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Exhibit 3.5
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RYDER TRUCK RENTAL I LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Between
RYDER TRUCK RENTAL, INC.
and
RTR LEASING I, INC.,
as Members
Dated as of October 1, 1999
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TABLE OF CONTENTS
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ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions................................................... 1
Section 1.02. Other Definitional Provisions................................. 4
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. Formation..................................................... 4
Section 2.02. Name and Office............................................... 4
Section 2.03. Duration...................................................... 4
Section 2.04. Registered Office and Registered Agent........................ 4
Section 2.05. Execution, Delivery and Filing of Certificate................. 5
ARTICLE THREE
PURPOSES
Section 3.01. Purposes...................................................... 5
Section 3.02. Power and Authority........................................... 5
Section 3.03. Limitations on Powers......................................... 5
Section 3.04. Company Opportunity........................................... 6
ARTICLE FOUR
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. Admission and Contributions of Initial Members................ 6
Section 4.02. Additional Capital Contributions.............................. 6
Section 4.03. Withdrawals................................................... 7
Section 4.04. Borrowings.................................................... 7
Section 4.05. Additional Members............................................ 7
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ARTICLE FIVE
MANAGEMENT
Section 5.01. Powers of the Members......................................... 7
Section 5.02. Limitations on Powers of Members.............................. 8
Section 5.03. Self Dealing.................................................. 8
Section 5.04. Standard of Care; Liability................................... 9
Section 5.05. Compensation.................................................. 9
Section 5.06. Meetings of Members........................................... 9
Section 5.07. Consent....................................................... 9
Section 5.08. Independent Member............................................ 9
Section 5.09. Managers...................................................... 10
ARTICLE SIX
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. Unanimous Vote Required....................................... 10
Section 6.02. Voting on Bankruptcy or Insolvency............................ 10
ARTICLE SEVEN
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. Capital Accounts.............................................. 11
Section 7.02. Allocation of Profits and Losses.............................. 11
Section 7.03. Distributions................................................. 11
ARTICLE EIGHT
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. Exculpation of Liability...................................... 11
Section 8.02. Indemnification............................................... 11
Section 8.03. Fiduciary Duty................................................ 12
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ARTICLE NINE
TERM OF COMPANY
Section 9.01. Commencement.................................................. 12
Section 9.02. Dissolution................................................... 12
ARTICLE TEN
APPLICATION OF ASSETS
Section 10.01. Application of Assets........................................ 13
Section 10.02. Termination.................................................. 13
Section 10.03. Claims of the Members........................................ 13
ARTICLE ELEVEN
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. Restriction on Transfers of Interests........................ 14
ARTICLE TWELVE
INVESTMENT REPRESENTATION
Section 12.01. Investment Representation.................................... 14
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. Limitations on Amendment..................................... 14
Section 13.02. Books of Account; Reports.................................... 14
Section 13.03. Bank Accounts and Investment of Funds........................ 15
Section 13.04. Accounting Decisions......................................... 15
Section 13.05. Federal Income Tax Elections................................. 15
Section 13.06. Entire Agreement............................................. 15
Section 13.07. Notices...................................................... 15
Section 13.08. Consent of Members........................................... 16
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Section 13.09. Further Execution............................................ 16
Section 13.10. Binding Effect............................................... 16
Section 13.11. Severability................................................. 16
Section 13.12. Captions..................................................... 16
Section 13.13. Counterparts................................................. 16
Section 13.14. Delaware Law to Control...................................... 16
EXHIBITS
Exhibit A Members; Capital Contributions; Membership Percentages.. A-1
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This Amended and Restated Limited Liability Company Agreement, dated
as of October 1, 1999, is between Ryder Truck Rental, Inc., a Florida
corporation, and RTR Leasing I, Inc., a Delaware corporation (collectively, the
"Members").
WHEREAS, pursuant to that certain limited liability company agreement,
dated as of June 1, 1997 (the "Original LLC Agreement"), between the Members,
Ryder Truck Rental I LLC, a Delaware limited liability company, was formed
pursuant to the Delaware Limited Liability Company Act by causing a Certificate
of Formation to be filed with the office of the Secretary of State of the State
of Delaware on July 24, 1997 and by entering into the Original LLC Agreement;
and
WHEREAS, the Members desire to amend and restate the Original LLC
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Origination
Trust Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Act" means the Delaware Limited Liability Company Act (6 Del. C.
ss.18-101, et seq.), as amended.
