EXHIBIT 4.7
EXECUTION COPY
Ryder TRS, Inc.
$175,000,000
10% Senior Subordinated Notes due 2006
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
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November 25, 1996
CHASE SECURITIES INC.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ryder TRS, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to you (the "Initial Purchaser"), upon the terms set forth in a
purchase agreement dated November 20, 1996 (the "Purchase Agreement"),
$175,000,000 principal amount of its 10% Senior Subordinated Notes due 2006 (the
"Securities"). Capitalized terms used but not specifically defined herein are
defined in the Purchase Agreement. As an inducement to the Initial Purchaser to
enter into the Purchase Agreement and in satisfaction of a condition to your
obligations thereunder, the Company agrees with you, for the benefit of the
holders of the Securities (including the Initial Purchaser) (the "Holders"), as
follows:
1. Registered Exchange Offer. The Company shall prepare and, not later
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than 45 days following the Closing Date, shall file with the Commission a
registration statement (the "Exchange Offer Registration Statement") on an
appropriate form under the Securities Act with respect to a proposed offer (the
"Registered Exchange Offer") to the Holders to issue and deliver to such
Holders, in exchange for the Securities, a like aggregate principal amount of
debt securities of the Company (the "Exchange Securities") identical in all
material respects to the Securities, except for the transfer restrictions
relating to the Securities, shall use its best efforts to cause the Exchange
Offer Registration Statement to become effective under the Securities Act within
135 days after the Closing Date and to keep the Exchange Offer Registration
Statement effective for
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not less than 30 days (or longer, if required by applicable law) after the date
on which notice of the Exchange Offer is mailed to the Holders (such period
being called the "Exchange Offer Registration Period"). The Exchange Securities
will be issued under the Indenture or an indenture (the "Exchange Securities
Indenture") between the Company and the Trustee or such other bank or trust
company reasonably satisfactory to you, as trustee (the "Exchange Securities
Trustee"), such indenture to be identical in all material respects with the
Indenture except for the transfer restrictions relating to the Securities (as
described above).
Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Securities for Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of the Securities Act (an
"Affiliate"), acquires the Exchange Securities in the ordinary course of such
Holder's business and has no arrangements with any person to participate in the
distribution of the Exchange Securities) to trade such Exchange Securities from
and after their receipt without any limitations or restrictions on transfer
under the Securities Act and without material restrictions on transfer under the
securities laws of the several states of the United States. The Company and the
Initial Purchaser acknowledge that the foregoing statement of the objective of
the Registered Exchange Offer is based upon current interpretations of the staff
of the Commission's Division of Corporation Finance, which interpretations are
subject to change without notice, and further acknowledge that, pursuant to
current interpretations of such staff of Section 5 of the Securities Act, (i)
each Holder that is a broker-dealer electing to exchange Securities, acquired
for its own account as a result of market making activities or other trading
activities, for Exchange Securities (an "Exchanging Dealer"), is required to
deliver a prospectus containing the information set forth in Annex A hereto on
the cover, in Annex B hereto in the "Exchange Offer Procedures" section and the
"Purpose of the Exchange Offer" section, and in Annex C hereto in the "Plan of
Distribution" section of such prospectus in connection with a sale of any such
Exchange Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer and (ii) if the Initial Purchaser elects to sell
Exchange Securities acquired in
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exchange for Securities constituting any portion of an unsold allotment, it is
required to deliver a prospectus, containing the information required by Item
507 or Item 508 of Regulation S-K under the Securities Act, or both, as
applicable, in connection with such a sale.
In connection with the Registered Exchange Offer, the Company shall:
(a) mail to each Holder a copy of the prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;
(b) keep the Registered Exchange Offer open for not less than 30 days after
the date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(c) utilize the services of a depositary for the Registered Exchange Offer
with an address in the Borough of Manhattan, The City of New York;
(d) permit Holders to withdraw tendered Securities at any time prior to the
close of business, New York time, on the last business day on which the
Registered Exchange Offer shall remain open; and
(e) otherwise comply in all respects with all applicable laws.
