partnership taxable as a corporation is
dependent in part on the accuracy of the representations in paragraphs 7, 8 and
9 above.
11. The Purchaser is a Person who is either (A)(1) a citizen or
resident of the United States, (2) a corporation, partnership or other entity
organized in or under the laws of the United States or any political subdivision
thereof or (3) a Person not described in (A)(1) or (2) whose ownership of the
Certificates is effectively connected with such Person's conduct of a trade or
business within the United States (within the meaning of the Code) and its
ownership of any interest in a Certificate will not result in any withholding
obligation with respect to any payments with respect to the Certificates by any
Person (other than withholding, if any, under Section 1446 of the Code) or (B)
an estate the income of which is includible in gross income for federal income
tax purposes regardless of source or a trust if the court within the United
States is able to exercise primary supervision of the administration of the
trust and one or more United States persons have the authority to control all
substantial decisions of the Issuer. It agrees that it will provide a
certification of non-foreign status signed under penalty of perjury and,
alternatively, that if it is a Person described in clause (A)(3) above, it will
furnish to the Transferor and the Owner Trustee a properly executed IRS Form
4224 and a new IRS Form 4224 upon the expiration or obsolescence of any
previously delivered form (and such other certifications, representations or
Opinions of Counsel as may be requested by the Transferor and the Owner
Trustee).
12. The Purchaser agrees that if at some time in the future it wishes
to transfer or exchange any of the Certificates, it will not transfer or
exchange any of the Certificates unless such transfer or exchange is in
accordance with Section 3.04 of the Trust Agreement. The Purchaser understands
that any purported transfer of the Certificates (or any interest therein) in
contravention of any of the restrictions and conditions in the Trust Agreement,
as applicable, shall be a void, and the purported transferee in such transfer
shall not be recognized by the Issuer or any other Person as a
Certificateholder, as the case may, be for any purpose.
13. The Purchaser hereby irrevocably requests you to arrange for
definitive Certificates representing the Certificates purchased by the Purchaser
to be registered and delivered promptly after the Closing Date as follows:
Principal Amount Registered in Deliver Definitive
of Definitive Certificate: Name of: Certificate to:
-------------------------- ------------- ------------------
__________________________ _______________ ____________________
__________________________ _______________ ____________________
__________________________ _______________ ____________________
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You and the Owner Trustee are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
By:
-------------------------------------
Name:
Title:
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ANNEX 1 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees Other Than Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter to which this certification is
attached with respect to the Certificate described therein:
(i) As indicated below, the undersigned is the President, Chief
Financial Officer, Senior Vice President or other executive
officer of the Purchaser.
(ii) In connection with purchases by the Purchaser, the Purchaser
is a "qualified institutional buyer" as that term is defined
in Rule 144A ("Rule 144A") under the Securities Act of 1933,
as amended, because (i) the Purchaser owned and/or invested on
a discretionary basis $__________(1) in securities (except for
the excluded securities referred to below) as of the end of
the Purchaser's most recent fiscal year (such amount being
calculated in accordance with Rule 144A) and (ii) the
Purchaser satisfies the criteria in the category marked below.
___ Corporation, etc. The Purchaser is a
corporation (other than a bank, savings and
loan association or similar institution),
Massachusetts or similar business trust,
partnership, or charitable organization
described in Section 501(c)(3) of the
Internal Revenue Code of 1986, as amended.
___ Bank. The Purchaser (a) is a national bank
or banking institution organized under the
laws of any state, territory or the District
of Columbia, the business of which is
substantially confined to banking and is
supervised by the state or territorial
banking commission or similar official or is
a foreign bank or equivalent institution,
and (b) has an audited net worth of at least
$25,000,000 as demonstrated in its latest
annual financial statements, a copy of which
is attached hereto.
___ Savings and Loan. The Purchaser (a) is a
savings and loan association, building and
loan association, cooperative bank,
homestead association or similar
institution, which is supervised and
examined by a state or federal authority
having supervision over any such
institutions or is a foreign savings and
loan association or equivalent institution
and (b) has an audited net
---------------------
(1) Purchaser must own and/or invest on a discretionary basis at least
$100,000,000 in securities unless Purchaser is a dealer, and, in that
case, Purchaser must own and/or invest on a discretionary basis at
least $10,000,000 in securities.
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worth of at least $25,000,000 as
demonstrated in its latest annual financial
statements, a copy of which is attached
hereto.
___ Broker-dealer. The Purchaser is a dealer
registered pursuant to Section 15 of the
Securities Exchange Act of 1934, as amended
(the "Exchange Act").
___ Insurance Company. The Purchaser is an
insurance company whose primary and
predominant business activity is the writing
of insurance or the reinsuring of risks
underwritten by insurance companies and
which is subject to supervision by the
insurance commissioner or a similar official
or agency of a state, territory or the
District of Columbia.
___ State or Local Plan. The Purchaser is a plan
established and maintained by a state, its
political subdivisions, or any agency or
instrumentality of the state or its
political subdivisions, for the benefit of
its employees.
___ ERISA Plan. The Purchaser is an employee
benefit plan within the meaning of Title I
of the Employee Retirement Income Security
Act of 1974.
___ Investment Advisor. The Purchaser is an
investment advisor registered under the
Investment Advisors Act of 1940.
___ Small Business Investment Company. The
Purchaser is a small business investment
company licensed by the U.S. Small Business
Administration under Section 301(c) or (d)
of the Small Business Investment Act of
1958.
