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Exhibit 1.1
RYDER VEHICLE LEASE TRUST 2001-A
$__________
_____% Asset Backed Notes, Class A-1
$__________
_____% Asset Backed Notes, Class A-2
$__________
_____% Asset Backed Notes, Class A-3
$__________
_____% Asset Backed Notes, Class A-4
$__________
_____% Asset Backed Notes, Class A-5
UNDERWRITING AGREEMENT
February __, 2001
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 II 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 $__________ aggregate principal
amount of _____% Asset Backed Senior Notes, Class A-1 (the "Class A-1 Senior
Notes"), $__________ aggregate principal amount of _____% Asset Backed Senior
Notes, Class A-2 (the "Class A-2 Senior Notes"), $__________ aggregate principal
amount of _____% Asset Backed Senior Notes, Class A-3 (the "Class A-3 Senior
Notes"), $__________ aggregate principal amount of _____% Asset Backed Senior
Notes, Class A-4 (the "Class A-4 Senior Notes") and $__________ aggregate
principal amount of _____% Asset Backed Senior Notes, Class A-5 (the "Class A-5
Senior Notes", and together with the Class A-1 Senior Notes,
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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 2001-A (the "Trust")
under the terms and conditions contained herein. The Transferor was formed
pursuant to a partnership agreement, dated December 19, 2000 (the "Transferor
Partnership Agreement"), between Ryder Truck Rental IV LLC ("RTR IV 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 $_____________ aggregate principal amount of ____%
Asset Backed Subordinated Notes (the "Subordinated Notes", and together with the
Senior Notes, the "Notes") and $_____________ 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 February 1, 2001 (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 February 1, 2001 (the
"Trust Agreement"), between the Transferor and Chase Manhattan Bank USA, N.A.,
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 retain 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 and the
Indenture.
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, highway 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 to the Origination Trust Agreement, dated as
of February 1, 2001 (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 "2001-A Lease SUBI" and
the "2001-A Vehicle SUBI" (each, a "2001-A SUBI"). Pursuant to a lease
contribution agreement, dated as of February 1, 2001 (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
"2001-A Leases") relating to certain specified Vehicles (the "2001-A Vehicles").
The Origination Trustee will allocate a portfolio consisting of the 2001-A
Leases and certain other related assets to the 2001-A Lease SUBI, and a
portfolio consisting of the 2001-A Vehicles and certain other related assets to
the 2001-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 February 1, 2001 (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 2001-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 2001-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 2001-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 2001-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 2001-A Vehicle SUBI. Pursuant to a SUBI
certificate transfer agreement, dated as of February 1, 2001 (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
February 1, 2001 (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 February 1, 2001
(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 2001-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 February 1, 2001 (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 February 1, 2001 (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 February 1, 2001 (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. 333-52660) 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") and paragraph (b) of Rule 424 ("Rule 424(b)") of the
rules and regulations of the Commission under the 1933 Act (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").
Except as otherwise indicated by the context, all references to the
terms "material" or "material adverse effect" or "material adverse change" in
this Agreement that refer to Ryder, the Transferor or any of their respective
Affiliates (as defined below) 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) of the 1933 Act Regulations.
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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 Date 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
Date, 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 amendment or supplement
thereto, at the time the Prospectus or any such amendment or supplement
was issued and at the Closing Date, 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),
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
of the Senior Notes was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to XXXXX, except to
the extent permitted by Regulation S-T.
(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, 2000, December
31, 1999 and December 31, 1998 provided to the Representative, 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
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and cash flows of the Ryder Group for the periods specified, and the
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 Date, 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.
(vii) Issuance of Certificates and Subordinated Notes. The
Certificates and Subordinated Notes have been duly authorized and, at
the Closing Date, 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
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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 Act Registration. None of the
Transferor, Ryder, the Transferor General Partner, 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
Date, the Origination Trustee will have allocated 2001-A Leases and
2001-A Vehicles as SUBI Assets that have an Aggregate Cutoff Date
Securitization Value equal to $__________; and each of the 2001-A
Leases and 2001-A Vehicles allocated as a SUBI Asset at the Closing
Date 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 heading "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.
(xiv) Incorporation of Representations and Warranties. The
representations and warranties of each of the Transfer or Ryder 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:
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(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.
Sections 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.
(ii) 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 Date, 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 Date, 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 limited liability company agreement,
bylaws or the related 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 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
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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 limited liability company agreement or the
related Partnership Agreement, as the case may be, 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 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 Date.
(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
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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 each of such entities to perform
its respective obligations under each Basic Document to which it is a
party or by which it 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 Date,
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:
(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 or in the Financial
Statements as they relate to the Origination Trust.
(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
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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 Date, 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.
(v) Absence of Defaults and Conflicts. None of Ryder, RTR I
LLC or RTR I LP is in violation of its charter, organizational
documents or limited liability company agreement, 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
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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, organizational documents or limited liability company
agreement, 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 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 Date.
