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Exhibit 3.5
EXECUTION COPY
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RYDER TRUCK RENTAL I LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT
Between
RYDER TRUCK RENTAL, INC.
and
RTR LEASING I, INC.,
as Members
Dated as of October 1, 1999
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TABLE OF CONTENTS
Page
Article One
DEFINITIONS
Section 1.01. Definitions ................................................. 1
Section 1.02. Other Definitional Provisions ............................... 4
Article Two
ORGANIZATION OF COMPANY
Section 2.01. Formation ................................................... 4
Section 2.02. Name and Office ............................................. 4
Section 2.03. Duration .................................................... 4
Section 2.04. Registered Office and Registered Agent ...................... 4
Section 2.05. Execution, Delivery and Filing of Certificate ............... 5
Article Three
PURPOSES
Section 3.01. Purposes .................................................... 5
Section 3.02. Power and Authority ......................................... 5
Section 3.03. Limitations on Powers ....................................... 5
Section 3.04. Company Opportunity ......................................... 6
Article Four
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. Admission and Contributions of Initial Members .............. 6
Section 4.02. Additional Capital Contributions ............................ 6
Section 4.03. Withdrawals ................................................. 7
Section 4.04. Borrowings .................................................. 7
Section 4.05. Additional Members .......................................... 7
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Article Five
MANAGEMENT
Section 5.01. Powers of the Members ....................................... 7
Section 5.02. Limitations on Powers of Members ............................ 8
Section 5.03. Self Dealing ................................................ 8
Section 5.04. Standard of Care; Liability ................................. 9
Section 5.05. Compensation ................................................ 9
Section 5.06. Meetings of Members ......................................... 9
Section 5.07. Consent ..................................................... 9
Section 5.08. Independent Member .......................................... 9
Section 5.09. Managers .................................................... 10
Article Six
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. Unanimous Vote Required ..................................... 10
Section 6.02. Voting on Bankruptcy or Insolvency .......................... 10
Article Seven
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. Capital Accounts ............................................ 11
Section 7.02. Allocation of Profits and Losses ............................ 11
Section 7.03. Distributions ............................................... 11
Article Eight
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. Exculpation of Liability .................................... 11
Section 8.02. Indemnification ............................................. 11
Section 8.03. Fiduciary Duty .............................................. 12
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Article Nine
TERM OF COMPANY
Section 9.01. Commencement ................................................ 12
Section 9.02. Dissolution ................................................. 12
Article Ten
APPLICATION OF ASSETS
Section 10.01. Application of Assets ...................................... 13
Section 10.02. Termination ................................................ 13
Section 10.03. Claims of the Members ...................................... 13
Article Eleven
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. Restriction on Transfers of Interests ...................... 14
Article Twelve
INVESTMENT REPRESENTATION
Section 12.01. Investment Representation .................................. 14
Article Thirteen
MISCELLANEOUS PROVISIONS
Section 13.01. Limitations on Amendment ................................... 14
Section 13.02. Books of Account; Reports .................................. 14
Section 13.03. Bank Accounts and Investment of Funds ...................... 15
Section 13.04. Accounting Decisions ....................................... 15
Section 13.05. Federal Income Tax Elections ............................... 15
Section 13.06. Entire Agreement ........................................... 15
Section 13.07. Notices .................................................... 15
Section 13.08. Consent of Members ......................................... 16
Section 13.09. Further Execution .......................................... 16
Section 13.10. Binding Effect ............................................. 16
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Section 13.11. Severability ............................................... 16
Section 13.12. Captions ................................................... 16
Section 13.13. Counterparts ............................................... 16
Section 13.14. Delaware Law to Control .................................... 16
EXHIBITS
Exhibit A Members; Capital Contributions; Membership Percentages ..... A-1
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This Amended and Restated Limited Liability Company Agreement, dated as
of October 1, 1999, is between Ryder Truck Rental, Inc., a Florida corporation,
and RTR Leasing I, Inc., a Delaware corporation (collectively, the "Members").
WHEREAS, pursuant to that certain limited liability company agreement,
dated as of June 1, 1997 (the "Original LLC Agreement"), between the Members,
Ryder Truck Rental I LLC, a Delaware limited liability company, was formed
pursuant to the Delaware Limited Liability Company Act by causing a Certificate
of Formation to be filed with the office of the Secretary of State of the State
of Delaware on July 24, 1997 and by entering into the Original LLC Agreement;
and
WHEREAS, the Members desire to amend and restate the Original LLC
Agreement in its entirety.
NOW, THEREFORE, in consideration of the mutual agreements herein
contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows.
Article One
DEFINITIONS
Section 1.01. Definitions. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the Origination
Trust Agreement. As used in this Agreement, the following terms shall have the
following meanings:
"Act" means the Delaware Limited Liability Company Act (6 Del.
C. Section 18-101, et seq.), as amended.
"Affiliate" of any person or entity means any other person or entity
that (i) directly or indirectly controls, is controlled by or is under common
control with such person or entity (excluding any trustee under, or any
committee with responsibility for administering, any employee benefit plan) or
(ii) is an officer or director of such person or entity. For purposes of this
definition, a person or entity shall be deemed to be "controlled by" another
person or entity if such other person or entity possesses, directly or
indirectly, the power (i) to vote 5% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of directors,
members or managing partners of such person or entity or (ii) to direct or cause
the direction of the management and policies of such person or entity, whether
by contract or otherwise.
