EXHIBIT 4.5
$870,000,000
GLOBAL REVOLVING CREDIT AGREEMENT
dated as of May 11, 2004
by and among
RYDER SYSTEM, INC.
("Ryder")
RYDER TRUCK RENTAL HOLDINGS CANADA LTD.
("Ryder Holdings Canada")
RYDER TRUCK RENTAL CANADA LTD.
("Ryder Canada Limited" and together with Ryder Holdings Canada, the
"Canadian Borrowers")
RYDER PLC
("Ryder PLC")
RYDER SYSTEM HOLDINGS (U.K.) LIMITED,
("RSH" and together with Ryder PLC, the "U.K. Borrowers")
RYDER PUERTO RICO, INC.
("Ryder PR")
and
the Banks named herein,
FLEET NATIONAL BANK
(the "Administrative Agent"),
CITICORP USA, INC.
(the "Syndication Agent"),
BANK OF TOKYO - MITSUBISHI TRUST, MIZUHO CORPORATE BANK, LTD.,
ROYAL BANK OF SCOTLAND PLC and WACHOVIA BANK, N.A.
(each a "Co-Documentation Agent"),
ROYAL BANK OF SCOTLAND PLC
(the "U.K. Agent"),
ROYAL BANK OF CANADA
(the "Canadian Agent"),
with
BANC OF AMERICA SECURITIES LLC
and
CITIGROUP GLOBAL MARKETS INC.
as Joint Lead Arrangers and Book Managers
TABLE OF CONTENTS
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION................................................................... 1
Section 1.1. Definitions...................................................................................... 1
Section 1.2. Rules of Interpretation.......................................................................... 27
SECTION 2. THE CREDIT FACILITIES..................................................................................... 28
Section 2.1. Commitment to Lend............................................................................... 28
Section 2.1.1. Domestic Loans........................................................................ 28
Section 2.1.2. Canadian Loans........................................................................ 28
Section 2.1.3. U.K. Loans............................................................................ 29
Section 2.1.4. PR Loans.............................................................................. 29
Section 2.2. Facility Fee and Utilization Fee................................................................. 30
Section 2.3. Reduction of Commitments......................................................................... 31
Section 2.4. Reallocation of Commitments...................................................................... 33
Section 2.5. The Notes........................................................................................ 35
Section 2.6. Interest on Loans................................................................................ 37
Section 2.7. Requests for Loans............................................................................... 38
Section 2.8. Election of LIBOR Rate; Notice of Election; Interest Periods;
Minimum Amounts................................................................................................ 40
Section 2.9. Funds for Loans.................................................................................. 42
Section 2.10. Maturity of the Loans........................................................................... 43
Section 2.11. Optional Prepayments or Repayments of Loans..................................................... 43
Section 2.12. The Domestic Swing Line......................................................................... 43
Section 2.13. The U.K. Swing Line............................................................................. 47
Section 2.14. The Canadian Swing Line......................................................................... 50
SECTION 3. BANKERS' ACCEPTANCES...................................................................................... 53
Section 3.1. Acceptance and Purchase.......................................................................... 53
Section 3.2 Refunding Bankers' Acceptances.................................................................... 57
Section 3.3 Acceptance Fee.................................................................................... 58
SECTION 4. LETTERS OF CREDIT......................................................................................... 58
Section 4.1. Letter of Credit Commitments..................................................................... 58
Section 4.2. Procedures for Issuance and Amendment of Letters of Credit;
Auto-Extension Letters of Credit............................................................................... 60
Section 4.3. Drawings and Reimbursements; Funding of Participations........................................... 63
Section 4.4. Repayment of Participations...................................................................... 65
Section 4.5. Obligations Absolute............................................................................. 65
Section 4.6. Role of Issuing Bank............................................................................. 66
Section 4.7. Cash Collateral.................................................................................. 67
Section 4.8. Applicability of ISP98 and UCP................................................................... 68
Section 4.9. Letter of Credit Fees............................................................................ 68
Section 4.10. Fronting Fee and Documentary and Processing Charges
Payable to Issuing Bank........................................................................................ 68
Section 4.11. Conflict with Issuing Documents................................................................. 69
Section 4.12. Letters of Credit Issued for Domestic Subsidiaries.............................................. 69
SECTION 5. GUARANTY.................................................................................................. 69
Section 5.1. Guaranty of Payment.............................................................................. 69
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Section 5.2. Ryder's Agreement to Pay Enforcement Costs, etc.................................................. 70
Section 5.3. Waivers by Ryder; Banks' Freedom to Act.......................................................... 70
Section 5.4. Unenforceability of Guaranteed Obligations....................................................... 70
Section 5.5. Subrogation; Subordination....................................................................... 71
Section 5.5.1. Postponement of Rights................................................................ 71
Section 5.5.2. Subordination......................................................................... 72
Section 5.5.3. Provisions Supplemental............................................................... 72
Section 5.6. Further Assurances............................................................................... 72
Section 5.7. Reinstatement.................................................................................... 73
Section 5.8. Successors and Assigns........................................................................... 73
Section 5.9. Currency of Payment.............................................................................. 73
Section 5.10. Concerning Joint and Several Liability of the U.K. Borrowers and the Canadian Borrowers......... 73
SECTION 6. PROVISIONS RELATING TO ALL LOANS.......................................................................... 75
Section 6.1. Funds for Payments............................................................................... 75
Section 6.2. Exemption From Withholding....................................................................... 76
Section 6.3. Currency of Payment.............................................................................. 78
Section 6.4. Mandatory Repayments of the Loans................................................................ 78
Section 6.5. Computations..................................................................................... 79
Section 6.6. Illegality; Inability to Determine LIBOR Rate or EURIBOR Rate.................................... 79
Section 6.7. Additional Costs, Etc............................................................................ 80
Section 6.8. Capital Adequacy................................................................................. 82
Section 6.9. Certificate; Etc................................................................................. 82
Section 6.10. Eurodollar Indemnity............................................................................ 82
Section 6.11. Interest on Overdue Amounts..................................................................... 83
Section 6.12. Interest Limitation............................................................................. 84
Section 6.13. Reasonable Efforts to Mitigate.................................................................. 84
Section 6.14. Replacement of Banks............................................................................ 84
Section 6.15. Advances by Administrative Agent; Canadian Agent; and U.K. Agent................................ 85
Section 6.16. Currency Fluctuations........................................................................... 87
SECTION 7. REPRESENTATIONS AND WARRANTIES............................................................................ 88
Section 7.1. Corporate Authority.............................................................................. 88
Section 7.2. Governmental Approvals........................................................................... 89
Section 7.3. Title to Properties; Leases...................................................................... 89
Section 7.4. Financial Statements............................................................................. 89
Section 7.5. Litigation....................................................................................... 90
Section 7.6. Compliance With Other Instruments, Laws, Etc..................................................... 90
Section 7.7. Tax Status....................................................................................... 90
Section 7.8. No Event of Default.............................................................................. 91
Section 7.9. Holding Company and Investment Company Acts...................................................... 91
Section 7.10. Absence of Financing Statements, Etc............................................................ 91
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Section 7.11. Employee Benefit Plans.......................................................................... 91
Section 7.12. Environmental Compliance........................................................................ 92
Section 7.13. Disclosure...................................................................................... 93
Section 7.14. Location of Chief Executive Office.............................................................. 93
Section 7.15. Debt Ratings.................................................................................... 93
Section 7.16. Consolidated Subsidiaries....................................................................... 93
7.17. Foreign Assets Control Regulations, Etc......................................................... 93
SECTION 8. AFFIRMATIVE COVENANTS OF THE BORROWERS.................................................................... 94
Section 8.1. Punctual Payment................................................................................. 94
Section 8.2. Maintenance of Chief Executive Office............................................................ 94
Section 8.3. Records and Accounts............................................................................. 94
Section 8.4. Financial Statements, Certificates and Information............................................... 94
Section 8.5. Corporate Existence; Compliance with Laws, Other Agreements...................................... 96
Section 8.6. Maintenance of Properties........................................................................ 96
Section 8.7. Insurance........................................................................................ 96
Section 8.8. Taxes............................................................................................ 97
Section 8.9. Inspection of Properties, Books and Contracts.................................................... 97
Section 8.10. Notice of Potential Claims or Litigation........................................................ 97
Section 8.11. Notice of Default............................................................................... 97
Section 8.12. Use of Proceeds................................................................................. 97
Section 8.13. Debt Ratings.................................................................................... 98
Section 8.14. Further Assurances.............................................................................. 98
SECTION 9. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS............................................................... 98
Section 9.1. Restrictions on Secured Indebtedness............................................................. 98
Section 9.2. Restrictions on Liens............................................................................ 99
Section 9.3. Corporate Changes and Sales or Dispositions of Assets............................................ 100
Section 9.4. Leasebacks....................................................................................... 101
Section 9.5. Limitation on Agreements......................................................................... 101
Section 9.6. Employee Benefit Plans........................................................................... 102
SECTION 10. FINANCIAL COVENANT OF THE BORROWERS...................................................................... 102
Section 10.1. Debt to Consolidated Tangible Net Worth......................................................... 103
SECTION 11. CONDITIONS TO EFFECTIVENESS.............................................................................. 103
Section 11.1. Corporate Action................................................................................ 103
Section 11.2. Loan Documents, Etc............................................................................. 103
Section 11.3. Certified Copies of Charter Documents........................................................... 103
Section 11.4. Incumbency Certificate.......................................................................... 103
Section 11.5. Certificates of Insurance....................................................................... 103
Section 11.6. Opinion of Counsel.............................................................................. 103
Section 11.7. Existing Debt................................................................................... 104
Section 11.8. Financial Condition; Debt Ratings............................................................... 104
Section 11.9. Payment of Fees................................................................................. 104
Section 11.10. Closing Date Compliance Certificate............................................................ 104
Section 11.11. Receipt of Financial Statements................................................................ 104
SECTION 12. CONDITIONS TO ALL LOANS.................................................................................. 104
Section 12.1. Representations True............................................................................ 104
Section 12.2. Performance; No Event of Default................................................................ 105
Section 12.3. No Legal Impediment............................................................................. 105
Section 12.4. Delivery of Documents........................................................................... 105
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SECTION 13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT............................................... 105
Section 13.1. Events of Default and Acceleration.............................................................. 105
Section 13.2. Termination of Commitments...................................................................... 108
Section 13.3. Remedies........................................................................................ 109
Section 13.4. Judgment Currency............................................................................... 109
SECTION 14. SETOFF................................................................................................... 110
SECTION 15. EXPENSES................................................................................................. 110
SECTION 16. THE AGENTS............................................................................................... 111
Section 16.1. Authorization................................................................................... 111
Section 16.2. Employees and Agents............................................................................ 112
Section 16.3. No Liability.................................................................................... 112
Section 16.4. No Representations.............................................................................. 112
Section 16.5. Payments........................................................................................ 114
Section 16.5.1. Payments to Agents................................................................... 114
Section 16.5.2. Distribution by Agents............................................................... 114
Section 16.5.3. Delinquent Banks..................................................................... 114
Section 16.6. Holders of Notes................................................................................ 115
Section 16.7. Indemnity....................................................................................... 115
Section 16.8. Agents as Bank.................................................................................. 116
Section 16.9. Resignation of Agents........................................................................... 116
Section 16.10. Notification of Defaults and Events of Default................................................. 117
Section 16.11. Agent May File Proofs of Claim................................................................. 117
SECTION 17. CONSENTS, AMENDMENTS, WAIVERS, ETC....................................................................... 118
SECTION 18. INDEMNIFICATION.......................................................................................... 118
SECTION 19. WITHHOLDING TAXES........................................................................................ 119
SECTION 20. SURVIVAL OF COVENANTS, ETC............................................................................... 122
SECTION 21. ASSIGNMENT AND PARTICIPATION............................................................................. 122
Section 21.1. General Conditions.............................................................................. 123
Section 21.2. Conditions to Assignment by Banks............................................................... 123
Section 21.3. Register........................................................................................ 124
Section 21.4. Participations.................................................................................. 124
Section 21.5. Payments to Participants........................................................................ 125
Section 21.6. Miscellaneous Assignment Provisions............................................................. 125
Section 21.7. Special Purposes Funding Vehicle................................................................ 126
21.8. Acceding Banks; Increase in Total Commitment..................................................... 126
Section 21.9. Resignation of Issuing Bank..................................................................... 128
SECTION 22. PARTIES IN INTEREST...................................................................................... 128
SECTION 23. NOTICES, ETC............................................................................................. 128
SECTION 24. MISCELLANEOUS............................................................................................ 130
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SECTION 25. WAIVER OF JURY TRIAL; ETC................................................................................ 130
SECTION 26. GOVERNING LAW............................................................................................ 131
SECTION 27. SEVERABILITY............................................................................................. 131
SECTION 28. PARI PASSU TREATMENT..................................................................................... 131
SECTION 29. CONFIDENTIAL INFORMATION................................................................................. 133
SECTION 30. USA PATRIOT ACT NOTICE................................................................................... 134
SECTION 31. ACKNOWLEDGMENTS.......................................................................................... 135
Exhibits
Exhibit A-1 Form of Domestic Note
Exhibit A-2 Form of Canadian Note
Exhibit A-3 Form of U.K. Note
Exhibit A-4 Form of PR Note
Exhibit A-5 Form of Domestic Swing Line Note
Exhibit A-6 Form of U.K. Swing Line Note
Exhibit A-7 Form of Canadian Swing Line Note
Exhibit B-1 Form of Domestic Loan Request
Exhibit B-2 Form of Canadian Loan Request
Exhibit B-3 Form of U.K. Loan Request
Exhibit B-4 Form of PR Loan Request
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment and Assumption
Exhibit E Form of Subordination Provisions
Exhibit F Form of Bankers' Acceptance Notice
Exhibit G-1 Form of Domestic Swing Line Loan Request
Exhibit G-2 Form of U.K. Swing Line Loan Request
Exhibit G-3 Form of Canadian Swing Line Loan Request
Exhibit H Form of Instrument of Accession
Schedules
Schedule 1 Domestic Banks; Domestic Commitment Percentages; Canadian Banks; Canadian
Commitment Percentages; U.K. Banks, U.K.Commitment Percentages; PR Banks; PR
Commitment Percentages; Total Commitment;
Total Commitment Percentages
Schedule 2 Additional Costs
Schedule 7.5 Litigation
Schedule 7.7 Taxes
Schedule 7.12 Environmental Compliance
Schedule 7.15 Debt Ratings
Schedule 7.16 Subsidiaries
Annex
Annex A Power of Attorney Terms - Bankers' Acceptances
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT is made as of May 11, 2004, by and among
(i) RYDER SYSTEM, INC., a corporation organized under the laws of Florida
("Ryder"), RYDER TRUCK RENTAL HOLDINGS CANADA LTD. ("Ryder Holdings Canada"),
RYDER TRUCK RENTAL CANADA LTD. ("Ryder Canada Limited" and together with Ryder
Holdings Limited, the "Canadian Borrowers"), RYDER PLC, a corporation organized
under the laws of England and Wales ("Ryder PLC"), RYDER SYSTEM HOLDINGS (U.K.)
LIMITED ("RSH" and together with Ryder PLC, the "U.K. Borrowers") and RYDER
PUERTO RICO, INC. ("Ryder PR"), a corporation organized under the laws of
Delaware, (ii) the lending institutions identified as Banks herein, (iii) FLEET
NATIONAL BANK, as administrative agent for the Banks (the "Administrative
Agent"), (iv) CITICORP USA, INC., as syndication agent hereunder (the
"Syndication Agent"), (v) Bank of Tokyo - Mitsubishi, Mizuho Corporate Bank,
LTD., Royal Bank of Scotland PLC and Wachovia Bank, N.A., each a documentation
agent hereunder (each a "Co-Documentation Agent" and collectively, the
"Co-Documentation Agents"), (vi) ROYAL BANK OF CANADA, as Canadian agent for the
Banks (the "Canadian Agent") and (vii) ROYAL BANK OF SCOTLAND PLC, as United
Kingdom agent for the Banks (the "U.K. Agent").
SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.
SECTION 1.1. DEFINITIONS. The following terms shall have the meanings set
forth in this Section 1 or elsewhere in the provisions of this Agreement
referred to below:
Acceding Bank. See Section 21.8.
Acceptance Fee. See Section 3.3.
Additional Costs. In relation to any U.K. LIBOR Rate Loan or EURIBOR Rate
Loan denominated in Sterling or Euros, respectively and for any period, a
percentage calculated for such period at an annual rate determined by
application of the formula set out in Schedule 2 hereto.
Adjusted Consolidated Tangible Assets. As at any date, Consolidated
Tangible Assets after (x) including the consolidated book value of all assets of
Ryder and its Consolidated Subsidiaries which are subject to any synthetic lease
and (y) excluding the consolidated book value of all assets of Ryder and its
Consolidated Subsidiaries that are reflected on the consolidated balance sheet
of Ryder and its Consolidated Subsidiaries, prepared in accordance with GAAP,
and secure or are the subject of any Limited Recourse Facility.
Administrative Agent. Has the meaning ascribed thereto in the introductory
paragraph hereof.
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Affiliate or affiliate. With respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "Control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "Controlling" and
"Controlled" have meanings correlative thereto.
Agents. The Administrative Agent, the Canadian Agent and the U.K. Agent.
Agreement. This Revolving Credit Agreement, including the Schedules and
Exhibits hereto, as from time to time amended and supplemented in accordance
with the terms hereof.
Applicable Acceptance Fee Rate. The applicable rate per annum with respect
to the Acceptance Fee shall be as set forth in the Pricing Table.
Applicable BA Discount Rate. With respect to any Bankers' Acceptance being
purchased by a Canadian Bank on any day, the average Bankers' Acceptance
discount rate for the term of such Banker's Acceptance as quoted on Reuters Page
CDOR at or about 10:00 a.m. (Toronto time) on such day. If the rate referenced
in the preceding sentence does not appear on such page or service or such page
or service shall not be available, the rate per annum equal to the rate
determined by the Canadian Agent to be the offered rate on such other page or
other service that displays an average Bankers' Acceptance discount rate for the
term of such Banker's Acceptance, determined as of approximately 10:00 a.m.
