RYDER TRUCK RENTAL I LP, as Transferor, and RYDER FUNDING II LP, as Transferee SUBI CERTIFICATE TRANSFER AGREEMENT Dated as of [ ]
EXHIBIT 10.5
RYDER TRUCK RENTAL I LP,
as Transferor,
as Transferor,
and
RYDER FUNDING II LP,
as Transferee
as Transferee
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE |
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| DEFINITIONS | 2 | |||||
| Section 1.01. | Definitions |
2 | ||||
| Section 1.02. | Interpretive Provisions |
2 | ||||
| ARTICLE TWO |
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| TRANSFER OF [___]-[_] SUBI CERTIFICATE | 2 | |||||
| Section 2.01. | Transfer of [___]-[_] SUBI Certificate |
2 | ||||
| Section 2.02. | True Sale |
2 | ||||
| Section 2.03. | Representations and Warranties of the Transferor and the Transferee |
3 | ||||
| Section 2.04. | Financing Statement and Books and Records |
5 | ||||
| Section 2.05. | Acceptance by the Transferee |
6 | ||||
| ARTICLE THREE |
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| MISCELLANEOUS | 6 | |||||
| Section 3.01. | Amendment |
6 | ||||
| Section 3.02. | Governing Law |
6 | ||||
| Section 3.03. | Severability |
6 | ||||
| Section 3.04. | Binding Effect |
6 | ||||
| Section 3.05. | Headings |
6 | ||||
| Section 3.06. | Counterparts |
6 | ||||
| Section 3.07. | Further Assurances |
6 | ||||
| Section 3.08. | Third-Party Beneficiaries |
7 | ||||
| Section 3.09. | No Petition |
7 | ||||
This SUBI Certificate Transfer Agreement, dated as of
[ ] (the “Agreement”), is between
Ryder Truck Rental I LP, a Delaware limited partnership, as transferor (the “Transferor”), and
Ryder Funding II LP, a Delaware limited partnership, as transferee (the “Transferee”).
RECITALS
WHEREAS, the Transferor and Ryder Truck Rental II LP (“RTR II LP”), as Grantors and UTI
Beneficiaries, Ryder Truck Rental, Inc., as Administrative Agent, U.S. Bank Trust National
Association (as successor in interest to Delaware Trust Capital Management, Inc.), as Delaware
Trustee, RTRT, Inc., as Trustee and U.S. Bank National Association, as Trust Agent, have entered
into that certain second amended and restated trust agreement, dated as of February 1, 1998 (the
“Origination Trust Agreement”), pursuant to which Ryder Truck Rental LT, a Delaware statutory trust
(the “Trust”), will take assignments and conveyances of and hold in trust various assets (the
“Trust Assets”);
WHEREAS, the parties to the Origination Trust Agreement supplemented the Origination Trust
Agreement with a [___]-[_] origination trust supplement, dated as of [ ]
(together with
the Origination Trust Agreement, the “SUBI Trust Agreement”), to establish one special unit of
beneficial interest (the “[___]-[_] SUBI”);
WHEREAS, in connection with the SUBI Trust Agreement a separate portfolio of leases (the
"[___]-[_] Leases”) and certain other related assets of the Trust, and the vehicles that are leased
under the [___]-[_] Leases (the “[___]-[_] Vehicles”) and certain other related assets of the Trust
will be allocated to the [___]-[_] SUBI;
WHEREAS, the Trust has created a certificate evidencing a 100% beneficial interest in the
[___]-[_] SUBI (the “[___]-[_] SUBI Certificate”) and has issued the [___]-[_] SUBI Certificate to
the Transferor;
WHEREAS, the Transferor and the Transferee desire to enter into this Agreement to provide for
the sale by the Transferor to the Transferee, without recourse, of all of the Transferor’s right,
title and interest in and to the [___]-[_] SUBI Certificate and the interest in the [___]-[_] SUBI
represented thereby; and
WHEREAS, directly after the sale of the [___]-[_] SUBI Certificate to the Transferee, the
Transferee shall sell, transfer and assign all of its right to the [___]-[_] SUBI Certificate to
the Ryder Vehicle Lease Trust [___]-[_] in connection with a securitization.
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the SUBI Trust Agreement.
Section 1.02. Interpretive Provisions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (i) terms used in this
Agreement 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) the term
“include” and all variations thereof shall mean “include without limitation,” (iv) the term “or”
shall include “and/or” and (v) the term “proceeds” has the meaning ascribed thereto in the UCC.
