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Exhibit 1.1
RYDER VEHICLE LEASE TRUST 1999-A
$38,000,000
___% Asset Backed Notes, Class A-1
$58,000,000
___% Asset Backed Notes, Class A-2
$58,000,000
___% Asset Backed Notes, Class A-3
$52,000,000
___% Asset Backed Notes, Class A-4
$84,900,000
___% Asset Backed Notes, Class A-5
UNDERWRITING AGREEMENT
November __, 1999
Xxxxxxx Xxxxx & Co.
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
As Representative of the
Several Underwriters
World Financial Center
North Tower
New York, New York 10281-1201
Dear Sirs:
Xxxxx Funding LP, a Delaware limited partnership (the "Transferor"),
and Ryder Truck Rental, Inc., a Florida corporation ("Ryder"), hereby confirm
their respective agreements with Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Xxxxxx,
Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx") and each of the other underwriters
named in Schedule A hereto (collectively, the "Underwriters", which term shall
also include any underwriter substituted as hereinafter provided in Section 10),
for whom Xxxxxxx Xxxxx is acting as representative (in such capacity, the
"Representative"), with respect to the sale by the Transferor and the purchase
by the Underwriters, acting severally and not jointly, of the respective
principal amounts set forth in Schedule A of $30,000,000 aggregate principal
amount of ___% Asset Backed Senior Notes, Class A-1 (the "Class A-1 Senior
Notes"), $58,000,000 aggregate principal amount of ___% Asset Backed Senior
Notes, Class A-2 (the "Class A-2 Senior Notes"), $58,000,000 aggregate principal
amount of ___% Asset Backed Senior Notes, Class A-3 (the "Class A-3 Senior
Notes"), $52,000,000 aggregate principal amount of ___% Asset Backed Senior
Notes, Class A-4 (the "Class A-4 Senior Notes") and $84,900,000 aggregate
principal amount of ___% Asset Backed Senior Notes, Class A-5 (the
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"Class A-5 Senior Notes", and together with the Class A-1 Senior Notes, the
Class A-2 Senior Notes, the Class A-3 Senior Notes and the Class A-4 Senior
Notes, the "Senior Notes") of the Ryder Vehicle Lease Trust 1999-A (the "Trust")
under the terms and conditions contained herein. The Transferor was formed
pursuant to a partnership agreement, dated April 23, 1998 (the "Transferor
Partnership Agreement"), between Ryder Truck Rental III LLC ("RTR III LLC"), a
Delaware limited liability company, as general partner (the "Transferor General
Partner") and Ryder, as the sole limited partner (in such capacity, the
"Transferor Limited Partner").
Simultaneously with the issuance of the Senior Notes, the Transferor
will cause the Trust to issue $13,023,237.85 aggregate principal amount of ____%
Asset Backed Subordinated Notes (the "Subordinated Notes", and together with the
Senior Notes, the "Notes") and $10,858,575 aggregate principal amount of ___%
Asset Backed Certificates (the "Certificates", and together with the Notes, the
"Securities"). The Senior Notes will be issued pursuant to an indenture to be
dated as of October 1, 1999 (the "Indenture") between the Trust and U.S. Bank
National Association ("U.S. Bank"), as trustee (the "Indenture Trustee"). The
Subordinated Notes and the Certificates will be issued pursuant to an amended
and restated trust agreement, dated as of October 1, 1999 (the "Trust
Agreement"), between the Transferor and Chase Manhattan Bank Delaware, as
trustee (the "Trustee"). Each Note will represent an obligation of, and each
Certificate will represent an undivided interest in, the Trust. The Transferor
will own the Subordinated Notes, as well as a certificate (the "Transferor
Certificate") with a principal amount equal to approximately 1% of the initial
Certificate principal balance. The Subordinated Notes will be subordinated to
the Senior Notes and the Certificates will be subordinated to the Subordinated
Notes, in each case to the extent described in the Trust Agreement.
Pursuant to an amended and restated trust agreement, dated as of
February 1, 1998 (the "Origination Trust Agreement"), among Ryder Truck Rental I
LP ("RTR I LP") and Ryder Truck Rental II LP, each a Delaware limited
partnership ("RTR II LP", and together with RTR I LP, the "UTI Beneficiaries"),
as initial grantors and initial beneficiaries, Ryder, as administrative agent
(in such capacity, the "Administrative Agent"), RTRT, Inc., a Delaware
corporation, as trustee (the "Origination Trustee"), Delaware Trust Capital
Management, Inc., a Delaware banking corporation, as Delaware trustee, and U.S.
Bank, as trust agent (in such capacity, the "Trust Agent"), Ryder Truck Rental
LT, a Delaware business trust (the "Origination Trust"), was created to take
assignments and conveyances of and hold in trust various leases, vehicles and
certain related assets (collectively, the "Trust Assets"). RTR I LP was formed
pursuant to a partnership agreement, dated June 1, 1997 (the "RTR I Partnership
Agreement", and together with the Transferor Partnership Agreement, the
"Partnership Agreements"), between Ryder Truck Rental I LLC ("RTR I LLC"), a
Delaware limited liability company, as general partner (the "RTR General
Partner"), and Ryder, as sole limited partner (in such capacity, the "RTR
Limited Partner"). Pursuant to an amended and restated contribution and lease
agreement, dated as of February 1, 1998 (the "Contribution Leaseback
Agreement"), between the Origination Trust, as lessor, and Ryder, as lessee,
from time to time, Ryder will contribute and transfer to the Origination Trust
certain trucks, tractors and trailers, together with all accessories, parts and
additions constituting a part thereof and all accessions thereto (collectively,
the "Vehicles").
Pursuant to a supplement of the Origination Trust Agreement, dated as
of October 1, 1999 (the "SUBI Supplement", and together with the Origination
Trust Agreement, the "SUBI
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Trust Agreement"), among the parties to the Origination Trust Agreement, the
Origination Trustee will be directed by the UTI Beneficiaries to establish two
special units of beneficial interest to be known as the "1999-A Lease SUBI" and
the "1999-A Vehicle SUBI" (each, a "1999-A SUBI"). Pursuant to a lease
contribution agreement, dated as of October 1, 1999 (the "Lease Contribution
Agreement"), between the Origination Trust and Ryder, Ryder will contribute and
transfer to the Origination Trust the truck service and lease agreements (the
"1999-A Leases") relating to certain specified Vehicles (the "1999-A Vehicles").
The Origination Trustee will allocate a portfolio consisting of the 1999-A
Leases and certain other related assets to the 1999-A Lease SUBI, and a
portfolio consisting of the 1999-A Vehicles and certain other related assets to
the 1999-A Vehicle SUBI (collectively, the "SUBI Assets"). The Trust Assets
(including the SUBI Assets) will be serviced by the Administrative Agent
pursuant to an administration agreement, dated as of February 1, 1998, as
supplemented by a supplement, dated as of October 1, 1999 (collectively, the
"Administration Agreement"), in each case among the Origination Trust, RTR I LP,
RTR II LP and the Administrative Agent.
In connection with the creation of the 1999-A Lease SUBI, the
Origination Trust will issue to RTR I LP a certificate (the "99% Lease SUBI
Certificate") representing a 99% beneficial interest in the 1999-A Lease SUBI
and a certificate (the "99% Vehicle SUBI Certificate", and together with the 99%
Lease SUBI Certificate, the "99% SUBI Certificates") representing a 99%
beneficial interest in the 1999-A Vehicle SUBI. In addition, the Origination
Trust will issue to RTR II LP a certificate (the "1% Lease SUBI Certificate")
representing a 1% beneficial interest in the 1999-A Lease SUBI and a certificate
(the "1% Vehicle SUBI Certificate", and together with the 1% Lease SUBI
Certificate and the 99% SUBI Certificates, the "SUBI Certificates") representing
a 1% beneficial interest in the 1999-A Vehicle SUBI. Pursuant to a SUBI
certificate transfer agreement, dated as of October 1, 1999 (the "SUBI
Certificate Transfer Agreement "), between the Transferor and RTR I LP, RTR I LP
will sell the 99% Vehicle SUBI Certificate and the 99% Lease SUBI Certificate to
the Transferor. Pursuant to a SUBI certificate transfer agreement, dated as of
October 1, 1999 (the "Issuer SUBI Certificate Transfer Agreement"), between the
Transferor and the Trust, the Transferor will sell the 99% Vehicle SUBI
Certificate to the Trust.
Pursuant to a program operating lease, dated as of October 1, 1999 (the
"Program Operating Lease"), between the Trust, as program lessor, and the
Transferor, as program lessee, the Trust will lease the 99% Vehicle SUBI
Certificate, subject to the lien of the Indenture, to the Transferor in exchange
for the obligation of the Transferor to make certain payments during the period
that each 1999-A Vehicle is subject to the Program Operating Lease. To secure
payment by the Transferor under the Program Operating Lease, the Transferor will
grant a security interest to the Trust in all of its right, title and interest
in and to the 99% Lease SUBI Certificate. The Trust in turn, will pledge its
interest in the 99% Lease SUBI Certificate and payments under the Program
Operating Lease to the Indenture Trustee to secure payment on the Senior Notes.
The Trust will apply payments received from the Transferor under the Program
Operating Lease to pay interest on and principal of the Securities in accordance
with their respective terms.