(Toronto time) on such day. If the rates referenced in the preceding two
sentences are not available, the rate per annum determined by the Canadian Agent
as the rate of interest at which deposits in Canadian Dollars for delivery on
such day in same day funds in the approximate amount of Bankers' Acceptance
being purchased by such Canadian Bank and with a term equivalent to such
Bankers' Acceptance would be offered by the Canadian Agent to major banks in the
Canadian interbank market at their request at approximately 4:00 p.m. (Toronto
time) on such day.
Applicable Facility Fee Rate. The applicable rate per annum with respect
to the Facility Fees relating to the Domestic Commitment, U.K. Commitment,
Canadian Commitment and PR Commitment shall be as set forth in the Pricing
Table.
Applicable Margin. The applicable margin on the LIBOR Rate Loans shall be
as set forth in the Pricing Table.
APPROVED FUND. Any Fund that is administered or managed by (a) a Bank, (b)
an affiliate of a Bank or (c) an entity or an affiliate of an entity that
administers or manages a Bank.
3
Assignment and Assumption. An Assignment and Assumption substantially in
the form of Exhibit D.
Auto-Extension Letter of Credit. See Section 4.2(c).
BA Discount Proceeds. With respect to any Bankers' Acceptance to be
accepted and purchased by a Canadian Bank, an amount (rounded to the nearest
whole Canadian cent, and with one-half of one Canadian cent being rounded up)
calculated on such day by multiplying (a) the face amount of such Bankers'
Acceptance times (b) the quotient equal to (such quotient being rounded up or
down to the nearest fifth decimal place and .000005 being rounded up) (i) one
divided by (ii) the sum of (A) one plus (B) the product of (1) the Applicable BA
Discount Rate (expressed as a decimal) applicable to such Bankers' Acceptance
times (2) the quotient equal to (aa) the number of days remaining in the term of
such Bankers' Acceptance divided by (bb) 365.
Balance Sheet Date. December 31, 2003.
Bankers' Acceptance. A non-interest bearing draft drawn by a Canadian
Borrower in Canadian Dollars in the form of either a depository bill subject to
the Depository Bills and Notes Act (Canada) or a non-interest bearing bill of
exchange, as defined in the Bills of Exchange Act (Canada), in either case
issued by a Canadian Borrower which has been accepted, and, if applicable,
purchased by the Canadian Banks at the request of a Canadian Borrower pursuant
to Section 3 hereof.
Bankers' Acceptance Notice. See Section 3.1.
Banks. Collectively, the Domestic Banks, the Canadian Banks, the U.K.
Banks, the PR Banks and, solely in their role as lenders of the applicable Swing
Line Loans, the Administrative Agent, the Canadian Agent and the U.K. Agent.
Base Rate Loans. Loans bearing interest calculated by reference to the
Domestic Base Rate, the Canadian Prime Rate, the Canadian Base Rate, the
Sterling Reference Rate, the Reference U.K. Dollar Base Rate or the Euro
Reference Rate, and, with respect to U.K. Swing Line Loans only, the RBS-U.K.
Sterling Reference Rate, the RBS-U.K. Euro Reference Rate or the U.K. Dollar
Base Rate.
Borrowers. Collectively, Ryder, the Canadian Borrowers, the U.K. Borrowers
and Ryder PR.
Business Day. When used in connection with (a)(i) Domestic Loans, a
Domestic Business Day; (ii) a LIBOR Rate Loan, a Eurodollar Business Day; (iii)
a Canadian Loan or a Bankers' Acceptance, a Canadian Business Day; (iv) a U.K.
Loan, a U.K. Business Day; and (v) a PR Loan, a PR Business
4
Day, and (b) Letters of Credit issued for the account of Ryder and its domestic
Subsidiaries, a Domestic Business Day.
Calculation Date. See Section 6.16.
Canadian Agent. Has the meaning ascribed thereto in the introductory
paragraph hereof.
Canadian Banks. The banks and financial institutions that shall have
agreed to make Canadian Loans to the Canadian Borrowers, as evidenced by such
Bank having a positive figure beside its name in the column titled "Canadian
Commitment" on Schedule 1 hereto, as such Schedule may be updated from time to
time in accordance with Sections 2.3(f), 2.4 and 21 hereof.
Canadian Base Rate. With respect to a Canadian Loan that is a Canadian
Base Rate Loan denominated in U.S. Dollars, the annual rate of interest
announced from time to time by the Canadian Agent as its reference rate then in
effect for U.S. Dollar denominated commercial loans made by the Canadian Agent
in Canada.
Canadian Base Rate Loans. Canadian Loans that bear interest calculated by
reference to the Canadian Base Rate (with respect to Canadian Loans denominated
in U.S. Dollars) or the Canadian Prime Rate (with respect to Canadian Loans
denominated in Canadian Dollars).
Canadian Borrowers. Has the meaning ascribed thereto in the introductory
paragraph hereof.
Canadian Business Day. Any day other than a Saturday, Sunday, or any day
on which banking institutions in Toronto, Canada or New York, New York are
authorized or required by law to be closed and in connection with a Canadian
Dollar LIBOR Rate Loan, a Eurodollar Business Day.
Canadian Commitment. With respect to each Canadian Bank, the amount set
forth on Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof, as the amount of such
Canadian Bank's commitment to make Canadian Loans to, or to accept Bankers'
Acceptances for, the Canadian Borrowers, as the same may be reduced from time to
time; or if such commitment is terminated pursuant to the provisions hereof,
zero.
Canadian Commitment Percentage. With respect to each Canadian Bank, the
percentage set forth on Schedule 1 hereto, as such Schedule may be updated from
time to time in accordance with Sections 2.3(f), 2.4 and 21 hereof, as such
Canadian Bank's percentage of the Total Canadian Commitment.
Canadian Dollar Equivalent. With respect to an amount of U.S. Dollars,
Sterling or Euros on any date, the amount of Canadian Dollars that may be
purchased with such amount of U.S. Dollars, Euros or Sterling at
5
the Exchange Rate with respect to U.S. Dollars, Euros or Sterling, as
applicable, on such date.
Canadian Dollar LIBOR Rate. For any Interest Period with respect to a
Canadian Dollar LIBOR Rate Loan, the rate of interest (rounded upwards to the
nearest one hundred-thousandth of one percent) equal to (i) the rate at which
U.S. Dollar deposits are offered on Moneyline Telerate Page 3750 (or any
successor thereto) at approximately 10:00 a.m. (Toronto time) two Eurodollar
Business Days prior to the beginning of such Interest Period divided by (ii) a
number equal to 1.00 minus the Eurocurrency Reserve Rate, if applicable. If the
rate referenced in the preceding sentence does not appear on such page or
service or such page or service shall not be available, the rate referred to in
clause (i) thereof shall be equal to the rate determined by the Canadian Agent
to be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits in
U.S. Dollars (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 10:00 a.m.
(Toronto time) two Eurodollar Business Days prior to the first day of such
Interest Period. If the rates referenced in the preceding two sentences are not
available, the rate referred to in clause (i) of the first sentence shall be
determined by the Canadian Agent as the rate of interest at which deposits in
U.S. Dollars for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Canadian Dollar LIBOR Rate Loan being
made, continued or converted by the Canadian Agent and with a term equivalent to
such Interest Period would be offered by the Canadian Agent's London branch to
major banks in the London interbank eurodollar market at their request at
approximately 4:00 p.m. (London time) two Eurodollar Business Days prior to the
first day of such Interest Period.
Canadian Dollar LIBOR Rate Loans. Canadian Loans denominated in U.S.
Dollars that bear interest calculated by reference to the Canadian Dollar LIBOR
Rate.
Canadian Dollars or C$. Dollars in lawful currency of Canada.
Canadian Facility Fee. See Section 2.2(b).
Canadian Loan Request. See Section 2.7(b).
Canadian Loans. Collectively, Loans made to the Canadian Borrowers by the
Canadian Banks pursuant to Section 2.1.2 hereof and the Canadian Swing Line
Loans.
Canadian Note. See Section 2.5(b).
Canadian Prime Rate. With respect to a Canadian Loan that is a Canadian
Base Rate Loan denominated in Canadian Dollars, the annual rate of interest
announced from time to time by the Canadian Agent as its
6
reference rate then in effect for determining interest rates for commercial
loans in Canadian Dollars made by the Canadian Agent in Canada.
Canadian Swing Line Loan Request. See Section 2.14(b).
Canadian Swing Line Loans. See Section 2.14(a).
Canadian Swing Line Note. See Section 2.14(f).
Capitalized Leases. Leases under which Ryder or any of its Consolidated
Subsidiaries is the lessee or obligor, the discounted future rental payment
obligations under which are required to be capitalized on the balance sheet of
the lessee or obligor in accordance with GAAP.
Cash Collateralize. See Section 4.7.
Closing Date. The date on which the conditions precedent set forth in
Sections 11 and 12 hereof are satisfied and the first Loan is made to a
Borrower hereunder or the first Bankers' Acceptance shall be accepted and
purchased by a Canadian Bank hereunder or any Letter of Credit is issued
hereunder.
Code. The Internal Revenue Code of 1986, as amended and in effect from
time to time.
Co-Documentation Agent. Has the meaning ascribed thereto in the
introductory paragraph hereof.
Commitment(s). With respect to any Bank, its Domestic Commitment and/or
Canadian Commitment and/or U.K. Commitment and/or PR Commitment.
Commitment Percentage(s). With respect to any Bank, its Domestic
Commitment Percentage and/or Canadian Commitment Percentage and/or U.K.
Commitment Percentage and/or PR Commitment Percentage.
Compliance Certificate. See Section 8.4(c).
Consolidated or consolidated. With reference to any term defined herein,
shall mean that term as applied to the accounts of Ryder and its Consolidated
Subsidiaries consolidated in accordance with GAAP.
Consolidated Adjusted Tangible Net Worth. At any date, the aggregate of
(i) consolidated shareholders' equity and (ii) without duplication, an amount
equal to 50% of any deferred federal income taxes as reflected on a consolidated
balance sheet of Ryder and its Consolidated Subsidiaries prepared in accordance
with GAAP, less the sum of:
(a) investments in Subsidiaries other than Consolidated
Subsidiaries; and
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(b) the consolidated book value of all assets of Ryder and its
Consolidated Subsidiaries which would be treated as intangibles under GAAP
(including, without limitation, goodwill, trademarks, trade names,
operating rights, patents and licenses, and rights with respect to the
foregoing).
Consolidated Subsidiary. As of any date, any Subsidiary or other entity
the accounts of which would be consolidated with those of Ryder in its
consolidated financial statements if prepared on such date, in accordance with
Generally Accepted Accounting Principles.
Consolidated Tangible Assets. As at any date, the consolidated assets of
Ryder and its Consolidated Subsidiaries which may properly be classified as
assets in accordance with GAAP, on a consolidated basis and after eliminating
(a) all intercompany items, (b) all Intangible Assets, and (c) all investments
in Subsidiaries other than Consolidated Subsidiaries (to the extent such
investments are not otherwise eliminated).
Debtor Relief Laws. The Bankruptcy Code of the United States, and all
other liquidation, conservatorship, bankruptcy, assignment for the benefit of
creditors, moratorium, rearrangement, receivership, insolvency, reorganization,
or similar debtor relief Laws of the United States or other applicable
jurisdictions from time to time in effect and affecting the rights of creditors
generally.
Default. Any event, act or condition which with the giving of notice
and/or the passage of time would constitute an Event of Default.
Defaulting Bank. See Section 6.14.
Delinquent Bank. See Section 16.5.3.
Deemed Indebtedness Under Limited Recourse Facilities. (i) The Deemed
Receivables Indebtedness, (ii) the Deemed Securitization Indebtedness and (iii)
in respect of any other Limited Recourse Facility, an amount equal to the
greater of (a) 8% of the principal amount or aggregate payment obligations, as
applicable, of such Limited Recourse Facility or (b) two times the percentage
recourse under such Limited Recourse Facility of the principal amount or
aggregate payment obligations, as applicable, of such Limited Recourse Facility
(as determined in accordance with the definition of "Limited Recourse
Facilities").
Deemed Receivables Indebtedness In respect of the Receivables Purchase
Agreement, so long as there is a purchased receivables balance outstanding under
the Receivables Purchase Agreement, Ryder shall be deemed to have incurred
Indebtedness in an amount equal to eight percent (8%) of the aggregate face
amount of all accounts receivable of Ryder and its Consolidated Subsidiaries
which at any given time constitute purchased receivables under the Receivables
Purchase Agreements.
8
Deemed Securitization Indebtedness. In respect of the Securitization
Transactions, Ryder shall be deemed to have incurred Indebtedness in an amount
equal to fifteen percent (15%) of the amount of Indebtedness of Ryder and its
Consolidated Subsidiaries or of any special purpose securitization conduit
incurred in connection with the relevant Securitization Transaction (excluding
any Indebtedness as to which Ryder or any of its Consolidated Subsidiaries is
the holder).
Derivatives Obligations. With respect to any Person, all obligations of
such Person in respect of any rate swap transaction, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap,
equity or equity index option, bond option, total rate of return swap, credit
default swap, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of the foregoing
transactions) or any combination of the foregoing transactions. For purposes of
Sections 9.1 and 13.1(f) hereof, the "aggregate amount" of any
Derivatives Obligations at any time shall be the maximum amount of any
termination or loss payment required to be paid by Ryder and/or its Subsidiaries
if such Derivatives Obligations were, at the time of determination hereunder, to
be terminated by reason of any event of default or early termination event
thereunder, whether or not such event of default or early termination event has
in fact occurred.
Dollar Equivalent. With respect to an amount of Canadian Dollars, Sterling
or Euros on any date, the amount of U.S. Dollars that may be purchased with such
amount of Canadian Dollars, Sterling or Euros at the Exchange Rate with respect
to Canadian Dollars, Sterling or Euros, as applicable, on such date.
Dollars or U.S.$ or $ or U.S. Dollars. Dollars in lawful currency of the
United States of America.
Domestic Banks. The banks and financial institutions that shall have
agreed to make Domestic Loans to Ryder, as evidenced by such Bank having a
positive figure beside its name in the column titled "Domestic Commitment" on
Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof.
Domestic Base Rate. The higher of (a) the annual rate of interest
announced from time to time by Fleet at its head office in Boston, Massachusetts
as its "prime rate" and (b) one-half of one percent (1/2%) above the Federal
Funds Effective Rate. The "prime rate" is a rate set by Fleet based upon various
factors including Fleet's costs and desired return, general economic conditions
and other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in such
rate announced by Fleet shall take
9
effect at the opening of business on the day specified in the public
announcement of such change.
Domestic Base Rate Loans. Domestic Loans bearing interest calculated by
reference to the Domestic Base Rate.
Domestic Business Day. Any day other than a Saturday, Sunday, or any day
on which banking institutions in Boston, Massachusetts or New York, New York are
authorized or required by law to be closed.
Domestic Commitment. With respect to each Domestic Bank, the amount set
forth on Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof, as the amount of such
Domestic Bank's commitment to make Domestic Loans to, or to participate in the
issuance, extension and renewal of Letters of Credit for the account of, Ryder,
as the same may be reduced from time to time; or if such commitment is
terminated pursuant to the provisions hereof, zero.
Domestic Commitment Percentage. With respect to each Domestic Bank, the
percentage set forth on Schedule 1 hereto, as such Schedule may be updated from
time to time in accordance with Sections 2.3(f), 2.4 and 21 hereof, as
such Domestic Bank's percentage of the Total Domestic Commitment.
Domestic Facility Fee. See Section 2.2(a).
Domestic LIBOR Rate. For any Interest Period with respect to a Domestic
LIBOR Rate Loan, the rate of interest (rounded upwards to the nearest one
hundred-thousandth of one percent) equal to (i) the rate at which U.S. Dollar
deposits are offered on Moneyline Telerate Page 3750 (or any successor thereto)
at approximately 10:00 am (Boston time) two Eurodollar Business Days prior to
the beginning of such Interest Period; divided by (ii) a number equal to 1.00
minus the Eurocurrency Reserve Rate, if applicable. If the rate referenced in
the preceding sentence does not appear on such page or service or such page or
service shall not be available, the rate referred to in clause (i) thereof shall
be equal to the rate determined by the Administrative Agent to be the offered
rate on such other page or other service that displays an average British
Bankers Association Interest Settlement Rate for deposits in U.S. Dollars (for
delivery on the first day of such Interest Period) with a term equivalent to
such Interest Period, determined as of approximately 10:00 a.m. (Boston time)
two Eurodollar Business Days prior to the first day of such Interest Period. If
the rates referenced in the preceding two sentences are not available, the rate
referred to in clause (i) of the first sentence shall be determined by the
Administrative Agent as the rate of interest at which deposits in U.S. Dollars
for delivery on the first day of such Interest Period in same day funds in the
approximate amount of the Domestic LIBOR Rate Loan being made, continued or
converted by the Administrative Agent and with a term equivalent to such
Interest Period would be offered by the Administrative
10
Agent's London branch to major banks in the London interbank eurodollar market
at their request at approximately 4:00 p.m. (London time) two Eurodollar
Business Days prior to the first day of such Interest Period.
Domestic LIBOR Rate Loans. Domestic Loans bearing interest calculated by
reference to the Domestic LIBOR Rate.
Domestic Loan Request. See Section 2.7(a).
Domestic Loans. Collectively, Loans made to Ryder by the Domestic Banks
pursuant to Section 2.1.1 and the Domestic Swing Line Loans.
Domestic Note. See Section 2.5(a).
Domestic Swing Line Loan Request. See Section 2.12(b).
Domestic Swing Line Loans. See Section 2.12(a).
Domestic Swing Line Note. See Section 2.12(f).
Drawdown Date. The date on which any Loan is made or is to be made.