"Affiliate" of any person or entity means any other person or entity
that (i) directly or indirectly controls, is controlled by or is under common
control with such person or entity (excluding any trustee under, or any
committee with responsibility for administering, any employee benefit plan) or
(ii) is an officer or director of such person or entity. For purposes of this
definition, a person or entity shall be deemed to be "controlled by" another
person or entity if such other person or entity possesses, directly or
indirectly, the power (i) to vote 5% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of directors,
members or managing partners of such person or entity or (ii) to direct or
cause the direction of the management and policies of such person or entity,
whether by contract or otherwise.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement as it may be amended, restated or supplemented from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
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reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, (v) files an answer or other
pleading admitting or failing to contest the material allegations of a petition
filed against it in any proceeding of this nature, (vi) seeks, consents to or
acquiesces in the appointment of a trustee, receiver or liquidator of the
Person or of all or any substantial part of its properties, or (vii) if 120
days after the commencement of any proceeding against the Person seeking
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or regulation, if the proceeding has not been
dismissed, or if within 90 days after the appointment without such Person's
consent or acquiescence of a trustee, receiver or liquidator of such Person or
of all or any substantial part of its properties, the appointment is not
vacated or stayed, or within 90 days after the expiration of any such stay, the
appointment is not vacated. The foregoing definition of "Bankruptcy" is
intended to replace and shall supersede and replace the definition
of"Bankruptcy" set forth in Sections 18-101(1) and 18-304 of the Act.
"Capital Accounts" shall have the meaning set forth in Section 7.01.
"Capital Contributions" means the amount of all cash (whether in the
form of money, a note payable upon demand or a combination thereof) or the
agreed upon value of other property or services contributed by the Members to
the Company.
"Certificate" means the Certificate of Formation of the Company,
including any restatements or amendments, which are filed with the Delaware
Secretary of State.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Ryder Truck Rental I LLC, a Delaware limited liability
company, and its successors.
"Covered Person" shall have the meaning set forth in Section 8.03.
"Delaware Secretary of State" means the Secretary of State of the
State of Delaware.
"Effective Date" means October 1, 1999.
"Fiscal Year" means the taxable year of the holder of the Majority
Interest.
"Independent Director" means an individual who is not (i) a director,
officer or employee of any Affiliate of Ryder (other than any limited or
special purpose corporation or limited liability company similar to the
Company); (ii) a person related to any officer or director of any Affiliate of
Ryder; (iii) a direct or indirect holder of more than 10% of any voting
securities of any Affiliate of Ryder; or (iv) a person related to a direct or
indirect holder of more than 10% of any voting securities of any Affiliate of
Ryder.
"Independent Member" shall have the meaning set forth in Section 5.08.
"Majority Interest" means the interest in the Company of Ryder.
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"Majority Members" means those Members holding more than 50% of the
Membership Percentages and more than 50% of the Capital Account balances of the
Members.
"Managers" means RTR Leasing and such other persons or entities that
may be designated from time to time by the Members as managers of the Company
to perform such functions for the Company as may be determined from time to
time by the Members. A Manager shall be deemed to be a "manager" of the Company
within the meaning of Section 18-101 of the Act.
"Members" means those persons or entities designated as Members of the
Company in Exhibit A. Any reference to a Member shall, unless the context
clearly requires otherwise, include a reference to its predecessors and
successors in interest.
"Membership Percentages" means the Members' respective limited
liability company interests in the Company as set forth in Exhibit A.
"Original LLC Agreement" has the meaning set forth in the Recitals.
"Origination Trust" means Ryder Truck Rental LT, a Delaware business
trust.
"Origination Trust Agreement" means that certain second amended and
restated trust agreement, dated as of February 1, 1998 among Ryder Truck Rental
I LP and Ryder Truck Rental II LP, as Grantors and UTI Beneficiaries, Ryder, as
Administrative Agent, RTRT, Inc., as Trustee, Delaware Trust Capital
Management, Inc., as Delaware Trustee, and U.S. Bank National Association, as
Trust Agent, as the same may be amended, supplemented or modified from time to
time.
"Partnership" means Ryder Truck Rental I LP, a Delaware limited
partnership, and its successors.
"Partnership Act" means the Delaware Revised Uniform Limited
Partnership Act (6 Del. C. ▇▇.▇▇. 17-101, et seq.), as amended.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement of the Partnership, dated as of the Effective Date,
between Ryder Truck Rental I LLC and Ryder, as amended, restated or
supplemented from time to time.
"Profits" and "Losses" mean the Company's taxable income or loss for
each Fiscal Year (or other period) determined in accordance with the accounting
methods followed for federal income tax purposes, except that any income of the
Company that is exempt from federal income tax and not otherwise taken into
account in computing Profits and Losses shall be added to such taxable income
or loss.
"RTR Leasing" means RTR Leasing I. Inc., a Delaware corporation, and
its successors.
"Ryder" means Ryder Truck Rental, Inc., a Florida corporation, and its
successors.
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"Trustee" shall have the meaning set forth in Section 6.01.
Section 1.02. Other Definitional Provisions.