"Agreement" means this Amended and Restated Limited Liability Company
Agreement as it may be amended, restated or supplemented from time to time.
"Bankruptcy" means, with respect to any Person, if such Person (i)
makes an assignment for the benefit of creditors, (ii) files a voluntary
petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has
entered against it an order for relief, in any bankruptcy or insolvency
proceedings, (iv) files a petition or answer seeking for itself any
reorganization, arrangement, composition, readjustment, liquidation or similar
relief under any statute, law or
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regulation, (v) files an answer or other pleading admitting or failing to
contest the material allegations of a petition filed against it in any
proceeding of this nature, (vi) seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all or any
substantial part of its properties, or (vii) if 120 days after the commencement
of any proceeding against the Person seeking reorganization, arrangement,
composition, readjustment, liquidation or similar relief under any statute, law
or regulation, if the proceeding has not been dismissed, or if within 90 days
after the appointment without such Person's consent or acquiescence of a
trustee, receiver or liquidator of such Person or of all or any substantial part
of its properties, the appointment is not vacated or stayed, or within 90 days
after the expiration of any such stay, the appointment is not vacated. The
foregoing definition of "Bankruptcy" is intended to replace and shall supersede
and replace the definition of"Bankruptcy" set forth in Sections 18-101(1) and
18-304 of the Act.
"Capital Accounts" shall have the meaning set forth in Section 7.01.
"Capital Contributions" means the amount of all cash (whether in the
form of money, a note payable upon demand or a combination thereof) or the
agreed upon value of other property or services contributed by the Members to
the Company.
"Certificate" means the Certificate of Formation of the Company,
including any restatements or amendments, which are filed with the Delaware
Secretary of State.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" means Ryder Truck Rental I LLC, a Delaware limited liability
company, and its successors.
"Covered Person" shall have the meaning set forth in Section 8.03.
"Delaware Secretary of State" means the Secretary of State of the State
of Delaware.
"Effective Date" means October 1, 1999.
"Fiscal Year" means the taxable year of the holder of the Majority
Interest.
"Independent Director" means an individual who is not (i) a director,
officer or employee of any Affiliate of Ryder (other than any limited or special
purpose corporation or limited liability company similar to the Company); (ii) a
person related to any officer or director of any Affiliate of Ryder; (iii) a
direct or indirect holder of more than 10% of any voting securities of any
Affiliate of Ryder; or (iv) a person related to a direct or indirect holder of
more than 10% of any voting securities of any Affiliate of Ryder.
"Independent Member" shall have the meaning set forth in Section 5.08.
"Majority Interest" means the interest in the Company of Ryder.
"Majority Members" means those Members holding more than 50% of the
Membership Percentages and more than 50% of the Capital Account balances of the
Members.
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"Managers" means RTR Leasing and such other persons or entities that
may be designated from time to time by the Members as managers of the Company to
perform such functions for the Company as may be determined from time to time by
the Members. A Manager shall be deemed to be a "manager" of the Company within
the meaning of Section 18-101 of the Act.
"Members" means those persons or entities designated as Members of the
Company in Exhibit A. Any reference to a Member shall, unless the context
clearly requires otherwise, include a reference to its predecessors and
successors in interest.
"Membership Percentages" means the Members' respective limited
liability company interests in the Company as set forth in Exhibit A.
"Original LLC Agreement" has the meaning set forth in the Recitals.
"Origination Trust" means Ryder Truck Rental LT, a Delaware business
trust.
"Origination Trust Agreement" means that certain second amended and
restated trust agreement, dated as of February 1, 1998 among Ryder Truck Rental
I LP and Ryder Truck Rental II LP, as Grantors and UTI Beneficiaries, Ryder, as
Administrative Agent, RTRT, Inc., as Trustee, Delaware Trust Capital Management,
Inc., as Delaware Trustee, and U.S. Bank National Association, as Trust Agent,
as the same may be amended, supplemented or modified from time to time.
"Partnership" means Ryder Truck Rental I LP, a Delaware limited
partnership, and its successors.
"Partnership Act" means the Delaware Revised Uniform Limited
Partnership Act (6 Del. C. Sections 17-101, et seq.), as amended.
"Partnership Agreement" means the Amended and Restated Limited
Partnership Agreement of the Partnership, dated as of the Effective Date,
between Ryder Truck Rental I LLC and Ryder, as amended, restated or supplemented
from time to time.
"Profits" and "Losses" mean the Company's taxable income or loss for
each Fiscal Year (or other period) determined in accordance with the accounting
methods followed for federal income tax purposes, except that any income of the
Company that is exempt from federal income tax and not otherwise taken into
account in computing Profits and Losses shall be added to such taxable income or
loss.
"RTR Leasing" means RTR Leasing I. Inc., a Delaware corporation, and
its successors.
"Ryder" means Ryder Truck Rental, Inc., a Florida corporation, and its
successors.
"Trustee" shall have the meaning set forth in Section 6.01.
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Section 1.02. Other Definitional Provisions.
