Exhibit 10.3
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DEALER AGREEMENT
This Dealer Agreement ("Agreement"), dated October 17, 1996, is between
RYDER TRS, INC. (f/k/a RCTR HOLDINGS, INC.), with its principal place of
business at 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000 ("TRS") and RYDER TRUCK
RENTAL, INC., with its principal place of business at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000 ("Ryder").
RYDER AND TRS AGREE AS FOLLOWS:
TRS appoints Ryder as its commission agent for and in connection with the
rental of TRS vehicles and accessory equipment ("Rental Equipment") from the
Ryder operating locations listed on Schedule "A" (collectively, "Ryder
Locations", and singularly, "Ryder Location") only and Ryder accepts this
appointment.
All money paid by renters to Ryder in connection with these rentals will be
remitted weekly to TRS at the corresponding address listed on Schedule "A". TRS
will remit its check to Ryder monthly for commissions earned by Ryder for
rentals reported to TRS during the preceding month. Such check will be sent to
Ryder's Shared Services Center at Attn.: Group Director - Ryder Shared Services
Center, 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxx and will be mailed by TRS in
sufficient time so that Ryder should receive it by the 15th of the month. With
such check, TRS will send Ryder a break down by Ryder Location of the commission
attributable to each such Ryder Location. Commissions earned by Ryder will be
computed on gross rental revenues collected by Ryder in accordance with the
Dealer Manual. Gross rental revenues include all revenue from renters, but do
not include money paid by renters designated as sales, use or other tax or
surcharge, deposits, or collection or credit fees.
Ryder's basic commission on Rental Equipment will be 13.50 percent of gross
rental revenues unless the Dealer Manual provides for a higher percentage with
respect to incidental items (e.g. towing equipment hook ups and un-hooking) or a
higher percentage otherwise applies with respect to such items (e.g. extra
commission incentive programs on certain protection products at certain times).
Additionally, TRS agrees to pay Ryder each month a bonus commission of 3.00
percent on all gross rental revenues from each Ryder Location that has strictly
complied with all written programs, procedures, and standards established by TRS
from time to time in accordance with paragraph 2.A. of this Agreement. TRS
reserves the right to pay bonus commission to Ryder in the absence of such
strict compliance. Any payment of the bonus commission will not be an
acknowledgment by TRS that Ryder has strictly complied, and will not be deemed
to be a waiver by TRS of its right to demand strict compliance.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
Further, withholding of the bonus commission from Ryder will not be TRS's only
remedy for noncompliance. Starting 12/31/98: (a) Ryder's commission rate will be
adjusted to match the standard commission rate given to all TRS dealers at such
time under TRS's standard dealer agreement, and (b) TRS may deduct, from Ryder's
total commission each month thereafter, a monthly user fee for FIRST at each
Ryder Location, if any. Such FIRST fees will not exceed the same standard FIRST
fees charged to other TRS dealers at such time.
1. TRS AGREES:
A. To make available within the respective Ryder Location's local market
team, Rental Equipment, supplies, forms and instructions reasonably deemed
necessary by TRS to operate a TRS dealership on each Ryder Location. TRS
reserves the right to reasonably determine the amount, type and kind of Rental
Equipment, and supplies required by Ryder under this Agreement. Title to all
Rental Equipment and supplies will remain exclusively with TRS.
B. To pay Ryder the commissions provided for in this Agreement.
C. To assume responsibility for theft, loss, or damage to Rental
Equipment while in Ryder's custody, except however, that Ryder will be
responsible to, and reimburse TRS for theft, loss, or damage to Rental Equipment
caused by (1) the wanton, willful, reckless or intentional acts, or omissions of
Ryder, its agents, or employees, or (2) actions of Ryder, its agents, or
employees which are outside the scope of the limited agency relationship
established by this Agreement.