(a) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement, (iv) the term
"include" and all variations thereof shall mean "include without limitation"
and (v) the term "or" shall include "and/or".
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles in effect from time to
time. To the extent that the definitions of accounting terms in this Agreement
or in any such certificate or other document are inconsistent with the meanings
of such terms under such generally accepted accounting principles, the
definitions contained in this Agreement or in any such certificate or other
document shall control.
ARTICLE TWO
ORGANIZATION OF COMPANY
Section 2.01. Formation. The parties hereto formed the Company as a
limited liability company pursuant to the Original LLC Agreement and the Act
and hereby agree that the rights, duties and liabilities of the Members and
Managers shall be as provided in the Act, except as otherwise provided in this
Agreement. Pursuant to Section 18 201(d) of the Act, this Agreement shall
become effective, and the Original LLC Agreement is hereby amended and restated
in its entirety, as of the Effective Date.
Section 2.02. Name and Office. The name of the Company shall be Ryder
Truck Rental I LLC, and its office shall be located at ▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or such other place as the Members may determine from
time to time.
Section 2.03. Duration. The term of the Company commenced on the date
the Certificate was filed on July 26, 1997, in the office of the Delaware
Secretary of State and shall continue until June 1, 2097, unless the Company is
dissolved before such date in accordance with the provisions of this Agreement.
The existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate in the manner required by the Act.
Section 2.04. Registered Office and Registered Agent. The Company's
initial registered office shall be at the office of its registered agent at
Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and
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the name of its initial registered agent at such address shall be The
Corporation Trust Company. The registered office and registered agent may be
changed from time to time in accordance with the Act. If the registered agent
shall ever resign, the Company shall promptly appoint a successor.
Section 2.05. Execution, Delivery and Filing of Certificate. W. ▇▇▇▇▇▇
▇▇▇▇▇, as an "authorized person" within the meaning of the Act, executed,
delivered and filed the Certificate with the Delaware Secretary of State on
July 26, 1997.
ARTICLE THREE
PURPOSES
Section 3.01. Purposes. The purposes for which the Company is formed
are:
(a) to act as general partner of the Partnership and, in such
capacity permit the Partnership to engage in the activities permitted
by the Partnership Agreement and the Partnership Act;
(b) to take all permitted action in its capacity as general
partner of the Partnership, to negotiate, authorize, execute, deliver,
assume or perform any agreement, instrument, obligation or document
relating to the activities set forth in clause (a) above, including
any trust agreement or supplement, sale, servicing, pooling or
administration agreement or supplement, purchase, lease or security
agreement, indenture, reimbursement agreement, credit support
agreement, lease or receivables purchase agreement, indemnification
agreement, placement agreement or underwriting agreement; and
(c) to engage in any activity and to exercise any powers
permitted to it as general partner under the Partnership Agreement or
to limited liability companies generally under the laws of the State
of Delaware that are related or incidental to the foregoing and
necessary, convenient or advisable to accomplish the foregoing.
Section 3.02. Power and Authority. The Company, in its capacity as
general partner of the Partnership, shall have the power and authority to take
any and all actions necessary, appropriate, proper, advisable, incidental or
convenient to accomplish or for the furtherance of the purposes set forth in
Section 3.01. The Company may serve as a general partner of the Partnership.
The Company and RTR Leasing or W. ▇▇▇▇▇▇ ▇▇▇▇▇, on behalf of the Company, may
enter into and perform the Partnership Agreement without any further act, vote
or approval of any Member, Manager or other person, notwithstanding any other
provision of this Agreement, the Act or other applicable law, rule or
regulation.
Section 3.03. Limitations on Powers. Notwithstanding any other
provision of this Agreement and any provision of law, the Company shall not do
any of the following:
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(a) engage in any business or activity other than as set
forth in or contemplated by this Agreement;
(b) without the unanimous affirmative vote of the Members,
and subject to the provisions of Section 6.01, (i) dissolve or
liquidate, in whole or in part, or institute proceedings to be
adjudicated bankrupt or insolvent, (ii) consent to the institution of
bankruptcy or insolvency proceedings against it, (iii) file a petition
seeking or consenting to reorganization or relief under any applicable
federal or state law relating to bankruptcy, (iv) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or a substantial part of its
property, (v) make a general assignment for the benefit of creditors,
(vi) admit in writing its inability to pay its debts generally as they
become due, (vii) institute or join in any institution of any
bankruptcy, insolvency, liquidation, reorganization or arrangement
proceedings or other similar proceedings under any federal or state
law, or (viii) take any limited liability company action in
furtherance of the actions set forth in clauses (i) through (vii)
above;
(c) without the unanimous affirmative vote of the Members,
take or cause to be taken any of the actions referred to in clauses
(i) through (vii) of Section 3.03(b) with respect to any entity of
which the Company is a partner or member;
(d) without the unanimous affirmative vote of the Members,
merge or consolidate with any other corporation, company or entity or
sell all or substantially all of its assets or acquire all or
substantially all of the assets or capital stock or other ownership
interest of any other corporation, company or entity; or
(e) cause any entity of which the Company is a partner or
member to take any action which is inconsistent with such entity's
organizational documents.