Eligible Assignee. Any of a Qualifying Bank that is (a) a Bank, an
affiliate of a Bank or an Approved Fund, (b) a commercial bank or finance
company organized under the laws of the United States, or any state thereof or
the District of Columbia, and having total assets in excess of $1,000,000,000;
(c) a savings and loan association or savings bank organized under the laws of
the United States, or any state thereof or the District of Columbia, and having
a net worth of at least $1,000,000,000, calculated in accordance with GAAP; (d)
a commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development (the
"OECD"), or a political subdivision of any such country, and having total assets
in excess of $1,000,000,000 (or the local currency equivalent thereof), provided
that such bank is acting through a branch or agency located in the country in
which it is organized or another country which is also a member of the OECD; and
(e) the central bank of any country which is a member of the OECD; provided that
neither General Electric Capital Corporation nor any affiliate of General
Electric Capital Corporation shall be an "Eligible Assignee" for the purposes of
this Agreement.
Employee Benefit Plan. Any employee benefit plan within the meaning of
Section 3(3) of ERISA maintained or contributed to by Ryder, any of its
Subsidiaries, or any ERISA Affiliate, other than a Multiemployer Plan.
Environmental Laws. Any judgment, decree, order, law, permit, license,
rule or regulation pertaining to environmental matters, or any United States,
Canadian, United Kingdom or Puerto Rican federal, state,
11
provincial, territorial or local statute, regulation, ordinance, order or decree
relating to public health, waste transportation or disposal, or the environment.
ERISA. The Employee Retirement Income Security Act of 1974, as amended and
in effect from time to time.
ERISA Affiliate. Any Person which is treated as a single employer with
Ryder or any of its Subsidiaries under Section 414 of the Code.
ERISA Reportable Event. A reportable event with respect to a Guaranteed
Pension Plan within the meaning of Section 4043 of ERISA and the regulations
promulgated thereunder as to which the requirement of notice has not been
waived.
EU Treaties. The treaty establishing the European Community being the
Treaty of Rome of 25 March 1957 as amended by the Single European Act 1986 and
by the Treaty of European Union which was signed at Maastricht on 7 February
1992 (and came into being on November 1, 1993), (the Maastricht Treaty) as
further amended from time to time.
EURIBOR Rate. For any Interest Period with respect to a EURIBOR Rate Loan,
the rate of interest equal to (i) the rate at which Euros are offered on
Moneyline Telerate Page 248 (or any successor thereto) at approximately 11:00
a.m. (Central European time) on the date that is two (2) TARGET Settlement Days
preceding the first day of such Interest Period. If the rate referenced in the
preceding sentence does not appear on such page or service or such page or
service shall not be available, "EURIBOR Rate" means the rate determined by the
U.K. Agent to be the offered rate on such other page or other service that
displays the percentage rate per annum determined by the Banking Federation of
the European Union for deposits in Euros (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined as
of approximately 11:00 a.m. (London time) on the date that is two (2) TARGET
Settlement Days preceding the first day of such Interest Period. If the rates
referenced in the preceding two sentences are not available, "EURIBOR Rate"
means an interest rate per annum equal to the arithmetic mean determined by the
U.K. Agent (rounded upwards to the nearest 0.01%) of the rates per annum at
which deposits in Euros are offered by the U.K. Agent and the Reference Banks in
the European interbank market at approximately 11:00 a.m. (Central European
time), on the day that is two (2) TARGET Settlement Days preceding the first day
of such Interest Period to other leading banks in the European interbank market.
For the purposes of this definition, "TARGET Settlement Day" means any day on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open.
EURIBOR Rate Loan. U.K. Loans denominated in Euros bearing interest
calculated by reference to the EURIBOR Rate.
12
Euro or EU. The single lawful currency of the Participating Member States.
Euro Reference Rate. The annual rate of interest equal to the sum of (i)
the arithmetic mean of the cost of funds offered to the U.K. Agent and the
Reference Banks in the London interbank market for overdrafts denominated in
Euros plus (ii) one percent (1%).
Euro Equivalent. With respect to an amount of U.S. Dollars, Canadian
Dollars or Sterling on any date, the amount of Euros that may be purchased with
such amount of U.S. Dollars, Canadian Dollars or Sterling, as applicable, on
such date.
Eurocurrency Reserve Rate. For any day with respect to (i) a Domestic
LIBOR Rate Loan, the maximum rate (expressed as a decimal) at which any lender
which is a member bank of the Federal Reserve System with deposits exceeding
$5,000,000,000 would be required by law to maintain reserves under Regulation D
of the Board of Governors of the Federal Reserve System (or any successor or
similar regulations relating to such reserve requirements) against "Eurocurrency
Liabilities" (as that term is used in Regulation D), if such liabilities were
outstanding, (ii) a Canadian Dollar LIBOR Rate Loan, the maximum rate (expressed
as a decimal) at which any Canadian Bank would be required by law to maintain
reserves with respect to such Canadian Dollar LIBOR Rate Loan, and (iii) a U.K.
LIBOR Rate Loan which is denominated in U.S. Dollars, the maximum rate
(expressed as a decimal) at which any U.K. Bank would be required by law to
maintain reserves with respect to such U.K. LIBOR Rate Loan. The Eurocurrency
Reserve Rate shall be adjusted automatically on and as of the effective date of
any change in such Regulation D or other applicable law.
Eurodollar Business Day. Any day on which commercial banks are open for
international business (including dealings in Dollar deposits) in London.
Event of Default. See Section 13.1
Exchange Rate. On any day, (a) with respect to Canadian Dollars in
relation to U.S. Dollars, the Canadian Agent's noon spot rate as quoted on the
Reuters Page BOFC at which U.S. Dollars are offered on such day for Canadian
Dollars, (b) with respect to Sterling in relation to U.S. Dollars, the spot rate
as quoted by the U.K. Agent as its spot rate at which U.S. Dollars are offered
on such day for Sterling, (c) with respect to Euros in relation to U.S. Dollars,
the spot rate as quoted by the U.K. Agent as its spot rate at which U.S. Dollars
are offered on such date for Euros, (d) with respect to U.S. Dollars in relation
to Canadian Dollars, the Canadian Agent's noon spot rate as quoted on the
Reuters Page BOFC at which Canadian Dollars are offered on such day for U.S.
Dollars, (e) with respect to U.S. Dollars in relation to Sterling, the spot rate
as quoted by the U.K. Agent as its spot rate at which Sterling is offered on
such day for U.S. Dollars, (f) with respect to U.S. Dollars in relation to
Euros, the spot rate as quoted by the U.K. Agent at its spot rate at which Euros
are offered on such date for U.S. Dollars, (g) with respect to Canadian Dollars
in relation to Sterling, the spot rate as quoted by the Canadian Agent as its
noon spot rate at which Sterling is offered on such day for Canadian Dollars,
(h) with respect to Sterling in relation to Canadian Dollars, the spot rate as
quoted by the U.K. Agent as its spot
13
rate at which Canadian Dollars are offered on such day for Sterling, (i) with
respect to Euros in relation to Canadian Dollars, the spot rate as quoted by the
U.K. Agent as its spot rate at which Canadian Dollars are offered on such day
for Euros and (j) with respect to Canadian Dollars in relation to Euros, the
spot rate as quoted by the Canadian Agent as its noon spot rate at which Euros
are offered on such day for Canadian Dollars.
Facility Fees. Collectively, the Domestic Facility Fee, the Canadian
Facility Fee, the U.K. Facility Fee and the PR Facility Fee.
Federal Funds Effective Rate. On any day, the rate per annum equal to the
weighted average of the rates on overnight federal funds transactions with
members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next
preceding Domestic Business Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a Domestic Business Day, the
average of the quotations for such day on such transactions received by the
Administrative Agent from three funds brokers of recognized standing selected by
the Administrative Agent.
Fitch. Fitch Investors Service, Inc.
Fleet. Fleet National Bank, in its individual capacity.
Fund. Any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
Generally Accepted Accounting Principles, or GAAP. (i) When used in
Sections 9.1 and 10, whether directly or indirectly through reference to
a capitalized term used therein, means (A) principles that are consistent with
the principles promulgated or adopted by the Financial Accounting Standards
Board and its predecessors, in effect for the fiscal year ended on the Balance
Sheet Date, and (B) to the extent consistent with such principles, the
accounting practice of Ryder reflected in its financial statements for the year
ended on the Balance Sheet Date, and (ii) when used in general, other than as
provided above, means principles that are (A) consistent with the principles
promulgated or adopted by the Financial Accounting Standards Board and its
predecessors, as in effect from time to
14
time, and (B) consistently applied with past financial statements of Ryder
adopting the same principles, provided that in each case referred to in this
definition of "generally accepted accounting principles" a certified public
accountant would, insofar as the use of such accounting principles is pertinent,
be in a position to deliver an unqualified opinion (other than a qualification
regarding changes in generally accepted accounting principles) as to financial
statements in which such principles have been properly applied.
Governmental Authority. Any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
Granting Bank. See Section 21.7.
Guaranteed Obligations. See Section 5.1.
Guaranteed Pension Plan. Any employee pension benefit plan within the
meaning of Section 3(2) of ERISA maintained or contributed to by Ryder, its
Subsidiaries or any ERISA Affiliate the benefits of which are guaranteed on
termination in full or in part by the PBGC pursuant to Title IV of ERISA, other
than a Multiemployer Plan.
Guaranty. The guaranty contained in Section 5 hereof.
Hazardous Substances. Any toxic substances, hazardous waste or other
material regulated by any Environmental Law.
Head Office. When used in connection with (a) the Administrative Agent,
the Administrative Agent's head office located in Boston, Massachusetts, or at
such other location as the Administrative Agent may designate from time to time,
(b) the Canadian Agent, the Canadian Agent's head office located in Toronto,
Canada, or at such other location as the Canadian Agent may designate from time
to time and (c) the U.K. Agent, the U.K. Agent's head office located in London,
England, or at such other location as the U.K. Agent may designate from time to
time.
Honor Date. See Section 4.3.
Immaterial Subsidiary. As of any date, a Subsidiary of Ryder whose results
of operations, considered alone or in the aggregate with other Subsidiaries
treated as Immaterial Subsidiaries, do not have a material effect on the
business, consolidated financial position or consolidated results of operations
of Ryder and its Consolidated Subsidiaries, taken as a whole.
15
Indebtedness With respect to any Person, at any date, without
duplication, (a) all obligations of such Person for borrowed money, (b) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (c) all obligations of such Person to pay the deferred
purchase price of property or services, except trade accounts payable arising in
the ordinary course of business, (d) all obligations of such Person as lessee
under Capitalized Leases, (e) all Deemed Indebtedness Under Limited Recourse
Facilities, (f) all obligations as lessee in respect of synthetic leases and (g)
all Indebtedness of others guaranteed by such Person. For the avoidance of
doubt, all obligations under Limited Recourse Facilities other than Deemed
Indebtedness under Limited Recourse Facilities shall not be Indebtedness for the
purposes of this definition.
Indemnifiable Taxes. See Section 19(a).
Instrument of Accession. See Section 21.8.
Intangible Assets. The aggregate amount of the sum of the following (to
the extent reflected in determining consolidated shareholders' equity): (i) all
write-ups (other than write-ups resulting from foreign currency transactions and
write-ups of assets of a going concern business made within twelve (12) months
after the acquisition of such business) subsequent to December 31, 2003 in the
book value of any assets owned by Ryder or a Consolidated Subsidiary, (ii) all
investments in Subsidiaries other than Consolidated Subsidiaries, and (iii) all
unamortized debt discount and expense, unamortized deferred charges, goodwill,
patents, trademarks, service marks, trade names, copyrights, organization or
developmental expenses and other intangible assets.
Intercompany Indebtedness Any Indebtedness owed directly between
Ryder and a Subsidiary of Ryder or between Subsidiaries of Ryder.
Interest Payment Date. With respect to (a) Base Rate Loans, the last day
of each calendar quarter and (b) LIBOR Rate Loans with an Interest Period of (i)
less than three (3) months, the last day of such Interest Period or (ii) more
than three (3) months, the date that is three (3) months from the first day of
such Interest Period, and at three (3) month intervals thereafter and, in
addition, the last day of such Interest Period.
Interest Period. With respect to each Loan (a) initially, the period
commencing on the Drawdown Date of such Loan and ending on the last day of one
of the periods set forth below, as selected by the applicable Borrower(s) in
accordance with this Agreement for any LIBOR Rate Loan, 1, 2, 3, 6 or, if agreed
to by all Banks, 9 or 12 months; and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Loan and
ending on the last day of one of the periods set forth above, as selected by the
applicable Borrower(s) in accordance with this Agreement; provided that any
Interest Period which would otherwise
16
end on a day which is not a Business Day shall be deemed to end on the next
succeeding Business Day; provided further that for any Interest Period for any
LIBOR Rate Loan, if such next succeeding Business Day falls in the next
succeeding calendar month, such Interest Period shall be deemed to end on the
next preceding Business Day; and provided further that no Interest Period shall
extend beyond the Maturity Date, as applicable.
ISP. With respect to any Letter of Credit, the "International Standby
Practices 1998" published by the Institute of International Banking Law &
Practice (or such later version thereof as may be in effect at the time of
issuance).
Issuing Bank. Fleet National Bank in its capacity as issuer of Letters of
Credit for the account of Ryder and its domestic Subsidiaries, or any successor
issuer of Letters of Credit for the account of such Borrower pursuant to Section
21.9 hereunder.
Issuer Documents. With respect to any Letter of Credit, the Letter Credit
Application and any other document, agreement and instrument entered into by the
Issuing Bank and Ryder and its domestic Subsidiaries or in favor of the Issuing
Bank and relating to any such Letter of Credit.
L/C Advance. With respect to each Bank, such Bank's funding of its
participation in any L/C Borrowing in accordance with its Domestic Commitment
Percentage.
L/C Borrowing. An extension of credit resulting from a drawing under any
Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Base Rate Loan denominated in Dollars.
L/C Credit Extension. With respect to any Letter of Credit, the issuance
thereof or extension of the expiry date thereof, or the increase of the amount
thereof.
L/C Obligations. As at any date of determination, the aggregate undrawn
amount of all outstanding Letters of Credit plus the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings. For all purposes of this
Agreement, if on any date of determination a Letter of Credit has expired by its
terms but any amount may still be drawn thereunder by reason of the operation of
Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be "outstanding"
in the amount so remaining available to be drawn.
Letter of Credit. Any letter of credit issued hereunder. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
Letter of Credit Application. An application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the Issuing Bank.
17
Letter of Credit Expiration Date. The day that is thirty days prior to the
Maturity Date then in effect (or, if such day is not a Business Day, the next
preceding Business Day).
Letter of Credit Fee. See Section 4.9.
Letter of Credit Sublimit. An amount equal to $75,000,000. The Letter of
Credit Sublimit is part of, and not in addition to,
the Total Commitment.
LIBOR Rate Loans. Loans bearing interest calculated by reference to the
Domestic LIBOR Rate, Canadian Dollar LIBOR Rate, Sterling LIBOR Rate, EURIBOR
Rate, or U.K. Dollar LIBOR Rate, as the case may be.
Limited Recourse Facilities. Any (i) Receivables Purchase Agreement, (ii)
Securitization Transaction or (iii) other transaction similar to those set forth
in clause (i) and (ii) to which Ryder or any of its Consolidated Subsidiaries is
a party, under which recourse as a general obligation of Ryder or a Consolidated
Subsidiary (other than a special purpose non-operating Subsidiary formed for the
purpose of the relevant transaction) is limited to not more than 15% of the
aggregate principal amount or aggregate payment obligations, as applicable,
under such transaction. Limited recourse as provided for in clause (iii) shall
be determined by Ryder as set forth in a written notice to the Administrative
Agent (together with any appropriate supporting documentation) and shall be
reasonably acceptable to the Administrative Agent; provided that if the
Administrative Agent does not accept such determination, Ryder and the
Administrative Agent shall enter into good faith negotiations in order determine
the amount of the limited recourse with respect to any such transaction and,
prior to Ryder and the Administrative Agent making such determination, such
transaction shall not be treated as a "Limited Recourse Facility" hereunder.
Loan Documents. This Agreement, the Notes, the Bankers' Acceptances, the
Letter of Credit Applications, the Letters of Credit and any other document
designated as a "Loan Document" by Ryder and the Administrative Agent.
Loan(s). Collectively, the Canadian Loans, the Domestic Loans, the PR
Loans and the U.K. Loans.
Majority Banks. The Banks with at least fifty-one percent (51%) of the
Total Commitment; provided that in the event that the Total Commitment has been
terminated, the Majority Banks shall be the Banks holding at least fifty-one
percent (51%) of the aggregate outstanding principal amount of the Obligations
on such date.
Maturity Date. May 11, 2009.
Moody's. Moody's Investors Service, Inc.
18
Multiemployer Plan. Any multiemployer plan within the meaning of Section
3(37) of ERISA maintained or contributed to by Ryder, any of its Subsidiaries,
or any ERISA Affiliate.
New Lending Office. See Section 6.2(b).
Non-Extension Notice Date. See Section 4.2(c).
Non-Schedule I Bank. A Bank which is not a Schedule I Bank.
Non-U.S. Bank. See Section 6.2(a).
Notes. Collectively, the Domestic Notes, the Domestic Swing Line Note, the
U.K. Notes, the U.K. Swing Line Note, the Canadian Notes, the Canadian Swing
Line Note and the PR Notes.
Obligations. All indebtedness, obligations and liabilities of the
Borrowers, and any obligations with respect to Letters of Credit issued for the
account of Ryder's domestic Subsidiaries, to any of the Banks, the Agents and
the Issuing Bank, individually or collectively, existing on the date of this
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, in each case,
arising or incurred under this Agreement or any of the other Loan Documents or
in respect of any of the Loans made or L/C Obligations incurred or Bankers'
Acceptances, Letter of Credit Applications, Letters of Credit, the Notes, or any
other instrument at any time evidencing any thereof.
Other Taxes. See Section 19(b).
Participant. See Section 21.4.
Participating Member States. A member state of the European Union that has
adopted or adopts a single currency in accordance with the EU Treaties.
PBGC. The Pension Benefit Guaranty Corporation created by Section 4002 of
ERISA and any successor entity or entities having similar responsibilities.
