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Exhibit 10.7
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RYDER FUNDING LP,
as Transferor,
and
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
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AMENDED AND RESTATED TRUST AGREEMENT
Dated as of October 1, 1999
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Capitalized Terms...................................... 1
Section 1.02. Interpretive Provisions................................ 8
ARTICLE TWO
ORGANIZATION
Section 2.01. Name and Status......................................... 9
Section 2.02. Office.................................................. 9
Section 2.03. Purposes and Powers..................................... 9
Section 2.04. Appointment of Owner Trustee............................10
Section 2.05. Initial Capital Contribution of Owner Trust Estate......10
Section 2.06. Declaration of Trust....................................10
Section 2.07. Liability of the Transferor.............................11
Section 2.08. Title to Trust Property.................................11
Section 2.09. Situs of Issuer.........................................11
Section 2.10. Representations and Warranties of the Transferor........12
ARTICLE THREE
TRUST CERTIFICATES, SUBORDINATED NOTES AND TRANSFER OF INTERESTS
Section 3.01. Initial Ownership.......................................14
Section 3.02. The Trust Certificates and the Subordinated Notes.......14
Section 3.03. Authentication and Delivery of Trust Certificates and
Subordinated Notes....................................15
Section 3.04. Registration of Transfer and Exchange...................15
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificates
or Subordinated Notes.................................19
Section 3.06. Persons Deemed Trust Certificateholders or Subordinated
Noteholder............................................19
Section 3.07. Access to List of Trust Certificateholders' Names
and Addresses.........................................19
Section 3.08. Maintenance of Office or Agency.........................20
Section 3.09. Appointment of Paying Agent.............................20
Section 3.10. Ownership of Transferor Trust Certificate and
Subordinated Notes....................................21
Section 3.11. Trust Certificates held by Issuer, Transferor or
their Affiliates......................................21
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ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
Section 4.01. Prior Notice to Trust Certificateholders with Respect
to Certain Matters....................................22
Section 4.02. Action by Trust Certificateholders with Respect
to Certain Matters....................................22
Section 4.03. Action by Owner Trustee with Respect to Bankruptcy......23
Section 4.04. Restrictions on Trust Certificateholders' Power.........23
Section 4.05. Majority Control........................................23
ARTICLE FIVE
APPLICATION OF TRUST FUNDS; CERTAIN DUTIES
Section 5.01. Establishment of Certificate Distribution Account
and Reserve Fund......................................24
Section 5.02. Application of Trust Funds..............................25
Section 5.03. Method of Payment.......................................27
Section 5.04. Accounting and Reports..................................28
ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
Section 6.01. General Authority.......................................29
Section 6.02. General Duties..........................................29
Section 6.03. Action Upon Instruction.................................29
Section 6.04. No Duties Except as Specified...........................30
Section 6.05. No Action Unless Specifically Authorized................31
Section 6.06. Restrictions............................................31
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
Section 7.01. Acceptance of Trusts and Duties.........................32
Section 7.02. Furnishing of Documents.................................33
Section 7.03. Representations and Warranties..........................33
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Section 7.04. Reliance; Advice of Counsel.............................34
Section 7.05. Not Acting in Individual Capacity.......................34
Section 7.06. Owner Trustee Not Liable for Trust Certificates or
Subordinated Notes....................................35
Section 7.07. Owner Trustee May Own Trust Certificates
and Notes.............................................35
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
Section 8.01. Owner Trustee's Compensation and Indemnification........36
ARTICLE NINE
TERMINATION OF TRUST AGREEMENT
Section 9.01. Termination of Trust Agreement..........................37
Section 9.02. Dissolution upon Bankruptcy of the Transferor...........38
Section 9.03. Purchase of the 99% 1999-A Vehicle SUBI Certificate;
Redemption of the Subordinated Notes; Repayment
of the Trust Certificates.............................38
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
Section 10.01. Eligibility Requirements for Owner Trustee..............40
Section 10.02. Resignation or Removal of Owner Trustee.................40
Section 10.03. Successor Owner Trustee.................................41