Section 3.04. Company Opportunity. No Member need afford the Company
or any other Member the opportunity of investing or otherwise participating in
any other enterprise, regardless of whether such enterprises, but for this
sentence, would be deemed an opportunity of the Company. Nothing in this
Agreement shall prohibit any Member from engaging in any other business
activity, whether or not competitive with, similar to, or within the scope of
the activities conducted by or on behalf of the Company.
ARTICLE FOUR
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. Admission and Contributions of Initial Members.
(a) Each of Ryder and the Independent Member were admitted as members
of the Company at the time such entity (i) executed the Original LLC Agreement
or a counterpart signature page to the Original LLC Agreement and (ii) was
listed as a Member on Exhibit A attached to the Original LLC Agreement (and a
copy of that exhibit appears as Exhibit A hereto).
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(b) The Members made the Capital Contributions set forth next to their
names in Exhibit A upon the formation of the Company. No interest shall accrue
on any Capital Contribution made to the Company.
Section 4.02. Additional Capital Contributions. The Members shall not
be obligated to make additional Capital Contributions except upon the consent
of all Members.
Section 4.03. Withdrawals. No Member shall be entitled to be repaid
any portion of its Capital Account or withdraw from the Company without the
consent of all Members or as otherwise provided in this Agreement.
Section 4.04. Borrowings. The Company may borrow sums to be used for
any of the business purposes described in Section 3.01; provided, however, that
any such borrowing shall require the prior approval of the Majority Members and
shall not be prohibited by this Agreement, any applicable law, regulation or
agreement. Any Member may advance such sums to the Company as approved in
writing by the Majority Members. Any amounts borrowed from a Member shall not
constitute a contribution to the capital of the Company but shall constitute a
debt of the Company which shall be repaid before any distributions to the
Members. No Member shall have any obligation under this Agreement to make any
such loan or advance.
Section 4.05. Additional Members. No additional Members shall be
admitted to the Company without the unanimous consent of the Members.
ARTICLE FIVE
MANAGEMENT
Section 5.01. Powers of the Members.
(a) The Company shall be managed by its Members. Subject to the other
provisions of this Article and Article Six, each Member shall have the
authority, on behalf of the Company, to do all things appropriate for the
accomplishment of the purposes of the Company, including, (i) taking the
actions described in Section 3.01; (ii) disbursing Company funds for Company
purposes; (iii) investing and reinvesting Company funds; (iv) executing
contracts, notes, mortgages and other agreements and instruments; (v) employing
attorneys, accountants, Managers or other agents, which may include Affiliates
of the Company; (vi) paying all Company obligations; (vii) performing all
ministerial acts and duties relating to the payment of all indebtedness, taxes
and assessments due or to become due with regard to any property of the
Company; (viii) purchasing and maintaining insurance on behalf of the Company
against any liability or expense asserted against or incurred by or on behalf
of the Company; (ix) transacting the Company's business under an assumed name
or name other than its name as set forth in the Certificate; (x) appointing any
Member or other person as agent for service of process on the Company as
required by the law of any jurisdiction in which the Company transacts
business; (xi) commencing, prosecuting or defending any proceeding in the
Company's name; and (xii) doing such other acts as may facilitate the Company's
exercise of its powers; provided, however, that all such acts shall fall within
the purposes of the Company as set forth in Section 3.01.
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(b) Notwithstanding anything in this Agreement to the contrary, the
Company shall at all times have at least one Independent Member, and no action
of the type described in Article Six shall occur without the consent of each
Independent Member.
(c) Each Member irrevocably appoints each other Member as its
attorney-in-fact on its behalf and in its stead to execute and swear to any
amendment to the Certificate and file any writing, and to give any notice which
may be required by any rule or law and which may be necessary or appropriate in
order to effect any action by or on behalf of the Company or the Members taken
as provided in this Agreement or which may be necessary or appropriate to
correct any errors or omissions. This power of attorney is coupled with an
interest and shall not be revoked by the act of any Member. This power of
attorney shall survive and not be affected by an assignment by any Member of
its limited liability company interest in the Company; provided, however, that
where a Member's entire limited liability company interest is assigned to an
assignee who becomes a substitute Member in its stead, such power shall survive
for the sole purpose of enabling such Member to effect such substitution. Each
Member shall provide seven days' prior written notice of actions to be taken as
attorney-in-fact on behalf of another Member and the acting Member shall be
authorized to take such actions unless the other Member objects in writing
during such notice period.