D. To defend, indemnify and hold Ryder, its affiliates, directors,
officers, employees, agents, subcontractors and the assigns of each harmless
from any and all claims, costs, expenses (including reasonable attorney fees)
and liability for property damage or personal injury to third parties occasioned
by (1) the negligence of TRS, (2) defects in Rental Equipment provided it is
being rented pursuant to a duly executed TRS Rental Agreement, and when a tow
dolly or car carrier is rented as part of the Rental Equipment, that an
appropriate Tow Dolly or Car Carrier Guide and Instructions has also been
furnished to the renter, and (3) the rental of Rental Equipment under this
Agreement, including the negligence of Ryder, provided Ryder was acting
according to TRS programs, procedures and standards and in furtherance of TRS's
business, and provided further that Ryder's acts or omissions are not wanton,
willful, reckless or intentional.
Types of Insurance Provided. During the Term, TRS will maintain the types
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of insurance, in the coverage limits, listed
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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in the insurance policy schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
Type of Insurance Policy Coverage Limits -
Standard Automobile Twenty-Five Million and no/100 Dollars
Liability Insurance ($25,000,000.00) Per Occurrence with an excess
Policy (the "Automobile layer of at least Fifty Million and no/100 Dollars
Liability Insurance ($50,000,000.00) aggregate
Policy")
Commercial General Seventy-Five Million and no/100 Dollars
Liability Insurance ($75,000,000.00)
Policy with Broad Form
Contractual Liability
Insurance Coverage (the
"CGL Insurance Policy"
Workers Compensation Statutory
Employer's Liability Five Million and no/100 Dollars ($5,000,000.00)
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Agreement.
TRS may self insure up to One Million Dollars ($1,000,000) as a deductible.
Insurance Policy Requirements.
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1. Each liability Insurance Policy shall:
(1) be written by an insurance company reasonably acceptable to Ryder
(it being understood that an insurance company rated A- or better
by A.M. Best & Company is acceptable);
(2) name TRS as an insured, and be amended to name Ryder, its
employees, officers, directors, contractors, agents and affiliates
(each an "Additional Insured") as additional insureds as their
interests may appear;
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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(3) provide that if such insurance is cancelled, or any material
change is made in the coverage which affects the interest of any
Additional Insured, such cancellation or change shall not be
effective as to the Additional Insured for ten (10) days after
receipt by the Additional Insured of written notice from such
insurers of such cancellation or change;
(4) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any
Additional Insured;
(5) provide that in respect of the interests of any Additional Insured
in such policies, the insurance shall not be invalidated by any
action or inaction of TRS or any other Person and shall insure
each Additional Insured regardless of any breach or violation of
any warranty, declaration or condition contained in such policies
by TRS or any other Person;
(6) shall expressly provide that all of the provisions thereof, except
the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(7) in accordance with the terms and conditions of the contractual
liability coverage provided by such Insurance Policy, insure the
obligations of TRS to indemnify the Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of automobile liability
insurance and general liability insurance shall each be on an occurrence form.
The first Twenty-Five Million Dollars of automobile liability insurance shall
not be subject to any annual aggregate limit of liability.
Each liability Insurance Policy and any all-risks Insurance Policy of TRS
which covers vehicles shall waive any rights of subrogation against the
Additional Insureds.
Proof of Insurance. At least once a year, from time to time at Ryder's
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request, and any time a new policy is to go into effect, TRS shall provide Ryder
with insurance certificates and other evidence, reasonably satisfactory to
Ryder, that the benefits and coverage required by this Section are in full force
and effect. The certificate shall describe the perils covered by each policy of
insurance then in force, identify the insurer or insurers with which such
policies of insurance are carried and maintained, specify the amounts of
insurance coverage provided
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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against each such peril, and describe the provisions contained in such policies
of insurance so as to evidence compliance with the requirements of this Section.
Ryder shall have no duty to examine such insurance certificates or the Insurance
Policies to verify compliance. TRS shall provide a copy of its insurance
policies to Ryder promptly following a request therefor, if available.