Section 10.04. Merger or Consolidation of Owner Trustee................41
Section 10.05. Appointment of Co-Trustee or Separate Trustee...........41
ARTICLE ELEVEN
TAX MATTERS
Section 11.01. Tax and Accounting Characterization.....................43
Section 11.02. Signature on Returns; Tax Matters Partner...............45
Section 11.03. Tax Reporting...........................................46
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ARTICLE TWELVE
MISCELLANEOUS
Section 12.01. Supplements and Amendments..............................44
Section 12.02. No Legal Title to Owner Trust Estate....................45
Section 12.03. Limitations on Rights of Others.........................45
Section 12.04. Notices.................................................46
Section 12.05. Severability............................................46
Section 12.06. Counterparts............................................46
Section 12.07. Successors and Assigns..................................46
Section 12.08. No Petition.............................................50
Section 12.09. No Recourse.............................................50
Section 12.10. Headings................................................50
Section 12.11. Governing Law...........................................50
Section 12.12. 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 Investor Representation Letter .......................D-1
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AMENDED AND RESTATED TRUST AGREEMENT
This Amended and Restated Trust Agreement, dated as of October 1,
1999, is between Ryder Funding LP, a Delaware limited partnership, as
transferor (the "Transferor"), and Chase Manhattan Bank Delaware, a Delaware
banking corporation, as trustee (the "Owner Trustee").
WHEREAS, the parties hereto entered into that certain initial trust
agreement dated as of June 21, 1999 (the "Initial Trust Agreement") pursuant to
which the Ryder Vehicle Lease Trust 1999-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:
"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 that certain supplement, dated as of October 1, 1999, among the
parties to the Basic Administration Agreement, as amended or supplemented from
time to time.
"Administrator" means Ryder, as Administrator under the Issuer
Administration Agreement, and its successors in such capacity.
"Agreement" means this Amended and Restated Trust Agreement, as the
same may be amended or supplemented from time to time.
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"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.
"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.
"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 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.
"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.
"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.
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"Control Agreement" means that certain control agreement, dated as of
October 1, 1999, among the Transferor, the Issuer, the Indenture Trustee and
U.S. Bank National Association, as securities intermediary, as amended and
supplemented from time to time.
"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).
"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.
"Fiscal Year" means the taxable year of the Issuer which, except in
the case of a short taxable year, shall be the year as is required by Section
706(b) of the Code.
"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
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(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.
"Indemnified Parties" has the meaning set forth in Section 8.01(a).
"Indenture" means that certain indenture, dated as of October 1, 1999,
between the Issuer and U.S. Bank National Association, as Indenture Trustee, as
amended or supplemented from time to time.
"Initial Deposit" means the Transferor's deposit to the reserve fund,
on or before the Closing Date, of $-----------.
"Initial Purchaser" means ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
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 1999-A, and its
successors.
"Issuer Administration Agreement" means that certain issuer
administration agreement, dated as of October 1, 1999, 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 October 1, 1999, between the
Transferor and the Issuer, as amended or supplemented from time to time.
"Majority Interest" means, with respect to the Senior Notes, the
holders of a majority of the outstanding principal amount of the Senior Notes,
as one class.
"Note" means either a Senior Note or a Subordinated Note, as the
context may require.
"Noteholder" means a Senior Noteholder or the Subordinated Noteholder,
as the context may require.
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"Offered Securities" means the Senior Notes and the Trust Certificates
(other than the Transferor Trust Certificate).
"Offering Circular" means the Offering Circular, dated
[_____________], 1999, 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.
"Optional Purchase" has the meaning set forth in Section 9.03(a).
"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.
"Origination Trustee" means RTRT, Inc., in its capacity as trustee of
the Origination Trust, or any successor thereto in such capacity.