(d) A copy of the Certificate will be provided to each Member upon
written request to the Company.
(e) Subject to the other provisions of this Article and Article Six,
the Members shall have full power to act for and to bind the Company to the
extent provided by Delaware law. Every contract, note, mortgage, lease, deed or
other instrument or agreement executed by any Member shall be conclusive
evidence that at the time of execution, the Company was then in existence, that
this Agreement had not theretofore been terminated or amended in any manner and
that the execution and delivery of such instrument was duly authorized by the
Members. A Manager that is not also a Member may bind the Company only to the
extent authorized by the Members.
Section 5.02. Limitations on Powers of Members. Notwithstanding any
other provision of this Agreement, no act shall be taken, sum expended,
decision made, obligation incurred or power exercised by any Member on behalf
of the Company, without prior written notice to all Members outlining the
proposed action followed by the written consent of a Majority Interest with
respect to: (i) any mortgage, grant of security interest, pledge or encumbrance
of any asset of the Company; (ii) any merger of the Company with another
entity; (iii) a transaction involving an actual or potential conflict of
interest between a Member and the Company; (iv) any material change in the
character of the business and affairs of the Company; or (v) any act that would
contravene in a material respect any provision of this Agreement or the Act.
Section 5.03. Self Dealing. Any Member and any Affiliate thereof may
deal with the Company, directly or indirectly, as vendor, purchaser, employee,
agent or otherwise. No contract or other act of the Company shall be voidable
or affected in any manner by the fact that a Member or an Affiliate thereof is
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directly or indirectly interested in such contract or other act apart from its
interest as a Member, nor shall any Member or an Affiliate thereof be
accountable to the Company or the other Members in respect of any profits
directly or indirectly realized by reason of such contract or other act, and
such interested Member shall be eligible to vote or take any other action as a
Member in respect of such contract or other act as it would be entitled were it
or its Affiliate not interested therein. Notwithstanding the foregoing, (i) any
direct or indirect interest of a Member or an Affiliate thereof in any contract
or other act, other than its interest as a Member, shall be disclosed to all
other Members, (ii) such contract or other act shall be approved by a Majority
Interest unless the same is specifically authorized herein and (iii) the
Members shall not receive or hold any property of the Company as collateral
security in respect of any claim against the Company.
Section 5.04. Standard of Care; Liability. Each Member and its
respective directors, officers, stockholders, partners, members and Affiliates
shall discharge its duties in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner he reasonably believes to be in the best interests of the Company as
required by this Agreement or the Act. A Member shall not be liable for
monetary damages to the Company for any breach of any such duties except for
receipt of a financial benefit to which the Member is not entitled, voting for
or assenting to a distribution to Members in violation of this Agreement or the
Act, or a knowing violation of the law.
Section 5.05. Compensation. The Company shall reimburse each Member
for any reasonable out-of-pocket expenses incurred on behalf of the Company. In
addition, any Member may receive reasonable compensation for any services
rendered to the Company approved by the Majority Interest.
Section 5.06. Meetings of Members. All Members shall be entitled to
vote on any matter submitted to a vote of the Members. Unless a greater vote is
required by the Act or this Agreement, the affirmative vote of the Majority
Members shall be required. Meetings of Members for the transaction of such
business as may properly come before the Members may be held at such place, on
such date and at such time as the Majority Interest shall determine. Special
meetings of Members for any proper purpose or purposes may be called at any
time by the holders of at least 25% of the Membership Percentages of all
Members. The Company shall deliver or mail written notice stating the date,
time, place and purposes of any meeting to each Member entitled to vote at the
meeting. Such notice shall be given not less than ten nor more than 60 days
before the date of the meeting.
Section 5.07. Consent. Any action required or permitted to be taken at
an annual or special meeting of the Members may be taken without a meeting, if
the Members unanimously consent, in writing, to take the proposed action. Every
written consent shall bear the date of consent in lieu of meeting and the
signature of each Member who signs the consent.
Section 5.08. Independent Member. The Company shall at all times have
at least one Member (each, an "Independent Member") that shall be a special
purpose corporation formed pursuant to a charter or articles of incorporation
that (i) limits its business purposes and activities and (ii) requires the
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unanimous consent of its entire board of directors (without any vacancies),
including the affirmative vote of all Independent Directors before it may
approve, permit or take any action, or cause any action to be taken in respect
of the following actions with respect to each limited liability company of
which it is a member, to (a) institute proceedings to have itself adjudicated
bankrupt or insolvent, (b) consent to the institution of bankruptcy or
insolvency proceedings against it, (c) file a petition seeking, or consent to,
such member's or limited liability company's reorganization or relief under any
applicable federal or state law relating to bankruptcy, (d) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such member or limited liability company or a substantial
part of its property, (e) make any assignment for the benefit of its creditors,
admit in writing its inability to pay its debts generally as they become due,
(f) institute, or join in any institution of, any bankruptcy, insolvency,
liquidation, reorganization or arrangement proceedings or other proceedings
under any federal or state bankruptcy or similar law, against any entity in
which such member or limited liability company holds an ownership interest or
(g) take any action in furtherance of the actions set forth in clauses (a)
through (f) above. As of the Effective Date, RTR Leasing is the Independent
Member.