Permitted Liens. See Section 9.2.
Person. Any individual, corporation, partnership, joint venture, limited
liability company, trust, unincorporated association, business, or other legal
entity, and any government or any governmental agency or political subdivision
thereof.
PR Banks. The banks and financial institutions that shall have agreed to
make PR Loans to Ryder PR, as evidenced by each such Bank
19
having a positive figure beside its name in the column titled "PR Commitment" on
Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof.
PR Business Day. A Domestic Business Day.
PR Commitment. With respect to each PR Bank, the amount set forth on
Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Section 2.3(f), 2.4 and 21 hereof, as the amount of such PR
Bank's Commitment to make PR Loans to Ryder PR, as the same may be reduced from
time to time; or if such Commitment is terminated pursuant to the provisions
hereof, zero.
PR Commitment Percentage. With respect to each PR Bank, the percentage set
forth on Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof, as such PR Bank's
percentage of the Total PR Commitment.
PR Facility Fee. See Section 2.2(d).
PR Loan Request. See Section 2.7(d).
PR Loans. Collectively, Loans made to Ryder PR by the PR Banks pursuant to
Section 2.1.4 hereof.
PR Note. See Section 2.5(e).
Pricing Table. With respect to Domestic Loans, Canadian Loans, U.K. Loans,
PR Loans, Bankers' Acceptances, Letters of Credit, Letter of Credit Fees,
Domestic Commitments, Canadian Commitments, U.K. Commitments and PR Commitments,
on each day the Applicable Acceptance Fee Rate, Applicable Facility Fee Rate,
and Applicable Margin shall be as set forth in the table below (expressed in
basis points per annum) based on the Senior Public Debt Ratings in effect on
such day and shall correspond to the highest level in such table at which the
Senior Public Debt Ratings threshold shall be satisfied. In the event of a one
step split rating by S&P and Moody's, the higher step rating shall apply. In the
event of a two or more step split rating by S&P and Moody's the step rating that
is one step above the lower rating shall apply. Adjustments to the Applicable
Acceptance Fee Rate, the Applicable Facility Fee Rate, and the Applicable Margin
shall be made on, and shall be effective as of, the day of any adjustment in the
Senior Public Debt Rating. In the event that no Senior Public Debt Rating is
available, the Applicable Acceptance Fee Rate, the Applicable Facility Fee Rate,
and the Applicable Margin shall be as set forth in Level VI in the table below.
20
Applicable Applicable
Senior Public Facility Fee Applicable Acceptance
Level Debt Rating Rate Margin Fee Rate
- ---------------------------------------------------------------------------------
I greater than or 10.00 40.00 40.00
equal to A/A2
--------------------------------------------------------------------------------
II greater than or 12.50 50.00 50.00
equal to A-/A3
--------------------------------------------------------------------------------
III greater than or 15.00 60.00 60.00
equal to
BBB+/Baa1
--------------------------------------------------------------------------------
IV greater than or 17.50 70.00 70.00
equal to BBB/Baa2
--------------------------------------------------------------------------------
V greater than or 22.50 77.50 77.50
equal to BBB-/Baa3
--------------------------------------------------------------------------------
VI less than 30.00 100.00 100.00
BBB-/Baa3
Qualifying Bank. With respect to (a) any Domestic Bank and/or PR Bank, a
bank or other financial institution that is incorporated or organized under the
laws of the United States of America or a state thereof or the District of
Columbia or that has complied with the provisions of Section 6.2 hereof with
respect to such Person's complete exemption from deduction or withholding of
United States federal income taxes; (b) any U.K. Bank, a bank or other financial
institution for the purposes of Section 349 of the Income and Corporation Taxes
Act 1988; and (c) any Canadian Bank, a bank or other financial institution which
is resident in Canada and which is named in Schedule I or Schedule II to the
Bank Act (Canada).
RBS-U.K. Royal Bank of Scotland PLC, in its individual capacity.
RBS-U.K. Sterling Reference Rate. The annual rate of interest equal to the
sum of (i) the cost of funds offered to the U.K. Agent in the London interbank
market for overdrafts denominated in Sterling plus (ii) one percent (1%).
RBS-U.K. Euro Reference Rate. The annual rate of interest equal to the sum
of (i) the cost of funds offered to the U.K. Agent in the London interbank
market for overdrafts denominated in Euros plus (ii) one percent (1%).
Real Property. All real property now or hereafter owned, operated, or
leased by Ryder or any of its Consolidated Subsidiaries.
Reallocation. A transfer by the Borrowers of a portion of the Domestic
Commitments or all or a portion of the Canadian Commitments or all or a
21
portion of the U.K. Commitments or all or a portion of the PR Commitments in
accordance with Section 2.4 hereof.
Receivables Purchase Agreement. Collectively, (i) the Trade Receivables
Purchase and Sale Facility, dated April 17, 2001, among Ciesco L.P., Thunder Bay
Funding Inc., Citicorp North America Inc. ("Citicorp"), Royal Bank of Canada and
Ryder Receivables Funding, L.L.C., as amended; provided that any amendments
thereto do not materially modify or alter the terms of recourse or levels of
recourse under such facility, and (ii) any similar receivables purchase
agreements with Citicorp or other parties entered into either in lieu of or in
addition to the receivables purchase agreement referenced in clause (i) and
permitted pursuant to Section 9.3; provided that (A) the provisions related to
recourse therein are substantially similar to those provided for in the
agreement referenced in clause (i) and (B) the terms and conditions of such
receivables purchase agreements have been consented to by the Administrative
Agent, such consent not to be unreasonably withheld, in either case, whether
characterized as sales agreements or security agreements.
Reference Banks. Bank of America, N.A., Mizuho Corporate Bank, Ltd. and
Wachovia Bank, N.A.
Reference U.K. Dollar Base Rate. The annual rate of interest equal to the
sum of (i) the arithmetic mean of the cost of funds offered to the U.K. Agent
and the Reference Banks in the London interbank market for overdrafts
denominated in Dollars plus (ii) one percent (1%).
Refunding Bankers' Acceptance. See Section 3.2.
Register. See Section 21.3.
Replacement Bank. See Section 6.14.
Replacement Notice. See Section 6.14
Reset Date. See Section 6.16.
Ryder. Has the meaning ascribed thereto in the introductory paragraph
hereof.
Ryder Canada Limited. Has the meaning ascribed thereto in the introductory
paragraph hereof.
Ryder Holdings Canada. Has the meaning ascribed thereto in the
introductory paragraph hereof.
Ryder PLC. Has the meaning ascribed thereto in the introductory paragraph
hereof.
22
Ryder PR. Has the meaning ascribed thereto in the introductory paragraph
hereof.
RSH. Has the meaning ascribed thereto in the introductory paragraph
hereof.
Schedule I Bank. Any bank named on Schedule I to the Bank Act (Canada).
Secured Indebtedness (i) Indebtedness and all Derivatives Obligations
of any Borrower or any of Ryder's Consolidated Subsidiaries and all
reimbursement obligations with respect to letters of credit, bankers'
acceptances or similar facilities issued for the account of such Person, in each
case, secured by a lien or other encumbrance on, or title to, any real or
personal property, (ii) unsecured Indebtedness and Derivatives Obligations of
any of Ryder's Consolidated Subsidiaries (other than the Canadian Borrowers or
the U.K. Borrowers) and unsecured reimbursement obligations with respect to
letters of credit, bankers' acceptances or similar facilities issued for the
account of Ryder's Consolidated Subsidiaries (other than the Canadian Borrowers
or the U.K. Borrowers), (iii) the aggregate liquidation preference of all
Preferred Stock (as defined in Section 9.5 hereof) issued by Ryder's
Consolidated Subsidiaries which is not owned by Ryder and its Consolidated
Subsidiaries and (iv) any Deemed Indebtedness Under Limited Recourse Facilities
and all obligations as lessee in respect of synthetic leases, in each case to
the extent not otherwise included as Secured Indebtedness pursuant to clauses
(i) and (ii) above.
Securitized Assets. See Section 9.3(e).
Securitization Transactions. Collectively, (i) the Asset Backed Senior
Notes issued by Ryder Vehicle Lease Trust 2001-A in the aggregate principal
amount of $409,872,000, with Ryder Funding LP as transferor and Ryder Truck
Rental, Inc as administrative agent, as amended; provided that any amendments
thereto do not materially modify or alter the terms of recourse or levels of
recourse under such transaction, (ii) the Asset Backed Senior Notes issued by
Ryder Vehicle Lease Trust 1999-A in the aggregate principal amount of
$282,900,000, with Ryder Funding LP as transferor and Ryder Truck Rental, Inc as
administrative agent, as amended; provided that any amendments thereto do not
materially modify or alter the terms of recourse or levels of recourse under
such transaction, and (iii) any similar securitization transactions entered into
either in lieu of or in addition to the securitization transactions referenced
in clauses (i) and (ii) and permitted pursuant to Section 9.3; provided that (A)
the provisions related to recourse therein are substantially similar to those
provided for in the securitization transactions referenced in clauses (i) and
(ii) and (B) the terms and conditions of such securitization transactions have
been consented to by the Administrative Agent, such consent not to be
unreasonably withheld.
23
Senior Public Debt Ratings. The rating(s) of Ryder's public unsecured
long-term senior debt, without third party credit enhancement, issued by Moody's
and/or S&P; or, in the event no such debt of Ryder is outstanding or if such
debt shall be outstanding but shall not be rated by S&P or Moody's, the
rating(s) of this credit facility issued by Moody's and/or S&P (or, if Moody's
and S&P do not exist, another nationally recognized rating agency) upon request
of Ryder.
S&P. Standard & Poor's Ratings Group, a division of The McGraw-Hill
Companies, Inc.
SPC. See Section 21.7.
Sterling or (pound). Pounds Sterling in lawful currency of the United
Kingdom.
Sterling Reference Rate. The annual rate of interest equal to the sum of
(i) the arithmetic mean of the cost of funds offered to the U.K. Agent and the
Reference Banks in the London interbank market for overdrafts denominated in
Sterling plus (ii) one percent (1%).
Sterling Equivalent. With respect to an amount of U.S. Dollars, Canadian
Dollars, or Euros on any date, the amount of Sterling that may be purchased with
such amount of U.S. Dollars, Canadian Dollars, or Euros at the Exchange Rate
with respect to U.S. Dollars, Canadian Dollars, or Euros, as applicable, on such
date.
Sterling LIBOR Rate. For any Interest Period with respect to a U.K. LIBOR
Rate Loan denominated in Sterling, the annual rate of interest at which Sterling
deposits are offered on Moneyline Telerate Page 3750 (or any successor thereto)
at approximately 11:00 a.m. (London time) on the first Eurodollar Business Day
of such Interest Period. If the rate referenced in the preceding sentence does
not appear on such page or service or such page or service shall not be
available, the annual rate of interest referred to in the first sentence shall
be equal to the rate determined by the U.K. Agent to be the offered rate on such
other page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Sterling (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) on the first Eurodollar
Business Day of such Interest Period. If the rates referenced in the preceding
two sentences are not available, the annual rate of interest referred to in the
first sentence shall be determined by the U.K. Agent as the rate of interest at
which deposits in Sterling for delivery on the first day of such Interest Period
in same day funds in the approximate amount of the U.K. LIBOR Rate Loan being
made, continued or converted by the U.K. Agent and with a term equivalent to
such Interest Period would be offered by the U.K. Agent to major banks in
24
the London interbank market at their request at approximately 4:00 p.m. (London
time) on the first Eurodollar Business Day of such Interest Period.
Subordinated Indebtedness The aggregate (without duplication) of the
following:
(a) Indebtedness of Ryder or a Consolidated Subsidiary that is
outstanding on the Closing Date and that is subordinated to the
Obligations arising hereunder pursuant to an agreement or instrument
containing subordination provisions previously approved by the
Administrative Agent;
(b) Indebtedness of Ryder that is incurred after the Closing Date
and that (i) is subordinated to the Obligations arising hereunder pursuant
to an agreement or instrument treating the Obligations arising hereunder
as senior debt and containing subordination provisions no less favorable
to the Banks than those set forth in Exhibit E attached hereto or pursuant
to subordination provisions treating the Obligations arising hereunder as
senior debt and otherwise satisfactory in form and substance to the
Majority Banks, and (ii) unless such Indebtedness is Intercompany
Indebtedness, has a final maturity not less than six years after the date
of incurrence thereof;
provided that, without the prior written consent of the Majority Banks,
Ryder shall not suffer or permit subordination provisions of any Subordinated
Indebtedness to be changed, amended or modified from those set forth on Exhibit
E or otherwise approved by the Majority Banks after such provisions have been
adopted.
Subsidiary. Any corporation, association, trust, or other business entity
of which the designated parent shall at any time own directly or indirectly
through a Subsidiary or Subsidiaries at least a majority of the outstanding
capital stock or other interest entitled to vote generally.
Swing Line Loan Maturity Date. With respect to any Swing Line Loan, the
proposed maturity date of such Loan, as set forth in the Swing Line Loan Request
delivered by a Borrower to the applicable Agent pursuant to Section 2.12,
Section 2.13, or Section 2.14 hereof, which in no event shall be later than the
earlier to occur of (i) thirty (30) days after the Drawdown Date of such Loan
and (ii) the Maturity Date.
Swing Line Loan Request. A Domestic Swing Line Loan Request, a Canadian
Swing Line Loan Request, or a U.K. Swing Line Loan Request, as the context may
require.
Swing Line Loans. Collectively, the Domestic Swing Line Loans, the U.K.
Swing Line Loans and the Canadian Swing Line Loans.
25
Syndication Agent. Has the meaning ascribed thereto in the introductory
paragraph hereof.
Total Canadian Commitment. The sum of the Canadian Commitments of the
Canadian Banks, as in effect from time to time. The Total Canadian Commitment
shall not, at any time, exceed $90,000,000 (except as may be increased in
accordance with Section 21.8).
Total Commitment. The sum of the Total Canadian Commitment, the Total
Domestic Commitment, the Total U.K. Commitment and the Total PR Commitment, each
as in effect from time to time. The Total Commitment shall not, at any time,
exceed $870,000,000 (except as may be increased in accordance with Section
21.8).
Total Commitment Percentage. With respect to each Bank, the percentage set
forth next to such Bank on Schedule 1 hereto, as such Schedule may be updated
from time to time in accordance with Sections 2.3(f), 2.4 and 21 hereof, as such
Bank's percentage of the Total Commitment.
Total Domestic Commitment. The sum of the Domestic Commitments of the
Domestic Banks, as in effect from time to time.
Total PR Commitment. The sum of the PR Commitments of the PR Banks, as in
effect from time to time. The Total PR Commitment shall not, at any time, exceed
$10,000,000 (except as may be increased in accordance with Section 21.8).
Total U.K. Commitment. The sum of the U.K. Commitments of the U.K. Banks,
as in effect from time to time. The Total U.K. Commitment shall not, at any
time, exceed $90,000,000 (except as may be increased in accordance with
Section 21.8).
U.K. Agent. Has the meaning ascribed thereto in the introductory paragraph
hereof.
U.K. Banks. The banks and financial institutions that shall have agreed to
make U.K. Loans to the U.K. Borrowers, as evidenced by such Bank having a
positive figure beside its name in the column titled "U.K. Commitment" on
Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections 2.3(f), 2.4 and 21 hereof.
U.K. Base Rate Loans. U.K. Loans bearing interest calculated by reference
to the Sterling Reference Rate (with respect to U.K. Base Rate Loans denominated
in Sterling) or the Euro Reference Rate (with respect to U.K. Base Rate Loans
denominated in Euros) or the Reference U.K. Dollar Base Rate (with respect to
the U.K. Base Rate Loans denominated in U.S. Dollars) and, with respect to U.K.
Swing Line Loans only, the RBS-U.K. Sterling Reference Rate, the RBS-U.K. Euro
Reference Rate or the U.K. Dollar Base Rate.
26
U.K. Borrowers. Has the meaning ascribed thereto in the introductory
paragraph hereof.
U.K. Business Day. Any day other than a Saturday, Sunday, or any day on
which banking institutions in London, England are authorized or required by law
to be closed.
U.K. Commitment. With respect to each U.K. Bank, the amount set forth on
Schedule 1 hereto, as such Schedule may be updated from time to time in
accordance with Sections.2.3(f), 2.4 and 21 hereof, as the amount of such U.K.
Bank's commitment to make U.K. Loans to the U.K. Borrowers, as the same may be
reduced from time to time; or if such commitment is terminated pursuant to the
provisions hereof, zero.
U.K. Commitment Percentage. With respect to each U.K. Bank, the percentage
set forth on Schedule 1 hereto, as such Schedule may be updated from time to
time in accordance with Sections.2.3(f), 2.4 and 21 hereof, as such U.K. Bank's
percentage of the Total U.K. Commitment.
U.K. Dollar Base Rate. The annual rate of interest equal to the sum of (i)
the cost of funds offered to the U.K. Agent in the London interbank market for
overdrafts denominated in Dollars plus (ii) one percent (1%).
U.K. Dollar LIBOR Rate. For any Interest Period with respect to a U.K.
LIBOR Rate Loan denominated in U.S. Dollars, the annual rate of interest at
which U.S. Dollar deposits are offered on Moneyline Telerate Page 3750 (or any
successor thereto) at approximately 11:00 a.m. (London time) two Eurodollar
Business Days prior to the beginning at such Interest Period. If the rate
referenced in the preceding sentence does not appear on such page or service or
such page or service shall not be available, the annual rate of interest
referred to in the first sentence shall be equal to the rate determined by the
U.K. Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement Rate for
deposits in U.S. Dollars (for delivery on the first day of such Interest Period)
with a term equivalent to such Interest Period, determined as of approximately
11:00 a.m. (London time) two Eurodollar Business Days prior to the first day of
such Interest Period. If the rates referenced in the preceding two sentences are
not available, the annual rate of interest referred to in the first sentence
shall be determined by the U.K. Agent as the rate of interest at which deposits
in U.S. Dollars for delivery on the first day of such Interest Period in same
day funds in the approximate amount of the U.K. LIBOR Rate Loan being made,
continued or converted by the U.K. Agent and with a term equivalent to such
Interest Period would be offered by the U.K. Agent to major banks in the London
interbank eurodollar market at their request at approximately 4:00 p.m. (London
time) two Eurodollar Business Days prior to the first day of such Interest
Period.