As soon as practicable after the close of the Registered Exchange Offer,
the Company shall:
(a) accept for exchange all Securities tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;
(b) deliver to the Trustee for cancellation all Securities so accepted for
exchange; and
(c) cause the Trustee or the Exchange Securities Trustee, as the case may
be, promptly to authenticate and deliver to each Holder of Securities,
Exchange Securities equal in principal amount to the Securities of such
Holder so accepted for exchange.
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Interest on each Exchange Security issued pursuant to the Registered
Exchange Offer will accrue from the last interest payment date to which interest
was paid on the Securities surrendered in exchange therefor or, if no interest
has been paid on the Securities, from the date of original issue of the
Securities.
The Company may require each holder of Securities participating in the
Registered Exchange Offer to represent to the Company that at the time of the
consummation of the Registered Exchange Offer (i) any Exchange Securities
received by such holder will be acquired in the ordinary course of business,
(ii) such holder will have no arrangements or understanding with any person to
participate in the distribution of the Securities or the Exchange Securities
within the meaning of the Securities Act and (iii) such holder is not an
Affiliate.
Notwithstanding any other provisions hereof, the Company will ensure that
(i) any Exchange Offer Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
promulgated thereunder, (ii) any Exchange Offer Registration Statement and any
amendment thereto does not, when it becomes effective, 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 and
(iii) any prospectus forming part of any Exchange Offer Registration Statement,
and any supplement to such prospectus, does not include an untrue statement of a
material fact or 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.
2. Shelf Registration. If (a) prior to the consummation of the Registered
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Exchange Offer, the Company reasonably determines in good faith that (i) the
Exchange Securities would not, upon receipt, be tradeable by Holders that are
not Affiliates without restriction under the Securities Act and without material
restriction under applicable state securities laws or (ii) after conferring with
counsel, the Commission is unlikely to permit the consummation of the Registered
Exchange Offer within 165 days after the date hereof, (b) for any other reason
the Registered Exchange Offer is not consummated within 165 days of the Closing
Date, (c) the Initial Purchaser so requests
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with respect to Securities (i) purchased by it pursuant to the Purchase
Agreement, (ii) not eligible to be exchanged for Exchange Securities in the
Registered Exchange Offer and (iii) held by it following consummation of the
Registered Exchange Offer or (d) any Holder (other than an Exchanging Dealer) is
not eligible to participate in the Registered Exchange Offer or, in the case of
any Holder that participates in the Registered Exchange Offer (other than an
Exchanging Dealer), does not receive freely tradeable Exchange Securities in
exchange for tendered Securities (and in either case so advises the Company
within ten business days following the later of the consummation of the
Registered Exchange Offer or the time at which such Holder becomes aware or is
notified by the Company of such circumstance) or if the Company so elects, in
each case the Company shall promptly (and in any event within three business
days) deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice") and the following provisions shall apply:
(a) The Company shall as promptly as practicable after delivery of the
Shelf Notice file with the Commission and thereafter shall use its best efforts
to cause to be declared effective a registration statement on an appropriate
form under the Securities Act relating to the offer and sale of the Transfer
Restricted Securities (as defined below) by the Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such registration statement (hereafter, a "Shelf Registration
Statement" and, together with any Exchange Offer Registration Statement, a
"Registration Statement").
(b) The Company shall use its best efforts to keep the Shelf Registration
Statement continuously effective in order to permit the prospectus forming part
thereof to be usable by Holders for a period of three years from the date the
Shelf Registration Statement is declared effective by the Commission or such
shorter period that will terminate when all the Securities covered by the Shelf
Registration Statement (i) have been sold pursuant to the Registration Statement
or (ii) are distributed to the public pursuant to Rule 144 under the Securities
Act or are saleable pursuant to Rule 144(k) under the Securities Act (in any
such case, such period being called the "Shelf Registration Period"). The
Company shall be deemed not to have used its best efforts to keep the Shelf
Registration Statement effective during the requisite period if it voluntarily
takes any
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action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities during that period, unless such
action is required by applicable law.