Section 5.09. Managers. Except as otherwise provided by the Act:
(a) the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Manager
shall be obligated personally for any such debt, obligation, or
liability of the Company solely by reason of being a Manager of the
Company;
(b) no Manager shall be required to make any Capital
Contribution in the form of cash to the Company; and
(c) no Manager shall be entitled to receive any Profits or
liable for any Losses.
ARTICLE SIX
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. Unanimous Vote Required. Notwithstanding any other
provision of this Agreement and any provision of law that otherwise so empowers
the Company, the Company shall not, without (i) the prior written consent of
each trustee from time to time (each, a "Trustee") under any pooling and
servicing agreement, indenture, trust agreement or similar agreement between
the Company or the Partnership, a Trustee and a servicer, if any, pursuant to
which the Company or the Partnership shall issue, or cause to be issued,
certificates and/or notes and (ii) the affirmative vote of 100% of the Members
of the Company, including all Independent Members, institute proceedings to be
adjudicated a bankrupt or insolvent, or consent to the institution of
bankruptcy or insolvency proceedings against it, or file a petition seeking, or
consent to, reorganization or relief under any applicable federal or state law
relating to bankruptcy, or consent to the appointment of a receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the
Company or a substantial part of its property, or make any assignment for the
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benefit of creditors, or admit in writing its inability to pay its debts
generally as they become due, or take any limited liability company action in
furtherance of any such action.
Section 6.02. Voting on Bankruptcy or Insolvency. All Members,
including each Independent Member, shall be entitled to vote on any proposal of
the type described in Section 6.01. The affirmative vote of 100% of the
Members, including each Independent Member, entitled to vote on such a proposal
shall be required for such a proposal to be adopted.
ARTICLE SEVEN
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. Capital Accounts. A capital account shall be maintained
for each Member (each, a "Capital Account"), to which contributions and Profits
shall be credited and against which distributions and Losses shall be charged.
Capital Accounts shall be maintained in accordance with the accounting
principles of Code Section 704 and the Treasury Regulations thereunder.
Section 7.02. Allocation of Profits and Losses. Profits and Losses
shall be determined as of the end of each Fiscal Year of the Company and shall
be allocated to Ryder. RTR Leasing will have no interest in Profits and Losses.
Section 7.03. Distributions.
(a) The Company shall distribute to Ryder such sums as the Majority
Interest determines to be available for distribution and not required to
provide for current or anticipated Company needs. All distributions shall be
made to or upon the order of Ryder.
(b) No distributions shall be declared and paid unless, after the
distribution is made, the Company would be able to pay its debts as they become
due in the usual course of business and the assets of the Company are in excess
of the sum of (i) the Company's liabilities, plus (ii) the amount that would be
needed to satisfy the preferential rights of other Members upon dissolution
that are superior to the rights of the Members receiving the distribution.
(c) The Company shall not be required to make a distribution to a
Member on account of its interest in the Company if such distribution would
violate Section 18-607 of the Act or other applicable law.
ARTICLE EIGHT
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. Exculpation of Liability. Except as otherwise provided
by the Act, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
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and liabilities of the Company, and no Member or Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or Manager of the Company.
Section 8.02. Indemnification. The Company hereby agrees to indemnify
each Member, Manager, employee or agent of the Company, and each director,
officer, employee or Affiliate of a Member, who was or is a party or is
threatened to be made a party to a threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative,
and whether formal or informal (other than an action by or in the right of the
Company) by reason of the fact that such person is or was a Member, employee or
agent of the Company against expenses (including reasonable attorneys' fees),
judgments, penalties, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with the action, suit or
proceeding.
Section 8.03. Fiduciary Duty. To the extent that, at law or in equity,
a Member, director, officer, employee or Affiliate of a Member, or a Manager
(each, a "Covered Person") has duties (including fiduciary duties) and
liabilities relating thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable to the Company
or to any Member for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they restrict
the duties and liabilities of a Covered Person otherwise existing at law or in
equity, are agreed by the Members to replace such other duties and liabilities
of such Covered Person.
ARTICLE NINE
TERM OF COMPANY
Section 9.01. Commencement. The term of the Company commenced upon the
filing of the Certificate with the Delaware Secretary of State. The bankruptcy
of a Member or the occurrence of any other event under Section 18-304 of the
Act shall not cause a Member to cease to be a Member of the Company and upon
the occurrence of such an event, the business of the Company shall continue
without dissolution.