___ Business Development Company. The Purchaser
is a business development company as defined
in Section 202(a)(22) of the Investment
Advisors Act of 1940.
___ Trust Fund. The Purchaser is a trust fund
whose trustee is a bank or trust company and
whose participants are exclusively state or
local Plans or ERISA Plans as defined above,
and no participant of the Purchaser is an
individual retirement account or an H.R. 10
(Xxxxx) plan.
(iii) The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Purchaser,
(ii) securities that are part of an unsold allotment to or
subscription by the Purchaser, if the Purchaser is a dealer,
(iii) bank deposit notes and certificates of deposit, (iv)
loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and
(vii) currency, interest rate and commodity swaps.
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77
(iv) For purposes of determining the aggregate amount of securities
owned and/or invested on a discretionary basis by the
Purchaser, the Purchaser used the cost of such securities to
the Purchaser and did not include any of the securities
referred to in the preceding paragraph, except (i) where the
Purchaser reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no
current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at their market
value. Further, in determining such aggregate amount, the
Purchaser may have included securities owned by subsidiaries
of the Purchaser, but only if such subsidiaries are
consolidated with the Purchaser in its financial statements
prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are
managed under the Purchaser's direction. However, such
securities were not included if the Purchaser is a
majority-owned, consolidated subsidiary of another enterprise
and the Purchaser is not itself a reporting company under the
Exchange Act.
(v) The Purchaser acknowledges that it is familiar with Rule 144A
and understands that the seller to it and other parties
related to the Certificates are relying and will continue to
rely on the statements made herein because one or more sales
to the Purchaser may be in reliance on Rule 144A.
(vi) Until the date of purchase of the Certificates, the Purchaser
will notify each of the parties to which this certification is
made of any changes in the information and conclusions herein.
Until such notice is given, the Purchaser's purchase of the
Certificates will constitute a reaffirmation of this
certification as of the date of such purchase. In addition, if
the Purchaser is a bank or savings and loan is provided above,
the Purchaser agrees that it will furnish to such parties
updated annual financial statements promptly after they become
available.
--------------------------------------------
Name of Purchaser
By:
-------------------------------------
Name:
Title:
Dated:
------------------------------------
C-9
78
ANNEX 2 TO EXHIBIT D
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
[For Transferees That are Registered Investment Companies]
The undersigned (the "Purchaser") hereby certifies as follows to the
addressees of the Rule 144A Representation Letter to which this certification is
attached with respect to the Certificate described therein:
(i) As indicated below, the undersigned is the President, Chief
Financial Officer or Senior Vice President of the Purchaser
or, if the Purchaser is a "qualified institutional buyer" as
that term is defined in Rule 144A ("Rule 144A") under the
Securities Act of 1933, as amended, because the Purchaser is
part of a Family of Investment Companies (as defined below),
is such an officer of the Adviser.
(ii) In connection with purchases by the Purchaser, the Purchaser
is a "qualified institutional buyer" as defined in Rule 144A
because (i) the Purchaser is an investment company registered
under the Investment Company Act of 1940, as amended, and (ii)
as marked below, the Purchaser alone, or the Purchaser's
Family of Investment Companies, owned at least $100,000,000 in
securities (other than the excluded securities referred to
below) as of the end of the Purchaser's most recent fiscal
year. For purposes of determining the amount of securities
owned by the Purchaser or the Purchaser's Family of Investment
Companies, the cost of such securities was used, except (i)
where the Purchaser or the Purchaser's Family of Investment
Companies reports its securities holdings in its financial
statements on the basis of their market value, and (ii) no
current information with respect to the cost of those
securities has been published. If clause (ii) in the preceding
sentence applies, the securities may be valued at market.
___ The Purchaser owned $__________ in
securities (other than the excluded
securities referred to below) as of the end
of the Purchaser's most recent fiscal year
(such amount being calculated in accordance
with Rule 144A).
___ The Purchaser is part of a Family of
Investment Companies which owned in the
aggregate $__________ in securities (other
than the excluded securities referred to
below) as of the end of the Purchaser's most
recent fiscal year (such amount being
calculated in accordance with Rule 144A).
(iii) The term "Family of Investment Companies" as used herein means
two or more registered investment companies (or series
thereof) that have the same investment adviser or investment
advisers that are affiliated (by virtue of being majority
owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the
other).
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79
(iv) The term "securities" as used herein does not include (i)
securities of issuers that are affiliated with the Purchaser
or are part of the Purchaser's Family of Investment Companies,
(ii) bank deposit notes and certificates of deposit, (iii)
loan participations, (iv) repurchase agreements, (v)
securities owned but subject to a repurchase agreement and
(vi) currency, interest rate and commodity swaps.
(v) The Purchaser is familiar with Rule 144A and understands that
the parties listed in the Rule 144A Representation Letter to
which this certification relates are relying and will continue
to rely on the statements made herein because one or more
sales to the Purchaser will be in reliance on Rule 144A. In
addition, the Purchaser will only purchase for the Purchaser's
own account.
(vi) Until the date of purchase of the Transferor Certificate, the
undersigned will notify the parties listed in the Rule 144A
Transferee Certificate to which this certification relates of
any changes in the information and conclusions herein. Until
such notice is given, the Purchaser's purchase of the
Certificates will constitute a reaffirmation of this
certification by the undersigned as of the date of such
purchase.
--------------------------------------------
Name of Purchaser or Advisor
By:
-------------------------------------
Name:
Title:
IF AN ADVISOR:
--------------------------------------------
Name of Purchaser
Dated:
------------------------------------
C-11