ARTICLE TWO
TRANSFER OF [___]-[_] SUBI CERTIFICATE
Section 2.01. Transfer of [___]-[_] SUBI Certificate. In consideration of the
Transferee’s delivery to, or upon the order of, the Transferor of cash in the amount of
$[ ] (the “Transfer Price”), the Transferor hereby absolutely sells, transfers, assigns
and otherwise conveys to the Transferee, without recourse, and the Transferee does hereby purchase
and acquire, as of the date set forth above, all of the following (collectively, the “Assets”):
(i) all right, title and interest in and to the [___]-[_] SUBI Certificate and the
interest in the [___]-[_] SUBI represented thereby, including all monies due and paid
thereon or in respect thereof;
(ii) the right to realize upon any property that underlies or may be deemed to secure
the respective interests in the [___]-[_] SUBI represented by the [___]-[_] SUBI
Certificate;
(iii) all of the Transferor’s rights and benefits, as Holder of the [___]-[_] SUBI
Certificate under the Administration Agreement and the SUBI Trust Agreement; and
(iv) all proceeds of the foregoing.
Section 2.02. True Sale. The parties hereto intend that the sale, transfer and
assignment of the Assets constitute a true sale and assignment of the Assets such that any interest
in and title to the Assets would not be property of the Transferor’s estate in the event the
Transferor becomes a debtor in a case under any bankruptcy law. To the extent that the conveyance
of the Assets hereunder is characterized by a court or similar governmental authority as a
financing, it is intended by the Transferor and the Transferee that the interests conveyed
constitute a first priority grant of a perfected security interest under the UCC as in effect in
the State of New York by the Transferor to the Transferee to secure the Transfer Price to the
Transferor. The Transferor
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does hereby grant to the Transferee a security interest in all of its rights, title and
privileges and interest in and to the Assets and the parties hereto agree that this Agreement
constitutes a “security agreement” under all applicable law.
Section 2.03. Representations and Warranties of the Transferor and the Transferee.
(a) The Transferor hereby represents and warrants to the Transferee as of the date of this
Agreement and the Closing Date that:
(i) Organization and Good Standing. The Transferor is a limited partnership
duly formed, validly existing and in good standing under the laws of the State of Delaware,
and has power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority and legal right to acquire, own and sell the
Assets.
(ii) Due Qualification. The Transferor is duly qualified to do business as a
foreign limited partnership in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or the conduct of
its business shall require such qualifications, except where 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.
(iii) Power and Authority. The Transferor has the power and authority to
execute and deliver this Agreement and to carry out its terms and the execution, delivery
and performance of this Agreement has been duly authorized by the Transferor by all
necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation 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 at law.
(v) No Violation. The execution, delivery and performance by the Transferor of
this Agreement and the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof does not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or lapse of time) a
default under, the limited partnership agreement of the Transferor, or conflict with or
breach any of the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to which the
Transferor is a party or by which it may be bound or any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its properties pursuant to the
terms of any material indenture, agreement or other instrument (other than this Agreement);
nor violate any law or, to the knowledge of the Transferor,
3
any order, rule or regulation applicable to it or its properties of any court or of any
federal or state regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Transferor or any of its properties.
(vi) No Proceedings. There are no proceedings or investigations pending or, to
the knowledge of the Transferor, threatened against the Transferor, before any court,
regulatory body, administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (C) seeking any determination or
ruling that, in the reasonable judgment of the Transferor, would materially and adversely
affect the performance by the Transferor of its obligations under this Agreement.
(vii) Title to the [___]-[_] SUBI Certificate. Immediately prior to the
transfer of the [___]-[_] SUBI Certificate pursuant to this Agreement, the Transferor (A) is
the true and lawful owner of the [___]-[_] SUBI Certificate and it has the legal right to
transfer the [___]-[_] SUBI Certificate; (B) has good and valid title to the [___]-[_] SUBI
Certificate and the [___]-[_] SUBI Certificate is on the date hereof free and clear of all
Liens; (C) will convey good, valid and indefeasible title to the [___]-[_] SUBI Certificate
to the Transferee under this Agreement.
(b) The Transferee hereby represents and warrants to the Transferor as of the date of this
Agreement and the Closing Date that:
(i) Organization and Good Standing. The Transferee is a limited partnership
duly formed, validly existing and in good standing under the laws of the State of Delaware,
and has power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority and legal right to acquire, own and sell the
Assets.
(ii) Due Qualification. The Transferee is duly qualified to do business as a
foreign limited partnership in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or the conduct of
its business shall require such qualifications, except where 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 Transferee or would not have a material adverse
effect on the ability of the Transferee to perform its obligations under this Agreement.
(iii) Power and Authority. The Transferee has the power and authority to
execute and deliver this Agreement and to carry out its terms and the execution, delivery
and performance of this Agreement has been duly authorized by the Transferee by all
necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of the Transferee, enforceable against it in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency, reorganization,
4
moratorium, liquidation 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 at law.
(v) No Violation. The execution, delivery and performance of this Agreement by
the Transferee and the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof does not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or lapse of time) a
default under, the limited partnership agreement of the Transferee, or conflict with or
breach any of the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to which the
Transferee is a party or by which it may be bound or any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its properties pursuant to the
terms of any material indenture, agreement or other instrument (other than this Agreement);
nor violate any law or, to the knowledge of the Transferee, any order, rule or regulation
applicable to it or its properties of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over the
Transferee or any of its properties.