(c) Notwithstanding any other provisions hereof, the Company will ensure
that (i) any Shelf Registration Statement and any amendment thereto and any
prospectus forming part thereof and any supplement thereto complies in all
material respects with the Securities Act and the rules and regulations
thereunder, (ii) any Shelf Registration Statement and any amendment thereto does
not, when it becomes effective, 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 and (iii) any prospectus forming part
of any Shelf Registration Statement, and any supplement to such prospectus, does
not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
Following delivery of a Shelf Notice to the Holders in the circumstances
contemplated by clause (a) or (b) of the first paragraph of this Section 2, the
Company shall not have any further obligation to conduct the Registered Exchange
Offer.
3. Liquidated Damages. (a) The parties hereto agree that the Holders of
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Securities will suffer damages if the Company fails to fulfill its obligations
under Section 1 or Section 2, as applicable, and that it would not be feasible
to ascertain the extent of such damages. Accordingly, if (i) the Exchange Offer
Registration Statement is not filed with the Commission on or prior to 45 days
after the Closing Date, (ii) the Exchange Offer Registration Statement is not
declared effective within 135 days after the Closing Date, (iii) the Exchange
Offer is not consummated on or prior to 165 days after the Closing Date, (iv)
the Shelf Registration Statement is not filed with the Commission within 45 days
after the Shelf Notice is required to be delivered or is not declared effective
within 135 days after such date or (v) the Shelf Registration Statement is filed
and declared effective within 135 days after the date the Shelf Notice is
required to be delivered but shall thereafter cease to be effective (at any time
that the Company is obligated to maintain the effectiveness thereof) without
being succeeded within 30 days by an additional or
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amended Registration Statement filed and declared effective (each such event
referred to in clauses (i) through (v), a "Registration Default"), the Company
will pay liquidated damages to each holder of Transfer Restricted Securities (as
defined below), during the period of such Registration Default, in an amount
equal to $0.192 per week per $1,000 principal amount of the Securities
constituting Transfer Restricted Securities held by such holder until the
applicable Registration Statement is filed or declared effective, the Exchange
Offer is consummated or the Shelf Registration Statement again becomes
effective, as the case may be. Following the cure of all Registration Defaults,
the accrual of liquidated damages will cease. "Transfer Restricted Securities"
means each Security until (i) the date on which such Security has been exchanged
for a freely transferrable Exchange Security in the Exchange Offer, (ii) the
date on which such Security has been effectively registered under the Securities
Act and disposed of in accordance with the Shelf Registration Statement or (iii)
the date on which such Security is distributed to the public pursuant to Rule
144 under the Securities Act or is salable pursuant to Rule 144(k) under the
Securities Act.
(b) The Company shall notify the Trustee and Paying Agent under the
Indenture immediately upon the happening of each and every Registration Default.
The Company shall pay the liquidated damages due on the Transfer Restricted
Securities by depositing with the Paying Agent (which may not be the Company for
these purposes), in trust, for the benefit of the Holders thereof, prior to
10:00 a.m. New York City time on the next interest payment date specified by the
Indenture and the Securities, sums sufficient to pay the liquidated damages then
due. The liquidated damages due shall be payable on each interest payment date
specified by the Indenture to the record holder entitled to receive the interest
payment to be made on such date. Each obligation to pay liquidated damages
shall be deemed to accrue from and including the applicable Registration
Default.
(c) The parties hereto agree that the liquidated damages provided for in
this Section 3 constitute a reasonable estimate of and are intended to
constitute the sole damages that will be suffered by holders of Transfer
Restricted Securities by reason of the failure of the applicable Registration
Statement to be filed, to be declared effective or to remain effective, or of
the
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Exchange Offer to be consummated, as the case may be, to the extent required by
this Agreement.