(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
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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 respective 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 Date,
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) Title to SUBI Assets. At the time of execution and
delivery of the SUBI Supplement at the Closing Date, the Origination
Trust, or the Origination Trustee on behalf of the Origination Trust,
will own the 2001-A Leases and hold marketable title to the 2001-A
Vehicles, together with other rights relating to the 2001-A Vehicles
and 2001-A Leases, being allocated as SUBI Assets, in each case free
and clear of any Liens (except as permitted by the Basic Documents).
(xii) Absence of Assignment of SUBI Assets. As of the Closing
Date, the Origination Trust has not assigned to any person any of its
right, title or interest in any of the 2001-A Leases, related contract
rights, 2001-A Vehicles or other related rights constituting the SUBI
Assets, or has obtained the release of each such prior assignment.
(xiii) Allocation of SUBI Assets. As of the Closing Date, the
Administrative Agent has made the appropriate allocation of assets
within the estate of the Origination Trust to the 2001-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 Date 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
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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,
in the case of (i) the Class A-1 Senior Notes, ____%, (ii) the Class A-2 Senior
Notes, ____%, (iii) the Class A-3 Senior Notes, ____%, (iv) the Class A-4 Senior
Notes, ____% and (v) 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, One World Trade
Center, New York, New York, 10048-0557, 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 ________, 2001, 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 Date"). 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 Date 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 Date, 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 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 Date.
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
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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 or use, as the case may be, 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.
(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.
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(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 counsel
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.
(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.
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(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 Date.
(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 the heading "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 of the 1933 Act Regulations 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 the 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, RTR I LP, the Transferor General Partner, the
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 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
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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, the Trustee, the Indenture 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 and Xxxxx 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 Date, 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 Date, the
Representative, Xxxxx and the Transferor shall have received from KPMG
LLP a letter or letters dated as of the Closing Date, 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) Officer's Certificates. At the Closing Date, 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 affairs or business prospects of the Transferor, Xxxxx and
their respective Affiliates, whether or not arising in the ordinary
course of business, and the
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Representative shall have received certificates of authorized officers
of the Transferor and Xxxxx, dated as of the Closing Date, 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 Date, (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 Date 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 the Transferor and Xxxxx.
At the Closing Date, the Representative shall have received the
favorable opinion of Xxxxxxxxx Xxxxxxx LLP, special counsel for the
Transferor and Xxxxx, dated the Closing Date 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) Each of the Transferor and RTR IV LLC is duly
qualified to transact business in Florida.
(iii) This Agreement has been duly authorized,
executed and delivered by each of the Transferor and Xxxxx.
(iv) 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).
(v) The Transferor Partnership Agreement and each
Basic Document to which any of Ryder, RTR IV LLC and the
Transferor is a party has been duly
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authorized, executed and delivered by Xxxxx, RTR IV 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).
(vi) To such counsel's knowledge, there is no action,
suit, proceeding, inquiry or investigation pending or
threatened, to which Xxxxx, RTR IV 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 IV LLC, the
Origination Trust or the Transferor, materially and adversely
affect the performance by Xxxxx, RTR IV 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 operations, or
(iv) seeking to affect adversely 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".
(vii) The statements in the Prospectus under the
headings "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
headings "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).
(viii) To such counsel's knowledge, no order,
consent, authorization or approval of any Florida, New York or
federal court or governmental authority or agency applicable
to Ryder, RTR IV LLC or the Transferor, is required in
connection with the issuance of the SUBI Certificates, the
Securities or the
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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 Date. 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
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).
(ix) None of (A) the execution, delivery and
performance by Xxxxx or the Transferor of this Agreement or by
Ryder, RTR IV 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.
(x) None of Ryder, RTR IV 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.
(xi) The Indenture has been qualified under the 1939
Act.
(xii) To such counsel's knowledge, each of Ryder, RTR
IV 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
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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.
(xiii) 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 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.
(xiv) 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.
(xv) 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 and
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.
(xvi) 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 the 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 Date,
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.
(xvii) 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, Xxxxx or any of their respective Affiliates is a
party are accurate in all material respects; to the best of
such counsel's
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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.
(xviii) 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 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.
(xix) 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 Federal Income Tax Counsel for the
Transferor and Xxxxx. At the Closing Date, the Representative shall
have received the favorable opinion of Xxxxxxxxx Xxxxxxx LLP, special
federal income tax counsel for the Transferor and Xxxxx, dated the
Closing Date and in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Trust will not be classified as an
association, or publicly traded partnership, taxable as a
corporation for federal income tax purposes.
(ii) The Senior Notes will be treated as indebtedness
for federal income tax purposes.
(iii) The Certificates should be properly treated as
debt for federal income tax purposes.