Section 9.02. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of the legal
existence of the last remaining member of the Company or the occurrence of any
other event which terminates the continued membership of the last remaining
member of the Company in the Company unless the business of the Company is
continued in a manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act. Upon the
occurrence of any event that causes the last remaining member of the Company to
cease to be a member of the Company, to the fullest extent permitted by law,
the personal representative of such member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated the continued
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membership of such member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or its nominee
or designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of a Member shall not cause the Member to cease to be a member of
the Company and upon the occurrence of such an event, the business of the
Company shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each Member
waives any right it might have to agree in writing to dissolve the Company upon
the Bankruptcy of the Member, or the occurrence of an event that causes the
Member to cease to be a member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company
shall be applied in the manner, and in the order of priority, set forth in
Section 18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to each Member in the
manner provided for in this Agreement and (ii) the Certificate shall have been
canceled in the manner required by the Act.
ARTICLE TEN
APPLICATION OF ASSETS
Section 10.01. Application of Assets. Upon dissolution of the Company,
the Company shall cease carrying on its business and affairs and shall commence
winding up of the Company's business and affairs and complete the winding up as
soon as practicable. The Company's affairs shall be concluded by a Member or
Members selected in writing by the Majority Interest. The assets of the Company
may be liquidated or distributed in kind, as determined by the Majority
Members, and the same shall first be applied to the payment of, or to a
reasonable reserve for the payment of, the Company's liabilities (including
such provision for contingent, conditional or unmatured liabilities as the
Majority Interest shall deem appropriate) and then to Ryder. If the assets of
the Company shall not be sufficient to pay all of the liabilities of the
Company, to the fullest extent permitted by the Act, no assets of the Company
may be sold or disposed of without the written consent of all of the holders of
outstanding securities issued by any trust formed in respect of a transaction
to which the Company is a party. To the extent that Company assets cannot
either be sold without undue loss or readily divided for distribution in kind
to the Members, then the Company may, as determined by the Majority Interest,
convey those assets to a trust or other suitable holding entity established for
the benefit of the Members in order to permit the assets to be sold without
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undue loss and the proceeds thereof distributed to the Members at a future
date. The legal form of the holding entity, the identity of the trustee or
other fiduciary and the terms of its governing instrument shall be determined
by the Majority Interest.
Section 10.02. Termination. The Company shall terminate when all the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article and the Certificate shall
have been cancelled in the manner required by the Act.
Section 10.03. Claims of the Members. The Members and former Members
shall look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall not have recourse against the Company or any other Member or
Manager.
ARTICLE ELEVEN
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. Restriction on Transfers of Interests. No Member may
assign, pledge or otherwise transfer its interest in the Company in whole or
part. Any attempt by a Member to transfer its interest shall be null and void.
ARTICLE TWELVE
INVESTMENT REPRESENTATION
Section 12.01. Investment Representation. The Members represent to
each other and to the Company that they are acquiring their respective
interests in the Company for their own accounts, and without a view to selling
or pledging them.
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. Limitations on Amendment. The Company shall not,
without the prior approval or written consent of each nationally recognized
rating agency that has rated any securities collateralized or backed by
interests or beneficial interests in assets of the Origination Trust that have
been issued and are outstanding pursuant to any pooling and servicing
agreement, indenture, trust agreement or other similar agreement entered into
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by the Company, the Partnership or any of their respective Affiliates, amend,
alter, change or repeal Article Three, Section 5.08, Article Six or this
Section. Subject to the foregoing limitation, the Company reserves the right to
amend, alter, change or repeal any provision contained in this Agreement in the
manner now or hereafter prescribed by statute or applicable law, and all rights
conferred upon Members herein are granted subject to this reservation; provided
that this Agreement may not be amended without affirmative vote of 100% of the
Members of the Company, including the Independent Members.
Section 13.02. Books of Account; Reports.
(a) The Company shall keep true and complete books of account and
records of all Company transactions. The books of account and records shall be
kept at the principal office of the Company. The Company shall maintain at such
office (i) a list of names and addresses of all Members; (ii) a copy of the
Certificate; (iii) copies of the Company's federal, state and local income tax
returns and reports for the three most recent years; (iv) copies of this
Agreement; and (v) copies of the financial statements of the Company for the
three most recent years. Such Company records shall be available to any Member
or its designated representative during ordinary business hours at the
reasonable request and expense of such Member.