4. Registration Procedures. In connection with any Shelf Registration
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Statement and, to the extent applicable, any Exchange Offer Registration
Statement, the following provisions shall apply:
(a) The Company shall (i) furnish to you, prior to the filing thereof with
the Commission, a copy of the Registration Statement and each amendment thereof
and each supplement, if any, to the prospectus included therein and, in the
event that the Initial Purchaser (with respect to any portion of an unsold
allotment from the original offering) is participating in the Registered
Exchange Offer or the Shelf Registration, shall use its best efforts to reflect
in each such document, when so filed with the Commission, such comments as you
reasonably may propose; (ii) include the information set forth in Annex A hereto
on the cover, in Annex B hereto in the "Exchange Offer Procedures" section and
the "Purpose of the Exchange Offer" section and in Annex C hereto in the "Plan
of Distribution" section of the prospectus forming a part of the Exchange Offer
Registration Statement, and include the information set forth in Annex D hereto
in the Letter of Transmittal delivered pursuant to the Registered Exchange
Offer; and (iii) if requested by the Initial Purchaser, include the information
required by Item 507 or Item 508 of Regulation S-K under the Securities Act, or
both, as applicable, in the prospectus forming a part of the Exchange Offer
Registration Statement.
(b) The Company shall advise you and the Holders (if applicable), and, if
requested by you or any such Holder, confirm such advice in writing (which
advice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the prospectus until the requisite changes
have been made):
(i) when the Registration Statement and any amendment thereto has been
filed with the Commission and when the Registration Statement or any
posteffective amendment thereto has become effective;
(ii) of any request by the Commission for amendments or supplements to
the Registration Statement or the prospectus included therein or for
additional information;
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(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose;
(iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose; and
(v) of the happening of any event that requires the making of any changes
in the Registration Statement or the prospectus so that, as of such date,
the Registration Statement or prospectus, as the case may be, does 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.
(c) The Company will make every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of any Registration Statement at the
earliest possible time.
(d) The Company will furnish to each Holder of Securities included within
the coverage of any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including financial statements and schedules, and, if the Holder so
requests in writing, all exhibits (including those incorporated by reference).
(e) The Company will deliver to each Holder of Securities included within
the coverage of any Shelf Registration Statement, without charge, as many copies
of the prospectus (including each preliminary prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request; and the Company consents to the use of the prospectus or
any amendment or supplement thereto by each of the selling Holders of Securities
in connection with the offering and sale of the Securities covered by the
prospectus or any amendment or supplement thereto.
(f) The Company will furnish to each Exchanging Dealer or the Initial
Purchaser, as applicable, that so requests, without charge, at least one copy of
the Exchange
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Offer Registration Statement and any post-effective amendment thereto, including
financial statements and schedules, and, if the Exchanging Dealer or Initial
Purchaser, as applicable, so requests in writing, all exhibits (including those
incorporated by reference).
(g) The Company will, during the Exchange Offer Registration Period and/or
the Shelf Registration Period, as applicable, promptly deliver to each
Exchanging Dealer or the Initial Purchaser, as applicable, without charge, as
many copies of the prospectus included in such Exchange Offer Registration
Statement and any amendment or supplement thereto as such Exchanging Dealer or
the Initial Purchaser, as applicable, may reasonably request for delivery by (i)
such Exchanging Dealer in connection with a sale of Exchange Securities received
by it pursuant to the Registered Exchange Offer or (ii) the Initial Purchaser in
connection with a sale of Exchange Securities received by it in exchange for
Securities constituting any portion of an unsold allotment; and the Company
consents to the use of the prospectus or any amendment or supplement thereto by
any such Exchanging Dealer or the Initial Purchaser, as applicable, as
aforesaid.
(h) Prior to any public offering of Securities pursuant to any Registration
Statement, the Company will use its reasonable best efforts to register or
qualify or cooperate with the Holders of Securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holder reasonably requests in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such jurisdictions of the Securities covered by such Shelf Registration
Statement; provided, however, that the Company will not be required to qualify
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generally to do business in any jurisdiction where it is not then so qualified
or as a dealer in securities or to take any action which would subject it to
general service of process or to taxation in any such jurisdiction where it is
not then so subject.