(a) For all purposes of this Agreement, except as otherwise expressly
provided or unless the context otherwise requires, (i) terms used herein
include, as appropriate, all genders and the plural as well as the singular,
(ii) references to words such as "herein", "hereof" and the like shall refer to
this Agreement as a whole and not to any particular part, article or section
within this Agreement, (iii) references to a section such as "Section 1.01" and
the like shall refer to the applicable section of this Agreement, (iv) the term
"include" and all variations thereof shall mean "include without limitation" and
(v) the term "or" shall include "and/or".
(b) As used in this Agreement and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
this Agreement or in any such certificate or other document, and accounting
terms partly defined in this Agreement or in any such certificate or other
document to the extent not defined, shall have the respective meanings given to
them under generally accepted accounting principles in effect from time to time.
To the extent that the definitions of accounting terms in this Agreement or in
any such certificate or other document are inconsistent with the meanings of
such terms under such generally accepted accounting principles, the definitions
contained in this Agreement or in any such certificate or other document shall
control.
Article Two
ORGANIZATION OF COMPANY
Section 2.01. Formation. The parties hereto formed the Company as a
limited liability company pursuant to the Original LLC Agreement and the Act and
hereby agree that the rights, duties and liabilities of the Members and Managers
shall be as provided in the Act, except as otherwise provided in this Agreement.
Pursuant to Section 18 201(d) of the Act, this Agreement shall become effective,
and the Original LLC Agreement is hereby amended and restated in its entirety,
as of the Effective Date.
Section 2.02. Name and Office. The name of the Company shall be Ryder
Truck Rental I LLC, and its office shall be located at 0000 X.X. 00xx Xxxxxx,
Xxxxx, Xxxxxxx 00000, or such other place as the Members may determine from time
to time.
Section 2.03. Duration. The term of the Company commenced on the date
the Certificate was filed on July 26, 1997, in the office of the Delaware
Secretary of State and shall continue until June 1, 2097, unless the Company is
dissolved before such date in accordance with the provisions of this Agreement.
The existence of the Company as a separate legal entity shall continue until
cancellation of the Certificate in the manner required by the Act.
Section 2.04. Registered Office and Registered Agent. The Company's
initial registered office shall be at the office of its registered agent at
Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and
the name of its initial registered agent at such address shall be The
Corporation Trust Company. The registered office and registered agent may be
changed from time to time in accordance with the Act. If the registered agent
shall ever resign, the Company shall promptly appoint a successor.
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Section 2.05. Execution, Delivery and Filing of Certificate. W. Xxxxxx
Xxxxx, as an "authorized person" within the meaning of the Act, executed,
delivered and filed the Certificate with the Delaware Secretary of State on July
26, 1997.
Article Three
PURPOSES
Section 3.01. Purposes. The purposes for which the Company is formed
are:
(a) to act as general partner of the Partnership and, in such
capacity permit the Partnership to engage in the activities permitted
by the Partnership Agreement and the Partnership Act;
(b) to take all permitted action in its capacity as general
partner of the Partnership, to negotiate, authorize, execute, deliver,
assume or perform any agreement, instrument, obligation or document
relating to the activities set forth in clause (a) above, including any
trust agreement or supplement, sale, servicing, pooling or
administration agreement or supplement, purchase, lease or security
agreement, indenture, reimbursement agreement, credit support
agreement, lease or receivables purchase agreement, indemnification
agreement, placement agreement or underwriting agreement; and
(c) to engage in any activity and to exercise any powers
permitted to it as general partner under the Partnership Agreement or
to limited liability companies generally under the laws of the State of
Delaware that are related or incidental to the foregoing and necessary,
convenient or advisable to accomplish the foregoing.
Section 3.02. Power and Authority. The Company, in its capacity as
general partner of the Partnership, shall have the power and authority to take
any and all actions necessary, appropriate, proper, advisable, incidental or
convenient to accomplish or for the furtherance of the purposes set forth in
Section 3.01. The Company may serve as a general partner of the Partnership. The
Company and RTR Leasing or W. Xxxxxx Xxxxx, on behalf of the Company, may enter
into and perform the Partnership Agreement without any further act, vote or
approval of any Member, Manager or other person, notwithstanding any other
provision of this Agreement, the Act or other applicable law, rule or
regulation.
Section 3.03. Limitations on Powers. Notwithstanding any other
provision of this Agreement and any provision of law, the Company shall not do
any of the following:
(a) engage in any business or activity other than as set forth
in or contemplated by this Agreement;
(b) without the unanimous affirmative vote of the Members, and
subject to the provisions of Section 6.01, (i) dissolve or liquidate,
in whole or in part, or institute proceedings to be adjudicated
bankrupt or insolvent, (ii) consent to the institution of bankruptcy or
insolvency proceedings against it, (iii) file a petition seeking or
consenting to reorganization or relief under any applicable federal or
state law relating to
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bankruptcy, (iv) consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or a substantial part of its property, (v) make a general
assignment for the benefit of creditors, (vi) admit in writing its
inability to pay its debts generally as they become due, (vii)
institute or join in any institution of any bankruptcy, insolvency,
liquidation, reorganization or arrangement proceedings or other similar
proceedings under any federal or state law, or (viii) take any limited
liability company action in furtherance of the actions set forth in
clauses (i) through (vii) above;
(c) without the unanimous affirmative vote of the Members,
take or cause to be taken any of the actions referred to in clauses (i)
through (vii) of Section 3.03(b) with respect to any entity of which
the Company is a partner or member;
(d) without the unanimous affirmative vote of the Members,
merge or consolidate with any other corporation, company or entity or
sell all or substantially all of its assets or acquire all or
substantially all of the assets or capital stock or other ownership
interest of any other corporation, company or entity; or
(e) cause any entity of which the Company is a partner or
member to take any action which is inconsistent with such entity's
organizational documents.