The Indenture, the Trust Agreement, the Contribution Leaseback
Agreement, the Lease Contribution Agreement, the SUBI Trust Agreement, the SUBI
Certificate Transfer Agreement, the Administration Agreement, the Issuer SUBI
Certificate Transfer Agreement, the Program Operating Lease, a backup security
agreement, dated as of October 1, 1999 (the "Backup
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Security Agreement"), among Ryder, the Origination Trust, RTR I LP, the
Transferor, the Trust and the Indenture Trustee, a control agreement, dated as
of October 1, 1999 (the "Control Agreement"), among the Transferor, the Trust,
as initial secured party, and U.S. Bank, as assignee-secured party and
securities intermediary (in such capacity, the "Securities Intermediary") and an
issuer administration agreement dated as of October 1, 1999 (the "Issuer
Administration Agreement"), among the Transferor, the Trust, the Indenture
Trustee, and Ryder, as administrator, are referred to herein collectively as the
"Basic Documents". Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the SUBI Trust Agreement or the
Indenture, as the case may be.
The Transferor and Ryder understand that the Underwriters propose to
make a public offering of the Senior Notes as soon as the Representative deems
advisable after this Agreement has been executed and delivered and the Indenture
has been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). The Certificates, other than the Transferor Certificate, are being
offered privately and are being purchased pursuant to a purchase agreement,
dated on or about the date hereof (the "Purchase Agreement"), among the
Transferor, Ryder and Xxxxxxx Xxxxx as the initial purchaser.
The Transferor has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (No. 333-81455) covering
the registration of the Senior Notes under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Transferor will prepare and file a prospectus in accordance with the provisions
of Rule 430A ("Rule 430A") of the rules and regulations of the Commission under
the 1933 Act (the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule
424(b)") of the 1933 Act Regulations. The information included in the prospectus
that was omitted from such registration statement at the time it became
effective but that is deemed to be part of such registration statement at the
time it became effective pursuant to paragraph (b) of Rule 430A is referred to
as the "Rule 430A Information". Each prospectus used before such registration
statement became effective, and any prospectus that omitted the Rule 430A
Information that was used after such effectiveness and prior to the execution
and delivery of this Agreement, is herein called a "preliminary prospectus".
Such registration statement, including the exhibits thereto at the time it
became effective and including the Rule 430A Information is herein called the
"Registration Statement". The final prospectus in the form first furnished to
the Underwriters for use in connection with the offering of the Senior Notes is
herein called the "Prospectus". For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, a preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which are contained in
the Registration Statement, a preliminary prospectus or the Prospectus, as the
case may be.
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All references to the terms "material" or "material adverse effect" or
"material adverse change" in this Agreement that refer to Ryder or the
Transferor or their respective Affiliates (as defined below), or any of them,
shall be interpreted in proportion to the business of the Ryder Group (as
defined below) as a whole, and not in proportion to the business of Ryder or the
Transferor or such Affiliate(s) individually. When used in this Agreement, the
term "Affiliate" or "Affiliates" shall have the meaning assigned by Rule 501(b)
under the 1933 Act.
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE TRANSFEROR AND RYDER. Each of
the Transferor and Ryder jointly and severally represents and warrants to each
of the Underwriters as of the date hereof and as of the Closing Time referred to
in Section 2(b) and agrees with the each Underwriter as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement has become effective under the 1933 Act and no
stop order suspending the effectiveness of the Registration Statement
has been issued under the 1933 Act (or, if issued, such order has been
lifted) and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Transferor or Ryder, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
At the respective times the Registration Statement and any
post-effective amendments thereto became effective and at the Closing
Time, the Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the Commission under the 1939 Act
(the "1939 Act Regulations") and did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Time, included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
The representations and warranties in this subsection shall not apply
to statements in or omissions from the Registration Statement or
Prospectus (or amendments or supplements thereto) made in reliance upon
and in conformity with information furnished to the Transferor or Ryder
in writing by any Underwriter through Xxxxxxx Xxxxx expressly for use
in the Registration Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, and the Prospectus filed pursuant to Rule 424(b)
under the 1933 Act, complied when so filed in all material respects
with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with the
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent
permitted by Regulation S-T.
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(ii) FINANCIAL STATEMENTS. The financial statements of Ryder
System, Inc. and its consolidated subsidiaries which include Ryder and
the Transferor (the "Ryder Group"), dated December 31, 1998, December
31, 1997 and December 31, 1996 provided to the Representative and the
unaudited consolidated balance sheets dated June 30, 1999, together
with the related schedules and notes (collectively, the "Financial
Statements"), present fairly the financial position of the Ryder Group
at the dates indicated and the statement of operations, stockholders'
equity and cash flows of the Ryder Group for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(iii) INDEPENDENT ACCOUNTANTS. The accountants who certified
the audited portion of the Financial Statements are independent public
accountants with respect to Ryder and its subsidiaries within the
meaning of Regulation S-X under the 1933 Act.
(iv) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, except as otherwise set forth therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the
Transferor, RTR I LP, RTR II LP or Ryder whether or not arising in the
ordinary course of business, (B) there have been no transactions
entered into by Transferor, RTR I LP, RTR II LP or Ryder, other than
those in the ordinary course of business, which are material with
respect to such entity and (C) there has been no material adverse
change in the Financial Statements.
(v) AUTHORIZATION OF THE INDENTURE. The Indenture has been
duly authorized and duly qualified under the 1939 Act and, when duly
executed and delivered by the Trust and the Indenture Trustee, will
constitute a valid and binding agreement of the Trust, enforceable
against the Trust in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(vi) ISSUANCE OF THE SENIOR NOTES. The Senior Notes have been
duly authorized and, at the Closing Time, will have been duly executed
by the Trust and, when authenticated, issued and delivered in the
manner provided for in the Indenture and delivered against payment of
the purchase price therefor as provided in this Agreement, will
constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, except as the
enforcement may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers),
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law), and will be in the form contemplated
by, and entitled to the benefits of, the Indenture and Trust Agreement.
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(vii) ISSUANCE OF CERTIFICATES AND SUBORDINATED NOTES. The
Certificates and Subordinated Notes have been duly authorized and, at
the Closing Time, will have been duly executed and, when authenticated,
issued and delivered in the manner provided for in the Trust Agreement
and delivered against payment of the purchase price therefor as
provided in the Purchase Agreement, will constitute valid and binding
obligations of the Trust, enforceable against the Trust in accordance
with their terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), moratorium, reorganization or
similar laws or affecting enforcement of creditors' rights generally
and except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a proceeding
in equity or at law), and will be in the form contemplated by, and
entitled to the benefits of, the Trust Agreement.
(viii) DESCRIPTION OF SECURITIES AND BASIC DOCUMENTS. The
Securities and each of the Basic Documents conform in all material
respects to the descriptions thereof and the statements relating
thereto contained in the Prospectus and will be in substantially the
respective forms filed as exhibits to the Registration Statement.
(ix) SUBI CERTIFICATES. The SUBI Certificates conform in all
material respects to the descriptions thereof and the statements
relating thereto contained in the Prospectus; and the SUBI Certificates
have been duly and validly authorized and, when executed, issued,
authenticated and delivered in accordance with the SUBI Trust
Agreement, will be duly and validly issued and outstanding and entitled
to the benefits of the SUBI Trust Agreement.
(x) NO INVESTMENT COMPANY REGISTRATION. None of the
Transferor, Xxxxx, the Transferor General Partner, RTR I LLC, RTR I LP,
the Origination Trust or the Trust is now or, as a result of the
transactions contemplated by this Agreement, will be, required to be
registered as an "investment company" under the Investment Company Act
of 1940, as amended (the "1940 Act").
(xi) ALLOCATION OF SUBI ASSETS. At or prior to the Closing
Time, the Origination Trustee will have allocated 1999-A Leases and
1999-A Vehicles as SUBI Assets that have an Aggregate Cutoff Date
Securitization Value equal to $_______; and each of the 1999-A Leases
and 1999-A Vehicles allocated as a SUBI Asset at the Closing Time will
meet the eligibility criteria for selection described in the SUBI Trust
Agreement.
(xii) USE OF PROCEEDS. The Transferor will cause the Trust to
use the net proceeds of the Senior Notes as described in the Prospectus
under the caption "Use of Proceeds".
(xiii) ACCURACY OF EXHIBITS. There are no contracts or
documents which are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits thereto which
have not been so described and filed as required.
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(xiv) INCORPORATION OF REPRESENTATIONS AND WARRANTIES. The
representations and warranties of each of Xxxxx and the Transferor in
each of the Basic Documents to which they are parties are true and
correct in all material respects and are hereby restated and
incorporated by reference herein with the same effect as if set forth
in full herein.
(b) REPRESENTATIONS AND WARRANTIES OF THE TRANSFEROR AND PARTNERS. The
Transferor and, to the extent specified below, Xxxxx, as Transferor Limited
Partner and RTR Limited Partner and on behalf of the Transferor General Partner
and the RTR General Partner, jointly and severally represent and warrant to, and
agree with, each Underwriter as follows:
(i) DUE ORGANIZATION. Each of the Transferor and RTR I LP has
been duly formed and is validly existing as a limited partnership under
the Delaware Revised Uniform Limited Partnership Act, 6 Del. C. xx.xx.
17-101 et seq. (the "Delaware Partnership Act"), and all filings
required at the date hereof under the Delaware --- Partnership Act with
respect to the due formation and valid existence of the Transferor and
RTR I LP as limited partnerships have been made; each of the Transferor
and RTR I LP has all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus and the related Partnership Agreement and to enter into and
to perform its obligations under such Partnership Agreement, this
Agreement, each Basic Document to which it is a party or by which it
may be bound and the Securities and each of the Transferor and RTR I LP
is duly qualified or registered as a foreign partnership to transact
business and is in good standing in each jurisdiction in which such
qualification or registration is required, whether by reason of the
ownership of property or the conduct of business, except where the
failure to so qualify or register would not have a material adverse
effect on its condition, financial or otherwise, earnings, business
affairs or business prospects.