"Outstanding" means, with respect to the Subordinated Notes, as of any
date, all Subordinated Notes theretofore authenticated and delivered under this
Agreement except (a) Subordinated Notes theretofore canceled or delivered for
cancellation pursuant to this Agreement; (b) Subordinated Notes or portions
thereof for whose payment or redemption cash in the necessary amount has been
theretofore irrevocably deposited with the Issuer or any paying agent in trust
for the holders of such Subordinated Notes; and (c) 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 Issuer is presented that any such Subordinated Notes are
held by a bona fide Protected Purchaser.
"Outstanding Amount" means, as of any date, the aggregate principal
amount of all Subordinated Notes Outstanding as of such date.
"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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇; 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).
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"Owner Trust Estate" means the property of the Issuer, consisting of
(i) the 99% 1999-A Vehicle SUBI Certificate (transferred pursuant to the Issuer
SUBI Certificate Transfer Agreement), evidencing a 99% beneficial interest in
the assets allocated to the 1999-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% 1999-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 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.
"Paying Agent" means any paying agent or co-paying agent appointed
pursuant to Section 3.09, and shall initially be The Chase Manhattan Bank.
"Program Operating Lease" means that certain program operating lease,
dated as of October 1, 1999, between the Issuer and the Transferor, as amended
or supplemented from time to time.
"Purchase Agreement" means that certain purchase agreement, dated
_____________ 1, 1999, between the Initial Purchaser and the Transferor.
"Qualified Institutional Buyer" has the meaning ascribed thereto in
Rule 144A.
"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 repaid 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.
"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 without limitation 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.
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"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.
"Secretary of State" means the Secretary of State of the State of
Delaware.
"Secured Obligations" has the meaning set forth in Section 5.02(f).
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Balance" means, as of any date, the unpaid principal
amount of the Securities as of such date.
"Security" means either a Note or a Trust Certificate, as the context
may require.
"Securityholder" means each registered holder of a Security.
"Senior Note Outstanding Amount" has the meaning ascribed to the term
"Outstanding Amount" in the Indenture.
"SUBI Trust Agreement" means the Origination Trust Agreement as
supplemented by that certain supplement, dated as of October 1, 1999, among the
parties to the Origination Trust Agreement, as amended or supplemented 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 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 Outstanding Amount of the Subordinated Notes on the Closing 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 holder of the
Subordinated Notes.
"Subordinated Notes" means the [___]% Subordinated Notes issued
pursuant to this Agreement.
"Transferor Trust Certificate" means the Trust Certificate issued to
the Transferor representing at least 1% of the Certificate Balance.
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"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.
"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.
Section 1.02. Interpretive Provisions.
(a) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement, (iv) the term
"include" and all variations thereof shall mean "include without limitation"
and (v) the term "or" shall include "and/or".
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Agreement or in any such certificate or other document, and accounting terms
partly defined in this Agreement or in any such certificate or other document
to the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles. To the extent that the
definitions of accounting terms in this Agreement or in any such certificate or
other document are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this Agreement or
in any such certificate or other document shall control.
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ARTICLE TWO
ORGANIZATION
Section 2.01. Name and Status. The trust created hereby shall be known
as "Ryder Vehicle Lease Trust 1999-A", in which name the Issuer may engage in
activities as permitted by the Basic Documents, make and execute contracts and
other instruments and ▇▇▇ 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 in 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, 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% 1999-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%
1999-A Vehicle SUBI Certificate to the Transferor pursuant to the
Program Operating Lease and as security therefor to obtain the pledge
of the 99% 1999-A Lease SUBI Certificate from the Transferor;
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(iv) to pay interest on and principal of the Securities;
(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.
(b) 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
1999-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 each such
holder 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
and the Owner Trustee 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 or
Expenses payable 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 the Issuer only from Delaware, Florida or New
York. The only office of the Issuer shall be at the Owner Corporate Trust
Office.
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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 shall have
obtained all necessary licenses and approvals in all jurisdictions in
which the conduct of its business shall require 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% 1999-A Vehicle SUBI
Certificate and pledge the 99% 1999-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 Section 3.04 and any attempted sale, pledge or
transfer in violation of Section 3.04 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.
