RYDER FUNDING II LP, as Transferor, and RYDER VEHICLE LEASE TRUST [___]-[_], as Transferee ISSUER SUBI CERTIFICATE TRANSFER AGREEMENT Dated as of [___]
EXHIBIT 10.6
RYDER FUNDING II LP,
as Transferor,
as Transferor,
and
RYDER VEHICLE LEASE TRUST [___]-[_],
as Transferee
as Transferee
Dated as of [___]
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE ONE |
||||||
| DEFINITIONS | 3 | |||||
| Section 1.01. | Definitions |
3 | ||||
| Section 1.02. | Interpretive Provisions |
3 | ||||
| ARTICLE TWO |
||||||
| TRANSFER OF [___]-[_] SUBI CERTIFICATE | 3 | |||||
| Section 2.01. | Transfer of [___]-[_] SUBI Certificate |
3 | ||||
| Section 2.02. | True Sale |
4 | ||||
| Section 2.03. | Representations and Warranties of the Transferor and the Transferee |
4 | ||||
| Section 2.04. | Financing Statement and Books and Records |
7 | ||||
| Section 2.05. | Acceptance by the Transferee |
7 | ||||
| ARTICLE THREE |
||||||
| MISCELLANEOUS | 7 | |||||
| Section 3.01. | Amendment |
7 | ||||
| Section 3.02. | Governing Law |
7 | ||||
| Section 3.03. | Severability |
7 | ||||
| Section 3.04. | Binding Effect |
8 | ||||
| Section 3.05. | Headings |
8 | ||||
| Section 3.06. | Counterparts |
8 | ||||
| Section 3.07. | Further Assurances |
8 | ||||
| Section 3.08. | Third-Party Beneficiaries |
8 | ||||
| Section 3.09. | No Petition |
8 | ||||
| Section 3.10. | Limitation of Liability of Owner Trustee |
8 | ||||
i
This Issuer SUBI Certificate Transfer Agreement, dated as of
[ ] (the “Agreement”), is
between Ryder Funding II LP, a Delaware limited partnership, as transferor (the “Transferor”), and
Ryder Vehicle Lease Trust [___]-[_], a Delaware statutory trust (the “Issuer”), as transferee (the
“Transferee”).
RECITALS
WHEREAS, Ryder Truck Rental I LP (“RTR I LP”) and Ryder Truck Rental II LP (“RTR II LP”), as
Grantors and UTI Beneficiaries, Ryder Truck Rental, Inc., as Administrative Agent, U.S. Bank Trust
National Association (as successor in interest to Delaware Trust Capital Management, Inc.), as
Delaware Trustee, RTRT, Inc., as Trustee, and U.S. Bank National Association (“U.S. Bank”), as
Trust Agent, have entered into that certain second amended and restated trust agreement, dated as
of February 1, 1998 (the “Origination Trust Agreement”), pursuant to which Ryder Truck Rental LT, a
Delaware statutory trust (the “Trust”), will take assignments and conveyances of and hold in trust
various assets (the “Trust Assets”);
WHEREAS, the parties to the Origination Trust Agreement supplemented the Origination Trust
Agreement with a [___]-[_] origination trust supplement, dated as of [ ]
(together with
the Origination Trust Agreement, the “SUBI Trust Agreement”), to establish one special unit of
beneficial interest (the “[___]-[_] SUBI”);
WHEREAS, in connection with the SUBI Trust Agreement, a separate portfolio of Leases (the
“Specified Leases”) and certain other related assets of the Origination Trust, and the Vehicles
that are leased under the Specified Leases (the “Specified Vehicles”) and certain other related
assets of the Origination Trust will be allocated to the [___]-[_] SUBI;
WHEREAS, the Origination Trust has created a certificate evidencing a 100% beneficial interest
in the [___]-[_] SUBI (the “[___]-[_] SUBI Certificate”) and has issued the [___]-[_] SUBI
Certificate to Ryder Truck Rental I LP (“RTR I LP”);
WHEREAS RTR I LP has transferred and assigned, without recourse, all of RTR I LP’s right,
title and interest in and to the [___]-[_] SUBI Certificates to the Transferor pursuant to that
certain SUBI certificate transfer agreement, dated as of [ ] (the “SUBI Certificate
Transfer Agreement”), between RTR I LP and the Transferor;
WHEREAS, the Issuer was formed pursuant to that certain trust agreement, dated as of
[ ], as amended and restated as of
[ ] (the “Trust Agreement”), between the
Transferor and [ ], as trustee;
WHEREAS, the Transferor and the Transferee desire to enter into this Agreement to provide for
the transfer and assignment by the Transferor to the Transferee, without recourse, of all of the
Transferor’s right, title and interest in and to the [___]-[_] SUBI Certificate and the interest in
the [___]-[_] SUBI represented thereby; and
2
WHEREAS, immediately after the transfer of the [___]-[_] SUBI Certificate to the Issuer, the
Issuer shall pledge the [___]-[_] SUBI Certificate to [___], as Indenture Trustee (the “Indenture
Trustee”), pursuant to that certain indenture, dated as of [ ] (the “Indenture”), between
the Issuer and the Indenture Trustee.