E. To give Ryder the nonexclusive restricted license to use TRS's
registered service marks on signs and rental materials provided by TRS, but only
in the manner authorized by TRS. Ryder will not use any of TRS's registered
service marks in Ryder's business name or in any published manner, including,
but not limited to, telephone listings and advertisements, without TRS's prior
written consent in each such instance, which consent may be withheld in TRS's
discretion. This paragraph shall not in any way apply to any trademarks/service
marks licensed by Ryder to TRS under the trademark license agreement between
Ryder and TRS dated the same date as this Agreement ("Trademark License
Agreement").
F. That it will not enforce against Ryder any provision of this Agreement
which is substantially the same as any provision of TRS's standard dealer
agreement as it exists on the date of this Agreement (including any program,
procedure and/or standard hereunder) to an extent greater than against its other
dealers generally or in a manner not applied against its other dealers
generally; provided that the foregoing limitation shall not apply to the timing
of any payment due from Ryder hereunder.
2. RYDER AGREES:
A. To comply with all programs, procedures, and standards, including, but
not limited to, Dealer Marketing and Operations Manual ("Dealer Manual")
procedures, Dealer Recognition program standards (e.g., TRS President's Cup),
and moving supplies standards in effect as of the date of this Agreement unless
this Agreement expressly provides for a different standard. TRS may, in its
discretion, add, delete, and change programs, procedures, and standards from
time to time, provided (1) TRS gives Ryder at least 30 days prior notice of any
such additions, deletions and/or changes, and (2) such additions, deletions
and/or changes do not conflict with any other provision of this Agreement and do
not adversely affect Ryder Locations generally more than other TRS dealer
locations generally. Notwithstanding the foregoing, if TRS adds, deletes and/or
changes in any material way any of the attached programs, procedures and/or
standards during the term of this Agreement and seeks to apply such additions,
deletions and/or changes against Ryder Locations hereunder, Ryder will have the
right (notwithstanding anything to the contrary in this Agreement) to terminate
this Agreement as to one or more or all Ryder Locations adversely affected by
such addition, deletion
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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and/or change by giving TRS 60 days notice, and Ryder will not be required to
comply with such program, procedure or standard during such termination notice
period at any Ryder Location that terminates because of such addition, deletion
and/or change to any program, procedure or standard.
B. To promote the rental of Rental Equipment (subject however to the
terms of Section 6 of the Asset Purchase Agreement between TRS and Ryder as of
September 19, 1996 ("Asset Purchase Agreement") and paragraph 2.J. of this
Agreement) and to keep both the interior and exterior of all Rental Equipment
neat and clean to the extent required generally of TRS dealers under the Dealer
Manual, but in no event xxxx Xxxxx be required to wash Rental Equipment under
this Agreement.
C. To have the TRS Rental Agreement completely and properly filled out
and signed by the renter and Ryder, and to collect the prescribed fees prior to
dispatching the Rental Equipment to the extent required generally of TRS dealers
under the Dealer Manual.
D. To pick up Rental Equipment within the respective Ryder Location's
local market team to meet Ryder's rental needs for TRS Rental Equipment at such
Ryder Location at Ryder's sole cost, except that TRS will reimburse Ryder for
the cost of fuel. Notwithstanding the foregoing, TRS acknowledges and agrees
that (1) Ryder will not be obligated to pick up any TRS Rental Equipment unless
Ryder does not have a sufficient quantity of its own rental equipment to rent
under paragraph 2.J. to a TRS rental reservation and (2) that Ryder may not be
able to pick up Rental Equipment at certain locations and at certain times. If
a Ryder Location does not pick up Rental Equipment when required to do so under
this Agreement, TRS may deliver such Rental Equipment to the Ryder Location and
charge Ryder a fee for such service (which fee will not exceed TRS's standard
fee for such service to other dealers) or TRS may move the rental from Ryder to
another dealer in the local market team to effect the rental.
E. To perform repair work on Rental Equipment designated as Minor
Maintenance in the Dealer Manual in accordance with the provisions of the
Maintenance Agreement between TRS and Ryder dated the same date as this
Agreement.
F. To instruct each renter in the safe and proper use and operation of
the Rental Equipment and to furnish renter with copies of all appropriate
instructional materials in accordance with the procedures set forth in the
Dealer Manual.