(f) Opinion of Special Florida State Income Tax Counsel for
the Transferor and Xxxxx. At the Closing Date, the Representative shall
have received the favorable opinion of Xxxxxxxxx Xxxxxxx LLP, special
Florida income tax counsel for the Transferor and Xxxxx, dated the
Closing Date and in form and substance satisfactory to counsel for the
Underwriters, substantially to the effect that:
(i) The Trust will not be classified as an
association taxable as a corporation for Florida income tax
purposes.
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(ii) The Senior Notes will be treated as debt for
Florida income tax purposes.
(iii) The owners of Senior Notes not otherwise
subject to taxation in Florida would not become subject to
Florida income taxation solely because of their ownership of
the Senior Notes.
(iv) The Certificates should be properly treated as
debt for Florida income tax purposes.
(v) The holders of Certificates not otherwise subject
to taxation in Florida should not become subject to Florida
income taxation solely because of their ownership of the
Certificates.
(vi) If the Certificates are not treated as debt and
it is determined that the Trust is a partnership between the
Transferor and the holders of the Certificates, the Trust will
not be an entity subject to Florida income tax.
(g) Opinion of Special Delaware Counsel for the Transferor and
Xxxxx. At the Closing Date, 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 Date 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 IV 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.
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(vi) Under the Delaware Limited Liability Company Act
(6 Del. C. Section 18-101, et seq.) (the "LLC Act") and its
related formation documents, each of RTR I LLC, RTR II LLC and
RTR IV 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.
(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 IV 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 IV LLC.
(viii) Under the General Corporate Law of the State
of Delaware (8 Del. C. Sections 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 Trust Act (12 Del.
C. Section 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.
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(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 Section 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.
(xvi) Under Section 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 Section 9-312(4) of the UCC and
temporarily perfected security interests in proceeds under
Section 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 "Delaware
and Florida 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.
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(h) Opinion of Special Bankruptcy Counsel to the Transferor
and Xxxxx. At the Closing Date, the Representative shall have received
the favorable opinion of Xxxxx & Wood LLP, special bankruptcy counsel
to the Transferor and Xxxxx, dated the Closing Date and in form and
substance satisfactory to counsel for the Underwriters, with respect to
certain bankruptcy matters.
(i) Opinion of Counsel for the Indenture Trustee. At the
Closing Date, 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 Date 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 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.
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(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.
(j) Opinion of Counsel for the Origination Trustee. At the
Closing Date, the Representative shall have received the favorable
opinion of Xxxxxx & Xxxxxxx LLP, counsel to the Origination Trustee,
dated the Closing Date 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.
(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,
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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.
(k) Opinion of Counsel for the Trustee. At the Closing Date,
the Representative shall have received the favorable opinion of Xxxxx,
Xxxxxxx, Xxxxxxx & Xxxxx LLP, counsel to the Trustee, dated the Closing
Date 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 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
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indenture, lease or material agreement to which the Trustee is
a party or to which its assets are subject.
(l) Opinion of Counsel for the Underwriters. At the Closing
Date, the Representative shall have received the favorable opinion,
dated as of the Closing Date, 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.
(m) 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, the Indenture Trustee or either
Rating Agency.
(n) Maintenance of Rating. At the Closing Date, (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 the Transferor shall have delivered
to the Representative a letter dated the Closing Date 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 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.
(o) Additional Documents. At the Closing Date, 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.
(p) 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 Date, 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.
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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
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by the
Representative), 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
Ryder by any Underwriter through the Representative 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 Ryder. Each Underwriter
severally agrees to indemnify and hold harmless the Transferor, Ryder, 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
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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 Ryder by such
Underwriter through the Representative 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 the Representative, 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 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
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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 Ryder 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 Ryder 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 Ryder 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 Ryder 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 Ryder 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, Ryder 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 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
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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 Ryder 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 Ryder. 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 Date (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 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 Date 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
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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 Date 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 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.
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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.
RYDER FUNDING II LP, a Delaware limited partnership
By: RYDER TRUCK RENTAL IV LLC, a
Delaware limited liability company, its
general partner
By: RTR LEASING II, INC., a Delaware corporation,
its manager
By:
---------------------------------------------
X. Xxxxxx Xxxxx
Vice President and Treasurer
RYDER TRUCK RENTAL, INC.
By:
---------------------------------------------
X. Xxxxxx Xxxxx
Vice President and Treasurer
CONFIRMED AND ACCEPTED,
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, XXXXXX, XXXXXX & XXXXX
INCORPORATED
By:
---------------------------------------
Xxxxxxxx X. Xxxxx
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 Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ $ $
--------- --------- ---------
............................
---------------------- --------- --------- ---------
............................
---------------------- --------- --------- ---------
Total $ $ $
========= ========= =========
Principal Amount Principal Amount
of Class A-4 of Class A-5
Name of Underwriter Senior Notes Senior Notes
------------------- ---------------- ----------------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ $
--------- ---------
............................
---------------------- --------- ---------
............................
---------------------- --------- ---------
Total $ $
========= =========
SA-1