Section 3.04. Company Opportunity. No Member need afford the Company or
any other Member the opportunity of investing or otherwise participating in any
other enterprise, regardless of whether such enterprises, but for this sentence,
would be deemed an opportunity of the Company. Nothing in this Agreement shall
prohibit any Member from engaging in any other business activity, whether or not
competitive with, similar to, or within the scope of the activities conducted by
or on behalf of the Company.
Article Four
CAPITAL CONTRIBUTIONS; BORROWINGS
Section 4.01. Admission and Contributions of Initial Members.
(a) Each of Ryder and the Independent Member were admitted as members
of the Company at the time such entity (i) executed the Original LLC Agreement
or a counterpart signature page to the Original LLC Agreement and (ii) was
listed as a Member on Exhibit A attached to the Original LLC Agreement (and a
copy of that exhibit appears as Exhibit A hereto).
(b) The Members made the Capital Contributions set forth next to their
names in Exhibit A upon the formation of the Company. No interest shall accrue
on any Capital Contribution made to the Company.
Section 4.02. Additional Capital Contributions. The Members shall not
be obligated to make additional Capital Contributions except upon the consent of
all Members.
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Section 4.03. Withdrawals. No Member shall be entitled to be repaid any
portion of its Capital Account or withdraw from the Company without the consent
of all Members or as otherwise provided in this Agreement.
Section 4.04. Borrowings. The Company may borrow sums to be used for
any of the business purposes described in Section 3.01; provided, however, that
any such borrowing shall require the prior approval of the Majority Members and
shall not be prohibited by this Agreement, any applicable law, regulation or
agreement. Any Member may advance such sums to the Company as approved in
writing by the Majority Members. Any amounts borrowed from a Member shall not
constitute a contribution to the capital of the Company but shall constitute a
debt of the Company which shall be repaid before any distributions to the
Members. No Member shall have any obligation under this Agreement to make any
such loan or advance.
Section 4.05. Additional Members. No additional Members shall be
admitted to the Company without the unanimous consent of the Members.
Article Five
MANAGEMENT
Section 5.01. Powers of the Members.
(a) The Company shall be managed by its Members. Subject to the other
provisions of this Article and Article Six, each Member shall have the
authority, on behalf of the Company, to do all things appropriate for the
accomplishment of the purposes of the Company, including, (i) taking the actions
described in Section 3.01; (ii) disbursing Company funds for Company purposes;
(iii) investing and reinvesting Company funds; (iv) executing contracts, notes,
mortgages and other agreements and instruments; (v) employing attorneys,
accountants, Managers or other agents, which may include Affiliates of the
Company; (vi) paying all Company obligations; (vii) performing all ministerial
acts and duties relating to the payment of all indebtedness, taxes and
assessments due or to become due with regard to any property of the Company;
(viii) purchasing and maintaining insurance on behalf of the Company against any
liability or expense asserted against or incurred by or on behalf of the
Company; (ix) transacting the Company's business under an assumed name or name
other than its name as set forth in the Certificate; (x) appointing any Member
or other person as agent for service of process on the Company as required by
the law of any jurisdiction in which the Company transacts business; (xi)
commencing, prosecuting or defending any proceeding in the Company's name; and
(xii) doing such other acts as may facilitate the Company's exercise of its
powers; provided, however, that all such acts shall fall within the purposes of
the Company as set forth in Section 3.01.
(b) Notwithstanding anything in this Agreement to the contrary, the
Company shall at all times have at least one Independent Member, and no action
of the type described in Article Six shall occur without the consent of each
Independent Member.
(c) Each Member irrevocably appoints each other Member as its
attorney-in-fact on its behalf and in its stead to execute and swear to any
amendment to the Certificate and file any
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writing, and to give any notice which may be required by any rule or law and
which may be necessary or appropriate in order to effect any action by or on
behalf of the Company or the Members taken as provided in this Agreement or
which may be necessary or appropriate to correct any errors or omissions. This
power of attorney is coupled with an interest and shall not be revoked by the
act of any Member. This power of attorney shall survive and not be affected by
an assignment by any Member of its limited liability company interest in the
Company; provided, however, that where a Member's entire limited liability
company interest is assigned to an assignee who becomes a substitute Member in
its stead, such power shall survive for the sole purpose of enabling such Member
to effect such substitution. Each Member shall provide seven days' prior written
notice of actions to be taken as attorney-in-fact on behalf of another Member
and the acting Member shall be authorized to take such actions unless the other
Member objects in writing during such notice period.
(d) A copy of the Certificate will be provided to each Member upon
written request to the Company.
(e) Subject to the other provisions of this Article and Article Six,
the Members shall have full power to act for and to bind the Company to the
extent provided by Delaware law. Every contract, note, mortgage, lease, deed or
other instrument or agreement executed by any Member shall be conclusive
evidence that at the time of execution, the Company was then in existence, that
this Agreement had not theretofore been terminated or amended in any manner and
that the execution and delivery of such instrument was duly authorized by the
Members. A Manager that is not also a Member may bind the Company only to the
extent authorized by the Members.