G. [IF FIS IS SELECTED] To, consistent with practice on the date of this
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Agreement and in lieu of the Weekly Report requirements set forth in the Dealer
Manual, periodically transmit a Weekly Report(s) to TRS in the same manner and
form as
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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currently transmitted, of Ryder's rental transactions including a current Rental
Equipment inventory list at each Ryder Location.
OR
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[IF FIRST IS SELECTED] To mail to TRS at the corresponding address listed
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on Schedule "A", postmarked no later than Tuesday of every week, a complete,
accurate, and honest report of Ryder's rental transactions by Ryder Location for
the preceding seven days including a current Rental Equipment inventory list at
each Ryder Location irrespective of whether or not any rental transactions have
occurred. This report of rental transactions is the Weekly Report, the format
and preparation of which are detailed in the Dealer Manual. Rental Equipment
not on the Ryder Location when the Weekly Report is mailed to TRS, but which is
to be returned to the Ryder upon the termination of a rental, will be considered
as a part of current inventory. TRS Rental Agreements covering such Rental
Equipment and prepaid fees thereon must be remitted weekly and accounted for in
the Weekly Report during the duration of such rentals even though the Rental
Equipment has not been returned to Ryder.
Ryder will collect sales, use, and other tax, or surcharge applicable to
rentals from the renter and report and remit these monies to TRS as a part of
its Weekly Report(s). With its Weekly Report(s), Ryder will include its check
or money order for all monies collected from renters during said seven days.
H. That all money collected by Ryder in connection with TRS Rental
Equipment under this Agreement is collected in Ryder's capacity as TRS's agent.
The title and ownership of such money is vested at all times in TRS and the
relationship between the parties with respect to such money is one of trust.
I. That authorized TRS representatives may, during normal business hours
and with reasonable advance notice, enter Ryder Locations to audit, inspect, or
copy TRS specific accounting records required to be maintained by Ryder under
the Dealer Manual; and/or to remove Rental Equipment and all other TRS property.
Ryder agrees to retain all TRS specific business records generated by it as a
dealer for at least three years. [IF FIS IS SELECTED - Ryder will store all
completed rental contracts from the location. /[IF FIRST IS SELECTED - TRS will
store all completed rental contracts from the location]
J. That, except as may be restricted in Section 6 of the Asset Purchase
Agreement, Ryder may, at its option, rent or sell or permit any person or,
business entity to rent, provide, or sell any trailer or truck rental equipment
of any kind, including accessory equipment or supplemental programs offered by
TRS such as TRS Protection Plus Plans on or about Ryder Locations. Except as
may be restricted by Section 6 of the Asset Purchase
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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Agreement, Ryder reserves the right to rent Ryder's own vehicles and accessories
and offer Ryder's own supplemental programs to customers first (including,
without limitation, when the rental reservation/customer comes from TRS), before
renting TRS's Rental Equipment and/or offering TRS's supplemental programs.
However, Ryder will not offer Ryder's protection products to a renter in TRS
Rental Equipment, nor offer TRS's protection products to a renter in a Ryder
vehicle.
K. That Ryder will pay the monthly cost of and charges on the TRS
telephone and telephone line/number which TRS will place at each Ryder Location
(excluding any long distance charges for calls to other TRS locations and any
charges for the telephone book listing therefor, which charges will be credited
to Ryder on each monthly commission payment statement from TRS). TRS will pay
any initial acquisition and installation costs for any TRS telephone and
telephone line/number. Any such telephone and telephone line/number will be the
exclusive property of TRS and be in the name of TRS. Ryder will acquire no
rights or interests in any TRS telephone and telephone line/number and will
comply with all programs, procedures, and standards established by TRS from time
to time in connection with any TRS telephone and telephone line/number in
accordance with paragraph 2.A. of this Agreement. Ryder will cooperate with TRS
in transferring the telephone and telephone line/number at a Ryder Location upon
termination of this Agreement at that Ryder Location.- Ryder acknowledges and
agrees that TRS may, from time to time, anonymously audit Ryder's compliance
with any such programs, procedures, and standards by monitoring telephone calls
to Ryder, its agents or employees.