NOW, THEREFORE, in consideration of the promises and the mutual covenants herein contained,
the parties hereto agree as follows:
ARTICLE ONE
DEFINITIONS
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not otherwise
defined has the meanings ascribed thereto in the SUBI Trust Agreement, the Indenture or the Trust
Agreement, as the case may be.
“Agreement” means this Agreement, as amended or supplemented from time to time.
“Assets” has the meaning set forth in Section 2.01.
“Indenture” has the meaning set forth in the recitals.
“SUBI Trust Agreement” has the meaning set forth in the recitals.
“Trust Agreement” has the meaning set forth in the recitals.
Section 1.02. Interpretive Provisions. For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (i) terms used in this
Agreement include, as appropriate, all genders and the plural as well as the singular, (ii)
references to words such as “herein,” “hereof” and the like shall refer to this Agreement as a
whole and not to any particular part, Article or Section within this Agreement, (iii) the term
“include” and all variations thereof shall mean “include without limitation,” (iv) references to a
Section such as “Section 11.01” or an Article such as “Article Eleven” shall refer to the
applicable Section or Article of this Agreement, (v) the term “or” shall include “and/or” and (vi)
the term “proceeds” has the meaning ascribed thereto in the UCC.
ARTICLE TWO
TRANSFER OF [___]-[_] SUBI CERTIFICATE
TRANSFER OF [___]-[_] SUBI CERTIFICATE
Section 2.01. Transfer of [___]-[_] SUBI Certificate. In consideration of the
Transferee’s delivery to, or upon the order of, the Transferor of $[ ] and the Trust
Certificates (the “Transfer Price”), the Transferor hereby absolutely sells, transfers, assigns and
otherwise conveys to the Transferee, without recourse, and the Transferee does hereby purchase and
acquire all of the following (collectively, the “Assets”):
3
(i) all right, title and interest in and to the [___]-[_] SUBI Certificate and the
interest in the [___]-[_] SUBI represented thereby, including all monies due and paid
thereon or in respect thereof;
(ii) the right to realize upon any property that underlies or may be deemed to secure
the interest in the [___]-[_] SUBI represented by the [___]-[_] SUBI Certificate;
(iii) all of the Transferor’s rights and benefits as Holder of the [___]-[_] SUBI
Certificate under the Administration Agreement and the SUBI Trust Agreement;
(iv) all of the Transferor’s rights to and benefits in the [___]-[_] SUBI under the
SUBI Certificate Transfer Agreement; and
(v) all proceeds of the foregoing.
Section 2.02. True Sale. The parties hereto intend that the sale, transfer and
assignment of the Assets constitute a true sale and assignment of the Assets such that any interest
in and title to the Assets would not be property of the Transferor’s estate in the event the
Transferor becomes a debtor in a case under any bankruptcy law. To the extent that the conveyance
of the Assets hereunder is characterized by a court or similar governmental authority as a
financing, it is intended by the Transferor and the Transferee that the interest conveyed
constitute a first priority grant of a perfected security interest under the UCC as in effect in
the State of New York by the Transferor to the Transferee to secure the security obligations of the
Transferor under the Basic Documents. The Transferor does hereby grant to the Transferee a
security interest in all of its rights, title and privileges and interest in and to the Assets and
the parties hereto agree that this Agreement constitutes a “security agreement” under all
applicable law.
Section 2.03. Representations and Warranties of the Transferor and the Transferee.
(a) The Transferor hereby represents and warrants to the Transferee as of the date of this
Agreement and the Closing Date that:
(i) Organization and Good Standing. The Transferor is a limited partnership
duly formed, validly existing and in good standing under the laws of the State of Delaware,
and has power and authority to own its properties and to conduct its business as such
properties are currently owned and such business is presently conducted, and had at all
relevant times, and has, power, authority and legal right to acquire, own and sell the
Assets.
(ii) Due Qualification. The Transferor is duly qualified to do business as a
foreign limited partnership in good standing, and has obtained all necessary licenses and
approvals in all jurisdictions in which the ownership or lease of property or the conduct of
its business shall require such qualifications, except where the failure to have any such
license, approval or qualification would not have a material adverse effect on the
condition, financial or otherwise, of the Transferor or would not have a material adverse
effect on the ability of the Transferor to perform its obligations under this Agreement.