U.K. Facility Fee. See Section 2.2(c).
27
U.K. LIBOR Rate Loans. U.K. Loans bearing interest calculated by reference
to the Sterling LIBOR Rate (with respect to U.K. Loans denominated in Sterling)
or the U.K. Dollar LIBOR Rate (with respect to U.K. Loans denominated in U.S.
Dollars).
U.K. Loan Request. See Section 2.7(c).
U.K. Loans. Collectively, Loans made to the U.K. Borrowers by the U.K.
Banks pursuant to Section 2.1.3 hereof and the U.K. Swing Line Loans.
U.K. Note. See Section 2.5(c).
U.K. Swing Line Loan Request. See Section 2.13(b).
U.K. Swing Line Loans. See Section 2.13(a).
U.K. Swing Line Note. See Section 2.13(f).
Unreimbursed Amount. See Section 4.3(a).
Utilization Fee. See Section 2.2(e)
SECTION 1.2. RULES OF INTERPRETATION.
(a) A reference to any document or agreement (including this
Agreement) shall include such document or agreement as amended, modified
or supplemented from time to time in accordance with its terms and the
terms of this Agreement.
(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification
to such law.
(d) A reference to any Person includes its permitted successors
and permitted assigns.
(e) Accounting terms capitalized but not otherwise defined herein
have the meanings assigned to them by Generally Accepted Accounting
Principles applied on a consistent basis by the accounting entity to which
they refer.
(f) The words "include", "includes" and "including" are not
limiting.
(g) All terms not specifically defined herein or by Generally
Accepted Accounting Principles, which terms are defined in the Uniform
Commercial Code as in effect in the State of New York, have the meanings
assigned to them therein.
28
(h) Reference to a particular "Section" refers to that section of
this Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Agreement as a whole and not to any particular
section or subdivision of this Agreement.
SECTION 2. THE CREDIT FACILITIES.
SECTION 2.1. COMMITMENT TO LEND.
SECTION 2.1.1. DOMESTIC LOANS. Subject to the terms and
conditions set forth in this Agreement, each of the Domestic Banks
severally agrees to lend to Ryder and Ryder may borrow, repay, and
reborrow from time to time between the Closing Date and the Maturity
Date, upon notice by Ryder to the Administrative Agent given in
accordance with this Section 2, such sums in Dollars as are equal to
such Domestic Bank's Domestic Commitment Percentage of the Domestic
Loans requested by Ryder; provided that (a) the sum of (i) the
outstanding principal amount of the Domestic Loans, plus (ii) the
outstanding L/C Obligations with respect to Letters of Credit issued
for the account of Ryder and its domestic Subsidiaries, shall not,
at any time and after giving effect to all amounts requested, exceed
the Total Domestic Commitment and (b) the sum of (i) the outstanding
principal amount of the Domestic Loans owed to a Domestic Bank, plus
(ii) such Domestic Bank's Domestic Commitment Percentage of the
outstanding L/C Obligations with respect to Letters of Credit issued
for the account of Ryder and its domestic Subsidiaries, shall not,
at any time and after giving effect to all amounts requested, exceed
such Domestic Bank's Domestic Commitment.
SECTION 2.1.2. CANADIAN LOANS. Subject to the terms and
conditions set forth in this Agreement, each of the Canadian Banks
severally agrees to lend to the Canadian Borrowers in U.S. Dollars
or Canadian Dollars, and the Canadian Borrowers may borrow, repay,
and reborrow from time to time in U.S. Dollars or Canadian Dollars
between the Closing Date and the Maturity Date, upon notice by the
Canadian Borrowers to the Canadian Agent given in accordance with
this Section 2, such sums in U.S. Dollars or Canadian Dollars as are
equal to such Bank's Canadian Commitment Percentage of the Canadian
Loans requested by the Canadian Borrowers; provided that (a) the sum
of (i) the outstanding principal amount of the Canadian Loans
denominated in Dollars, plus (ii) the Dollar Equivalent of the
outstanding principal amount of the Canadian Loans denominated in
Canadian Dollars, plus (iii) the Dollar
29
Equivalent of the aggregate amount of Bankers' Acceptances then
outstanding, shall not, at any time and after giving effect to all
amounts requested, exceed the Total Canadian Commitment and (b) the
sum of (i) the outstanding principal amount of the Canadian Loans
denominated in Dollars owed to a Canadian Bank, plus (ii) the Dollar
Equivalent of the outstanding principal amount of the Canadian Loans
denominated in Canadian Dollars owed to such Canadian Bank, plus
(iii) the Dollar Equivalent of the outstanding aggregate amount of
Bankers' Acceptances outstanding and purchased by such Canadian
Bank, shall not, at any time and after giving effect to all amounts
requested, exceed such Canadian Bank's Canadian Commitment.
SECTION 2.1.3. U.K. LOANS. Subject to the terms and conditions
set forth in this Agreement, each of the U.K. Banks severally agrees
to lend to the U.K. Borrowers in U.S. Dollars, Sterling or Euros,
and the U.K. Borrowers may borrow, repay, and reborrow from time to
time in U.S. Dollars, Sterling or Euros between the Closing Date and
the Maturity Date, upon notice by the U.K. Borrowers to the U.K.
Agent given in accordance with this Section 2, such sums in U.S.
Dollars, Sterling or Euros as are equal to such Bank's U.K.
Commitment Percentage of the U.K. Loans requested by the U.K.
Borrowers; provided that (a) the sum of (i) the outstanding
principal amount of the U.K. Loans denominated in Dollars, plus (ii)
the Dollar Equivalent of the outstanding principal amount of the
U.K. Loans denominated in Sterling, plus (iii) the Dollar Equivalent
of the outstanding principal amount of the U.K. Loans denominated in
Euros, shall not, at any time and after giving effect to all amounts
requested, exceed the Total U.K. Commitment and (b) the sum of (i)
the outstanding principal amount of the U.K. Loans denominated in
Dollars owed to a U.K. Bank, plus (ii) the Dollar Equivalent of the
outstanding principal amount of the U.K. Loans denominated in
Sterling owed to such U.K. Bank, plus (iii) the Dollar Equivalent of
the outstanding principal amount of the U.K. Loans denominated in
Euros owed to such U.K. Bank, shall not, at any time and after
giving effect to all amounts requested, exceed such U.K. Bank's U.K.
Commitment.
Section 2.1.4. PR LOANS. Subject to the terms and conditions
set forth in this Agreement, each of the PR Banks severally agree to
lend to Ryder PR in U.S. Dollars and Ryder PR may borrow, repay, and
reborrow from time to time in U.S. Dollars between the Closing Date
and the Maturity Date, upon notice by Ryder PR to the Administrative
Agent given in accordance with this Section 2, such sums in U.S.
Dollars as are equal to such PR Bank's PR Commitment Percentage of
the PR Loans requested
30
by Ryder PR; provided that (a) the sum of the outstanding principal
amount of the PR Loans shall not, at any time and after giving
effect to all amounts requested, exceed the Total PR Commitment and
(b) the sum of the outstanding principal amount of the PR Loans owed
to a PR Bank shall not, at any time and after giving effect to all
amounts requested, exceed such PR Bank's PR Commitment.
SECTION 2.2. FACILITY FEE AND UTILIZATION FEE.
(a) Ryder agrees to pay to the Administrative Agent, for the pro rata
account of each of the Domestic Banks, a fee (the "Domestic Facility Fee") on
the Total Domestic Commitment (whether or not used) equal to the Applicable
Facility Fee Rate multiplied by the Total Domestic Commitment. The Domestic
Facility Fee shall be payable by Ryder quarterly in arrears on the last day of
each calendar quarter for the quarter then ending, commencing with the first
such date after the Closing Date and with a final payment on the Maturity Date
(or on the date of the termination in full of the Total Domestic Commitment, if
earlier).
(b) The Canadian Borrowers jointly and severally agree to pay to the
Canadian Agent, for the pro rata account of each of the Canadian Banks, a fee
(the "Canadian Facility Fee") on the Total Canadian Commitment (whether or not
used) equal to the Applicable Facility Fee Rate multiplied by the Total Canadian
Commitment. The Canadian Facility Fee shall be payable by the Canadian Borrowers
quarterly in arrears on the last day of each calendar quarter for the quarter
then ending, commencing with the first such date after the Closing Date and with
a final payment on the Maturity Date (or on the date of the termination in full
of the Total Canadian Commitment, if earlier).
(c) The U.K. Borrowers jointly and severally agree to pay the U.K.
Agent, for the pro rata account of each of the U.K. Banks, a fee (the "U.K.
Facility Fee") on the Total U.K. Commitment (whether or not used) equal to the
Applicable Facility Fee Rate multiplied by the Total U.K. Commitment. The U.K.
Facility Fee shall be payable by the U.K. Borrowers quarterly in arrears on the
last day of each calendar quarter for the quarter then ending, commencing with
the first such date after the Closing Date and with a final payment on the
Maturity Date (or on the date of the termination in full of the Total U.K.
Commitment, if earlier).
(d) Ryder PR agrees to pay the Administrative Agent, for the pro
rata account of each of the PR Banks, a fee (the "PR Facility Fee") on the Total
PR Commitment (whether or not used) equal to the Applicable Facility Fee Rate
multiplied by the Total PR Commitment.
31
The PR Facility Fee shall be payable by Ryder PR quarterly in arrears on the
last day of each calendar quarter for the quarter then ending, commencing with
the first such date after the Closing Date and with a final payment on the
Maturity Date (or on the date of the termination in full of the Total PR
Commitment, if earlier).
(e) On each day that the Dollar Equivalent of the outstanding amount of
Loans, Bankers Acceptances and L/C Obligations exceeds an amount equal to
one-third (1/3) of the Total Commitment, the Borrowers shall pay to the
Administrative Agent, for the pro rata accounts of the Banks which have advanced
such Loans and accepted such Bankers Acceptances and have a reimbursement
obligations in respect of such L/C Obligations in accordance with the Dollar
Equivalent of the outstanding amount of their respective Loans, Bankers
Acceptances and reimbursement obligations in respect of the L/C Obligations, a
utilization fee (the "Utilization Fee") at the rate equal to 0.125% per annum on
the sum of the Dollar Equivalent of the outstanding amount of Loans, Bankers
Acceptances, and L/C Obligations on such day. The Utilization Fee shall be paid
by the Borrowers in accordance with the Dollar Equivalent of the outstanding
amount of the Loans and Bankers Acceptances advanced to them hereunder and, with
respect to Ryder, the L/C Obligations with respect to Letters of Credit issued
for the account of Ryder or its domestic Subsidiaries, quarterly in arrears on
the last day of each calendar quarter for the calendar quarter then ended,
commencing on the first such date following the Closing Date, with a final
payment on the Maturity Date, or on any earlier date on which the Total
Commitment shall terminate.
SECTION 2.3. REDUCTION OF COMMITMENTS.
(a) Ryder shall have the right at any time and from time to time, upon
three (3) Domestic Business Days prior written notice to the Administrative
Agent, to reduce by $10,000,000 or a larger integral multiple of $1,000,000 or
terminate entirely the Total Domestic Commitment, whereupon each Domestic Bank's
Domestic Commitment shall be reduced pro rata in accordance with such Domestic
Bank's Domestic Commitment Percentage of the amount specified in such notice or,
as the case may be, terminated. Promptly after receiving any notice by Ryder
delivered pursuant to this Section 2.3(a), the Administrative Agent will notify
the Domestic Banks and the other Agents thereof. Upon the effective date of any
such reduction or termination, Ryder shall pay to the Administrative Agent, for
the pro rata accounts of the Domestic Banks, the full amount of the accrued and
unpaid Domestic Facility Fee on the amount of such reduction. Notwithstanding
the foregoing, at no time may the Total Domestic Commitment be reduced to an
amount less than the sum of (i) the aggregate amount of all Domestic Loans then
outstanding, plus (ii) the outstanding L/C Obligations with respect to Letters
of Credit issued for the account of Ryder and its domestic Subsidiaries.
32
(b) The Canadian Borrowers shall have the right at any time and from
time to time, upon three (3) Canadian Business Days prior written notice to the
Canadian Agent, to reduce by $5,000,000 or a larger integral multiple of
$1,000,000 or terminate entirely the Total Canadian Commitment, whereupon each
Canadian Bank's Canadian Commitment shall be reduced pro rata in accordance with
such Canadian Bank's Canadian Commitment Percentage of the amount specified in
such notice or, as the case may be, terminated. Promptly after receiving any
notice of the Canadian Borrowers delivered pursuant to this Section 2.3(b), the
Canadian Agent will notify the Canadian Banks and the other Agents thereof. Upon
the effective date of any such reduction or termination, the Canadian Borrowers
shall pay to the Canadian Agent, for the pro rata accounts of the Canadian
Banks, the full amount of the accrued and unpaid Canadian Facility Fee on the
amount of such reduction. Notwithstanding the foregoing, at no time may the
Total Canadian Commitment be reduced to an amount less than the sum of (i)
aggregate outstanding amount of Canadian Loans denominated in Dollars, plus (ii)
the Dollar Equivalent of the aggregate outstanding amount of Canadian Loans
denominated in Canadian Dollars, plus (iii) the Dollar Equivalent of the
aggregate amount of Bankers' Acceptances then outstanding.
(c) The U.K. Borrowers shall have the right at any time and from time to
time, upon three (3) U.K. Business Days prior written notice to the U.K. Agent,
to reduce by $5,000,000 or a larger integral multiple of $1,000,000 or terminate
entirely the Total U.K. Commitment, whereupon each U.K. Bank's U.K. Commitment
shall be reduced pro rata in accordance with such U.K. Bank's U.K. Commitment
Percentage of the amount specified in such notice or, as the case may be,
terminated. Promptly after receiving any notice of the U.K. Borrowers delivered
pursuant to this Section 2.3(c), the U.K. Agent will notify the U.K. Banks and
the other Agents thereof. Upon the effective date of any such reduction or
termination, the U.K. Borrowers shall pay to the U.K. Agent, for the pro rata
accounts of the U.K. Banks, the full amount of the accrued and unpaid U.K.
Facility Fee on the amount of such reduction. Notwithstanding the foregoing, at
no time may the Total U.K. Commitment be reduced to an amount less than the sum
of (i) the aggregate amount of all U.K. Loans denominated in Dollars then
outstanding, plus (ii) the Dollar Equivalent of the aggregate amount of all U.K.
Loans denominated in Sterling then outstanding, plus (iii) the Dollar Equivalent
of the aggregate amount of all U.K. Loans denominated in Euros then outstanding.
(d) Ryder PR shall have the right at any time and from time to time,
upon three (3) Domestic Business Days prior written notice to the Administrative
Agent to reduce by $1,000,000 or a larger integral of $1,000,000 or terminate
entirely the Total PR Commitment, whereupon
33
each PR Bank's PR Commitment shall be reduced pro rata in accordance with such
PR Bank's PR Commitment Percentage of the amount specified in such notice or, as
the case may be, terminated. Promptly after receiving any notice of Ryder PR
delivered pursuant to this Section 2.3(d), the Administrative Agent will notify
the PR Banks and the other Agents thereof. Upon the effective date of any such
reduction or termination, Ryder PR shall pay to the Administrative Agent, for
the pro rata accounts of the PR Banks, the full amount of the accrued and unpaid
PR Facility Fee on the amount of such reduction. Notwithstanding the foregoing,
at no time may the Total PR Commitment be reduced to an amount less than the sum
of the aggregate amount of all PR Loans then outstanding.
(e) Excluding any Reallocation pursuant to Section 2.4 hereof, no
reduction or termination of the Total Domestic Commitment, the Total Canadian
Commitment, the Total U.K. Commitment or the Total PR Commitment once made may
be revoked; the portion of the Total Domestic Commitment, the Total Canadian
Commitment, the Total U.K. Commitment or the Total PR Commitment reduced or
terminated may not be reinstated; and amounts in respect of such reduced or
terminated portion may not be reborrowed.
(f) Promptly after the effectiveness of any partial reduction in the
Commitments pursuant to this Section 2.3, the Administrative Agent shall
distribute to each Bank an updated Schedule 1 hereto reflecting such reduction.
SECTION 2.4. REALLOCATION OF COMMITMENTS.
(a) Subject to the conditions set forth in this Section 2.4, the
Borrowers shall have the right at any time and from time to time upon five (5)
Business Days prior written notice to each of the Agents to (i) increase the
Total Domestic Commitment by reducing and reallocating by an equivalent amount
all or a portion of the Total Canadian Commitment and/or the Total U.K.
Commitment and/or the Total PR Commitment to the Total Domestic Commitment, (ii)
increase the Total Canadian Commitment (to the extent the same has been
previously reallocated to the Total Domestic Commitment or the Total U.K.
Commitment or the Total PR Commitment) by reducing and reallocating by an
equivalent amount a portion of the Total Domestic Commitment and/or the Total
U.K. Commitment and/or Total PR Commitment to the Total Canadian Commitment,
(iii) increase the Total U.K. Commitment (to the extent the same has been
previously reallocated to the Total Domestic Commitment or the Total Canadian
Commitment or the Total PR Commitment) by reducing and reallocating by an
equivalent amount a portion of the Total Domestic Commitment and/or all or a
portion of the Total Canadian Commitment and/or Total PR Commitment to the Total
U.K. Commitment or (iv) increase the Total PR Commitment (to the extent the same
has
34
been previously reallocated to the Total Domestic Commitment or the Total
Canadian Commitment or the Total U.K. Commitment) by reducing or reallocating by
an equivalent amount a portion of the Total Domestic Commitment and/or Total
Canadian Commitment and/or Total U.K. Commitment to the Total PR Commitment.
(b) Any Reallocation pursuant to Section 2.4 shall be subject to the
following conditions:
(i) Each Reallocation of Commitment amounts shall be made only
between the offices or affiliates of a Bank such that the sum of all the
Commitments of each Bank and its affiliates shall not be increased or
decreased as a result of any Reallocation.