L. To provide TRS with at least 30 days notice of Ryder's intent to
relocate from a Ryder Location. This Agreement is not a franchise or
distributorship, and Ryder waives the benefit of any franchise, distributorship,
dealership, business opportunity or sales representative law that may be
applicable to this Agreement to the extent such laws are inconsistent with the
terms of this Agreement. Ryder does not have the exclusive right to rent Rental
Equipment in any particular geographic area. TRS may, at any time, including,
but not limited to, during the term of this Agreement, establish one or more of
its own locations or other TRS locations near any Ryder Location, or within or
around the area where the Ryder Location is situated or that the Ryder Location
serves, upon such terms and conditions as TRS deems acceptable.
M. To defend, indemnify, and hold TRS, its affiliates, directors,
officers, employees, agents, subcontractors and the assigns of each harmless
from and against any and all claims, costs, expenses (including reasonable
attorney fees) and liability for personal injury to third parties occasioned by
any unsafe or dangerous condition on any Ryder Location.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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N. That upon termination of this Agreement, Ryder will immediately cease
using any TRS registered service marks and will surrender all TRS Rental
Equipment, signs, telephones, equipment, and materials to TRS. This paragraph
shall not in any way apply to any trademarks/service marks licensed by Ryder to
TRS under the Trademark License Agreement.
O. To account for and be responsible to TRS as more fully detailed in the
Dealer Manual for (1) all odometer mileage accumulated on Rental Equipment while
in Ryder's possession, (2) all rental agreement books, and each agreement
therein, issued to Ryder, (3) all unaccounted for fuel, and (4) accessory items
such as hand trucks, furniture pads, dollies, and tow dollies and car carriers.
P. To maintain during the term of this Agreement a policy of garage or
general business liability insurance with limits of not less than $100,000
combined single limits per occurrence, which policy will only cover Ryder's
liability to TRS under paragraph 2.M. of this Agreement.
Q. TRS and Ryder will mutually agree whether to use FIS or FIRST at each
Ryder Location.
[IF FIS IS SELECTED] That Ryder may rent TRS's Rental Equipment using
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Ryder's computer automation rental system at Ryder Locations ("FIS"). TRS
acknowledges and agrees that: (1) FIS is exclusively Ryder's property and TRS
has no, and will acquire no, rights or interests in FIS under this Agreement,
(2) NEITHER RYDER NOR ANY OF ITS VENDORS MAKES ANY WARRANTY, WHETHER EXPRESS OR
IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE), WHATSOEVER IN CONNECTION WITH FIS OR ITS USE, AND (3)
NEITHER RYDER NOR ANY OF ITS VENDORS WILL BE RESPONSIBLE FOR ANY DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, ARISING OUT OF, OR RELATED TO, FIS OR ITS USE.
OR
--
[IF FIRST IS SELECTED] That TRS will place at each Ryder Location a
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computer automation system, including, but not limited to, any computer
hardware, software, telephone lines, and materials (collectively "FIRST").
Except as may be set forth otherwise in the Asset Purchase Agreement or any
agreement entered into in connection with the Asset Purchase Agreement, Ryder
acknowledges and agrees that: (1) FIRST is exclusively TRS's property and Ryder
has no rights or interests in FIRST, other than the right to use FIRST in
accordance with this Agreement, (2) FIRST contains copyright protected,
proprietary, and confidential information, and Ryder will only use such
information in an authorized manner and will not permit any such information or
any other aspect of FIRST to be disclosed to, or
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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used by or for the benefit of, any unauthorized party in any manner, (3) Ryder
will make no modifications to FIRST, and will not disassemble, reverse engineer,
tamper with, bypass, or otherwise alter any aspect of FIRST, (4) FIRST will only
be used by Ryder, at Ryder Locations and on the computer hardware provided by
TRS, and Ryder will not transfer FIRST to another computer or party, (5) Ryder
will comply with all programs, procedures, and standards established by TRS from
time to time in connection with FIRST in accordance with paragraph 2.A. of this
Agreement,(6) Ryder will be responsible for any electricity necessary to operate
FIRST, (7) Ryder will treat FIRST with care and will place it in a safe and
suitable place at each Ryder Location, (8) TRS will assume responsibility for
theft, loss, or damage to FIRST, except however, Ryder will be responsible to
and reimburse TRS for theft, loss or damage to FIRST caused by (a) the negligent
or intentional acts or omissions of Ryder, its agents, or employees, or (b)
actions of Ryder, its agents, or employees which are in violation of this
Agreement, (9) NEITHER TRS NOR ANY OF ITS VENDORS MAKE ANY WARRANTY, WHETHER
EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE), WHATSOEVER IN CONNECTION WITH FIRST OR ITS USE, AND
NEITHER TRS NOR ANY OF ITS VENDORS WILL BE RESPONSIBLE FOR ANY DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, ARISING OUT OF, OR RELATED TO, FIRST OR ITS USE, and (10) Ryder will
immediately cease using and return FIRST to TRS or TRS's designee upon any
termination of this Agreement.