(iii) TRANSFEROR PARTNERSHIP INTERESTS. The Transferor General
Partner is the sole general partner of the Transferor and the
Transferor Limited Partner is the sole limited partner of the
Transferor and, at the Closing Time, each of the Transferor General
Partner and the Transferor Limited Partner will own its respective
partnership interest in the Transferor (each of which is a
nontransferable interest to the extent provided under the Transferor
Partnership Agreement) free and clear of any lien, mortgage, pledge,
charge, encumbrance, adverse claim or other security interest
(collectively, "Liens") except as permitted by the Basic Documents.
(iii) RTR I PARTNERSHIP INTERESTS. The RTR General Partner is
the sole general partner of RTR I LP and the RTR Limited Partner is the
sole limited partner of RTR I LP and, at the Closing Time, each of the
RTR General Partner and the RTR Limited Partner will own its respective
partnership interests in RTR I LP (each of which is a nontransferable
interest to the extent provided under the RTR Partnership Agreement)
free and clear of any Lien except as permitted by the Basic Documents.
(iv) ABSENCE OF DEFAULTS AND CONFLICTS. None of the
Transferor, the Transferor General Partner, RTR I LP or the RTR General
Partner is in violation of its organizational or charter documents,
bylaws or the related Partnership Agreement, as the case may be, or in
default in the performance or observance of any obligation, agreement,
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covenant or condition contained in any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which it is a party
or by which it may be bound, or to which any of its properties or
assets is subject, except for violations or defaults that, individually
or in the aggregate, have not had, and are not reasonably expected to
have, a material adverse effect on their collective condition,
financial or otherwise, earnings, business affairs or business
prospects; the execution, delivery and performance by each of the
Transferor, the Transferor General Partner, RTR I LP or the RTR General
Partner, as the case may be, of this Agreement, the related Partnership
Agreement, each Basic Document to which it is a party and the
Securities, the consummation of the transactions contemplated herein
and therein or in the Prospectus and compliance by each of them with
its obligations hereunder and thereunder have been duly and validly
authorized by all necessary action (corporate or otherwise) and will
not conflict with or constitute a breach of, a default under, or result
in the creation or imposition of any Lien (except as permitted by the
Basic Documents) upon any of its property or assets pursuant to any
contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it may be a party, by which it may be bound or to
which any of its properties or assets is subject, except for conflicts,
breaches, defaults or Liens that, individually or in the aggregate,
will not have a material adverse effect on their collective condition,
financial or otherwise, earnings, business affairs or business
prospects, nor will such action result in any violation of the
provisions of the entity's charter or organizational documents, bylaws
or the related Partnership Agreement, or any applicable law,
administrative regulation or administrative or court decree.
(v) ABSENCE OF PROCEEDINGS. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending or, to the knowledge of each of the
Transferor, the Transferor General Partner, RTR I LP, the RTR General
Partner, and Xxxxx, threatened, against or affecting the Transferor,
the Transferor General Partner, RTR I LP or the RTR General Partner
that is required to be disclosed in the Prospectus and that is not
disclosed or that might reasonably be expected to result in any
material adverse change in their collective condition, financial or
otherwise, earnings, business affairs or business prospects or that
might reasonably be expected to materially and adversely affect their
collective properties or assets or that might reasonably be expected to
materially and adversely affect the consummation of this Agreement,
either Partnership Agreement or any Basic Document to which any of such
entities is a party or by which it may be bound; all pending legal or
governmental proceedings to which the Transferor, the Transferor
General Partner, RTR I LP or the RTR General Partner is a party or of
which any of their respective properties or assets is the subject that
are not described in the Prospectus, including ordinary routine
litigation incidental to their respective businesses, are, considered
in the aggregate, not material.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No authorization,
approval or consent of any court, governmental authority or agency or
any other person is necessary in connection with (A) the issuance of
the SUBI Certificates, (B) the issuance of the Securities or the
offering and sale of the Senior Notes and Certificates, (C) the
execution, delivery and performance by the Transferor or RTR I LP of
this Agreement or any Basic Document to which it is a party or (D) the
consummation by the Transferor or RTR I LP
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of the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as have been obtained and are in
full force and effect as of the Closing Time.
(vii) POSSESSION OF LICENSES AND PERMITS. Each of the
Transferor, the Transferor General Partner, RTR I LP and the RTR
General Partner possesses all material certificates, authorities,
licenses and permits issued by the appropriate state, federal or
foreign regulatory agencies or bodies as are necessary to conduct the
business now operated by it; all such certificates, authorities,
licenses and permits are valid and in full force and effect except
where such invalidity or failure to be in full force and effect does
not have a material adverse effect on their collective condition,
financial or otherwise, earnings, business affairs or business
prospects; and none of such entities has received notice of any
proceedings relating to the revocation or modification of any such
certificate, authority, license or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect their collective
condition, financial or otherwise, earnings, business affairs or
business prospects or the ability of such entities to perform their
obligations under each Basic Document to which they are parties or by
which they may be bound.
(viii) AUTHORIZATION OF THIS AGREEMENT. This Agreement has
been duly authorized, executed and delivered by the Transferor.
(ix) AUTHORIZATION OF BASIC DOCUMENTS. As of the Closing Time,
each of the Basic Documents to which any of the Transferor, the
Transferor General Partner, RTR I LP, the RTR General Partner or the
Trust is a party and the Transferor Partnership Agreement or the RTR
Partnership Agreement, as the case may be, has been duly executed and
delivered by each such entity, and, assuming the due authorization,
execution and delivery thereof by the other parties thereto, will
constitute the legal, valid and binding agreement of the Transferor,
the Transferor General Partner, RTR I LP or the RTR General Partner, as
the case may be, enforceable against such persons in accordance with
its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws related
to fraudulent transfers), moratorium, reorganization or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(x) ABSENCE OF BUSINESS WITH CUBA. None of Xxxxx, the
Transferor, the Transferor General Partner, RTR I LP, or the RTR
General Partner conducts business or has Affiliates who conduct
business in Cuba or with the government of Cuba within the meaning of
Section 517.075 of the Florida Securities and Investors Protection Act
or Regulation Section 3E-900.001 promulgated thereunder.
(c) REPRESENTATIONS AND WARRANTIES OF RTR I LLC, RTR I LP AND THE
ORIGINATION TRUST. Xxxxx, on its own behalf and on behalf of RTR I LLC, RTR I LP
and the Origination Trust, each to the extent indicated below, represents and
warrants to, and agrees with, each Underwriter as follows:
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(i) NO MATERIAL ADVERSE CHANGE. Since the respective dates as
of which information is given in the Prospectus, except as otherwise
set forth therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs
or business prospects of RTR I LLC, RTR I LP or the Origination Trust,
whether or not arising in the ordinary course of business, (B) there
have been no transactions entered into by any of RTR I LLC, RTR I LP or
the Origination Trust other than those in the ordinary course of
business, which are material, and (C) there has been no material
adverse change in the Financial Statements.
(ii) DUE ORGANIZATION OF XXXXX. Xxxxx has been duly
incorporated, is current in the payment of fees to the Florida
Department of State and its status is "active"; Xxxxx has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectus and to enter into
and to perform its obligations under this Agreement, the Partnership
Agreements and each Basic Document to which it is a party or by which
it may be bound; Xxxxx is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify would not have a material adverse effect on the
condition, financial or otherwise, earnings, business affairs or
business prospects of the Ryder Group or Xxxxx'x ability to perform its
obligations under each Basic Document to which it is a party or by
which it may be bound.
(iii) DUE ORGANIZATION OF TRANSFEROR PARTNERS. Each of the
Transferor General Partner and RTR I LLC has been duly organized and is
validly existing as a limited liability company in good standing under
the laws of the State of Delaware, in each case with power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and to enter into and to
perform its obligations under each Basic Document to which it is a
party or by which it may be bound; each of the Transferor General
Partner and RTR I LLC is duly qualified as a foreign limited liability
company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on their collective condition, financial or otherwise,
earnings, business affairs or business prospects; all of the issued and
outstanding membership interests of each of the Transferor General
Partner and RTR I LLC is owned by Xxxxx, free and clear of Liens and
neither the Transferor General Partner nor RTR I LLC has any
subsidiaries.
(iv) DUE ORGANIZATION OF ORIGINATION TRUST. The Origination
Trust has been qualified as a business trust under applicable Delaware
law and all filings required to be made in respect of the Origination
Trust's status as a business trust under the laws of each state in
which such filings are required have been made and are in full force
and effect at the Closing Time, except where the failure so to file or
to have in full force and effect would not have a material adverse
effect on the condition, financial or otherwise, earnings, business
affairs or business prospects of the Ryder Group.