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
Subordinated Notes shall be issued in the name of the Transferor.
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 Certificateholder hereunder, upon due
registration of such Trust Certificate in such transferee's name pursuant to
Section 3.04.
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(b) Interest shall accrue during each Accrual Period on (i) the
Subordinated Notes at the Subordinated Note Rate based on the 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% 1999-A Vehicle
SUBI Certificate and the pledge of the 99% 1999-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), the registration of
transfers of Trust Certificates. No transfer of a Trust Certificate 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.
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(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 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, without limitation, 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 hold the Trust
Certificates being transferred for the account of a Benefit Plan.
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(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 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 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).
(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.
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(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, 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
4224 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.
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(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 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
receives evidence to its satisfaction of the destruction, loss or theft of any
Trust Certificate or Subordinated Note and there is delivered to the
Certificate Registrar and the Owner Trustee such security or indemnity as may
be required by them to save each of them harmless, then (and in the case of the
Trust Certificates, in the absence of notice that such Trust Certificate has
been transferred to or is in the possession of a third party purchaser),
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. 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 duplicate 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.
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
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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, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, 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 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
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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 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
1999-A SUBI Certificates to collect amounts owed under a 1999-A Lease
or in respect of a 1999-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% 1999-A Vehicle SUBI Certificate pursuant to the SUBI Supplement, 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
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subject to the consent of the Indenture Trustee. The Owner Trustee may not,
except upon the occurrence of an Administrative Agent 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?%
of the Certificate Balance, remove the Administrative Agent or the Maintenance
Provider, as the case may be, with respect to the 1999-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
hereof.
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, 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) in the name of the Indenture Trustee until the
Outstanding Amount of the Senior Notes 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 Outstanding Amount (as defined in the Indenture) of
the Senior Notes 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.
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(c) Each of the Transferor and the Issuer agrees to take or cause to
be taken such further actions, to execute, deliver and file or cause to be
executed, delivered and filed such further documents and instruments
(including, without limitation, 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) hereof 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) all interest and
principal distributable in respect of the Subordinated Notes for the related
Accrual or Collection Period 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 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 to distribute
to it 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 supplied by the Administrative Agent to the Owner Trustee in the
Payment Date Certificate 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% 1999-A SUBI Certificates
and the 1% 1999-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
Trust Certificates and the Subordinated Notes during the related
Accrual Period;
(iv) the aggregate amount of principal paid with respect to the
Trust Certificates and the Subordinated Notes on such Payment Date,
the Principal Shortfall Amount, if any, and the Optimal Principal
Distribution Amount;
(v) the Outstanding Amount of the Subordinated Notes and the
Certificate Balance on the day immediately preceding such Payment
Date;
(vi) the Subordinated Note Factor 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 of items (i) through
(iv) of the definition thereof;
(viii) the Reserve Fund Deposit Amount 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 for the related Collection Period; and
(xi) the amount of Residual Value Losses for the immediately
preceding Collection Period.
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
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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 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
(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 each Trust Certificateholder,
distributions required to be made to Trust Certificateholders on any Payment
Date shall be made to each Trust Certificateholder of record on the related
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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 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.
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(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.
(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)
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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 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% 1999-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 Specified 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
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the Basic Documents or otherwise, and the Owner Trustee 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
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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 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
Delaware 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.
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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 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% 1999-A Vehicle SUBI
Certificate or the pledge of the 99% 1999-A Lease SUBI Certificate to the
Issuer or of the lease by the Issuer of the 99% 1999-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 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 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 and its successors, assigns,
agents, servants, officers and employees or any Paying Agent (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
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 the Owner Trustee from
and against Expenses arising or resulting from any of the matters described in
the second clause of the third sentence of Section 7.01 or for any income taxes
on any fees payable to the Owner Trustee or any Paying Agent as set forth in
Section 2.07. The indemnities contained in this Section shall survive the
resignation or termination of the Owner Trustee 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 Owner Trustee'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
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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 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 1999-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% 1999-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% 1999-A Vehicle SUBI Certificate from the Issuer
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 Senior Note Balance is
less than or equal to 10% of the Initial Securities Balance. The purchase price
for the 99% 1999-A Vehicle SUBI Certificate shall equal the Securities Balance,
together with accrued interest thereon up to but not including such related
Payment Date (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 1999-A Lease SUBI
shall be discharged and released and the 99% 1999-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
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the outgoing Owner Trustee. The Transferor shall provide written notice of such
resignation or removal of the Owner Trustee to each Rating 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
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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 so to do, 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
Specified Vehicles and the payments on the Specified 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.