Section 5.02. Limitations on Powers of Members. Notwithstanding any
other provision of this Agreement, no act shall be taken, sum expended, decision
made, obligation incurred or power exercised by any Member on behalf of the
Company, without prior written notice to all Members outlining the proposed
action followed by the written consent of a Majority Interest with respect to:
(i) any mortgage, grant of security interest, pledge or encumbrance of any asset
of the Company; (ii) any merger of the Company with another entity; (iii) a
transaction involving an actual or potential conflict of interest between a
Member and the Company; (iv) any material change in the character of the
business and affairs of the Company; or (v) any act that would contravene in a
material respect any provision of this Agreement or the Act.
Section 5.03. Self Dealing. Any Member and any Affiliate thereof may
deal with the Company, directly or indirectly, as vendor, purchaser, employee,
agent or otherwise. No contract or other act of the Company shall be voidable or
affected in any manner by the fact that a Member or an Affiliate thereof is
directly or indirectly interested in such contract or other act apart from its
interest as a Member, nor shall any Member or an Affiliate thereof be
accountable to the Company or the other Members in respect of any profits
directly or indirectly realized by reason of such contract or other act, and
such interested Member shall be eligible to vote or take any other action as a
Member in respect of such contract or other act as it would be entitled were it
or its Affiliate not interested therein. Notwithstanding the foregoing, (i) any
direct or indirect interest of a Member or an Affiliate thereof in any contract
or other act, other than its interest as a Member, shall be disclosed to all
other Members, (ii) such contract or other act shall be approved by a Majority
Interest unless the same is specifically authorized herein and (iii) the
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Members shall not receive or hold any property of the Company as collateral
security in respect of any claim against the Company.
Section 5.04. Standard of Care; Liability. Each Member and its
respective directors, officers, stockholders, partners, members and Affiliates
shall discharge its duties in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner he reasonably believes to be in the best interests of the Company as
required by this Agreement or the Act. A Member shall not be liable for monetary
damages to the Company for any breach of any such duties except for receipt of a
financial benefit to which the Member is not entitled, voting for or assenting
to a distribution to Members in violation of this Agreement or the Act, or a
knowing violation of the law.
Section 5.05. Compensation. The Company shall reimburse each Member for
any reasonable out-of-pocket expenses incurred on behalf of the Company. In
addition, any Member may receive reasonable compensation for any services
rendered to the Company approved by the Majority Interest.
Section 5.06. Meetings of Members. All Members shall be entitled to
vote on any matter submitted to a vote of the Members. Unless a greater vote is
required by the Act or this Agreement, the affirmative vote of the Majority
Members shall be required. Meetings of Members for the transaction of such
business as may properly come before the Members may be held at such place, on
such date and at such time as the Majority Interest shall determine. Special
meetings of Members for any proper purpose or purposes may be called at any time
by the holders of at least 25% of the Membership Percentages of all Members. The
Company shall deliver or mail written notice stating the date, time, place and
purposes of any meeting to each Member entitled to vote at the meeting. Such
notice shall be given not less than ten nor more than 60 days before the date of
the meeting.
Section 5.07. Consent. Any action required or permitted to be taken at
an annual or special meeting of the Members may be taken without a meeting, if
the Members unanimously consent, in writing, to take the proposed action. Every
written consent shall bear the date of consent in lieu of meeting and the
signature of each Member who signs the consent.
Section 5.08. Independent Member. The Company shall at all times have
at least one Member (each, an "Independent Member") that shall be a special
purpose corporation formed pursuant to a charter or articles of incorporation
that (i) limits its business purposes and activities and (ii) requires the
unanimous consent of its entire board of directors (without any vacancies),
including the affirmative vote of all Independent Directors before it may
approve, permit or take any action, or cause any action to be taken in respect
of the following actions with respect to each limited liability company of which
it is a member, to (a) institute proceedings to have itself adjudicated bankrupt
or insolvent, (b) consent to the institution of bankruptcy or insolvency
proceedings against it, (c) file a petition seeking, or consent to, such
member's or limited liability company's reorganization or relief under any
applicable federal or state law relating to bankruptcy, (d) consent to the
appointment of a receiver, liquidator, assignee, trustee, sequestrator or other
similar official of such member or limited liability company or a substantial
part of its property, (e) make any assignment for the benefit of its creditors,
admit in writing its inability to pay its debts generally as they become due,
(f) institute, or join in any institution of, any
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bankruptcy, insolvency, liquidation, reorganization or arrangement proceedings
or other proceedings under any federal or state bankruptcy or similar law,
against any entity in which such member or limited liability company holds an
ownership interest or (g) take any action in furtherance of the actions set
forth in clauses (a) through (f) above. As of the Effective Date, RTR Leasing is
the Independent Member.
Section 5.09. Managers. Except as otherwise provided by the Act:
(a) the debts, obligations and liabilities of the Company,
whether arising in contract, tort or otherwise, shall be solely the
debts, obligations and liabilities of the Company, and no Manager shall
be obligated personally for any such debt, obligation, or liability of
the Company solely by reason of being a Manager of the Company;
(b) no Manager shall be required to make any Capital
Contribution in the form of cash to the Company; and
(c) no Manager shall be entitled to receive any Profits or
liable for any Losses.