(vi) No Proceedings. There are no proceedings or investigations pending or, to
the knowledge of the Transferee, threatened against the Transferee, before any court,
regulatory body, administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (C) seeking any determination or
ruling that, in the reasonable judgment of the Transferee, would materially and adversely
affect the performance by the Transferee of its obligations under this Agreement.
(c) The representations and warranties set forth in this Section shall survive the sale of the
Assets by the Transferor to the Transferee and the sale of the Assets by the Transferee to the
Trust. Upon discovery by the Transferor, the Transferee or the Trustee of a breach of any of the
foregoing representations and warranties, the party discovering such breach shall give prompt
written notice to the others.
Section 2.04. Financing Statement and Books and Records.
(a) In connection with the conveyance of the Assets hereunder, the Transferor agrees that
prior to the Closing Date, it will file, at its own expense, one or more financing statements with
respect to the Assets meeting the requirements of applicable state law in such manner as necessary
to perfect the sale of the Assets to the Transferor, and the proceeds thereof (and any continuation
statements as are required by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence of such filings (which may,
for purposes of this Section, consist of telephone confirmation of such filings with the file
stamped copy of each such filings to be provided to the Transferee in due course), as soon as is
practicable after receipt by the Transferor thereof.
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(b) The Transferor further agrees that it will treat the transfer of the Assets as a sale for
accounting purposes, take no actions inconsistent with the Transferee’s ownership of the Assets and
on or prior to the Closing Date indicate on its books, records and statements that the Assets have
been sold to the Transferee.
Section 2.05. Acceptance by the Transferee. The Transferee agrees to comply with all
covenants and restrictions applicable to a Holder of the [___]-[_] SUBI Certificate and the
interest in the [___]-[_] SUBI represented thereby, whether set forth in the [___]-[_] SUBI
Certificate, in the SUBI Trust Agreement or otherwise, and assumes all obligations and liabilities,
if any, associated therewith.
ARTICLE THREE
MISCELLANEOUS
Section 3.01. Amendment. This Agreement may be amended from time to time in a
writing signed by the parties hereto.
Section 3.02. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to any otherwise applicable
principles of conflicts of laws (other than Section 5-1401 of the New York General Obligations
Law).
Section 3.03. Severability. If one or more of the covenants, agreements or
provisions of this Agreement shall be for any reason whatever held invalid or unenforceable, such
provisions shall be deemed severable from the remaining covenants, agreements and provisions of
this Agreement, and such invalidity or unenforceability shall in no way affect the validity or
enforceability of such remaining covenants, agreements and provisions, or the rights of any parties
hereto. To the extent permitted by law, the parties hereto waive any provision of law that renders
any provision of this Agreement invalid or unenforceable in any respect.
Section 3.04. Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their permitted successors and assigns.
Section 3.05. Headings. The Article and Section headings are for convenience of
reference only and shall not define or limit any of the terms or provisions hereof.
Section 3.06. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an original, but all of
which counterparts shall together constitute but one and the same instrument.
Section 3.07. Further Assurances. Each party hereto shall do such acts, and execute
and deliver to the other party such additional documents or instruments as may be reasonably
requested in order to effect the purposes of this Agreement and to better assure and confirm unto
the requesting party its rights, powers and remedies hereunder.
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Section 3.08. Third-Party Beneficiaries. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and the Holder of the [___]-[_] SUBI Certificate, who
shall be considered a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person has any right or obligation hereunder.
Section 3.09. No Petition. Each of the parties hereto covenants and agrees that
prior to the date which is one year and one day after the date upon which all obligations under
each Securitized Financing have been paid in full, it will not institute against, or join any other
Person in instituting against any Grantor, the Owner Trustee, the Trustee, any Special Purpose
Affiliate, any member of a Special Purpose Affiliate or any Grantor that is a limited liability
company (or any of their respective general partners) or any general partner of a Special Purpose
Affiliate or any Grantor that is a partnership, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or state bankruptcy or
similar law.
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IN WITNESS WHEREOF, the parties hereto have caused this SUBI Certificate Transfer Agreement to
be duly executed by their respective officers duly authorized as of the day and year first above
written.
| RYDER TRUCK RENTAL I LP, | ||||||
| as Transferor | ||||||
| By: | RYDER TRUCK RENTAL I LLC, as General Partner |
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| By: | RTR LEASING I, INC., as Manager |
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| By: | ||||||
Title: |
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| RYDER FUNDING II LP, | ||||||
| as Transferee | ||||||
| By: | RYDER TRUCK RENTAL IV LLC, as General Partner |
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| By: | RTR LEASING II, INC., as Manager |
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| By: | ||||||
Title: |
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