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 1999-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 Outstanding
Amount (as such term is defined in the Indenture) 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 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
1999-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) of this
Agreement, upon not less that 90 days notice to each Rating Agency and each
Noteholder and subject to each of (1) the prior written confirmation by each
Rating Agency that such action will not result in a Rating Event, and (2) the
consent of Senior Noteholders holding at least 75% of the Outstanding Amount
(as such term is defined in the Indenture) of the Senior Notes, 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 1999-A SUBI Certificates to be classified as an association
(or a publicly traded partnership) taxable as a corporation for federal income
tax purposes.
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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
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51
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
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 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Corporate Trust
Department; (ii) if to the Transferor, at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), Attention: Treasurer; (iii) if to
Moody's, to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ABS
Monitoring Group (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇ or (▇▇▇) ▇▇▇-▇▇▇▇); (iv) if to
DCR, to Duff & ▇▇▇▇▇▇ Credit Rating Co., ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇), 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.
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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:
(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 1999-A Vehicle SUBI, the 1999-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 headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions 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. 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 LP,
as Transferor
By: RYDER TRUCK RENTAL III LLC,
as General Partner
By: RTR LEASING II, INC.,
as Manager
By:
---------------------------------
Name:
Title:
CHASE MANHATTAN BANK DELAWARE,
as Owner Trustee
By:
---------------------------------
Name:
Title:
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EXHIBIT A
FORM OF 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" WHICH IS SUBJECT TO THE REQUIREMENTS OF TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR ANY PLAN COVERED BY
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (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 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. UPON
DELIVERY OF SUCH OPINION, THE OWNER TRUSTEE WILL NOTIFY THE HOLDER OF THIS
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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 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 1999-A
[____]% ASSET BACKED CERTIFICATE
evidencing a beneficial interest in the Issuer, as defined below, the property
of which includes, among other things, the 99% 1999-A Vehicle SUBI Certificate
(transferred pursuant to the Issuer SUBI Certificate Transfer Agreement),
evidencing a 99% beneficial interest in the 1999-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 Ryder Vehicle Lease Trust 1999-A (the "Issuer") formed by Ryder
Funding LP, a Delaware limited partnership (the "Transferor").
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The Issuer was created pursuant to a trust agreement, as amended and
restated as of [_________], 1999 (the "Trust Agreement"), between the
Transferor and Chase Manhattan Bank Delaware, 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 [__________], 1999 (the "Indenture"), between the Issuer
and U.S. Bank National Association, as trustee (the "Indenture Trustee"), are
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% 1999-A
Vehicle SUBI Certificate (transferred pursuant to the Issuer SUBI Certificate
Transfer Agreement), evidencing a 99% beneficial interest in the 1999-A Vehicle
SUBI Assets, (ii) the rights of the Issuer under the Program Operating Lease,
(iii) the security interest of the Issuer in the 1999-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 ___________
15, ___________ 15, ___________ 15 and ___________ 15 of each year or, as
necessary, ___________ 15, 200__ (or, if such day is not a Business Day, the
next Business Day), commencing ___________, 200__ (each, a "Payment Date"), and
ending no later than ___________ 15, 200__, to the Person in whose name this
Trust Certificate is registered at the close of business on the 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 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
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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 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 1999-A Vehicle SUBI, the 1999-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, 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.
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THIS TRUST CERTIFICATE 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.