(ii) Each increase in the Total Domestic Commitment, Total Canadian
Commitment, Total U.K. Commitment or Total PR Commitment, as the case may
be, shall be offset by a corresponding and equivalent reduction in one or
more of the Total Domestic Commitment, Total Canadian Commitment, Total
U.K. Commitment and Total PR Commitment, such that the Total Commitment in
effect immediately before a Reallocation shall be equal to the Total
Commitment immediately after, and after giving effect to, such
Reallocation.
(iii) No Reallocation shall increase (A) the Total Canadian
Commitment in excess of $90,000,000, (B) the Total U.K. Commitment in
excess of $90,000,000 or (C) the Total PR Commitment in excess of
$10,000,000 (as any of the same may be increased pursuant to Section
21.8).
(iv) No Reallocation shall result in (A) any Domestic Bank having a
positive Canadian Commitment, U.K. Commitment or PR Commitment if such
Domestic Bank, or its affiliate, did not have such positive Canadian
Commitment, U.K. Commitment or PR Commitment on the Closing Date or
acquire such Commitment by assignment after the Closing Date, or (B) any
U.K. Bank having a positive Canadian Commitment or PR Commitment if such
U.K. Bank, or its affiliate, did not have such positive Canadian
Commitment or PR Commitment on the Closing Date or acquire such Commitment
by assignment after the Closing Date, or (C) any Canadian Bank having a
positive
35
U.K. Commitment or PR Commitment if such Canadian Bank, or its affiliate,
did not have such positive U.K. Commitment or PR Commitment on the Closing
Date or acquire such Commitment by assignment after the Closing Date, or
(D) any PR Bank having a positive U.K. Commitment or Canadian Commitment
if such PR Bank, or its affiliate, did not have such positive U.K.
Commitment or Canadian Commitment on the Closing Date or acquire such
Commitment by assignment after the Closing Date.
(v) Subject to Section 2.4(b)(iv), each Reallocation shall be made
pro rata among the Banks whose Commitments are being reallocated from one
type of Commitment to another, but shall not cause the Commitments of any
other Banks to change (but will result in a change in Commitment
Percentages).
(vi) Subject to Section 6.16, in no event shall (A) the Total
Domestic Commitment be reduced to an amount less than the sum of (i) the
aggregate amount of all Domestic Loans then outstanding, plus (ii) the
outstanding L/C Obligations with respect to Letters of Credit issued for
the account of Ryder and its domestic Subsidiaries; (B) the Total Canadian
Commitment be reduced to an amount less than the sum of (i) the aggregate
outstanding amount of Canadian Loans denominated in Dollars, plus (ii) the
Dollar Equivalent of the aggregate outstanding amount of Canadian Loans
denominated in Canadian Dollars, plus (iii) the Dollar Equivalent of the
aggregate amount of Bankers' Acceptances then outstanding; (C) the Total
U.K. Commitment be reduced to an amount less than the sum of (i) the
aggregate amount of all U.K. Loans denominated in Dollars then
outstanding, plus (ii) the Dollar Equivalent of the aggregate amount of
all U.K. Loans denominated in Sterling then outstanding, plus (iii) the
Dollar Equivalent of the aggregate amount of all U.K. Loans denominated in
Euros then outstanding; or (D) the Total PR Commitment be reduced to an
amount less than the sum of the aggregate amount of all PR Loans then
outstanding.
(c) The Administrative Agent shall (i) notify each of the Banks
promptly after receiving any notice of a Reallocation delivered by the
Borrowers pursuant to this Section 2.4 and (ii) promptly upon the
effectiveness of any such Reallocation, distribute to each Bank an updated
Schedule 1 hereto, reflecting the changes in the respective Commitments of
the Banks.
SECTION 2.5. THE NOTES.
(a) The Domestic Loans (other than the Domestic Swing Line Loans)
shall be evidenced by separate promissory notes of Ryder in
36
substantially the form of Exhibit A-1 hereto (each, a "Domestic Note"),
dated as of the Closing Date and completed with appropriate insertions.
One Domestic Note shall be payable to the order of each Domestic Bank in
an amount equal to its Domestic Commitment (plus, if such Bank has a
Canadian Commitment, a U.K. Commitment and/or a PR Commitment, the amount
of such other Commitment(s)), and shall represent the obligation of Ryder
to pay such Domestic Bank such principal amount or, if less, the
outstanding principal amount of all Domestic Loans made by such Domestic
Bank, plus interest accrued thereon, as set forth herein.
(b) The Canadian Loans (other than the Canadian Swing Line Loans)
shall be evidenced by separate promissory notes of the Canadian Borrowers
in substantially the form of Exhibit A-2 hereto (each, a "Canadian Note"),
dated as of the Closing Date and completed with appropriate insertions.
One Canadian Note shall be payable to the order of each Canadian Bank in
an amount equal to its Canadian Commitment, and shall represent the joint
and several obligation of the Canadian Borrowers to pay such Canadian Bank
such principal amount or, if less, the outstanding principal amount of all
Canadian Loans made by such Canadian Bank, plus interest accrued thereon,
as set forth herein.
(c) The U.K. Loans (other than the U.K. Swing Line Loans) shall be
evidenced by separate promissory notes of the U.K. Borrowers in
substantially the form of Exhibit A-3 hereto (each, a "U.K. Note"), dated
as of the Closing Date and completed with appropriate insertions. One U.K.
Note shall be payable to the order of each U.K. Bank in an amount equal to
its U.K. Commitment, and shall represent the joint and several obligation
of the U.K. Borrowers to pay such U.K. Bank such principal amount or, if
less, the outstanding principal amount of all U.K. Loans made by such U.K.
Bank, plus interest accrued thereon, as set forth herein.
(d) The PR Loans shall be evidenced by separate promissory notes
of Ryder PR in substantially the form of Exhibit A-4 hereto (each, a "PR
Note"), dated as of the Closing Date and completed with appropriate
insertions. One PR Note shall be payable to the order of each PR bank in
an amount equal to its PR Commitment, and shall represent the obligation
of Ryder PR to pay such PR Bank such principal amount or, if less, the
outstanding principal amount of all PR Loans made by such PR Bank, plus
interest accrued thereon, as set forth herein.
(e) Each Borrower irrevocably authorizes each Bank to make, or
cause to be made, in connection with a Drawdown Date of any Loan and at
the time of receipt of any payment of principal on any Note, an
appropriate notation on such Bank's records or on the schedule attached to
such Bank's Note, or a continuation of such schedule
37
attached thereto, reflecting the making of such Loan or the receipt of
such payment (as the case may be). Each Bank may, prior to any transfer of
any Note, endorse on the reverse side thereof the outstanding principal
amount of the Loans evidenced thereby. The outstanding amount of the Loans
set forth on such Bank's records shall be prima facie evidence of the
principal amount thereof owing and unpaid to such Bank, but the failure to
record, or any error in so recording, any such amount shall not limit or
otherwise affect the obligations of each applicable Borrowers hereunder or
under such Notes to make payments of principal of or interest on any such
Notes when due.
SECTION 2.6. INTEREST ON LOANS. Except as provided in Section 6.11:
(a) Each Domestic Loan (other than the Domestic Swing Line Loans)
shall bear interest at the rate per annum equal to (i) the Domestic Base
Rate on all Domestic Base Rate Loans or (ii) the Domestic LIBOR Rate plus
the Applicable Margin on all Domestic LIBOR Rate Loans. The Domestic Swing
Line Loans shall bear interest at the rate per annum equal to the Domestic
Base Rate.
(b) Each Canadian Loan (other than the Canadian Swing Line Loans)
shall bear interest at the rate per annum equal to (i) the Canadian Prime
Rate on all Canadian Base Rate Loans denominated in Canadian Dollars, (ii)
the Canadian Base Rate on all Canadian Base Rate Loans denominated in U.S.
Dollars, or (iii) the Canadian Dollar LIBOR Rate, plus the Applicable
Margin on all Canadian Dollar LIBOR Rate Loans. Each Canadian Swing Line
Loan (i) denominated in Canadian Dollars shall bear interest at the rate
per annum equal to the Canadian Prime Rate and (ii) denominated in U.S.
Dollars shall bear interest at the rate per annum equal to the Canadian
Base Rate.
(c) Each U.K. Loan (other than the U.K. Swing Line Loans) shall
bear interest at the rate per annum equal to (i) the U.K. Dollar Base Rate
on all U.K. Base Rate Loans denominated in Dollars, (ii) the Sterling
LIBOR Rate, plus the Applicable Margin, plus the Additional Costs on all
U.K. LIBOR Rate Loans denominated in Sterling, (iii) the U.K. Dollar LIBOR
Rate, plus the Applicable Margin, plus the Additional Costs on all U.K.
LIBOR Rate Loans denominated in Dollars or (iv) the EURIBOR Rate plus the
Applicable Margin, plus the Additional Costs on all EURIBOR Rate Loans.
Each U.K. Swing Line Loan (i) denominated in Sterling shall bear interest
at the rate per annum equal to the RBS-U.K. Sterling Reference Rate, (ii)
denominated in U.S. Dollars shall bear interest at the rate per annum
equal to the U.K. Dollar Base Rate and (iii) denominated in Euros shall
bear interest at the rate per annum equal to the RBS-U.K. Euro Reference
Rate. Notwithstanding anything to the contrary contained
38
herein, the U.K. Loans denominated in Sterling (other than the U.K. Swing
Line Loans) shall be LIBOR Rate Loans.
(d) Each PR Loan shall bear interest at the rate per annum equal
to (i) the Domestic Base Rate on all PR Loans bearing interest calculated
by reference to the Domestic Base Rate or (ii) the Domestic LIBOR Rate
plus the Applicable Margin on all PR Loans bearing interest calculated by
reference to the Domestic LIBOR Rate.
(e) Each Borrower promises to pay interest on the Loans made to
such Borrower on each Interest Payment Date with respect thereto.
SECTION 2.7. REQUESTS FOR LOANS.
(a) Ryder shall give to the Administrative Agent written notice in
the form of Exhibit B-1 hereto (or telephonic notice confirmed in writing
or a facsimile in the form of Exhibit B-1 hereto) of each Domestic Loan
requested hereunder (a "Domestic Loan Request") not later than (a) 12:00
noon (Boston time) one (1) Business Day prior to the proposed Drawdown
Date of any Domestic Loan that is a Base Rate Loan, or (b) 12:00 noon
(Boston time) three (3) Eurodollar Business Days prior to the proposed
Drawdown Date of any Domestic Loan that is a LIBOR Rate Loan. Each such
Domestic Loan Request shall specify (A) the principal amount of the
Domestic Loan requested, (B) the proposed Drawdown Date of such Domestic
Loan, (C) whether such Domestic Loan requested is to be a Base Rate Loan
or a LIBOR Rate Loan, and (D) the Interest Period for such Domestic Loan,
if a LIBOR Rate Loan. Each Domestic Loan requested shall be in a minimum
amount of $10,000,000. Domestic Loan Requests made hereunder shall be
irrevocable and binding on Ryder and shall obligate Ryder to accept the
Domestic Loan requested from the Domestic Banks on the proposed Drawdown
Date.
(b) The Canadian Borrowers shall give to the Canadian Agent
written notice in the form of Exhibit B-2 hereto (or telephone notice
confirmed in writing or a facsimile in the form of Exhibit B-2 hereto) of
each Canadian Loan requested hereunder (a "Canadian Loan Request") not
later than (a) 12:00 noon (Toronto time) one (1) Business Day prior to the
proposed Drawdown Date of any Canadian Loan that is a Base Rate Loan, or
(b) 12:00 noon (Toronto time) three (3) Canadian Business Days prior to
the proposed Drawdown Date of any Canadian Loan that is a LIBOR Rate Loan.
Each such Canadian Loan Request shall specify (A) the principal amount of
the Canadian Loan requested, (B) the proposed Drawdown Date of such
Canadian Loan, (C) whether such Canadian Loan is to be a Base Rate Loan or
a LIBOR Rate Loan, (D) the Interest Period of such Canadian Loan, if a
LIBOR Rate Loan, and (E) whether such Canadian Loan is to be
39
denominated in Canadian Dollars or U.S. Dollars. Each Canadian Loan
Request shall be in a minimum amount of C$3,000,000 or the Dollar
Equivalent thereof. Canadian Loan Requests made hereunder shall be
irrevocable and binding on the Canadian Borrowers, and shall obligate the
Canadian Borrowers to accept the Canadian Loan requested from the Canadian
Banks on the proposed Drawdown Date.
(c) The U.K. Borrowers shall give to the U.K. Agent written notice
in the form of Exhibit B-3 hereto (or telephone notice confirmed in
writing or a facsimile in the form of Exhibit B-3 hereto) of each U.K.
Loan requested hereunder (a "U.K. Loan Request") not later than (a) 12:00
noon (London time) one (1) Business Day prior to the proposed Drawdown
Date of any U.K. Loan that is a Base Rate Loan or any U.K. LIBOR Rate Loan
denominated in Sterling or (b) 12:00 noon (London time) three (3)
Eurodollar Business Days prior to the proposed Drawdown Date of any U.K.
Loan that is a LIBOR Rate Loan denominated in U.S. Dollars or any EURIBOR
Rate Loan. Each such U.K. Loan Request shall specify (A) the principal
amount of the U.K. Loan requested, (B) the proposed Drawdown Date of such
U.K. Loan, (C) whether such U.K. Loan is to be a Base Rate Loan (which may
only be requested in the event that a LIBOR Rate Loan is not available) or
a LIBOR Rate Loan, (D) the Interest Period of such U.K. Loan, if a LIBOR
Rate Loan, and (E) whether such U.K. Loan is to be denominated in
Sterling, U.S. Dollars or Euros. Each U.K. Loan Request shall be in a
minimum amount of $1,000,000, (pound)500,000 if denominated in Sterling or
EU1,000,000 if denominated in Euros. U.K. Loan Requests made hereunder
shall be irrevocable and binding on the U.K. Borrowers, and shall obligate
the U.K. Borrowers to accept the U.K. Loan requested from the U.K. Banks
on the proposed Drawdown Date. Notwithstanding anything to the contrary
contained herein, the U.K. Loans denominated in Sterling (other than the
U.K. Swing Line Loans) shall be LIBOR Rate Loans.
(d) Ryder PR shall give the Administrative Agent written notice in
the form of Exhibit B-4 hereto (or telephone notice confirmed in writing
or a facsimile in the form of Exhibit B-4 of each PR Loan requested
hereunder (a "PR Loan Request") not later than (a) 12:00 noon Boston time
one (1) Business Day prior to the proposed Drawdown Date of any PR Loan
that is to bear interest calculated by reference to the Domestic Base
Rate, or (b) 12:00 noon (Boston time) three (3) Eurodollar Business Days
prior to the proposed Drawdown Date of any PR Loan that is to bear
interest calculated by reference to the Domestic LIBOR Rate. Each such PR
Loan Request shall specify (A) the principal amount of each PR Loan
requested, (B) the proposed Drawdown Date of such PR Loan, (C) whether
such PR Loan requested is to bear interest calculated by reference to the
Domestic Base Rate or the Domestic LIBOR Rate. PR Loan Requests made
hereunder shall be irrevocable and binding on Ryder PR, and shall obligate
Ryder PR
40
to accept the PR Loan requested from the PR Banks on the proposed Drawdown
Date.
(e) The Administrative Agent shall promptly notify each Domestic
Bank of each Domestic Loan Request received by the Administrative Agent.
The Canadian Agent shall promptly notify each Canadian Bank of each
Canadian Loan Request received by the Canadian Agent. The U.K. Agent shall
promptly notify each U.K. Bank of each U.K. Loan Request received by the
U.K. Agent. The Administrative Agent shall promptly notify each PR Bank of
each PR Loan Request received by the Administrative Agent.
SECTION 2.8. ELECTION OF LIBOR RATE; NOTICE OF ELECTION; INTEREST PERIODS;
MINIMUM AMOUNTS.
(a) At the Borrowers' option, so long as no Event of Default has
occurred and is then continuing, each Borrower may (i) elect to convert
any Base Rate Loan or a portion thereof to a LIBOR Rate Loan, (ii) at the
time of any Domestic Loan Request, Canadian Loan Request, U.K. Loan
Request or PR Loan Request specify that such requested Loan shall be a
LIBOR Rate Loan, or (iii) upon expiration of the applicable Interest
Period, elect to maintain an existing LIBOR Rate Loan as such, provided
that the applicable Borrower shall give notice to the Administrative
Agent, in the case of Domestic Loans and PR Loans, the Canadian Agent, in
the case of Canadian Loans or the U.K. Agent, in the case of U.K. Loans,
pursuant to Section 2.8(b) hereof. Upon determining any LIBOR Rate, the
Administrative Agent, in the case of Domestic Loans and PR Loans, the
Canadian Agent, in the case of Canadian Loans and the U.K. Agent, in the
case of U.K. Loans, shall forthwith provide notice thereof to the
applicable Borrower(s) and the applicable Banks, and each such notice to
such Borrower(s) shall be considered prima facie correct and binding,
absent manifest error.
(b) Three (3) Eurodollar Business Days (or, in the case of (i) a
Canadian Dollar LIBOR Rate Loan, three (3) Canadian Business Days and (ii)
a U.K. LIBOR Rate Loan denominated in Sterling or Euros, one (1)
Eurodollar Business Day) prior to the making of any LIBOR Rate Loan or the
conversion of any Base Rate Loan to a LIBOR Rate Loan, or, in the case of
an outstanding LIBOR Rate Loan, the expiration date of the applicable
Interest Period, the applicable Borrower shall give written notice to the
Administrative Agent, in the case of Domestic Loans and PR Loans, the
Canadian Agent, in the case of Canadian Loans or the U.K. Agent, in the
case of U.K. Loans, not later than 12:00 noon (local time for such Agent)
of its election pursuant to Section 2.8(a). Each such notice delivered to
the Administrative Agent, the Canadian Agent or the U.K. Agent, shall
specify the aggregate principal amount of applicable Loans to be borrowed
or maintained as
41
or converted to LIBOR Rate Loans and the requested duration of the
Interest Period that will be applicable to such LIBOR Rate Loan, and shall
be irrevocable and binding upon such Borrower. If Ryder shall fail to give
the Administrative Agent or if the Canadian Borrowers shall fail to give
the Canadian Agent, or if the U.K. Borrowers shall fail to give the U.K.