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(v) ABSENCE OF DEFAULTS AND CONFLICTS. None of Ryder, RTR I
LLC or RTR I LP is in violation of its organizational or charter
documents, bylaws or each applicable Partnership Agreement, as the case
may be, or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it may be bound, or to which any of its
properties or assets is subject, except for violations or defaults
that, individually or in the aggregate, have not had, and are not
reasonably expected to have, a material adverse effect on its
condition, financial or otherwise, earnings, business affairs or
business prospects; the execution, delivery and performance by each of
Ryder, RTR I LLC or RTR I LP, as the case may be, of this Agreement,
each applicable Partnership Agreement and each Basic Document to which
it is a party and the consummation of the transactions contemplated
herein and therein and compliance by each of them with its obligations
hereunder and thereunder have been duly and validly authorized by all
necessary action (corporate or otherwise) and will not conflict with or
constitute a breach of, or default under or result in the creation or
imposition of any Lien (except as permitted by the Basic Documents)
upon any of its property or assets pursuant to, any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to
which it is a party or by which it may be bound, or to which any of its
properties or assets is subject, except for conflicts, breaches,
defaults or Liens that, individually or in the aggregate, will not have
a material adverse effect on its condition, financial or otherwise,
earnings, business affairs or business prospects, nor will such action
result in any violation of the provisions of the entity's charter or
organizational documents, bylaws or each applicable Partnership
Agreement, as the case may be, or any applicable law, administrative
regulation or administrative or court decree.
(vi) ABSENCE OF PROCEEDINGS. There is no action, suit or
proceeding before or by any court or governmental agency or body,
domestic or foreign, now pending, or, to the knowledge of Ryder,
threatened, against or affecting any of Ryder, RTR I LLC, RTR I LP or
the Origination Trust that is required to be disclosed in the
Prospectus and that is not disclosed or that might reasonably be
expected to result in any material adverse change in its condition,
financial or otherwise, earnings, business affairs or business
prospects or that might reasonably be expected to materially and
adversely affect its properties or assets or that might reasonably be
expected to materially and adversely affect the consummation of this
Agreement, each applicable Partnership Agreement or any Basic Document
to which any of such entities is a party or by which it may be bound;
and all pending legal or governmental proceedings to which Ryder, RTR I
LLC, RTR I LP or the Origination Trust is a party or of which any of
their respective properties or assets is the subject that are not
described in the Prospectus, including ordinary routine litigation
incidental to their respective businesses, are, considered in the
aggregate, not material.
(vii) ABSENCE OF FURTHER REQUIREMENTS. No authorization,
approval or consent of any court, governmental authority or agency or
any other person is necessary in connection with the execution,
delivery and performance by Xxxxx, RTR I LLC, RTR I LP or the
Origination Trust of this Agreement, each applicable Partnership
Agreement or any Basic Document to which any of them is a party or the
consummation by any of them
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of the transactions contemplated hereby or thereby, except such
authorizations, approvals or consents as will have been obtained and
are in full force and effect as of the Closing Time.
(viii) POSSESSION OF LICENSES AND PERMITS. Each of Ryder, RTR
I LLC, RTR I LP and the Origination Trust possesses all material
certificates, authorities, licenses and permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies as
are necessary to conduct the business now operated by it; all such
certificates, authorities, licenses and permits are valid and in full
force and effect except where such invalidity or failure to be in full
force and effect does not have a material adverse effect on its
condition, financial or otherwise, earnings, business affairs or
business prospects; and none of such entities has received notice of
any proceedings relating to the revocation or modification of any such
certificate, authority, license or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would materially and adversely affect its condition, financial
or otherwise, earnings, business affairs or business prospects or the
ability of any of such entities to perform their obligations under each
Basic Document to which they are parties or by which they may be bound.
(ix) AUTHORIZATION OF THIS AGREEMENT. This Agreement has been
duly authorized, executed and delivered by Xxxxx.
(x) AUTHORIZATION OF BASIC DOCUMENTS. As of the Closing Time,
each Basic Document to which any of Ryder, RTR I LLC or RTR I LP is a
party and the RTR Partnership Agreement has been duly executed and
delivered by Xxxxx, RTR I LLC or RTR I LP, as the case may be, and,
assuming the due authorization, execution and delivery thereof by the
other parties thereto, will constitute the legal, valid and binding
agreement of Xxxxx, RTR I LLC or RTR I LP, as the case may be,
enforceable against such persons in accordance with its terms, except
as the enforceability thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws related to fraudulent
transfers), moratorium, reorganization or other similar laws affecting
enforcement of creditors' rights generally and by general principles of
equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(xi) GOOD AND MARKETABLE TITLE TO SUBI ASSETS. At the time of
execution and delivery of the SUBI Supplement at the Closing Time, the
Origination Trust, or the Origination Trustee on behalf of the
Origination Trust, will have good and marketable title to the 1999-A
Vehicles and other rights relating to the 1999-A Vehicles being
allocated as SUBI Assets, and will hold the 1999-A Leases and the
1999-A Vehicles free and clear of Liens (except as permitted by the
Basic Documents).
(xii) ABSENCE OF ASSIGNMENT OF SUBI ASSETS. As of the Closing
Time, the Origination Trust has not assigned to any person any of its
right, title or interest in any of the 1999-A Leases, related contract
rights, 1999-A Vehicles or other related rights constituting the SUBI
Assets, or has obtained the release of each such prior assignment.
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(xiii) ALLOCATION OF SUBI ASSETS. As of the Closing Time, the
Administrative Agent has made the appropriate allocation of assets
within the estate of the Origination Trust to the 1999-A SUBIs required
by the SUBI Trust Agreement.
(d) OFFICER'S CERTIFICATES. Any certificate respecting the Securities
signed by any officer of the Transferor, Xxxxx or any of their respective
Affiliates and delivered at the Closing Time to the Underwriters or to counsel
to the Underwriters shall be deemed a representation and warranty by the
Transferor, Xxxxx or such Affiliate, as the case may be, to the Underwriters as
to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) SENIOR NOTES. On the basis of and in reliance on the
representations, warranties and agreements herein contained and subject to the
terms and conditions herein set forth, the Transferor agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from the Transferor, the aggregate principal amount
of each Class of Senior Notes set forth in Schedule A opposite the name of such
Underwriter (plus any additional principal amount of Senior Notes which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10) at a purchase price equal to the following percentages of the
aggregate initial principal balances thereof, (i) in the case of the Class A-1
Senior Notes, _____%, (ii) in the case of the Class A-2 Senior Notes, _____%,
(iii) in the case of the Class A-3 Senior Notes, _____%, (iv) in the case of the
Class A-4 Senior Notes, _____% and (v) in the case of the Class A-5 Senior
Notes, ____%.
(b) PAYMENT. Payment of the purchase price for, and delivery of, the
Senior Notes shall be made at the offices of Brown & Wood LLP, 000 Xxxxxxxxxx
Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000-1715 or at such other place as shall be
agreed upon by the Representative, the Transferor and Xxxxx, at 10:00 A.M. (New
York time) on [November 16, 1999], or such other time not later than ten
business days after such date as shall be agreed upon by the Representative, the
Transferor and Xxxxx (such date and time of payment and delivery being called
the "Closing Time"). Pursuant to Rule 15c6-1(d) under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), the Transferor, Xxxxx and the
Representative have agreed that the Closing Time will be not less than five
business days following the date hereof.
Payment shall be made to the Transferor by wire transfer of immediately
available funds to a bank account designated by the Transferor, against delivery
to the Representative for the respective accounts of the Underwriters of
certificates for the Senior Notes to be purchased by them. It is understood that
each Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Senior
Notes which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Senior Notes to be purchased by any
Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
(c) BOOK ENTRY REGISTRATION. Each Class of Senior Notes will initially
be represented by one or more certificates registered in the name of Cede & Co.,
as nominee of The Depository
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Trust Company ("DTC"). The interests of beneficial owners of each Class of
Senior Notes will be represented by book entries on the records of DTC and
participating members thereof. Definitive certificates evidencing the Senior
Notes will be available only under the limited circumstances specified in the
Indenture. Certificates for the Senior Notes shall be made available for
examination and packaging by the Underwriters in The City of New York not later
than 10:00 A.M. (New York time) on the last business day prior to the Closing
Time.
Section 3. COVENANTS OF THE TRANSFEROR AND XXXXX. The Transferor and
Xxxxx jointly and severally covenant with the each Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Transferor, subject to Section 3(b), will comply with the requirements of Rule
430A and will notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any preliminary prospectus, or of the
suspension of the qualification of the Senior Notes for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any of
such purposes. The Transferor will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that it
was not, it will promptly file such Prospectus. The Transferor will notify the
Representative promptly of any filing pursuant to Rule 424(b). The Transferor
will make every reasonable effort to prevent the issuance of any stop order and,
if any stop order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) FILING OF AMENDMENTS. The Transferor will give the Representative
notice of its intention to file or prepare any amendment, supplement or revision
to the Registration Statement or any amendment, supplement or revision to either
the prospectus included in the Registration Statement at the time it became
effective or to the Prospectus. The Transferor will furnish the Representative
with copies of any such documents a reasonable amount of time prior to such
proposed filing, and will not file or use any such document to which the
Representative or counsel for the Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Transferor has furnished
or will deliver to the Representative and counsel for the Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith) and signed copies of
all consents and certificates of experts, and will also deliver to the
Representative, without charge, a conformed copy of the Registration Statement
as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment
thereto furnished to the Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to XXXXX, except
to the extent permitted by Regulation S-T.
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(d) DELIVERY OF PROSPECTUSES. The Transferor has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Transferor hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Transferor will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
XXXXX, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Transferor will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and rules
and regulations of the Commission promulgated under the 1934 Act and the 1939
Act and the 1939 Act Regulations so as to permit the completion of the
distribution of the Senior Notes as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act and the
1933 Act Regulations to be delivered in connection with sales of the Senior
Notes, any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the Transferor,
to amend the Registration Statement or amend or supplement the Prospectus in
order that the Prospectus will not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances existing at the time it
is delivered to a purchaser, or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Transferor will promptly prepare
and file with the Commission, subject to Section 3(b), such amendment or
supplement as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the Transferor will furnish to the Underwriters such number of copies of such
amendment or supplement as the Underwriters may reasonably request. Neither the
consent of the Representative to, nor the delivery by any Underwriter of, any
such amendment or supplement shall constitute a waiver of any of the conditions
set forth in Section 5.