R. That all items purchased from TRS or any affiliated company are
purchased at bona fide wholesale prices for resale in the ordinary course of
business unless written notice to the contrary is given.
3. THE PARTIES MUTUALLY AGREE:
A. That this Agreement will continue in full force and effect until
terminated by either party in accordance with the terms of this Agreement.
B. That, from the date of this Agreement until December 31, 1996, either
party may terminate this Agreement without cause, as to one or more Ryder
Locations, by giving the other party 60 days prior notice for each such Ryder
Location, but in no event can either party alone terminate more than a total
number of Ryder Locations that accounted for $1,000,000 in total Consumer Truck
Rental ("Division") annual Rental Equipment rental revenue in 1995.
C. That, from January 1, 1997 until December 31, 1997, either party may
terminate this Agreement without cause, as to one or more Ryder Locations, by
giving the other party 60 days prior notice for each such Ryder Location, but in
no event can
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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either party alone terminate more than a total number of Ryder
Locations that accounted for $6,000,000 in total Division annual Rental
Equipment rental revenue in 1996.
D. That, each calendar year after December 31, 1997, either party may
terminate this Agreement without cause, as to one or more or all Ryder
Locations, to the extent below the terminating party's * Annual Termination
Limit (as defined below), by giving the other party 60 days prior notice for
each such Ryder Location. The " * Annual Termination Limit" will be equal to
a total number of Ryder Locations that accounted for $12,000,000 in total
Division annual Rental Equipment rental revenue in the calendar year immediately
preceding the calendar year of termination.
E. That, notwithstanding any restrictions in 3.B., 3.C. and 3.D., either
party may terminate this Agreement at any time with respect to any Ryder
Location upon material violation by the other party of any of the Agreement's
terms or conditions at or with respect to such Ryder Location, by giving the
other party 30 days' notice of and opportunity to cure such violation at such
Ryder Location.
F. That all notices, consents and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or registered or
certified mail return receipt requested to the appropriate address set forth
below. Notices to Ryder shall be addressed to:
Ryder Truck Rental, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
with a copy to:
Ryder System, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: General Counsel
or at such other address and to the attention of such other person as Ryder may
designate by written notice to IRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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with a copy to:
Questor Management Company
0000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Attention: President
and with an additional copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
or at such other address and to the attention of such other person as TRS may
designate by written notice to Ryder.
G. THAT THIS AGREEMENT (INCLUDING THE SCHEDULES HERETO) WILL, EXCEPT AS
PROVIDED IN THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT OR ANY AGREEMENT
ENTERED INTO IN CONNECTION WITH THE ASSET PURCHASE AGREEMENT, CONSTITUTE THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES NOTWITHSTANDING ANY
PREVIOUS WRITING OR ORAL UNDERTAKINGS, AND ITS TERMS WILL NOT BE ALTERED BY ANY
ORAL AGREEMENT OR INFORMAL WRITING, NOR BY FAILURE TO INSIST UPON PERFORMANCE,
OR FAILURE TO EXERCISE ANY RIGHT OR PRIVILEGE. FURTHER, THE TERMS OF THIS
AGREEMENT WILL CONTROL OVER ANY CONFLICTING COURSE OF DEALING OR PERFORMANCE,
AND ALTERATIONS, ADDITIONS, OR CHANGES IN THIS AGREEMENT WILL BE ACCOMPLISHED
ONLY BY WRITTEN ENDORSEMENT HEREON, OR AMENDMENT, EXECUTED BY A DULY AUTHORIZED
TRS OFFICIAL AND RYDER OFFICIAL.