Article Six
POWER TO INSTITUTE BANKRUPTCY OR INSOLVENCY PROCEEDINGS
Section 6.01. Unanimous Vote Required. Notwithstanding any other
provision of this Agreement and any provision of law that otherwise so empowers
the Company, the Company shall not, without (i) the prior written consent of
each trustee from time to time (each, a "Trustee") under any pooling and
servicing agreement, indenture, trust agreement or similar agreement between the
Company or the Partnership, a Trustee and a servicer, if any, pursuant to which
the Company or the Partnership shall issue, or cause to be issued, certificates
and/or notes and (ii) the affirmative vote of 100% of the Members of the
Company, including all Independent Members, institute proceedings to be
adjudicated a bankrupt or insolvent, or consent to the institution of bankruptcy
or insolvency proceedings against it, or file a petition seeking, or consent to,
reorganization or relief under any applicable federal or state law relating to
bankruptcy, or consent to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or a substantial
part of its property, or make any assignment for the benefit of creditors, or
admit in writing its inability to pay its debts generally as they become due, or
take any limited liability company action in furtherance of any such action.
Section 6.02. Voting on Bankruptcy or Insolvency. All Members,
including each Independent Member, shall be entitled to vote on any proposal of
the type described in Section 6.01. The affirmative vote of 100% of the Members,
including each Independent Member, entitled to vote on such a proposal shall be
required for such a proposal to be adopted.
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Article Seven
CAPITAL ACCOUNTS; PROFITS AND LOSSES; DISTRIBUTIONS
Section 7.01. Capital Accounts. A capital account shall be maintained
for each Member (each, a "Capital Account"), to which contributions and Profits
shall be credited and against which distributions and Losses shall be charged.
Capital Accounts shall be maintained in accordance with the accounting
principles of Code Section 704 and the Treasury Regulations thereunder.
Section 7.02. Allocation of Profits and Losses. Profits and Losses
shall be determined as of the end of each Fiscal Year of the Company and shall
be allocated to Ryder. RTR Leasing will have no interest in Profits and Losses.
Section 7.03. Distributions.
(a) The Company shall distribute to Ryder such sums as the Majority
Interest determines to be available for distribution and not required to provide
for current or anticipated Company needs. All distributions shall be made to or
upon the order of Ryder.
(b) No distributions shall be declared and paid unless, after the
distribution is made, the Company would be able to pay its debts as they become
due in the usual course of business and the assets of the Company are in excess
of the sum of (i) the Company's liabilities, plus (ii) the amount that would be
needed to satisfy the preferential rights of other Members upon dissolution that
are superior to the rights of the Members receiving the distribution.
(c) The Company shall not be required to make a distribution to a
Member on account of its interest in the Company if such distribution would
violate Section 18-607 of the Act or other applicable law.
Article Eight
EXCULPATION OF LIABILITY; INDEMNIFICATION
Section 8.01. Exculpation of Liability. Except as otherwise provided by
the Act, the debts, obligations and liabilities of the Company, whether arising
in contract, tort or otherwise, shall be solely the debts, obligations and
liabilities of the Company, and no Member or Manager shall be obligated
personally for any such debt, obligation or liability of the Company solely by
reason of being a Member or Manager of the Company.
Section 8.02. Indemnification. The Company hereby agrees to indemnify
each Member, Manager, employee or agent of the Company, and each director,
officer, employee or Affiliate of a Member, who was or is a party or is
threatened to be made a party to a threatened, pending or completed action, suit
or proceeding, whether civil, criminal, administrative or investigative, and
whether formal or informal (other than an action by or in the right of the
Company) by reason of the fact that such person is or was a Member, employee or
agent of the Company against expenses (including reasonable attorneys' fees),
judgments, penalties, fines and amounts paid in
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settlement actually and reasonably incurred by such person in connection with
the action, suit or proceeding.
Section 8.03. Fiduciary Duty. To the extent that, at law or in equity,
a Member, director, officer, employee or Affiliate of a Member, or a Manager
(each, a "Covered Person") has duties (including fiduciary duties) and
liabilities relating thereto to the Company or to any other Covered Person, a
Covered Person acting under this Agreement shall not be liable to the Company or
to any Member for its good faith reliance on the provisions of this Agreement.
The provisions of this Agreement, to the extent that they restrict the duties
and liabilities of a Covered Person otherwise existing at law or in equity, are
agreed by the Members to replace such other duties and liabilities of such
Covered Person.
Article Nine
TERM OF COMPANY
Section 9.01. Commencement. The term of the Company commenced upon the
filing of the Certificate with the Delaware Secretary of State. The bankruptcy
of a Member or the occurrence of any other event under Section 18-304 of the Act
shall not cause a Member to cease to be a Member of the Company and upon the
occurrence of such an event, the business of the Company shall continue without
dissolution.
Section 9.02. Dissolution.
(a) The Company shall be dissolved, and its affairs shall be wound up
upon the first to occur of the following: (i) the termination of the legal
existence of the last remaining member of the Company or the occurrence of any
other event which terminates the continued membership of the last remaining
member of the Company in the Company unless the business of the Company is
continued in a manner permitted by this Agreement or the Act or (ii) the entry
of a decree of judicial dissolution under Section 18-802 of the Act. Upon the
occurrence of any event that causes the last remaining member of the Company to
cease to be a member of the Company, to the fullest extent permitted by law, the
personal representative of such member is hereby authorized to, and shall,
within 90 days after the occurrence of the event that terminated the continued
membership of such member in the Company, agree in writing (i) to continue the
Company and (ii) to the admission of the personal representative or its nominee
or designee, as the case may be, as a substitute member of the Company,
effective as of the occurrence of the event that terminated the continued
membership of the last remaining member of the Company in the Company.