(f) BLUE SKY QUALIFICATIONS. The Transferor will use its reasonable
efforts, in cooperation with the Underwriters, to qualify the Senior Notes for
offering and sale under the applicable securities laws of such states and other
jurisdictions as the Representative may designate and to maintain such
qualifications in effect for a period of not less than one year from the
effective date of the Registration Statement; provided, however, that neither
Xxxxx nor the Transferor shall be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to subject
itself to taxation in respect of doing business in any jurisdiction in which it
is not otherwise so subject. In each jurisdiction in which the Senior Notes have
been so qualified, the Transferor will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement. The Transferor will also supply the Underwriters with
such information as is necessary for the determination of the legality of the
offering and sale of the Senior Notes for investment under the laws of such
jurisdictions as the Underwriters may reasonably request.
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(g) RULE 158. The Transferor will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its Senior
Noteholders as soon as practicable an earnings statement for the purposes of,
and to provide the benefits contemplated by, the last paragraph of Section 11(a)
of the 1933 Act.
(h) RATING OF SENIOR NOTES AND CERTIFICATES. The Transferor shall take
all reasonable action necessary to enable Xxxxx'x Investors Service Inc. and
Duff & Xxxxxx Credit Rating Service, Inc. (the "Rating Agencies") to provide the
Class A-1 Senior Notes with the highest short-term rating, the remaining classes
of Senior Notes with the highest long-term rating and the Certificates with at
least "A" rating or its equivalent at the Closing Time.
(i) USE OF PROCEEDS. The Transferor shall cause the Trust to use the
net proceeds received by it from the sale of the Senior Notes in the manner
specified in the Prospectus under "Use of Proceeds".
(j) RESTRICTION ON SALE OF SENIOR NOTES. For a period of 30 days from
the date hereof, none of Xxxxx, the Transferor or any of their respective
Affiliates will, without the prior written consent of the Representative,
directly or indirectly, offer, sell or contract to sell or announce the offering
of, in a public or private transaction, any other collateralized securities
similar to the Senior Notes.
(k) REPORTING REQUIREMENTS. The Transferor will file with the
Commission such report on Form SR as may be required pursuant to Rule 463 under
the 1933 Act and, during the period when the Prospectus is required to be
delivered under the 1933 Act, will file all documents required to be filed with
the Commission pursuant to the 1934 Act within the time periods required by the
1934 Act.
(l) REPORTS, STATEMENTS AND CERTIFICATES. The Transferor and Xxxxx
agree that, so long as any Senior Notes are outstanding, the Transferor or
Ryder, as the case may be, will make good faith efforts to, as soon as each
becomes available, deliver or cause to be delivered to the Representative, as
soon as copies become available, copies of (i) each payment date certificate
delivered to Indenture Trustee pursuant to Section 8.03 of the Indenture, (ii)
the annual report as to compliance by a firm of independent public accountants
delivered pursuant to Section 11.11 of the Administration Agreement, (iii) the
officer's certificate delivered by the Administrative Agent pursuant to Section
11.12 of the Administration Agreement, (iv) each periodic report required to be
filed by the Transferor with the Commission pursuant to the 1934 Act, or any
order of the Commission thereunder and (v) such other information with respect
to the Securities concerning Xxxxx, the Transferor, RTRI LP, the Transferor
General Partner, RTR General Partner, the Origination Trust, or the Trust as the
Representative may reasonably request from time to time.
Section 4. PAYMENT OF EXPENSES.
(a) EXPENSES. The Transferor shall pay all of its own expenses incident
to the performance of its obligations under this Agreement, including without
limitation (i) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits) as originally filed and
of each amendment thereto, (ii) the preparation, reproduction and
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delivery to the Underwriters of this Agreement, any Agreement among the
Underwriters, each Basic Document and such other documents as may be required in
connection with the issuance of the Securities or the offering, purchase, sale
or delivery of the Senior Notes, (iii) the preparation, issuance and delivery of
the certificates for the Senior Notes to the Underwriters, (iv) the fees and
expenses of the counsel, accountants and other advisors of the Transferor,
Xxxxx, RTR I LP and their respective Affiliates in connection with the
transactions contemplated by this Agreement and the Purchase Agreement, (v) the
qualification of the Senior Notes under state securities laws in accordance with
the provisions of Section 3(f), including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith, (vi)
the fees and expenses of the Origination Trustee, Trustee and the Trust Agent,
including the reasonable fees and disbursements of their respective counsel in
connection with the transactions contemplated by this Agreement and the Purchase
Agreement and (vii) any fees payable in connection with the rating of the Senior
Notes.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section
9(a)(i), the Transferor shall reimburse the Underwriters for all of their
reasonable out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The
obligations of the several Underwriters are subject to the accuracy of the
representations and warranties of the Transferor and Ryder contained in Section
1 or in certificates of any officer of the Transferor, Xxxxx or any of their
respective Affiliates delivered pursuant to the provisions hereof, to the
performance by the Transferor and Xxxxx of their covenants and other obligations
hereunder and to the following additional conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement
shall have become effective and, at the Closing Time, no stop order suspending
the effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission (or,
if issued, such stop order shall have been lifted), and any request on the part
of the Commission for additional information shall have been complied with to
the reasonable satisfaction of counsel for the Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
(b) ACCOUNTANTS' COMFORT LETTER. At the Closing Time, the
Representative, Xxxxx and the Transferor shall have received from KPMG LLP a
letter or letters dated as of the Closing Time, in form and substance as
previously agreed to by the Representative and otherwise satisfactory in form
and substance to the Representative and counsel for the Underwriters, containing
statements and information of the type ordinarily included in accountants'
"comfort letters", with respect to the Financial Statements and certain
financial, statistical and other information contained in the Prospectus.
(c) OFFICERS' CERTIFICATE. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse changes in the
condition, financial or otherwise, or in the earnings, business
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affairs or business prospects of the Transferor, Ryder and their respective
Affiliates, whether or not arising in the ordinary course of business, and the
Representative shall have received certificates of authorized officers of the
Transferor and Xxxxx, dated as of the Closing Time, to the effect that (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1 are true and correct with the same force and effect as
though expressly made at and as of the Closing Time, (iii) each of the
Transferor and Xxxxx has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Time and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission (or, if a stop
order has been issued, such order has been subsequently lifted).
(d) OPINION OF SPECIAL COUNSEL FOR XXXXX AND THE TRANSFEROR. At the
Closing Time, the Representative shall have received the favorable opinion of
Xxxxx, Xxxxxx & Xxxxx LLP, special counsel for the Transferor and Xxxxx, dated
the Closing Time and in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) Ryder has been incorporated under the Florida General
Corporation Act, is current in the payment of fees due to the Florida
Department of State and its status is active; Ryder has corporate power
and authority to carry on its business as described in the Prospectus
and to enter into and perform its obligations under this Agreement, the
Transferor Partnership Agreement and each Basic Document to which it is
a party and is duly qualified as a foreign corporation to transact
business in the states of California, Delaware, Indiana, North
Carolina, Ohio, Pennsylvania and Tennessee and is in good standing in
such states.
(ii) RTR III LLC is duly qualified to transact business in
Florida.
(iii) The Transferor is duly qualified to transact business in
Florida.
(iv) This Agreement has been duly authorized, executed and
delivered by each of the Transferor and Xxxxx.
(v) The Senior Notes have been duly and validly authorized
and, when executed, issued, authenticated and delivered pursuant to the
Indenture, and delivered against payment of the consideration specified
in this Agreement, will be duly and validly issued and outstanding,
constitute valid and binding obligations of the Trust, enforceable
against the Trust in accordance with their terms, and will be entitled
to the benefits of the Indenture (subject to certain generally
applicable limitations set forth in such opinion). The Certificates
have been duly and validly authorized and, when executed, issued,
authenticated and delivered pursuant to the Trust Agreement, and
delivered against payment of the consideration specified in the
Purchase Agreement, will be duly and validly issued and outstanding and
entitled to the benefits of the Trust Agreement (subject to certain
generally applicable limitations set forth in such opinion).
(vi) The Transferor Partnership Agreement and each Basic
Document to which any of Ryder, RTR III LLC and the Transferor is a
party has been duly authorized,
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executed and delivered by Xxxxx, RTR III LLC and the Transferor, as the
case may be, and assuming the due authorization, execution and delivery
thereof by the other parties thereto, will constitute the legal, valid
and binding agreement of such entity enforceable against such entity in
accordance with its terms (in each case, subject to certain generally
applicable limitations set forth in such opinion).
(vii) To such counsel's knowledge there is no action, suit,
proceeding, inquiry or investigation pending or threatened, to which
Xxxxx, RTR III LLC, the Origination Trust or the Transferor is a party
or to which any of their respective properties or assets is subject,
before or brought by any court or governmental agency or body, (i)
asserting the invalidity of this Agreement, any Basic Document or the
Senior Notes, (ii) seeking to prevent the issuance of the Senior Notes
or the consummation of any of the transactions contemplated by this
Agreement or any Basic Document, (iii) that would, if determined
adversely to Ryder, RTR III LLC, the Origination Trust, or the
Transferor, materially and adversely affect the performance by Xxxxx,
RTR III LLC, the Origination Trust, or the Transferor of its respective
obligations under, or the validity or enforceability of, this Agreement
or any Basic Document to which it is a party or the Senior Notes, or
materially adversely affect its condition, or (iv) seeking adversely to
affect the federal income tax attributes of the Senior Notes as
described in the Prospectus under the heading "Material Federal Income
Tax Consequences--Senior Notes" or the Florida income tax attributes of
the Senior Notes as described in the Prospectus under the heading
"Delaware and Florida Tax Consequences--Florida".