(i) The Company will cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations and registered
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in such names as Holders may request prior to sales of Securities pursuant to
such Registration Statement.
(j) Upon the occurrence of any event contemplated by paragraphs (b)(ii)
through (v) above during the period for which the Company is required to
maintain an effective Registration Statement, the Company will promptly prepare
a post-effective amendment to the Registration Statement or a supplement to the
related prospectus or file any other required document so that, as thereafter
delivered to purchasers of the Securities or purchasers of Exchange Securities
from an Exchanging Dealer or the Initial Purchaser, as applicable, as
contemplated in paragraph (g) above, as applicable, the prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(k) Not later than the effective date of the applicable Registration
Statement, the Company will provide a CUSIP number for the Securities or
Exchange Securities, as the case may be, and provide the applicable trustee with
printed certificates for the Securities or Exchange Securities, as the case may
be, in a form eligible for deposit with The Depository Trust Company.
(l) The Company will comply with all applicable rules and regulations of
the Commission and will make generally available to its security holders as soon
as practicable after the effective date of the applicable Registration Statement
an earnings statement satisfying the provisions of Section 11(a) of the
Securities Act.
(m) The Company will cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture Act as
required by applicable law in a timely manner.
(n) The Company may require each Holder of Securities to be sold pursuant
to any Shelf Registration Statement to furnish to the Company such information
regarding the Holder and the distribution of such Securities as the Company may
from time to time reasonably require for inclusion in such Registration
Statement, and the Company may exclude from such registration the Securities of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
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(o) The Company shall enter into such customary agreements (including if
requested an underwriting agreement in customary form) and take all such other
action, if any, as Holders of a majority in aggregate principal amount of
Securities being sold or the managing underwriters (if any) shall reasonably
request in order to facilitate the disposition of Securities pursuant to any
Shelf Registration Statement.
(p) In the case of a Shelf Registration Statement, the Company shall (i)
make reasonably available for inspection by a representative of, and Special
Counsel acting for, the Holders, and any underwriter participating in any
disposition pursuant to a Shelf Registration Statement, all relevant financial
and other records, pertinent corporate documents and properties of the Company
and (ii) cause the Company's officers, directors and employees to supply all
relevant information reasonably requested by such representative, counsel or any
such underwriter (an "Inspector") in connection with any such Registration
Statement, subject to executing a confidentiality undertaking in customary form
with respect to confidential and/or proprietary information of the Company.
(q) In the case of a Shelf Registration Statement, the Company, if
requested by Holders of a majority in aggregate principal amount of Securities
covered by such Registration Statement, their Special Counsel, or the managing
underwriters (if any) in connection with any Shelf Registration Statement, shall
use its best efforts to cause (w) its counsel to deliver an opinion relating to
the Registration Statement and the Securities or the Exchange Securities, as
applicable, in customary form, (x) its officers to execute and deliver all
customary documents and certificates requested by Holders of a majority in
aggregate principal amount of such Securities, their Special Counsel, or the
managing underwriters (if any) and (y) its independent public accountants to
provide a comfort letter in customary form, subject to receipt of appropriate
documentation as contemplated, and only if permitted by Statement of Auditing
Standards No. 72.
(r) The Company will use its best efforts to cause the Securities or the
Exchange Securities, as applicable, covered by a Registration Statement to
continue to be rated, during the period for which such Registration Statement is
required to be effective, by the rating
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agencies that initially rated the Securities, if so requested by Holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement or the Exchange Securities, as the case may be, or the
managing underwriters, if any.
(s) The Company will use its best efforts to cause the Securities or the
Exchange Securities, as applicable, relating to such Registration Statement to
be listed on each securities exchange, if any, on which debt securities issued
by the Company are then listed, if so requested by Holders of a majority in
aggregate principal amount of Securities covered by such Registration Statement
or the Exchange Securities, as the case may be, or the managing underwriters, if
any.