(b) The Company will diligently endeavor to furnish, or cause to be
furnished, to Members the following items on or promptly after the date
indicated: (i) annually by December 31, (A) an annual report consisting of an
income statement for the prior year and a balance sheet as of the year ended
and (B) Member information tax returns (Schedule K-1) and (ii) as required,
such other information concerning the Company and the property of the Company
as may be appropriate in order to make full and fair disclosure to the Members
of the current financial and operating conditions of the Company.
Section 13.03. Bank Accounts and Investment of Funds. All funds of the
Company shall be deposited in its name in such checking accounts, savings
accounts, time deposits or certificates of deposit or shall be invested in such
other manner, as shall be designated by the Majority Interest from time to
time. Withdrawals shall be made upon such signature or signatures as the
Majority Interest may designate.
Section 13.04. Accounting Decisions. All decisions as to accounting
matters, except as specifically provided to the contrary herein, shall be made
by the Majority Interest in accordance with generally accepted accounting
principles consistently applied. Such decisions shall be acceptable to the
accountants retained by the Company, and the Majority Interest may rely upon
the advice of the accountants as to whether such decisions are in accordance
with generally accepted accounting principles.
Section 13.05. Federal Income Tax Elections. The Company shall, to the
extent permitted by applicable law and regulations and upon obtaining any
necessary approval of the Commissioner of Internal Revenue, elect to use such
methods of depreciation, and make all other federal income tax elections in
such manner, as the Majority Interest determines to be most favorable to the
Members. The Majority Interest may rely upon the advice of the accountants
retained by the Company as to the availability and effect of all such
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elections. The Majority Interest shall elect to treat the Company as a single
member entity formed as an agent of Ryder and not as separate corporation or
partnership for federal and applicable state income tax purposes.
Section 13.06. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties and may be modified only as provided herein. No
representations or oral or implied agreements have been made by any party
hereto or its agent, and no party to this Agreement has relied upon any
representation or agreement not set forth herein. This Agreement supersedes any
and all other agreements, either oral or written, among the Company and its
Members.
Section 13.07. Notices. Except as provided below, all communications
and notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy numbers set forth on Exhibit A hereto,
or at such other address or telecopy number as such party may hereafter specify
for the purposes of notice to the other party hereto. Each such notice or other
communication shall be effective (i) if given by telecopy, upon receipt
thereof, (ii) if given by mail, three business days after the time such
communication is deposited in the mails with first-class postage prepaid or
(iii) if given by any other means, when received at the address specified in
this Section.
Section 13.08. Consent of Members. Various provisions of this
Agreement require or permit the consent, agreement, approval or disapproval,
written or otherwise, of the Members or some specified proportion thereof. In
any such case, the Company may give all Members written notice that any Member
who does not indicate its disapproval by written notice to the Company within a
specified period of time (not less than 30 days after mailing of the notice)
shall be deemed to have given its consent or approval to the action or event or
to have made the agreement referred to in the notice. In such event, any Member
who does not indicate its disapproval by written notice to the Company within
the time specified shall be deemed to have given its written consent, approval,
disapproval or agreement.
Section 13.09. Further Execution. Upon request of the Company from
time to time, the Members shall execute and swear to or acknowledge any amended
Certificate and any other writing which may be required by any rule or law or
which may be appropriate to the effecting of any action by or on behalf of the
Company or the Members which has been taken in accordance with the provisions
of this Agreement.
Section 13.10. Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties, their successors and permitted
assigns. None of the provisions of this Agreement shall be construed as for the
benefit of or as enforceable by any creditor of the Company or the Members or
any other person not a party to this Agreement.
Section 13.11. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Security or
the rights of the holders thereof.
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Section 13.12. Captions. All captions are for convenience only, do not
form a substantive part of this Agreement and shall not restrict or enlarge any
substantive provisions of this Agreement.
Section 13.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
shall constitute one instrument. The Company shall have custody of the
counterparts executed in the aggregate by all Members.
Section 13.14. Delaware Law to Control. This Agreement shall be
governed by, and all questions with respect to the construction of this
Agreement and the rights and liabilities of the parties hereto shall be
determined in accordance with, the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Limited Liability Company Agreement to be duly executed by their respective
officers as of the day and year first above written.
RYDER TRUCK RENTAL, INC.
By:
---------------------------------------
W. ▇▇▇▇▇▇ ▇▇▇▇▇
Treasurer
RTR LEASING I, INC.
By:
---------------------------------------
W. ▇▇▇▇▇▇ ▇▇▇▇▇
Treasurer
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EXHIBIT A
Capital Membership
Member's Name and Address Contributions Percentages
------------------------- ------------- -----------
RYDER TRUCK RENTAL, INC., $1,000.00 100%
Attention: Treasurer, 2C
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇)
RTR LEASING I, INC. -0- 0%
Attention: Treasurer, 2C
▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(telecopy no.: (▇▇▇) ▇▇▇-▇▇▇▇)
Total $1,000.00 100%
======== ====
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