(viii) The statements in the Prospectus under the captions
"Summary", "Risk Factors", "Description of the Senior Notes", "Security
for the Securities" and "Additional Document Provisions", insofar as
such statements purport to summarize certain terms or provisions of the
SUBI Certificates, the Securities and the Basic Documents, provide a
fair summary of such provisions and the statements in the Prospectus
under the captions "Risk Factors", "Additional Document Provisions",
"Additional Legal Aspects of the Origination Trust and the SUBIs",
"Additional Legal Aspects of the Specified Leases and the Specified
Vehicles", "Material Federal Income Tax Consequences", "Florida and
Delaware Tax Consequences--Florida" and "ERISA Considerations", to the
extent that they constitute matters of law, summaries of legal matters,
documents or proceedings or legal conclusions relating to U.S. federal
law or the laws of the States of Florida or New York have been prepared
or reviewed by such counsel and provide a fair summary in all material
respects (and such counsel may state for clarification that it
expresses no opinion as to whether such statements omit to state a
material fact required to be stated therein).
(ix) To such counsel's knowledge, no order, consent, permit or
approval of any Florida, New York or federal court or governmental
authority or agency applicable to Ryder, RTR III LLC or the Transferor,
is required in connection with the issuance of the SUBI Certificates,
the Securities or the offering or the sale of the Senior Notes and the
Certificates, except those authorizations, approvals, consents and
orders which have previously been obtained and are in full force and
effect as of the Closing Time. Such counsel need not express an opinion
with respect to any orders, consents, permits, approvals, filings or
licenses relating to the authority to lease motor vehicles, originate
lease contracts or to service lease contracts or leased vehicles or any
state or foreign
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securities laws or as may be required by any regional or local
governmental authority (except for the opinions, as to qualification to
transact business as a foreign corporation and good standing, set forth
in clause (i) above).
(x) None of (A) the execution, delivery and performance by
Xxxxx or the Transferor of this Agreement or by Ryder, RTR III LLC or
the Transferor of the Transferor Partnership Agreement or any Basic
Document to which such entity is a party, (B) the consummation of the
transactions contemplated herein or therein by any such entity or (C)
the fulfillment of the terms hereof or thereof by any such entity, will
conflict with, result in a breach of or constitute a default under, or
with the giving of notice or the passage of time or both, would
constitute a default under or result in the creation or imposition of
any Lien (except as permitted by the Basic Documents) upon any property
or assets of such entity pursuant to the terms of (i) the
organizational, charter or partnership documents or bylaws of such
entity, (ii) to such counsel's knowledge and except as otherwise
provided in the Basic Documents, any contract, indenture, mortgage,
loan agreement, note, lease or other instrument to which such entity is
a party or by which it may be bound, or to which any of the properties
or assets of such entity is subject or (iii) to such counsel's
knowledge, any applicable law, statute or regulation or any judgment,
order or decree applicable to such entity of any court, regulatory body
or other governmental instrumentality having jurisdiction over such
entity; excepting, in the case of clauses (ii) and (iii) above,
defaults, breaches or violations that do not, in the aggregate, have a
material adverse effect on the condition, financial or otherwise, or on
the earnings, business affairs or business prospects of such entity or
a material adverse effect in the ability of such entity to perform its
obligations under the Transferor Partnership Agreement or any Basic
Document to which it is a party, as the case may be.
(xi) None of Ryder, RTR III LLC, RTR I LP, the Transferor, the
Origination Trust or the Trust is required to be registered as an
"investment company" under the 1940 Act.
(xii) The Indenture has been qualified under the 1939 Act.
(xiii) To such counsel's knowledge, each of Ryder, RTR III
LLC, the Transferor and the Origination Trust possesses such
certificates, authorities, licenses, permits and other governmental
authorizations necessary to conduct the business now operated by it,
and none of such entities has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority, license or permit that, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of such entity or the
ability of such entity to perform its obligations under the Basic
Documents to which it is a party.
(xiv) Under the Uniform Commercial Code as in effect in the
State of New York (the "NYUCC"), the execution and delivery of the
Indenture and the delivery for value to and taking of physical
possession in the State of New York by the Indenture Trustee of the 99%
SUBI Certificates will create a valid first priority perfected security
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interest, for the benefit of the Indenture Trustee on behalf of the
holders of the Senior Notes, in the Trust's and the Trustee's right,
title and interest in the 99% SUBI Certificates.
(xv) Under the NYUCC, the provisions of the Issuer SUBI
Certificate Transfer Agreement are effective to create a valid security
interest, in favor of the Trust, in the Transferor's rights in all
security entitlements with respect to financial assets now or hereafter
credited to the account established as the Reserve Fund (as defined in
the Trust Agreement) (such security entitlements, the "Pledged Security
Entitlements"). The provisions of the Indenture are effective to create
a valid security interest in favor of the Indenture Trustee, to secure
payment of the Senior Notes, in the Trust's right in the Pledged
Security Entitlements.
(xvi) Under the NYUCC, the provisions of the Control Agreement
are effective to perfect the security interest of the Indenture Trustee
in the Pledged Security Entitlements.
(xvii) No security interest of any other creditor of the Trust
will be prior to the security interest of the Indenture Trustee in the
Pledged Security Entitlements.
(xviii) Nothing has come to such counsel's attention that
would lead it to believe that the Registration Statement or any
amendment thereto, including the Rule 430A Information (other than the
financial statements and schedules and other financial data included
therein, as to which no opinion need be expressed), at the time such
Registration Statement or any such amendment became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus or any
amendment or supplement thereto (other than the financial statements
and schedules and other financial data included therein, as to which no
opinion need be expressed), at the time the Prospectus was issued, at
the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(xix) All descriptions in the Registration Statement of the
Basic Documents or other contracts or documents filed as exhibits to
the Registration Statement to which the Transferor, Ryder or any of
their respective Affiliates is a party are accurate in all material
respects; to the best of such counsel's knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes,
leases or other instruments required to be described or referred to in
the Registration Statement or to be filed as exhibits thereto other
than those described or referred to therein or filed or incorporated by
reference as exhibits thereto, and the descriptions thereof or
references thereto are correct in all material respects.
(xx) The Registration Statement has been declared effective
under the 1933 Act; any required filing of the Prospectus pursuant to
Rule 424(b) has been made in the
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manner and within the time period required by Rule 424(b); and, to the
best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or
are pending or threatened by the Commission.
(xxi) The Registration Statement, the Rule 430A Information,
the Prospectus and each amendment or supplement to the Registration
Statement or the Prospectus, as of their respective effective or issue
dates (other than the financial statements and schedules and other
financial data included therein, and the Trustee's Statement of
Eligibility on Form T-1, as to which no opinion need be expressed),
complied as to form in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations.
(e) OPINION OF SPECIAL DELAWARE COUNSEL FOR XXXXX AND THE TRANSFEROR.
At the Closing Time, the Representative shall have received the favorable
opinion of Xxxxxxxx, Xxxxxx & Finger P.A., special Delaware counsel for the
Transferor and Xxxxx, dated the Closing Time and in form and substance
satisfactory to counsel for the Underwriters, substantially to the effect that:
(i) Each of RTR I LP, RTR II LP and the Transferor has been
duly formed and is validly existing in good standing as a limited
partnership under the laws of the State of Delaware.
(ii) Each of RTR I LLC, Ryder Trust Rental II LLC ("RTR II
LLC") and RTR III LLC has been duly formed and is validly existing in
good standing as a limited liability company under the laws of the
State of Delaware.
(iii) Each of RTR Leasing I and RTR Leasing II has been duly
formed and is validly existing in good standing as a corporation under
the laws of the State of Delaware.
(iv) Under the Delaware Partnership Act and its related
formation documents, each of RTR I LP, RTR II LP and the Transferor has
all necessary partnership power and authority to execute and deliver,
and to perform its obligations under the formation documents to which
it is a party and the Basic Documents to which it is a party.
(v) Under the Delaware Partnership Act and its related
formation documents, the execution and delivery by each of RTR I LP,
RTR II LP and the Transferor of the formation documents to which it is
a party and the Basic Documents to which it is a party, and the
performance by it of its obligations thereunder, have been duly
authorized by all necessary partnership action on the part of RTR I LP,
RTR II LP and the Transferor.
(vi) Under the Delaware Limited Liability Company Act (6 DEL.
C. ss.18-101, et seq.) (the "LLC Act") and its related formation
documents, each of RTR I LLC, RTR II LLC and RTR III LLC has all
necessary limited liability company power and authority to execute and
deliver, and to perform its obligations under, the formation documents
to which it is a party and the Basic Documents to which it is a party.
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(vii) Under the LLC Act and its related formation documents,
the execution and delivery by each of RTR I LLC, RTR II LLC and RTR III
LLC of the formation documents which it is a party and the Basic
Documents to which it is a party, and the performance by it of its
obligations thereunder, have been duly authorized by all necessary
limited liability company action on the part of RTR I LLC, RTR II LLC
and RTR III LLC.