(t) In the case of a Shelf Registration Statement, each Holder of
Securities agrees by acquisition of such Securities that, upon receipt of any
notice of the Company pursuant to Section 4(b)(ii) through (v) hereof, such
Holder will discontinue disposition of such Securities covered by such
Registration Statement until such Holder's receipt of copies of the supplemental
or amended Prospectus contemplated by Section 4(j) hereof, or until advised in
writing (the "Advice") by the Company that the use of the applicable Prospectus
may be resumed. If the Company shall give any notice under Section 4(b)(ii)
through (v) during the period that the Company is required to maintain an
effective Registration Statement (the "Effectiveness Period"), such
Effectiveness Period shall be extended by the number of days during such period
from and including the date of the giving of such notice to and including the
date when each seller of Securities covered by such Registration Statement shall
have received (x) the copies of the supplemental or amended Prospectus
contemplated by Section 4(j) (if an amended or supplemental Prospectus is
required) or (y) the Advice (if no amended or supplemental Prospectus is
required).
5. Registration Expenses. The Company will bear all expenses incurred in
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connection with the performance of its obligations under Sections 1, 2, 3 and 4
hereof and will reimburse the Initial Purchaser and/or the Holders for the
reasonable fees and disbursements of one firm of attorneys (in addition to not
more than one local counsel for each jurisdiction) chosen by the Holders of a
majority in aggregate principal amount of the Securities (the "Special Counsel")
acting for the Initial Purchaser and/or Holders in
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connection therewith; provided,however, that in an underwritten offering, the
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Company shall not be responsible for any fees or expenses of any underwriter,
including any underwriting discounts or commissions, or any legal fees or
expenses of counsel to any underwriter (except for reasonable fees and
disbursements of counsel in connection with state securities laws qualification
of any of the Securities being offered).
6. Indemnification. (a) In the event of a Shelf Registration
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Statement or in connection with any prospectus delivery pursuant to an Exchange
Offer Registration Statement by an Exchanging Dealer or the Initial Purchaser,
as applicable, as contemplated in Section 4(g) above, the Company shall
indemnify and hold harmless each Holder and each person, if any, who controls
such Holder within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange 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 any such Registration
Statement or any prospectus forming part thereof 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; and
(ii) against any and all expense whatsoever, as incurred (including,
subject to Section 6(c) hereof, the fees and disbursements of counsel
chosen by the indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental or regulatory 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;
provided, however, that (i) this indemnity shall not apply to any loss,
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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 Company by the
indemnified party expressly for use in such Registration Statement and (ii) this
indemnity with respect to any untrue statement or alleged untrue statement or
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omission or alleged omission in any related preliminary prospectus shall not
enure to the benefit of any indemnified party from whom the person asserting any
such loss, claim damage or liability received Securities if such person did not
receive a copy of the final prospectus at or prior to the confirmation of the
sale of such Securities to such person in any case where such delivery is
required by the Securities Act and the untrue statement or omission of material
fact contained in the related preliminary prospectus was corrected in the final
prospectus unless such failure to deliver the final prospectus was a result of
noncompliance by the Company with Section 4(d), 4(e), 4(f) or 4(g).