(b) Notwithstanding any other provision of this Agreement, the
Bankruptcy of a Member shall not cause the Member to cease to be a member of the
Company and upon the occurrence of such an event, the business of the Company
shall continue without dissolution.
(c) Notwithstanding any other provision of this Agreement, each Member
waives any right it might have to agree in writing to dissolve the Company upon
the Bankruptcy of the
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Member, or the occurrence of an event that causes the Member to cease to be a
member of the Company.
(d) In the event of dissolution, the Company shall conduct only such
activities as are necessary to wind up its affairs (including the sale of the
assets of the Company in an orderly manner), and the assets of the Company shall
be applied in the manner, and in the order of priority, set forth in Section
18-804 of the Act.
(e) The Company shall terminate when (i) all of the assets of the
Company, after payment of or due provision for all debts, liabilities and
obligations of the Company shall have been distributed to each Member in the
manner provided for in this Agreement and (ii) the Certificate shall have been
canceled in the manner required by the Act.
Article Ten
APPLICATION OF ASSETS
Section 10.01. Application of Assets. Upon dissolution of the Company,
the Company shall cease carrying on its business and affairs and shall commence
winding up of the Company's business and affairs and complete the winding up as
soon as practicable. The Company's affairs shall be concluded by a Member or
Members selected in writing by the Majority Interest. The assets of the Company
may be liquidated or distributed in kind, as determined by the Majority Members,
and the same shall first be applied to the payment of, or to a reasonable
reserve for the payment of, the Company's liabilities (including such provision
for contingent, conditional or unmatured liabilities as the Majority Interest
shall deem appropriate) and then to Ryder. If the assets of the Company shall
not be sufficient to pay all of the liabilities of the Company, to the fullest
extent permitted by the Act, no assets of the Company may be sold or disposed of
without the written consent of all of the holders of outstanding securities
issued by any trust formed in respect of a transaction to which the Company is a
party. To the extent that Company assets cannot either be sold without undue
loss or readily divided for distribution in kind to the Members, then the
Company may, as determined by the Majority Interest, convey those assets to a
trust or other suitable holding entity established for the benefit of the
Members in order to permit the assets to be sold without undue loss and the
proceeds thereof distributed to the Members at a future date. The legal form of
the holding entity, the identity of the trustee or other fiduciary and the terms
of its governing instrument shall be determined by the Majority Interest.
Section 10.02. Termination. The Company shall terminate when all the
assets of the Company, after payment of or due provision for all debts,
liabilities and obligations of the Company, shall have been distributed to the
Members in the manner provided for in this Article and the Certificate shall
have been cancelled in the manner required by the Act.
Section 10.03. Claims of the Members. The Members and former Members
shall look solely to the Company's assets for the return of their Capital
Contributions, and if the assets of the Company remaining after payment of or
due provision for all debts, liabilities and obligations of the Company are
insufficient to return such Capital Contributions, the Members and former
Members shall not have recourse against the Company or any other Member or
Manager.
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Article Eleven
RESTRICTION ON TRANSFERS OF INTERESTS
Section 11.01. Restriction on Transfers of Interests. No Member may
assign, pledge or otherwise transfer its interest in the Company in whole or
part. Any attempt by a Member to transfer its interest shall be null and void.
Article Twelve
INVESTMENT REPRESENTATION
Section 12.01. Investment Representation. The Members represent to each
other and to the Company that they are acquiring their respective interests in
the Company for their own accounts, and without a view to selling or pledging
them.
Article Thirteen
MISCELLANEOUS PROVISIONS
Section 13.01. Limitations on Amendment. The Company shall not, without
the prior approval or written consent of each nationally recognized rating
agency that has rated any securities collateralized or backed by interests or
beneficial interests in assets of the Origination Trust that have been issued
and are outstanding pursuant to any pooling and servicing agreement, indenture,
trust agreement or other similar agreement entered into by the Company, the
Partnership or any of their respective Affiliates, amend, alter, change or
repeal Article Three, Section 5.08, Article Six or this Section. Subject to the
foregoing limitation, the Company reserves the right to amend, alter, change or
repeal any provision contained in this Agreement in the manner now or hereafter
prescribed by statute or applicable law, and all rights conferred upon Members
herein are granted subject to this reservation; provided that this Agreement may
not be amended without affirmative vote of 100% of the Members of the Company,
including the Independent Members.
Section 13.02. Books of Account; Reports.
(a) The Company shall keep true and complete books of account and
records of all Company transactions. The books of account and records shall be
kept at the principal office of the Company. The Company shall maintain at such
office (i) a list of names and addresses of all Members; (ii) a copy of the
Certificate; (iii) copies of the Company's federal, state and local income tax
returns and reports for the three most recent years; (iv) copies of this
Agreement; and (v) copies of the financial statements of the Company for the
three most recent years. Such Company records shall be available to any Member
or its designated representative during ordinary business hours at the
reasonable request and expense of such Member.