(viii) Under the General Corporate Law of the State of
Delaware (8 Del. C. ss.ss.101, et. seq.) (the "DGCL") and its related
formation documents, each of the RTR Leasing I and RTR Leasing II has
all necessary corporate power and authority to execute and deliver, and
to perform its obligations under, the formation documents to which it
is a party and the Basic Documents to which it is a party.
(ix) Under the DGCL and its related formation documents, the
execution and delivery by each of RTR Leasing I and RTR Leasing II of
the formation documents to which it is a party and the Basic Documents
to which it is a party, and the performance by it of its obligations
thereunder, have been duly authorized by all necessary corporate action
on the part of RTR Leasing I and RTR Leasing II.
(x) Each of the Origination Trust and the Trust has been duly
formed and is validly existing in good standing as a business trust
under the laws of the State of Delaware.
(xi) Under the Delaware Business Act (12 DEL. C. ss.3801, et
seq.) (the "DBT Act") and its related formation documents, each of the
Origination Trust and the Trust has all necessary business trust power
and authority to execute and deliver, and to perform its obligations
under, the Basic Documents to which it is a party.
(xii) Under the DBT Act and its related formation documents,
the execution and delivery by each of the Origination Trust and the
Trust of the Basic Documents to which it is a party, and the
performance by it thereunder, have been duly authorized by all
necessary business trust action on the part of the Origination Trust
and the Trust.
(xiii) Each of the Origination Trust Agreement and the Trust
Agreement is a legal, valid and binding agreement of the parties
thereto, enforceable against such parties, in accordance with its
terms.
(xiv) The SUBI Certificates have been duly and validly
authorized and, when executed, authenticated and delivered in
accordance with the Origination Trust Agreement and the SUBI
Supplement, will be duly and validly issued and outstanding and
entitled to the benefits of the Origination Trust Agreement and the
SUBI Supplement.
(xv) Under ss.3805(b) of the DBT Act, no creditor of any
holder of a UTI Certificate or a SUBI Certificate shall have any right
to obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Origination Trust except
in accordance with the terms of the Origination Trust Agreement and the
SUBI Supplement.
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(xvi) Under ss.3805(b) of the DBT Act, no creditor of any
holder of a Trust Certificate shall have any right to obtain possession
of, or otherwise exercise legal or equitable remedies with respect to,
the property of the Issuer except in accordance with the terms of the
Trust Agreement and the SUBI Supplement.
(xvii) To the extent that Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "UCC") is applicable
(without regard to conflict of laws principles), and assuming that the
security interest created by the Indenture in the Collateral has been
duly created and has attached, upon the filing of the Financing
Statement with the Secretary of State, the Indenture Trustee will have
a perfected security interest in that portion of the Trust's right in
such collateral and the proceeds thereof that constitutes "accounts",
"general intangibles" or "chattel paper", as such terms are defined in
the UCC, and such security interest will be prior to any other security
interest granted by the Issuer that is perfected solely by the filing
of financing statements under the UCC, excluding purchase money
security interests under ss.9-312(4) of the UCC and temporarily
perfected security interests in proceeds under ss.9-306(3) of the UCC.
(xviii) The SUBI Certificates constitute "certificated
securities" and "securities" under the UCC.
(xix) The Securities have been duly and validly authorized
and, when executed, authenticated and delivered in accordance with the
Trust Agreement and the Indenture, (i) in the case of the Subordinated
Notes and the Senior Notes, will be legal, valid and binding
obligations of the Trust, enforceable against the Trust, in accordance
with their terms, and (ii) in the case of the Certificates, will be
duly and validly issued and outstanding and entitled to the benefits of
the Trust Agreement.
(xx) The statements in the Prospectus under "Certain State Tax
Consequences - The Senior Notes - Delaware", to the extent that they
constitute matters of law, summaries of legal matters, documents or
proceedings or legal conclusions, have been reviewed by such counsel
and are correct in all material respects.
(f) OPINION OF SPECIAL BANKRUPTCY COUNSEL TO THE TRANSFEROR AND XXXXX.
At the Closing Time, the Representative shall have received the favorable
opinion of Xxxxx & Wood LLP, special bankruptcy counsel to the Transferor and
Xxxxx, dated the Closing Time and in form and substance satisfactory to counsel
for the Underwriters, with respect to certain bankruptcy matters.
(g) OPINION OF COUNSEL FOR INDENTURE TRUSTEE. At the Closing Time, the
Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxx
LLP, counsel to U.S. Bank, as Indenture Trustee and Trust Agent, dated the
Closing Time and in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) U.S. Bank has been duly incorporated and is validly
existing as a national banking corporation, in good standing under the
federal laws of the United States of America with full power and
authority (corporate and other) to own its properties and conduct its
business, as presently conducted by it, and to enter into and perform
its
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obligations as Indenture Trustee and Trust Agent under each Basic
Document to which U.S. Bank is a party.
(ii) Each Basic Document to which U.S. Bank is a party has
been duly authorized, executed and delivered by U.S. Bank and, assuming
the due authorization, execution and delivery thereof by the other
parties thereto, will constitute a legal, valid and binding obligation
of U.S. Bank enforceable in accordance with its terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iii) The Senior Notes have been duly executed, authenticated
and delivered by U.S. Bank, as Indenture Trustee.
(iv) Neither the execution nor delivery by U.S. Bank of each
Basic Document to which it is a party nor the consummation of any of
the transactions by U.S. Bank contemplated thereby require the consent
or approval of, the giving of notice to, the registration with or the
taking of any other action with respect to, any governmental authority
or agency under any existing federal or state law governing the banking
or trust powers of U.S. Bank.
(v) The execution and delivery of each Basic Document to which
U.S. Bank is a party and the performance by U.S. Bank of its terms do
not conflict with or result in a violation of (A) any federal or state
law or regulation governing the banking or trust powers of U.S. Bank,
(B) the Articles of Association or Bylaws of U.S. Bank or (C) to the
best knowledge of such counsel, any indenture, lease or material
agreement to which U.S. Bank is a party or to which its assets are
subject.
(vi) All of the issued and outstanding capital stock of the
Origination Trustee is owned by U.S. Bank, free and clear of any Liens.
(h) OPINION OF COUNSEL FOR ORIGINATION TRUSTEE. At the Closing Time,
the Representative shall have received the favorable opinion of Xxxxxx & Xxxxxxx
LLP, counsel to the Origination Trustee, dated the Closing Time and satisfactory
in form and substance to counsel for the Underwriters, substantially to the
effect that:
(i) The Origination Trustee has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own, lease
and operate its properties, to conduct its business as described in the
Prospectus and to enter into and perform its obligations under each
Basic Document to which it is a party.
(ii) The shares of issued and outstanding capital stock of the
Origination Trustee have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by U.S. Bank.
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(iii) Each Basic Document to which the Origination Trustee is
a party has been duly authorized, executed and delivered by the
Origination Trustee and, assuming the due authorization, execution and
delivery thereof by the other parties thereto, will constitute the
legal, valid and binding obligation of the Origination Trustee
enforceable in accordance with their respective terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency,
moratorium, reorganization or other similar laws affecting enforcement
of creditors' rights generally and by general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(iv) To the best of their knowledge and information, the
Origination Trustee is duly qualified as a foreign corporation to
transact business and is in good standing in Florida, Delaware,
Indiana, New York, Pennsylvania and Wisconsin.
(v) The SUBI Certificates have been duly executed,
authenticated and delivered by the Origination Trustee.
(vi) Neither the execution nor delivery by the Origination
Trustee of each Basic Document to which it is a party nor the
consummation of any of the transactions by the Origination Trustee
contemplated thereby require the consent or approval of, the giving of
notice to, the registration with or the taking of any other action with
respect to, any person or entity, including any governmental authority
or agency under any existing federal or state law.
(vii) The execution and delivery of each Basic Document to
which the Organization Trustee is a party and the performance by the
Origination Trustee of their respective terms do not conflict with or
result in a violation of its articles of incorporation or by-laws of
the Origination Trustee or, to the best of such counsel's knowledge,
any contract, indenture, mortgage, loan agreement, note, lease or other
instrument to which it is a party, by which it may be bound or to which
any of its property or assets is subject.
(i) OPINION OF COUNSEL FOR TRUSTEE. At the Closing Time, the
Representative shall have received the favorable opinion of Xxxxx, Xxxxxxx,
Xxxxxxx & Xxxxx LLP, counsel to the Trustee, dated the Closing Time and
satisfactory in form and substance to counsel for the Underwriters,
substantially to the effect that:
(i) The Trustee has been duly incorporated and is validly
existing as a national banking corporation, in good standing under the
laws of Delaware the federal laws of the United States of America
(ii) The Trustee has full power and authority (corporate and
other) to own its properties and conduct its business, as presently
conducted by it, and to enter into and perform its obligations as
Trustee under each Basic Document to which it is a party.
(iii) The execution and delivery of the Trust Agreement and,
on behalf of the Trust, each other Basic Document to which the Trustee
is a party, the Certificates and the Notes and the performance by the
Trustee of its obligations under the Trust Agreement
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have been duly authorized by all necessary corporate action and each
has been executed and delivered by the Trustee.