(b) In the event of a Shelf Registration Statement, each Holder
agrees to indemnify and hold harmless the Company, its directors, officers,
agents and employees and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act and the directors, officers, agents and employees of such controlling
persons against any and all loss, liability, claim, damage and expense described
in the indemnity contained in Section 6(a) hereof, as incurred, arising out of
or based upon any untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment or supplement
thereto) in reliance on and in conformity with written information furnished to
the Company by such Holder expressly for use in the Registration Statement (or
in such amendment or supplement); provided, however, that no such Holder shall
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be liable for any indemnity claims hereunder in excess of the amount of net
proceeds received by such Holder from the sale of Securities pursuant to the
Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any claim or action
commenced against it in respect of which indemnity may be sought hereunder,
provided, that failure to so notify an indemnifying party shall not relieve such
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indemnifying party from any obligation that it may have pursuant to this Section
except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure and, provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than on
account of this indemnity agreement. If any such claim or action shall
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be brought against an indemnified party, the indemnified party shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof (other than reasonable costs of investigation); provided, however, that
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an indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnified party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm of attorneys (in addition to not more than one local counsel for each
jurisdiction) at any one time for all such indemnified party or parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 6(a) and 6(b), shall use all reasonable efforts to cooperate with the
indemnifying party in the defense of any such action or claim. No indemnifying
party shall be liable for any settlement of any such action effected without its
written consent (which consent shall not be unreasonably withheld), but if
settled
17
with its written consent or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(d) If a claim by an indemnified party for indemnification under this
Section 6 is found unenforceable in a final judgment by a court of competent
jurisdiction (not subject to further appeal or review) even though the express
provisions hereof provide for indemnification in such case, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses in such proportion as is appropriate to reflect the relative
fault of the indemnifying party and indemnified party in connection with the
actions, statements or omissions that resulted in such losses as well as any
other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission of a
material fact, has been taken or made by, or relates to information supplied by,
such indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action, statement or omission. The amount paid or payable by a party as a
result of any losses shall be deemed to include, subject to the limitations set
forth in Section 6(c) herein, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section, an indemnifying party that is a
holder of Transfer Restricted Securities or Exchange Securities shall not be
required to contribute any amount in excess of the amount by which the total
price at which the securities sold by such indemnifying party and distributed to
the public were offered to the public exceeds the amount of any damages that
such indemnifying party has otherwise been required to pay by reason of such
untrue or alleged untrue statement or
18
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
any contribution from any person who was not guilty of such fraudulent
misrepresentation.
7. Rules 144 and 144A. The Company shall use its best efforts to
------------------
file the reports required to be filed by it under the Securities Act and the
Exchange Act in a timely manner and, if at any time the Company is not required
to file such reports, it will, upon the request of any holder of Transfer
Restricted Securities, make publicly available other information so long as
necessary to permit sales of securities by such holder pursuant to Rules 144 and
144A. The Company covenants that it will take such further action as any holder
of Transfer Restricted Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Transfer Restricted
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rules 144 and 144A (including, without limitation,
the requirements of Rule 144 A(d)(4)). Upon the request of any holder of
Transfer Restricted Securities, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities pursuant to the Exchange
Act.
8. Underwritten Registrations. If any of the Transfer Restricted
--------------------------
Securities covered by any Shelf Registration are to be sold in an underwritten
offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the holders of a majority
in aggregate principal amount of such Transfer Restricted Securities included in
such offering, subject to the consent of the Company (which shall not be
unreasonably withheld or delayed).
No person may participate in any underwritten registration hereunder
unless such person (i) agrees to sell such person's Transfer Restricted
Securities on the basis reasonably provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (ii)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
19
9. Miscellaneous. (a) Amendments and Waivers. The provisions of
------------- ----------------------
this Agreement may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the
Company has obtained the written consent of Holders of a majority in aggregate
principal amount of the Securities. Notwithstanding the foregoing, a waiver or
consent to depart from the provisions hereof with respect to a matter that
relates exclusively to the rights of the Holders of Securities whose Securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders may be given by Holders of a
majority in aggregate principal amount of the Securities being sold by such
Holders pursuant to such Registration Statement.
(b) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given by such Holder
to the Company in accordance with the provisions of this Section 9(b),
which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar under the Indenture, with a copy in
like manner to you;
(2) if to you, initially at the respective addresses set forth in the
Purchase Agreement; and
(3) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; one business day after
being delivered to a next-day air courier; five business days after being
deposited in the mail; when answered back, if faxed; and when receipt is
acknowledged by the recipient's telecopier machine, if telecopied.
(c) Successors And Assigns. This Agreement shall be binding upon the
----------------------
Company and its successors and assigns.
(d) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall
20
be deemed to be an original and all of which taken together shall constitute one
and the same agreement.
(e) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(f) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED
WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS FOR SUCH PURPOSES. THE
COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT
IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY HOLDER OF A TRANSFER RESTRICTED SECURITY TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW OR THE RIGHT OF ANY PARTY TO COMMENCE
LEGAL PROCEEDINGS IN ANY OTHER JURISDICTION.