Agent, or if Ryder PR shall fail to give the Administrative Agent, notice
of its or their election hereunder, together with all of the other
information required by this Section 2.8(b), with respect to any Loan
(other than a U.K. Loan denominated in Sterling or Euros), whether at the
end of an Interest Period or otherwise, such Loan shall be deemed a Base
Rate Loan. If the U.K. Borrowers shall fail to give to the U.K. Agent
notice of their election hereunder, together with all of the other
information required by this Section 2.8(b), with respect to a U.K. Loan
denominated in Sterling or Euros, whether at the end of an Interest Period
or otherwise, such Loan shall bear interest at the end of such Interest
Period for an Interest Period of seven (7) days at a rate equal to the sum
of (i) the rate determined by the U.K. Agent at which Sterling (or Euros,
as the case may be) deposits are offered to it for a period of seven (7)
days at approximately 11:00 a.m. (London time) on such day for an amount
equal to the principal amount of such Loan, plus (ii) the Applicable
Margin, plus (iii) the Additional Costs. The Administrative Agent, the
Canadian Agent, or the U.K. Agent, as the case may be, shall promptly
notify the applicable Banks in writing (or by telephone confirmed in
writing or by facsimile) of such election.
(c) Notwithstanding anything herein to the contrary, no Borrower
may specify an Interest Period with respect to the Domestic Loans,
Canadian Loans, U.K. Loans or PR Loans that would extend beyond the
Maturity Date.
(d) No conversion of Loans pursuant to this Section 2.8 may result
in (i) a LIBOR Rate Loan denominated in Dollars or Euros with a principal
amount less than $1,000,000 (or the Euro Equivalent thereof), (ii) a LIBOR
Rate Loan denominated in Sterling with a principal amount less than
(pound)500,000 or (iii) a Canadian Dollar LIBOR Rate Loan with a principal
amount less than the Dollar Equivalent of C$3,000,000. In no event shall a
Borrower have more than twenty (20) different Interest Periods for
borrowings of LIBOR Rate Loans outstanding at any time.
(e) Subject to the terms and conditions of Section 6.10 hereof, if
any Bank demands compensation under Section 6.7(c) or (d) with respect to
any LIBOR Rate Loan, the applicable Borrower may at any time, upon at
least three (3) Business Days' prior written notice to the applicable
Agent, elect to convert such LIBOR Rate Loan into a Domestic Base Rate
Loan, Canadian Base Rate Loan, U.K. Base Rate Loan or PR Loan bearing
interest calculated by reference to the Domestic Base Rate, as
42
applicable (on which interest and principal shall be payable
contemporaneously with the related LIBOR Rate Loans of the other Banks).
Thereafter, and until such time as such Bank notifies the applicable Agent
that the circumstances giving rise to the demand for compensation under
Section 6.7(c) or (d) no longer exist, all requests for LIBOR Rate Loans
from such Bank shall be deemed to be requests for Base Rate Loans. Once
such Bank notifies the applicable Agent that such circumstances no longer
exist, the Borrower(s) may elect that the principal amount of each such
Loan converted hereunder shall again bear interest as a LIBOR Rate Loan
beginning on the first day of the next succeeding Interest Period
applicable to the related LIBOR Rate Loans of the other Banks.
SECTION 2.9. FUNDS FOR LOANS.
Not later than 12:00 noon (local time for each applicable Agent) on the
proposed Drawdown Date (a) in the case of Domestic Loans, each of the Domestic
Banks will make available to the Administrative Agent, (b) in the case of
Canadian Loans, each of the Canadian Banks will make available to the Canadian
Agent, (c) in the case of the U.K. Loans, each of the U.K. Banks will make
available to the U.K. Agent, or (d) in the case of PR Loans, each of the PR
Banks will make available to the Administrative Agent, in each case at such
Agent's respective Head Office, in immediately available funds, the amount of
its Domestic Commitment Percentage, Canadian Commitment Percentage, U.K.
Commitment Percentage or PR Commitment Percentage, as the case may be, of the
amount of the requested Loan. Upon receipt from each Bank of such amount (or
upon fulfillment of the conditions precedent to the making of a Domestic Swing
Line Loan pursuant to Section 2.12(c), a U.K. Swing Line Loan pursuant to
Section 2.13(c), or a Canadian Swing Line Loan pursuant to Section 2.14(c), as
applicable), and upon receipt of the documents required by Section 11 and the
borrowing certificate required under Section 12 and the satisfaction of the
other conditions set forth therein, to the extent applicable, the Administrative
Agent will make available to Ryder the aggregate amount of such Domestic Loans
made available by the Domestic Banks (and the funds otherwise available under
Section 2.12(c), if any), the Canadian Agent will make available to the Canadian
Borrowers the aggregate amount of such Canadian Loans made available by the
Canadian Banks (and the funds otherwise available under Section 2.14(c), if
any), the U.K. Agent will make available to the U.K. Borrowers the amount of
such U.K. Loans made available by the U.K. Banks (and the funds otherwise
available under Section 2.13(c), if any) and the Administrative Agent will make
available to Ryder PR the amount of such PR Loans made available by the PR Banks
in each case, not later than 2:00 p.m. (local time for such Agent). The failure
or refusal of any Bank to make available to the applicable Agent at the
aforesaid time and place on any Drawdown Date the amount of its Domestic
Commitment Percentage of the requested Domestic Loan, or its Canadian Commitment
Percentage of the requested Canadian Loan, or its U.K. Commitment Percentage of
the requested U.K. Loan, or its
43
PR Commitment Percentage of the requested PR Loan, as the case may be, shall not
relieve any other Bank from its several obligations hereunder to make available
to the applicable Agent the amount of such Bank's Domestic Commitment
Percentage, or Canadian Commitment Percentage, or U.K. Commitment Percentage, or
PR Commitment Percentage, as the case may be, of any requested Loan.
SECTION 2.10. MATURITY OF THE LOANS.
The Domestic Loans, Canadian Loans, U.K. Loans and PR Loans shall be due
and payable on the Maturity Date. Ryder promises to pay to the Administrative
Agent, for the pro rata accounts of the Domestic Banks, the outstanding amount
of all Domestic Loans outstanding on the Maturity Date. The Canadian Borrowers
jointly and severally promise to pay to the Canadian Agent, for the pro rata
accounts of the Canadian Banks, the outstanding amount of all Canadian Loans
outstanding on the Maturity Date. The U.K. Borrowers jointly and severally
promise to pay to the U.K. Agent, for the pro rata accounts of the U.K. Banks,
the outstanding amount of all U.K. Loans outstanding on the Maturity Date. Ryder
PR promises to pay the Administrative Agent, for the pro rata accounts of the PR
Banks, the outstanding amount of all PR Loans outstanding on the Maturity Date.
All such payments shall be made together with any and all accrued and unpaid
interest thereon, the accrued and unpaid Domestic Facility Fee, Canadian
Facility Fee, U.K. Facility Fee, PR Facility Fee and Utilization Fee with
respect thereto, and any other fees and other amounts owing hereunder.
SECTION 2.11. OPTIONAL PREPAYMENTS OR REPAYMENTS OF LOANS.
Subject to the terms and conditions of Section 6.10, each Borrower shall
have the right, at its election, to repay or prepay the outstanding amount of
the Loans, as a whole or in part, at any time without penalty or premium. Each
Borrower shall give the Administrative Agent, the Canadian Agent or the U.K.
Agent, as the case may be, no later than 11:00 a.m. (local time for such Agent)
one (1) Business Day prior to the proposed date of prepayment or repayment,
written notice (or telephonic notice confirmed in writing) of any proposed
prepayment or repayment pursuant to this Section 2.11, specifying the proposed
date of prepayment or repayment of the Loans and the principal amount to be
paid. The Administrative Agent shall promptly notify each Domestic Bank, the
Canadian Agent shall promptly notify each Canadian Bank, the U.K. Agent shall
promptly notify each U.K. Bank and the Administrative Agent shall promptly
notify each PR Bank, by written notice (or telephonic notice confirmed in
writing) of such notice of payment.
SECTION 2.12. THE DOMESTIC SWING LINE.
(a) THE DOMESTIC SWING LINE LOANS. Subject to the terms and
conditions hereinafter set forth, upon notice by Ryder to the
Administrative Agent in accordance with this Section 2.12, the
44
Administrative Agent agrees to make loans to Ryder (the "Domestic Swing
Line Loans") on any Business Day prior to the Maturity Date in an
aggregate principal amount not to exceed $25,000,000 at any one time
outstanding. Each Domestic Swing Line Loan shall be in a minimum amount
equal to $1,000,000 or an integral multiple thereof. Notwithstanding any
other provisions of this Agreement and in addition to the limit set forth
above, at no time shall the aggregate principal amount of all outstanding
Domestic Swing Line Loans exceed the remainder of (i) the Total Domestic
Commitment then in effect minus (ii) the sum of (A) the aggregate
principal amount of all Domestic Loans outstanding, plus (B) the
outstanding L/C Obligations with respect to Letters of Credit issued for
the account of Ryder and its domestic Subsidiaries.
(b) NOTICE OF BORROWING. When Ryder desires the Administrative
Agent to make a Domestic Swing Line Loan, it shall send to the
Administrative Agent written notice in the form of Exhibit G-1 hereto (or
telephonic notice confirmed in a writing in the form of Exhibit G-1
hereto) of each Domestic Swing Line Loan requested hereunder (a "Domestic
Swing Line Loan Request") not later than 2:00 p.m. (Boston time) on the
proposed Drawdown Date of any Domestic Swing Line Loan. Each such Domestic
Swing Line Loan Request shall set forth the principal amount of the
proposed Domestic Swing Line Loan and the Swing Line Loan Maturity Date
relating to such Domestic Swing Line Loan, which shall in no event be
later than the Maturity Date. Each Domestic Swing Line Loan Request shall
be irrevocable and binding on Ryder and shall obligate Ryder to borrow the
Domestic Swing Line Loan from the Administrative Agent on the proposed
Drawdown Date thereof. Upon satisfaction of the applicable conditions set
forth in this Agreement, on the proposed Drawdown Date the Administrative
Agent shall make the Domestic Swing Line Loan available to Ryder no later
than 3:00 p.m. (Boston time) on the proposed Drawdown Date by crediting
the amount of the Domestic Swing Line Loan to the account specified by
Ryder provided that the Administrative Agent shall not advance any
Domestic Swing Line Loans after it has received notice from any Bank that
a Default or Event of Default has occurred and stating that no new
Domestic Swing Line Loans are to be made until such Default or Event of
Default has been cured or waived in accordance with the provisions of this
Agreement.
(c) AUTOMATIC DOMESTIC SWING LINE LOAN. In the event that any
Domestic Bank fails to make available its Domestic Commitment Percentage
of any requested Domestic Loan, Ryder will be deemed to have requested the
Administrative Agent to make, and the Administrative Agent will make, a
Domestic Swing Line Loan in an amount equal to such Delinquent Bank's
Domestic Commitment Percentage of the Domestic Loan requested; provided
that (i) the
45
aggregate amount of Domestic Swing Line Loans outstanding at any one time
(after giving effect to all amounts requested or deemed requested) shall
not exceed $25,000,000 and (ii) the Administrative Agent shall not be
required to make or maintain any Domestic Swing Line Loan at any time at
which the aggregate amount of the unused Domestic Commitments of the
Domestic Banks (excluding the Domestic Commitment of any Delinquent Bank)
shall be less than the aggregate amount of Domestic Swing Line Loans then
outstanding (after giving effect to all amounts requested or deemed
requested).
(d) INTEREST ON DOMESTIC SWING LINE LOANS. Each Domestic Swing
Line Loan shall be a Domestic Base Rate Loan and, except as otherwise
provided in Section 6.11 hereof, shall bear interest from the Drawdown
Date thereof until repaid in full at the rate per annum equal to the
Domestic Base Rate, which shall be paid on each Interest Payment Date for
Base Rate Loans.
(e) REPAYMENT OF DOMESTIC SWING LINE LOANS. Ryder shall repay each
outstanding Domestic Swing Line Loan on or prior to the Swing Line Loan
Maturity Date relating thereto; provided that a Domestic Swing Line Loan
advanced by the Administrative Agent pursuant to Section 2.12(c) hereof
shall be repaid by Ryder not later than seven (7) Business Days following
the receipt by Ryder of notice from the Administrative Agent of the making
of such Domestic Swing Line Loan. Upon notice by the Administrative Agent
on any Business Day (i) following the Swing Line Loan Maturity Date
relating to each Domestic Swing Line Loan (or, in the case of a Domestic
Swing Line Loan advanced by the Administrative Agent pursuant to
Section 2.12(c) hereof, the date that is seven (7) Business Days following
the receipt by Ryder of notice from the Administrative Agent of the making
of such Domestic Swing Line Loan), or (ii) at the option of the
Administrative Agent, after the occurrence of an Event of Default, each of
the Domestic Banks hereby agrees to make Domestic Loans to Ryder
constituting Domestic Base Rate Loans, on the next succeeding Business Day
following such notice, in an amount equal to such Bank's Domestic
Commitment Percentage of the aggregate amount of all Domestic Swing Line
Loans outstanding (or, with respect to a Domestic Swing Line Loan advanced
pursuant to Section 2.12(c), the amount of such Domestic Swing Line Loan).
The proceeds thereof shall be applied directly by the Administrative Agent
to repay outstanding Domestic Swing Line Loans. Each Domestic Bank hereby
absolutely, unconditionally and irrevocably agrees to make such Domestic
Loans upon one Business Day's notice as set forth above, notwithstanding
(i) that the amount of such Domestic Loan may not comply with the
applicable minimums set forth herein, (ii) the failure of Ryder to meet
the applicable conditions set forth in Sections 11 or 12 hereof, (iii) the
occurrence or continuance of a Default or an Event of Default hereunder,
and (iv) the Total Domestic Commitment in effect at such
46
time. In the event that it is impracticable for such Domestic Loan to be
made for any reason on the date otherwise required above, then each
Domestic Bank hereby agrees that it shall forthwith purchase (as of the
date such Domestic Loan would have been made, but adjusted for any
payments received from Ryder on or after such date and prior to such
purchase) from the Administrative Agent, and the Administrative Agent
shall sell to each Domestic Bank, such participations in the Domestic
Swing Line Loans (including all accrued and unpaid interest thereon)
outstanding as shall be necessary to cause the Domestic Banks to share in
such Domestic Swing Line Loans pro rata based on their respective Domestic
Commitment Percentages (without regard to any termination of the Total
Domestic Commitment hereunder) by making available to the Administrative
Agent an amount equal to such Bank's participation in the Domestic Swing
Line Loans; provided that (x) all interest payable on the Domestic Swing
Line Loans (other than interest received by the Administrative Agent
pursuant to clause (y)) shall be for the account of the Administrative
Agent as a funding and administrative fee until the date as of which the
respective participation is purchased, and (y) at the time any purchase of
such participation is actually made, the purchasing Bank shall be required
to pay the Administrative Agent interest on the principal amount of the
participation so purchased for each day from and including the date such
Domestic Loan would otherwise have been made until the date of payment for
such participation at the rate of interest in effect applicable to
Domestic Base Rate Loans during such period.
(f) THE DOMESTIC SWING LINE NOTE. The obligation of Ryder to repay
the Domestic Swing Line Loans made pursuant to this Agreement and to pay
interest thereon as set forth in this Agreement shall be evidenced by a
promissory note of Ryder with appropriate insertions substantially in the
form of Exhibit A-5 attached hereto (the "Domestic Swing Line Note"),
dated the Closing Date and payable to the order of the Administrative
Agent in a principal amount stated to be the lesser of (i) $25,000,000 and
(ii) the aggregate principal amount of Domestic Swing Line Loans at any
time advanced by the Administrative Agent and outstanding thereunder.
Ryder irrevocably authorizes the Administrative Agent to make or cause to
be made, at or about the time of the Drawdown Date of any Domestic Swing
Line Loan or at the time of receipt of any payment of principal on the
Domestic Swing Line Note, an appropriate notation on the grid attached to
such Note or the Administrative Agent's records reflecting the making of
such Domestic Swing Line Loan or (as the case may be) the receipt of such
payment. The outstanding amount of the Domestic Swing Line Loans set forth
on such grid or such records shall be prima facie evidence of the
principal amount thereof owing and unpaid to the Administrative Agent, but
the failure to record, or any error in so recording, any such amount on
such Note or such
47
records shall not limit or otherwise affect the actual amount of the
obligations of Ryder hereunder or under the Domestic Swing Line Note to
make payments of principal of or interest on the Domestic Swing Line Note
when due.
SECTION 2.13. THE U.K. SWING LINE.
(a) THE U.K. SWING LINE LOANS. Subject to the terms and conditions
hereinafter set forth, upon notice by the U.K. Borrowers made to the U.K.
Agent in accordance with this Section 2.13, the U.K. Agent agrees to make
loans to the U.K. Borrowers (the "U.K. Swing Line Loans") on any Business
Day prior to the Maturity Date in an aggregate principal amount not to
exceed $20,000,000 (or the Sterling Equivalent or Euro Equivalent thereof)
at any one time outstanding. Each U.K. Swing Line Loan shall be in a
minimum amount equal to (pound)100,000 (or the Dollar Equivalent or Euro
Equivalent thereof) or an integral multiple thereof. Notwithstanding any
other provisions of this Agreement and in addition to the limit set forth
above, at no time shall the aggregate principal amount of all outstanding
U.K. Swing Line Loans exceed the remainder of (i) the Total U.K.
Commitment then in effect minus (ii) the sum of (A) the aggregate
principal amount of all U.K. Loans denominated in Dollars, plus (B) the
Dollar Equivalent of the aggregate principal amount of all U.K. Loans
denominated in Sterling, plus (C) the Dollar Equivalent of the aggregate
principal of all U.K. Loans denominated in Euros.