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 1999-A
By: CHASE MANHATTAN BANK DELAWARE,
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, DELAWARE, or CHASE MANHATTAN BANK, DELAWARE,
as Owner Trustee as Owner 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 1999-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 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 1999-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 not
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.
A-7
61
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.
A-8
62
EXHIBIT B
FORM OF SUBORDINATED NOTE
THIS SUBORDINATED NOTE MAY NOT BE TRANSFERRED
RYDER VEHICLE LEASE TRUST 1999-A
[____]% ASSET BACKED SUBORDINATED NOTE
Ryder Vehicle Lease Trust 1999-A (the "Issuer"), a trust created
pursuant to a trust agreement, as amended and restated as of [____________],
1999 (the "Trust Agreement") between Ryder Funding LP, as Transferor (the
"Transferor"), and Chase Manhattan Bank Delaware, 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 [____________], 200__, or earlier, all in accordance
with 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 TRUST CERTIFICATE 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.
B-1
63
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 1999-A
By: CHASE MANHATTAN BANK DELAWARE,
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, DELAWARE, or CHASE MANHATTAN BANK, DELAWARE,
as Owner Trustee as Owner Trustee
By: THE CHASE MANHATTAN BANK,
Authenticating Agent
By:
--------------------------------
By:
-----------------------------
B-2
64
EXHIBIT C
FORM OF RULE 144A CERTIFICATE
Dated:
Ryder Funding LP
c/o Ryder Truck Rental III LLC
its General Partner
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank Delaware,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The Chase Manhattan Bank,
as Certificate Registrar
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
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 1999-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 ____________, 199__, as specified in the Trust Agreement,
as follows:
Name: Denominations:
Address:
Taxpayer I.D. No:
C-1
65
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 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:
C-2
66
EXHIBIT D
FORM OF INVESTMENT LETTER
QUALIFIED INSTITUTIONAL BUYER
Dated:
U.S. Bank National Association,
as Indenture Trustee
One Illinois Center
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Chase Manhattan Bank Delaware,
as Owner Trustee
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇
& ▇▇▇▇▇ Incorporated,
as Initial Purchaser
World Financial Center, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ryder Funding LP
c/o Ryder Truck Rental III LLC
its General Partner
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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 1999-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 ________________,
1999 (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 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 Circular. The
D-1
67
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 (___)] 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 of Certificate will bear a
legend to the following effect, unless otherwise agreed by the Transferor and
the Owner Trustee:
"THIS 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 CERTIFICATE, AGREES THAT THIS CERTIFICATE MAY BE
REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER APPLICABLE LAWS AND
D-2
68
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, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A SUBJECT TO THE
RECEIPT BY THE TRANSFEROR AND THE OWNER TRUSTEE 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 CERTIFICATE MAY NOT BE
PURCHASED OR HELD WITH PLAN ASSETS OF ANY "EMPLOYEE BENEFIT PLAN"
WHICH IS SUBJECT TO THE REQUIREMENTS OF TITLE I OF THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, OR ANY PLAN
COVERED BY SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED (EACH, A "BENEFIT PLAN"). BY ACCEPTANCE OF THIS
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."
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 described in Section 4975(e)(1) of the Code or (c) any entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity (each, a "Benefit Plan").
D-3
69
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 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).
▇-▇
▇▇
▇▇. 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:
-------------------------- ------------- ------------------
-------------------------- ------------- ------------------
-------------------------- ------------- ------------------
-------------------------- ------------- ------------------
-------------------------- ------------- ------------------
1. 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:
D-5
71
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 worth of at least
$25,000,000 as demonstrated in its latest annual financial
statements, a copy of which is attached hereto.
----------------------
(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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72
___ 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 (▇▇▇▇▇) plan.
D-7
73
(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.
(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:
----------------------------
D-8
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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).
D-9
75
(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 Adviser
By:
------------------------------
Name:
Title:
IF AN ADVISER:
---------------------------------
Name of Purchaser
Dated:
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