(g) Remedies. In the event of a breach by the Company, or by a
--------
holder of Transfer Restricted Securities, of any of their obligations under this
Agreement, each holder of Transfer Restricted Securities or the Company, as the
case may be, in addition to being entitled to exercise all rights granted by
law, including recovery of damages, will be entitled to specific performance of
its rights under this Agreement. The Company and each holder of Transfer
Restricted Securities agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agree that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
21
(h) No Inconsistent Agreements. The Company has not, nor shall the
--------------------------
Company on or after the date of this Agreement, enter into any agreement that is
inconsistent with the rights granted to the holders of Transfer Restricted
Securities in this Agreement or otherwise conflicts with the provisions hereof.
Without limiting the generality of the foregoing, without the written consent of
the holders of a majority in aggregate principal amount of the then outstanding
Transfer Restricted Securities, the Company shall not grant to any person the
right to request the Company to register any debt securities of the Company
under the Securities Act unless the rights so granted are subject in all
respects to the prior rights of the holders of Transfer Restricted Securities
set forth herein, and are not otherwise in conflict or inconsistent with the
provisions of this Agreement.
(i) No Piggyback on Registrations. Neither the Company nor any of
-----------------------------
its respective securityholders (other than the holders of Transfer Restricted
Securities in such capacity) shall have the right to include any securities of
the Company in any Shelf Registration or Exchange Offer other than Transfer
Restricted Securities.
(j) Severability. The remedies provided herein are cumulative and
------------
not exclusive of any remedies provided by law. If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, illegal, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or invalidated, and
the parties hereto shall use their reasonable efforts to find and employ an
alternative means to achieve the same or substantially the same result as that
contemplated by such term, provision, covenant or restriction. It is hereby
stipulated and declared to be the intention of the parties that they would have
executed the remaining terms, provisions, covenants and restrictions without
including any of such that may be hereafter declared invalid, illegal, void or
unenforceable.
22
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
Ryder TRS, Inc.,
By: /s/ Xxxx Xxxxxxxx
---------------------
Name: Xxxx Xxxxxxxx
Title: Vice President and
Assistant Secretary
Accepted in New York, New York
CHASE SECURITIES INC.,
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President
23
ANNEX A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The Letter
of Transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of Exchange Securities received in exchange for Existing Securities
where such Existing Securities were acquired by such broker-dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, for a period of 90 days after the Expiration Date (as defined herein), it
will make this Prospectus available to any broker-dealer for use in connection
with any such resale. See "Plan of Distribution."
24
ANNEX B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Existing Securities, where such Existing Securities were
acquired by such broker-dealer as a result of market-making activities or other
trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such Exchange Securities. See "Plan of
Distribution."
25
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with resales of Exchange Securities received in
exchange for Existing Securities where such Existing Securities were acquired as
a result of market-making activities or other trading activities. The Company
has agreed that, for a period of 90 days after the Expiration Date, it will make
this prospectus, as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until ,
199 , all dealers effecting transactions in the Exchange Securities may be
required to deliver a prospectus.*/
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Securities may be
deemed to be an "underwriter" within the meaning of the Securities Act and any
profit on any such resale of Exchange Securities and any commission or
concessions received by any such persons may be deemed to be
---------------------
*/ In addition, the legend required by Item 502(e) of Regulation S-K will
appear on the back cover page of the Exchange Offer prospectus.
26
underwriting compensation under the Securities Act. The Letter of Transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 90 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
Holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the Holders of the Securities (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
27
ANNEX D
____
/____/ CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
--------------------------------------------
Address:
-----------------------------------------
-----------------------------------------
If the undersigned is not a broker-dealer, the undersigned represents that it is
not engaged in, and does not intend to engage in, a distribution of Exchange
Securities. If the undersigned is a broker-dealer that will receive Exchange
Securities for its own account in exchange for Securities that were acquired as
a result of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with any resale of
such Exchange Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