H. That, in the event either party is required to resort to litigation to
enforce its rights under this Agreement, the prevailing party will be entitled
to reasonable attorney's fees, costs and expenses.
I. That, other than for the limited purposes specifically set forth in
this Agreement, Ryder is not TRS's agent for any purpose and under no
circumstances xxxx Xxxxx, its agents, or employees, be deemed to be TRS
employees.
J. That in the event any term or condition of this Agreement is
determined by a Court of competent jurisdiction to be in violation of or
prohibited by any applicable law, such term or condition will be of no force and
effect to the extent of such violation or prohibition without otherwise
invalidating the other terms and conditions of this Agreement.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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K. That any dispute arising under or in connection with this Agreement
and any claim affecting its validity, construction, effect, performance or
termination may be resolved by the federal courts in the Southern District of
Florida or state courts located in Dade, Broward or Monroe County, Florida, to
the jurisdiction of which the parties hereby irrevocably submit.
L. That this Agreement will not be binding on TRS until executed by a
duly authorized TRS official and will be deemed made and entered into in the
State of Florida and will be governed and construed under and in accordance with
the laws of the State of Florida without regard to the application of Florida's
conflict of laws rules.
M. Neither party may assign this Agreement without the prior consent of
the other party. Notwithstanding the foregoing: (1) TRS may assign this
Agreement, upon 10 days prior notice to and without the consent of Ryder, to a
party who purchases or acquires, as a going concern, the business of TRS or all
or substantially all of TRS's assets, provided, however, that any assignee of
this Agreement must (a) agree with Ryder, in writing, to be bound by the terms
and provisions hereof, (b) have a debt/equity ratio as good as, TRS's at the
time of execution hereof, (c) be the assignee of the competition provisions in
Section 6.2(d) of the Asset Purchase Agreement and the following agreements
defined in the Asset Purchase Agreement (to the extent such agreements are still
existing at the time of such assignment): (i) the Copyright License Agreement,
(ii) the Software License Agreement, (iii) the Trademark License Agreement, (iv)
the Administrative Services Agreement, (v) the Maintenance Agreement, (vi) the
MIS Support Agreement, and (vii) the Used Truck Sales Agreement, and (d) not be
one of the parties or an affiliate (as that term is defined in the Asset
Purchase Agreement) set forth in paragraph number 8 on Schedule 3 of the
Trademark Agreement. In addition, TRS may assign its rights hereunder to any
lenders which provide financing to TRS for the purpose of consummating the
transactions contemplated under the Asset Purchase Agreement, or refinancing any
such financing, including any successor thereto. (2) Ryder may assign this
Agreement, upon 10 days prior notice to and without the consent of TRS, to a
party who purchases or acquires, as a going concern, the business of Ryder or
all or substantially all of Ryder's assets, provided, however, that any assignee
of this Agreement must (a) agree with TRS, in writing, to be bound by the terms
and provisions hereof, and (b) have a debt/equity ratio as good as, Ryder's at
the time of execution hereof.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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IN WITNESS WHEREOF, the parties have caused this Dealer Agreement to be
executed by their duly authorized officers as of the date first written above.
RYDER TRS, INC. (f/k/a RYDER TRUCK RENTAL, INC.
RCTR HOLDINGS, INC.) "RYDER"
"TRS"
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxx X. Xxxxx
---------------------- ----------------------
Xxxxxxx X. Xxxxxxx Xxxxxx X. Xxxxx
Senior V.P. & Treasurer Executive Vice President
Development
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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