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(b) The Company will diligently endeavor to furnish, or cause to be
furnished, to Members the following items on or promptly after the date
indicated: (i) annually by December 31, (A) an annual report consisting of an
income statement for the prior year and a balance sheet as of the year ended and
(B) Member information tax returns (Schedule K-1) and (ii) as required, such
other information concerning the Company and the property of the Company as may
be appropriate in order to make full and fair disclosure to the Members of the
current financial and operating conditions of the Company.
Section 13.03. Bank Accounts and Investment of Funds. All funds of the
Company shall be deposited in its name in such checking accounts, savings
accounts, time deposits or certificates of deposit or shall be invested in such
other manner, as shall be designated by the Majority Interest from time to time.
Withdrawals shall be made upon such signature or signatures as the Majority
Interest may designate.
Section 13.04. Accounting Decisions. All decisions as to accounting
matters, except as specifically provided to the contrary herein, shall be made
by the Majority Interest in accordance with generally accepted accounting
principles consistently applied. Such decisions shall be acceptable to the
accountants retained by the Company, and the Majority Interest may rely upon the
advice of the accountants as to whether such decisions are in accordance with
generally accepted accounting principles.
Section 13.05. Federal Income Tax Elections. The Company shall, to the
extent permitted by applicable law and regulations and upon obtaining any
necessary approval of the Commissioner of Internal Revenue, elect to use such
methods of depreciation, and make all other federal income tax elections in such
manner, as the Majority Interest determines to be most favorable to the Members.
The Majority Interest may rely upon the advice of the accountants retained by
the Company as to the availability and effect of all such elections. The
Majority Interest shall elect to treat the Company as a single member entity
formed as an agent of Ryder and not as separate corporation or partnership for
federal and applicable state income tax purposes.
Section 13.06. Entire Agreement. This Agreement constitutes the entire
Agreement between the parties and may be modified only as provided herein. No
representations or oral or implied agreements have been made by any party hereto
or its agent, and no party to this Agreement has relied upon any representation
or agreement not set forth herein. This Agreement supersedes any and all other
agreements, either oral or written, among the Company and its Members.
Section 13.07. Notices. Except as provided below, all communications
and notices provided for hereunder shall be in writing (including telecopy or
electronic facsimile transmission or similar writing) and shall be given to the
other party at its address or telecopy numbers set forth on Exhibit A hereto, or
at such other address or telecopy number as such party may hereafter specify for
the purposes of notice to the other party hereto. Each such notice or other
communication shall be effective (i) if given by telecopy, upon receipt thereof,
(ii) if given by mail, three business days after the time such communication is
deposited in the mails with first-class postage prepaid or (iii) if given by any
other means, when received at the address specified in this Section.
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Section 13.08. Consent of Members. Various provisions of this Agreement
require or permit the consent, agreement, approval or disapproval, written or
otherwise, of the Members or some specified proportion thereof. In any such
case, the Company may give all Members written notice that any Member who does
not indicate its disapproval by written notice to the Company within a specified
period of time (not less than 30 days after mailing of the notice) shall be
deemed to have given its consent or approval to the action or event or to have
made the agreement referred to in the notice. In such event, any Member who does
not indicate its disapproval by written notice to the Company within the time
specified shall be deemed to have given its written consent, approval,
disapproval or agreement.
Section 13.09. Further Execution. Upon request of the Company from time
to time, the Members shall execute and swear to or acknowledge any amended
Certificate and any other writing which may be required by any rule or law or
which may be appropriate to the effecting of any action by or on behalf of the
Company or the Members which has been taken in accordance with the provisions of
this Agreement.
Section 13.10. Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties, their successors and permitted
assigns. None of the provisions of this Agreement shall be construed as for the
benefit of or as enforceable by any creditor of the Company or the Members or
any other person not a party to this Agreement.
Section 13.11. Severability. If any one or more of the covenants,
agreements, provisions or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants, agreements, provisions
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of any Security or
the rights of the holders thereof.
Section 13.12. Captions. All captions are for convenience only, do not
form a substantive part of this Agreement and shall not restrict or enlarge any
substantive provisions of this Agreement.
Section 13.13. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original and all of which
shall constitute one instrument. The Company shall have custody of the
counterparts executed in the aggregate by all Members.
Section 13.14. Delaware Law to Control. This Agreement shall be
governed by, and all questions with respect to the construction of this
Agreement and the rights and liabilities of the parties hereto shall be
determined in accordance with, the internal laws of the State of Delaware,
without regard to any otherwise applicable principles of conflicts of laws.
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IN WITNESS WHEREOF, the parties have caused this Amended and Restated
Limited Liability Company Agreement to be duly executed by their respective
officers as of the day and year first above written.
RYDER TRUCK RENTAL, INC.
By:_____________________________________
W. Xxxxxx Xxxxx
Treasurer
RTR LEASING I, INC.
By:_____________________________________
W. Xxxxxx Xxxxx
Treasurer
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EXHIBIT A
Capital Membership
Member's Name and Address Contributions Percentages
------------------------- ------------- -----------
RYDER TRUCK RENTAL, INC., $1,000.00 100%
Attention: Treasurer, 2C
0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
(telecopy no.: (000) 000-0000)
RTR LEASING I, INC. -0- 0%
Attention: Treasurer, 2C
0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
(telecopy no.: (000) 000-0000)
Total $1,000.00 100%
========= ====
A-1