(iv) The Trust Agreement constitutes a valid binding agreement
of the Trustee, enforceable against the owner Trustee in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting enforcement of creditors' rights generally and by
general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
(v) Neither the execution nor delivery by the Trustee of each
Basic Document to which it is a party nor the consummation of any of
the transactions by the Trustee contemplated thereby require the
consent or approval of, the giving of notice to, the registration with
or the taking of any other action with respect to, any governmental
authority or agency under any existing federal or state law governing
the banking or trust powers of the Trustee, other than those consents,
approvals or authorizations as have been obtained and the filing of the
Certificate of Trust with the Secretary of State of the State of
Delaware.
(vi) Each of the Senior Notes, Certificates, Subordinated
Notes and the Transferor Certificate have been duly executed,
authenticated and delivered by the Trustee.
(vii) The execution and delivery of each Basic Document to
which the Trustee is a party and the performance by the Trustee of its
terms do not conflict with or result in a violation of (A) any federal
or state law or regulation governing the banking or trust powers of the
Trustee, (B) the Articles of Association or Bylaws of the Trustee or
(C) to the best knowledge of such counsel, any indenture, lease or
material agreement to which the Trustee is a party or to which its
assets are subject.
(j) OPINION OF COUNSEL FOR THE UNDERWRITERS. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of Brown & Wood LLP, counsel for the Underwriters, in form and
substance satisfactory to the Representative. In rendering such opinion, such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States,
upon the opinions of counsel reasonably satisfactory to the Representative.
(k) RELIANCE LETTERS. Counsel to the Transferor or Xxxxx shall provide
reliance letters to the Representative relating to each legal opinion relating
to the transaction contemplated hereby rendered to the Trustee, the Origination
Trustee or either Rating Agency.
(l) MAINTENANCE OF RATING. At the Closing Time, (i) the Senior Notes
shall be rated by each Rating Agency in its highest rating category and (ii) the
Certificates shall be rated by each Rating Agency at least "A" or its
equivalent, and Ryder and the Transferor shall have delivered to the
Representative a letter dated the Closing Time from each Rating Agency, or other
evidence satisfactory to the Representative, confirming that the Senior Notes
and Certificates have such ratings; and since the date of this Agreement, there
shall not have occurred
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a downgrading in the rating assigned to the Senior Notes and Certificates or any
other securities of the Transferor or Ryder by any "nationally recognized
statistical rating agency", as that term is defined by the Commission for
purposes of Rule 436(g)(2) under the 1933 Act, and no such securities rating
agency shall have publicly announced that it has under surveillance or review,
with possible negative implications, its rating of the Senior Notes and
Certificates or any other securities of the Transferor or Ryder.
(m) ADDITIONAL DOCUMENTS. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents and opinions as it
may reasonably require for the purpose of enabling it to pass upon the issuance
of the Securities and the sale of the Senior Notes as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties or
the fulfillment of any of the conditions herein contained; and all proceedings
taken by the Transferor or Xxxxx in connection with the foregoing shall be
reasonably satisfactory in form and substance to counsel for the Underwriters.
(n) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Transferor
and Xxxxx at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
Section 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF UNDERWRITERS. The Transferor and Xxxxx jointly
and severally agree to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact
included in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever, based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(d)) any such settlement is effected with the
written consent of the Transferor and Ryder; and
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(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by Xxxxxxx
Xxxxx), reasonably incurred in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim
whatsoever, based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under clause (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage or expense to the extent arising out of
any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to the Transferor or Xxxxx by any Underwriter
through Xxxxxxx Xxxxx expressly for use in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) INDEMNIFICATION OF THE TRANSFEROR AND XXXXX. Each Underwriter
severally agrees to indemnify and hold harmless the Transferor, Xxxxx, each
person who signed the Registration Statement, each person who was a director (or
person performing similar functions), or partner, in the Transferor at the time
of filing the Registration Statement and each person, if any, who controls the
Transferor or Ryder within the meaning of Section 15 of the 1993 Act or Section
20 of the 1934 Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6(a), as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto) in reliance upon and in
conformity with written information furnished to the Transferor or Xxxxx by such
Underwriter through Xxxxxxx Xxxxx expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a), counsel
to the indemnified parties shall be selected by Xxxxxxx Xxxxx, and, in the case
of parties indemnified pursuant to Section 6(b), counsel to the indemnified
parties shall be selected by the Transferor or Ryder, as applicable. An
indemnifying party may participate at its own expense in the defense of any such
action; provided, however, that counsel to the indemnifying party shall not
(except with the consent of the indemnified party) also be counsel to the
indemnified party. In no event shall the indemnifying parties be liable for fees
and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any
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judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section or Section 7 (whether or not the indemnified parties are
actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement of the nature contemplated by
Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement being
entered into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 7. CONTRIBUTION. If the indemnification provided for in Section
6 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Transferor and
Xxxxx on the one hand and the Underwriters on the other hand from the offering
of the Senior Notes pursuant to this Agreement or (ii) if the allocation
provided by clause (i) is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Transferor and Xxxxx on the one
hand and of the Underwriters on the other hand in connection with the statements
or omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Transferor and Xxxxx on the one
hand and the Underwriters on the other hand in connection with the offering of
the Senior Notes pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the Senior
Notes pursuant to this Agreement (before deducting expenses) received by the
Transferor and the total underwriting discount received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial offering price of the Senior Notes as set forth on such cover. The
relative fault of the Transferor and Xxxxx on the one hand and the Underwriters
on the other hand shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by the Transferor or Xxxxx or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Transferor, Xxxxx and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section were determined by
pro rata allocation (even if the
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Underwriters are treated as one entity for such purposes) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to
above in this Section shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever,
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Senior Notes underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director (or person performing similar functions) of the Transferor, each
person who signed the Registration Statement, and each person, if any, who
controls the Transferor or Xxxxx within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Transferor and Xxxxx. The Underwriters' respective obligations to contribute
pursuant to this Section are several in proportion to the principal amount of
Senior Notes set forth opposite their respective names in Schedule A and not
joint.
Section 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Transferor, Ryder and their
respective Affiliates submitted pursuant hereto shall remain operative and in
full force and effect, regardless of any investigation made by or on behalf of
any Underwriter or controlling person, or by or on behalf of the Transferor,
Ryder and their respective Affiliates, and shall survive delivery of the Senior
Notes to the Underwriters.
Section 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Representative may terminate this
Agreement, by notice to the Transferor and Ryder, at any time at or prior to the
Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Transferor, the Origination Trust, Ryder or Ryder and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business, (ii) if there has occurred any material adverse change in the
financial markets in the United States, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change
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in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the
Representative, impracticable to market the Senior Notes or to enforce contracts
for the sale of the Senior Notes, (iii) if trading in any securities of Ryder
has been suspended or materially limited by the Commission or if trading
generally on the American Stock Exchange or the New York Stock Exchange or in
the Nasdaq National Market has been suspended or materially limited, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or more
of the Underwriters shall fail at Closing Time to purchase the Senior Notes
which it or they are obligated to purchase under this Agreement (the "Defaulted
Securities"), the Representative shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the Representative shall not have completed
such arrangements within such 24-hour period, then:
(a) if the amount of Defaulted Securities does not exceed 10%
of the aggregate principal amount of the Senior Notes to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder
bear to the underwriting obligations of all non-defaulting
Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of the Senior Notes to be purchased
hereunder, this Agreement shall terminate without liability on the part
of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement, either the Representative or the Transferor shall have the
right to postpone Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section.
Section 11. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative
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at North Tower, World Financial Center, New York, New York 10281-1201, attention
of Xxxxxxxx X. Xxxxx; notices to the Transferor or Ryder shall be directed to it
at 3600 N.W. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000, xxxxxxxxx xx Xxxxxxxx 2C (in the
case of Ryder) or to the Transferor General Partner at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000, xxxxxxxxx xx Xxxxxxxx 2C (in the case of the Transferor).
Section 12. PARTIES. This Agreement shall inure to the benefit of and
be binding upon each of the Underwriters, the Transferor, Ryder and their
respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the Underwriters, the Transferor, Ryder and their respective successors and
the controlling persons, directors and officers referred to in Sections 6 and 7
and their heirs and legal representatives any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Transferor,
Ryder and their respective successors, and the controlling persons, directors
and officers referred to in Sections 6 and 7 and their heirs and legal
representatives and for the benefit of no other person, firm or corporation. No
purchaser of Senior Notes from any Underwriter shall be deemed to be a successor
by reason merely of such purchase.
Section 13. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 14. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not effect the
construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Transferor and Ryder a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Transferor and Ryder in accordance
with its terms.
Very truly yours,
RYDER FUNDING LP
By:
---------------------------------
Name:
Title:
RYDER TRUCK RENTAL, INC.
By:
---------------------------------
Name:
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
------------------------------
Authorized Signatory
For itself and as Representative of the other Underwriters named in
Schedule A hereto.
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SCHEDULE A
Principal Amount Principal Amount Principal Amount
of Class A-1 of Class A-2 of Class A-3
Name of Underwriter Senior Notes Senior Notes Senior Notes
------------------- ---------------- ---------------- ----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated $__________ $__________ $__________
First Union Securities, Inc. $__________ $__________ $__________
Xxxxxxx Xxxxx Xxxxxx $__________ $__________ $__________
Total $30,000,000 $58,000,000 $58,000,000
Principal Amount Principal Amount
of Class A-4 of Class A-5
Name of Underwriter Senior Notes Senior Notes
------------------- ---------------- -----------------
Xxxxxxx Xxxxx, Xxxxxx, Xxxxxx & Xxxxx Incorporated __________ __________
First Union Securities, Inc. __________ __________
Xxxxxxx Xxxxx Xxxxxx __________ __________
Total $52,000,000 $84,900,000
SA-1