4
(iii) Power and Authority. The Transferor has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the execution, delivery
and performance of this Agreement has been duly authorized by the Transferor by all
necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of the Transferor, enforceable against it in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights
in general and by general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance by the Transferor of
this Agreement and the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof does not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or lapse of time) a
default under, the limited partnership agreement of the Transferor, or conflict with or
breach any of the material terms or provisions of, or constitute (with or without notice or
lapse of time) a default under, any indenture, agreement or other instrument to which the
Transferor is a party or by which it may be bound or any of its properties are subject; nor
result in the creation or imposition of any lien upon any of its properties pursuant to the
terms of any material indenture, agreement or other instrument (other than this Agreement);
nor violate any law or, to the knowledge of the Transferor, any order, rule or regulation
applicable to it or its properties of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction over the
Transferor or any of its properties.
(vi) No Proceedings. There are no proceedings or investigations pending or, to
the knowledge of the Transferor, threatened against the Transferor, before any court,
regulatory body, administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (C) seeking any determination or
ruling that, in the reasonable judgment of the Transferor, would materially and adversely
affect the performance by the Transferor of its obligations under this Agreement.
(vii) Title to [___]-[_] SUBI Certificate. Immediately prior to the transfer
of the [___]-[_] SUBI Certificate pursuant to this Agreement, the Transferor (A) is the true
and lawful owner of the [___]-[_] SUBI Certificate and it has the legal right to transfer
the [___]-[_] SUBI Certificate; (B) has good and valid title to the [___]-[_] SUBI
Certificate and the [___]-[_] SUBI Certificate is on the date hereof free and clear of all
Liens; and (C) will convey good, valid and indefeasible title to the [___]-[_] SUBI
Certificate to the Transferee under this Agreement.
(b) The Transferee hereby represents and warrants to the Transferor as of the date of this
Agreement and the Closing Date that:
5
(i) Organization and Good Standing. The Transferee is a statutory trust duly
formed, validly existing and in good standing under the laws of the State of Delaware, and
has power and authority to own its properties and to conduct its business as such properties
are currently owned and such business is presently conducted, and had at all relevant times,
and has, power, authority and legal right to acquire, own and sell the Assets.
(ii) Due Qualification. The Transferee is duly qualified to do business as a
foreign trust in good standing, and has obtained all necessary licenses and approvals in all
jurisdictions in which the ownership or lease of property or the conduct of its business
shall require such qualifications, except where the failure to have any such license,
approval or qualification would not have a material adverse effect on the condition,
financial or otherwise, of the Transferee or would not have a material adverse effect on the
ability of the Transferee to perform its obligations under this Agreement.
(iii) Power and Authority. The Transferee has the power and authority to
execute and deliver this Agreement and to carry out its terms; and the execution, delivery
and performance of this Agreement has been duly authorized by the Transferee by all
necessary corporate action.
(iv) Binding Obligation. This Agreement constitutes a legal, valid and binding
obligation of the Transferee, enforceable against it in accordance with its terms, except as
enforceability may be subject to or limited by bankruptcy, insolvency, reorganization,
moratorium, liquidation or other similar laws affecting the enforcement of creditors’ rights
in general and by general principles of equity, regardless of whether such enforceability
shall be considered in a proceeding in equity or at law.
(v) No Violation. The execution, delivery and performance of this Agreement by
the Transferee and the consummation of the transactions contemplated by this Agreement and
the fulfillment of the terms hereof does not conflict with, result in any breach of any of
the terms and provisions of, nor constitute (with or without notice or lapse of time) a
default under, the trust agreement of the Transferee, or conflict with or breach any of the
material terms or provisions of, or constitute (with or without notice or lapse of time) a
default under, any indenture, agreement or other instrument to which the Transferee is a
party or by which it may be bound or any of its properties are subject; nor result in the
creation or imposition of any lien upon any of its properties pursuant to the terms of any
material indenture, agreement or other instrument (other than this Agreement); nor violate
any law or, to the knowledge of the Transferee, any order, rule or regulation applicable to
it or its properties of any court or of any federal or state regulatory body, administrative
agency or other governmental instrumentality having jurisdiction over the Transferee or any
of its properties.
(vi) No Proceedings. There are no proceedings or investigations pending or, to
the knowledge of the Transferee, threatened against the Transferee, before any court,
regulatory body, administrative agency or other tribunal or governmental instrumentality (A)
asserting the invalidity of this Agreement, (B) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement or (C) seeking any
6
determination or ruling that, in the reasonable judgment of the Transferee, would
materially and adversely affect the performance by the Transferee of its obligations under
this Agreement.
(c) The representations and warranties set forth in this Section shall survive the sale of the
Assets by the Transferor to the Transferee. Upon discovery by the Transferor, the Transferee or
the Trustee of a breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the others.
Section 2.04. Financing Statement and Books and Records.
(a) In connection with the conveyance of the Assets hereunder, the Transferor agrees that
prior to the Closing Date, it will file, at its own expense, one or more financing statements with
respect to the Assets meeting the requirements of applicable state law in such manner as necessary
to perfect the sale of the Assets to the Transferor, and the proceeds thereof (and any continuation
statements as are required by applicable state law), and to deliver a file-stamped copy of each
such financing statement (or continuation statement) or other evidence of such filings (which may,
for purposes of this Section, consist of telephone confirmation of such filings with the file
stamped copy of each such filings to be provided to the Transferee in due course), as soon as is
practicable after receipt by the Transferor thereof.
(b) The Transferor further agrees that it will treat the transfer of the Assets as a sale for
accounting purposes, take no actions inconsistent with the Transferee’s ownership of the Assets and
on or prior to the Closing Date indicate on its books, records and statements that the Assets have
been sold to the Transferee.
Section 2.05. Acceptance by the Transferee. The Transferee agrees to comply with all
covenants and restrictions applicable to a Holder of the [___]-[_] SUBI Certificate and the
interest in the [___]-[_] SUBI represented thereby, whether set forth in the [___]-[_] SUBI
Certificate, in the SUBI Trust Agreement or otherwise, and assumes all obligations and liabilities,
if any, associated therewith.
ARTICLE THREE
MISCELLANEOUS
MISCELLANEOUS
Section 3.01. Amendment. This Agreement may be amended from time to time in a
writing signed by the parties hereto.
Section 3.02. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without regard to any otherwise applicable
principles of conflicts of laws (other than Section 5-1401 of the New York General Obligations
Law).
Section 3.03. Severability. If one or more of the covenants, agreements or
provisions of this Agreement shall be for any reason whatever held invalid or unenforceable, such
provisions shall be deemed severable from the remaining covenants, agreements and provisions of
this Agreement, and such invalidity or unenforceability shall in no way affect the validity or
7
enforceability of such remaining covenants, agreements and provisions, or the rights of any
parties hereto. To the extent permitted by law, the parties hereto waive any provision of law that
renders any provision of this Agreement invalid or unenforceable in any respect.
Section 3.04. Binding Effect. The provisions of this Agreement shall be binding upon
and inure to the benefit of the parties hereto and their successors and permitted assigns.
Section 3.05. Headings. The Article and Section headings are for convenience of
reference only and shall not define or limit any of the terms or provisions hereof.
Section 3.06. Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed and delivered shall be deemed to be an original, but all of
which counterparts shall together constitute but one and the same instrument.
Section 3.07. Further Assurances. Each party hereto shall do such acts, and execute
and deliver to the other party such additional documents or instruments as may be reasonably
requested in order to effect the purposes of this Agreement and to better assure and confirm unto
the requesting party its rights, powers and remedies hereunder.
Section 3.08. Third-Party Beneficiaries. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and each Holder of the [___]-[_] SUBI Certificate, who
shall be considered a third-party beneficiary hereof. Except as otherwise provided in this
Agreement, no other Person has any right or obligation hereunder.
Section 3.09. No Petition. Each of the parties hereto covenants and agrees that
prior to the date which is one year and one day after the date upon which all obligations under
each Securitized Financing have been paid in full, it will not institute against, or join any other
Person in instituting against any Grantor, the Owner Trustee, the Trustee, any Special Purpose
Affiliate, any member of a Special Purpose Affiliate or any Grantor that is a limited liability
company (or any of their respective general partners) or any general partner of a Special Purpose
Affiliate or any Grantor that is a partnership, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any federal or state bankruptcy or
similar law.
Section 3.10. Limitation of Liability of Owner Trustee. Notwithstanding anything
contained herein to the contrary, this instrument has been countersigned by [ ] not
in its individual capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall [ ] in its individual capacity or any beneficial owner of the Issuer have
any liability for the representations, warranties, covenants, agreements or other obligations of
the Issuer hereunder, as to all of which recourse shall be had solely to the assets of the Issuer.
For all purposes of this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits of, the terms and
provisions of Articles Six, Seven and Ten of the Trust Agreement. Notwithstanding anything herein
to the contrary, Section 2.07 of the Trust Agreement shall remain in full force and effect.
8
IN WITNESS WHEREOF, the parties hereto have caused this Issuer SUBI Certificate Transfer
Agreement to be duly executed by their respective officers duly authorized as of the day and year
first above written.
| RYDER FUNDING II LP, | ||||||
| as Transferor | ||||||
| By: | RYDER TRUCK RENTAL IV LLC, as General Partner |
|||||
| By: | RTR LEASING II, INC., as Manager |
|||||
| By: | ||||||
Title: |
||||||
| RYDER VEHICLE LEASE TRUST [___]-[_], | ||||||
| as Transferee | ||||||
| By: | [ ], as Owner Trustee | |||||
| By: | ||||||
Title: |
||||||