(b) NOTICE OF BORROWING. When the U.K. Borrowers desire the U.K.
Agent to make a U.K. Swing Line Loan, they shall send to the U.K. Agent
written notice in the form of Exhibit G-2 hereto (or telephonic notice
confirmed in a writing in the form of Exhibit G-2 hereto) of each U.K.
Swing Line Loan requested hereunder (a "U.K. Swing Line Loan Request") not
later than 12:00 p.m. (London time) on the proposed Drawdown Date of any
U.K. Swing Line Loan. Each such U.K. Swing Line Loan Request shall set
forth the principal amount of the proposed U.K. Swing Line Loan and the
Swing Line Loan Maturity Date relating to such U.K. Swing Line Loan, which
shall in no event be later than the Maturity Date. Each U.K. Swing Line
Loan Request shall be irrevocable and binding on the U.K. Borrowers and
shall obligate the U.K. Borrowers to borrow the U.K. Swing Line Loan from
the U.K. Agent on the proposed Drawdown Date thereof. Upon satisfaction of
the applicable conditions set forth in this Agreement, on the proposed
Drawdown Date the U.K. Agent shall make the U.K. Swing Line Loan available
to the U.K. Borrowers no later than 3:00 p.m. (London time) on the
proposed Drawdown Date by crediting the amount of the U.K. Swing Line Loan
to the account specified by the U.K. Borrowers; provided that the U.K.
Agent shall not advance any U.K. Swing Line Loans after it has received
notice from any Bank that a Default or Event of Default has occurred and
48
stating that no new U.K. Swing Line Loans are to be made until such
Default or Event of Default has been cured or waived in accordance with
the provisions of this Agreement.
(c) AUTOMATIC SWING LINE LOAN. In the event that any U.K. Bank
fails to make available its U.K. Commitment Percentage of any requested
U.K. Loan, the U.K. Borrowers will be deemed to have requested the U.K.
Agent to make, and the U.K. Agent will make, a U.K. Swing Line Loan in an
amount equal to such Delinquent Bank's U.K. Commitment Percentage of the
U.K. Loan requested; provided that (i) the aggregate amount of U.K. Swing
Line Loans outstanding at any one time (after giving effect to all amounts
requested or deemed requested) shall not exceed $20,000,000 (or the
Sterling Equivalent or Euro Equivalent thereof) and (ii) the U.K. Agent
shall not be required to make or maintain any U.K. Swing Line Loan at any
time at which the aggregate amount of the unused U.K. Commitments of the
U.K. Banks (excluding the U.K. Commitment of any Delinquent Bank) shall be
less than the aggregate amount of U.K. Swing Line Loans then outstanding
(after giving effect to all amounts requested or deemed requested).
(d) INTEREST ON U.K. SWING LINE LOANS. Each U.K. Swing Line Loan
shall be a U.K. Base Rate Loan and, except as otherwise provided in
Section 6.11 hereof, shall bear interest from the Drawdown Date thereof
until repaid in full at the rate per annum equal to the RBS-U.K. Sterling
Reference Rate, with respect to each U.K. Swing Line Loan denominated in
Sterling, the U.K. Dollar Base Rate, with respect to each U.K. Swing Line
Loan denominated in U.S. Dollars, and the RBS-U.K. Euro Reference Rate,
with respect to each U.K. Swing Line Loan denominated in Euros, which
shall, in each case, be paid on each Interest Payment Date for Base Rate
Loans.
(e) REPAYMENT OF U.K. SWING LINE LOANS. The U.K. Borrowers shall
repay each outstanding U.K. Swing Line Loan on or prior to the Swing Line
Loan Maturity Date relating thereto; provided that a U.K. Swing Line Loan
advanced by the U.K. Agent pursuant to Section 2.13(c) hereof shall be
repaid by the U.K. Borrowers not later than seven (7) Business Days
following the receipt by the U.K. Borrowers of notice from the U.K. Agent
of the making of such U.K. Swing Line Loan. Upon notice by the U.K. Agent
on any Business Day (i) following the Swing Line Loan Maturity Date
relating to each U.K. Swing Line Loan (or, in the case of a U.K. Swing
Line Loan advanced by the U.K. Agent pursuant to Section 2.13(c) hereof,
the date that is seven (7) Business Days following the receipt by the U.K.
Borrowers of notice from the U.K. Agent of the making of such U.K. Swing
Line Loan) or (ii) at the option of the U.K. Agent, after the occurrence
of an Event of Default, each of the U.K. Banks hereby agrees to make U.K.
Loans to the U.K. Borrowers constituting U.K. Base Rate Loans, on the next
49
succeeding Business Day following such notice, in an amount equal to such
Bank's U.K. Commitment Percentage of the aggregate amount of all U.K.
Swing Line Loans outstanding (or, with respect to a U.K. Swing Line Loan
advanced pursuant to Section 2.13(c), the amount of such U.K. Swing Line
Loan). The proceeds thereof shall be applied directly by the U.K. Agent to
repay outstanding U.K. Swing Line Loans. Each U.K. Bank hereby absolutely,
unconditionally and irrevocably agrees to make such U.K. Loans upon one
Business Day's notice as set forth above, notwithstanding (i) that the
amount of such U.K. Loan may not comply with the applicable minimums set
forth herein, (ii) the failure of the U.K. Borrowers to meet the
applicable conditions set forth in Sections 11 or 12 hereof, (iii) the
occurrence or continuance of a Default or an Event of Default hereunder,
and (iv) the Total U.K. Commitment in effect at such time. In the event
that it is impracticable for such U.K. Loan to be made for any reason on
the date otherwise required above, then each U.K. Bank hereby agrees that
it shall forthwith purchase (as of the date such U.K. Loan would have been
made, but adjusted for any payments received from the U.K. Borrowers on or
after such date and prior to such purchase) from the U.K. Agent, and the
U.K. Agent shall sell to each U.K. Bank, such participations in the U.K.
Swing Line Loans (including all accrued and unpaid interest thereon)
outstanding as shall be necessary to cause the U.K. Banks to share in such
U.K. Swing Line Loans pro rata based on their respective U.K. Commitment
Percentages (without regard to any termination of the Total U.K.
Commitment hereunder) by making available to the U.K. Agent an amount
equal to such U.K. Bank's participation in the U.K. Swing Line Loans;
provided that (x) all interest payable on the U.K. Swing Line Loans (other
than interest received by the U.K. Agent pursuant to clause (y)) shall be
for the account of the U.K. Agent as a funding and administrative fee
until the date as of which the respective participation is purchased, and
(y) at the time any purchase of such participation is actually made, the
purchasing Bank shall be required to pay the U.K. Agent interest on the
principal amount of the participation so purchased for each day from and
including the date such U.K. Loan would otherwise have been made until the
date of payment for such participation at the rate of interest in effect
applicable to U.K. Base Rate Loans during such period.
(f) THE U.K. SWING LINE NOTE. The obligation of the U.K. Borrowers
to repay the U.K. Swing Line Loans made pursuant to this Agreement and to
pay interest thereon as set forth in this Agreement shall be evidenced by
a promissory note of the U.K. Borrowers with appropriate insertions
substantially in the form of Exhibit A-6 attached hereto (the "U.K. Swing
Line Note"), dated the Closing Date and payable to the order of the U.K.
Agent in a principal amount stated to be the lesser of (a) $20,000,000, or
(b) the aggregate principal amount of Swing Line Loans at any time
advanced by the U.K. Agent and outstanding thereunder. The U.K. Borrowers
50
irrevocably authorize the U.K. Agent to make or cause to be made, at or
about the time of the Drawdown Date of any U.K. Swing Line Loan or at the
time of receipt of any payment of principal on the U.K. Swing Line Note,
an appropriate notation on the grid attached to such Note or the U.K.
Agent's records reflecting the making of such U.K. Swing Line Loan or (as
the case may be) the receipt of such payment. The outstanding amount of
the U.K. Swing Line Loans set forth on such grid or such records shall be
prima facie evidence of the principal amount thereof owing and unpaid to
the U.K. Agent, but the failure to record, or any error in so recording,
any such amount on such Note or such records shall not limit or otherwise
affect the actual amount of the obligations of the U.K. Borrowers
hereunder or under the U.K. Swing Line Note to make payments of principal
of or interest on the U.K. Swing Line Note when due.
SECTION 2.14. THE CANADIAN SWING LINE.
(a) THE CANADIAN SWING LINE LOANS. Subject to the terms and
conditions hereinafter set forth, upon notice by the Canadian Borrowers to
the Canadian Agent in accordance with this Section 2.14, the Canadian
Agent agrees to make loans to the Canadian Borrowers (the "Canadian Swing
Line Loans") on any Business Day prior to the Maturity Date in an
aggregate principal amount not to exceed $20,000,000 (or the Canadian
Dollar Equivalent thereof) at any one time outstanding. Each Canadian
Swing Line Loan shall be in a minimum amount equal to $500,000 (or the
Canadian Dollar Equivalent thereof); provided that there shall be no
minimum amount for any Canadian Swing Line Loan which is advanced in order
to fund an overdraft in the Canadian Borrowers' Canadian Dollar accounts
maintained with the Canadian Agent (as provided in Section 2.14(b)
hereof). Notwithstanding any other provisions of this Agreement and in
addition to the limit set forth above, at no time shall the aggregate
principal amount of all outstanding Canadian Swing Line Loans exceed (i)
the Total Canadian Commitment then in effect minus (ii) the sum of (A) the
aggregate principal amount of all Canadian Loans denominated in U.S.
Dollars, plus (B) the Dollar Equivalent of the aggregate principal amount
of all Canadian Loans denominated in Canadian Dollars, plus (C) the Dollar
Equivalent of the aggregate amount of Bankers' Acceptances outstanding.
(b) NOTICE OF BORROWING. When the Canadian Borrowers desire the
Canadian Agent to make a Canadian Swing Line Loan, they shall send to the
Canadian Agent written notice in the form of Exhibit G-3 hereto (or
telephonic notice confirmed in a writing in the form of Exhibit G-3
hereto) of each Canadian Swing Line Loan requested hereunder (a "Canadian
Swing Line Loan Request") not later than 2:00 p.m. (Toronto time) on the
proposed Drawdown Date of any Canadian Swing Line Loan. Each such Canadian
Swing Line Loan
51
Request shall set forth the principal amount of the proposed Canadian
Swing Line Loan and the Swing Line Loan Maturity Date relating to such
Canadian Swing Line Loan, which shall in no event be later than the
Maturity Date. In addition, in the event that the Canadian Borrowers cause
an overdraft in the net position of all its Canadian Dollar accounts
maintained with the Canadian Agent, the Canadian Borrowers shall be deemed
to have requested a Canadian Swing Line Loan (subject to the terms and
conditions set forth in this Section 2.14 and in Sections 11 and 12, to
the extent applicable) in the amount of such overdraft. Each Canadian
Swing Line Loan Request shall be irrevocable and binding on the Canadian
Borrowers and shall obligate the Canadian Borrowers to borrow the Canadian
Swing Line Loan from the Canadian Agent on the proposed Drawdown Date
thereof. Upon satisfaction of the applicable conditions set forth in this
Agreement, on the proposed Drawdown Date the Canadian Agent shall make the
Canadian Swing Line Loan available to the Canadian Borrowers no later than
3:00 p.m. (Toronto time) on the proposed Drawdown Date by crediting the
amount of the Canadian Swing Line Loan to the account specified by the
Canadian Borrowers; provided that the Canadian Agent shall not advance any
Canadian Swing Line Loans after it has received notice from any Bank that
a Default or Event of Default has occurred and stating that no new
Canadian Swing Line Loans are to be made until such Default or Event of
Default has been cured or waived in accordance with the provisions of this
Agreement.
(c) AUTOMATIC SWING LINE LOAN. In the event that any Canadian Bank
fails to make available its Canadian Commitment Percentage of any
requested Canadian Loan, the Canadian Borrowers will be deemed to have
requested the Canadian Agent to make, and the Canadian Agent will make, a
Canadian Swing Line Loan in an amount equal to such Delinquent Bank's
Canadian Commitment Percentage of the Canadian Loan requested; provided
that (i) the aggregate amount of Canadian Swing Line Loans outstanding at
any one time (after giving effect to all amounts requested or deemed
requested) shall not exceed $20,000,000 (or the Canadian Dollar Equivalent
thereof) and (ii) the Canadian Agent shall not be required to make or
maintain any Canadian Swing Line Loan at any time at which the aggregate
amount of the unused Canadian Commitments of the Canadian Banks (excluding
the Canadian Commitment of any Delinquent Bank) shall be less than the
aggregate amount of Canadian Swing Line Loans then outstanding (after
giving effect to all amounts requested or deemed requested).
(d) INTEREST ON CANADIAN SWING LINE LOANS. Each Canadian Swing
Line Loan shall be a Canadian Base Rate Loan and, except as otherwise
provided in Section 6.11 hereof, shall bear interest from the Drawdown
Date thereof until repaid in full at the rate per annum
52
equal to the Canadian Prime Rate, with respect to each Canadian Swing Line
Loan denominated in Canadian Dollars and the Canadian Base Rate with
respect to each Canadian Swing Line Loan denominated in U.S. Dollars,
which shall be paid on each Interest Payment Date for Base Rate Loans.
(e) REPAYMENT OF CANADIAN SWING LINE LOANS. the Canadian Borrowers
shall repay each outstanding Canadian Swing Line Loan on or prior to the
Swing Line Loan Maturity Date relating thereto; provided that a Canadian
Swing Line Loan advanced by the Canadian Agent pursuant to Section 2.14(c)
hereof shall be repaid by the Canadian Borrowers not later than seven (7)
Business Days following the receipt by the Canadian Borrowers of notice
from the Canadian Agent of the making of such Canadian Swing Line Loan.
Upon notice by the Canadian Agent on any Business Day (i) following the
Swing Line Loan Maturity Date relating to each Canadian Swing Line Loan
(or, in the case of a Canadian Swing Line Loan advanced by the Canadian
Agent pursuant to Section 2.14(c) hereof, the date that is seven (7)
Business Days following the receipt by the Canadian Borrowers of notice
from the Canadian Agent of the making of such Canadian Swing Line Loan) or
(ii) at the option of the Canadian Agent, after the occurrence of an Event
of Default, each of the Canadian Banks hereby agrees to make Canadian
Loans to the Canadian Borrowers constituting Canadian Base Rate Loans, on
the next succeeding Business Day following such notice, in an amount equal
to such Bank's Canadian Commitment Percentage of the aggregate amount of
all Canadian Swing Line Loans outstanding (or, with respect to a Canadian
Swing Line Loan advanced pursuant to Section 2.14(c), the amount of such
Canadian Swing Line Loan). The proceeds thereof shall be applied directly
by the Canadian Agent to repay outstanding Canadian Swing Line Loans. Each
Canadian Bank hereby absolutely, unconditionally and irrevocably agrees to
make such Canadian Loans upon one Business Day's notice as set forth
above, notwithstanding (i) that the amount of such Canadian Loan may not
comply with the applicable minimums set forth herein, (ii) the failure of
the Canadian Borrowers to meet the applicable conditions set forth in
Sections 11 or 12 hereof, (iii) the occurrence or continuance of a Default
or an Event of Default hereunder, and (iv) the Total Canadian Commitment
in effect at such time. In the event that it is impracticable for such
Canadian Loan to be made for any reason on the date otherwise required
above, then each Canadian Bank hereby agrees that it shall forthwith
purchase (as of the date such Canadian Loan would have been made, but
adjusted for any payments received from the Canadian Borrowers on or after
such date and prior to such purchase) from the Canadian Agent, and the
Canadian Agent shall sell to each Canadian Bank, such participations in
the Canadian Swing Line Loans (including all accrued and unpaid interest
thereon) outstanding as shall be necessary to cause the Canadian Banks to
share in such Canadian
53
Swing Line Loans pro rata based on their respective Canadian Commitment
Percentages (without regard to any termination of the Total Canadian
Commitment hereunder) by making available to the Canadian Agent an amount
equal to such Bank's participation in the Canadian Swing Line Loans;
provided that (x) all interest payable on the Canadian Swing Line Loans
(other than interest received by the Canadian Agent pursuant to clause
(y)) shall be for the account of the Canadian Agent as a funding and
administrative fee until the date as of which the respective participation
is purchased, and (y) at the time any purchase of such participation is
actually made, the purchasing Bank shall be required to pay the Canadian
Agent interest on the principal amount of the participation so purchased
for each day from and including the date such Canadian Loan would
otherwise have been made until the date of payment for such participation
at the rate of interest in effect applicable to Canadian Base Rate Loans
during such period.
(f) THE CANADIAN SWING LINE NOTE. The obligation of the Canadian
Borrowers to repay the Canadian Swing Line Loans made pursuant to this
Agreement and to pay interest thereon as set forth in this Agreement shall
be evidenced by a promissory note of the Canadian Borrowers with
appropriate insertions substantially in the form of Exhibit A-7 attached
hereto (the "Canadian Swing Line Note"), dated the Closing Date and
payable to the order of the Canadian Agent in a principal amount stated to
be the lesser of (i) $20,000,000, or (ii) the aggregate principal amount
of Canadian Swing Line Loans at any time advanced by the Canadian Agent
and outstanding thereunder. The Canadian Borrowers irrevocably authorize
the Canadian Agent to make or cause to be made, at or about the time of
the Drawdown Date of any Canadian Swing Line Loan or at the time of
receipt of any payment of principal on the Canadian Swing Line Note, an
appropriate notation on the grid attached to such Note or the Canadian
Agent's records reflecting the making of such Canadian Swing Line Loan or
(as the case may be) the receipt of such payment. The outstanding amount
of the Canadian Swing Line Loans set forth on such grid or such records
shall be prima facie evidence of the principal amount thereof owing and
unpaid to the Canadian Agent, but the failure to record, or any error in
so recording, any such amount on such Note or such records shall not limit
or otherwise affect the actual amount of the obligations of the Canadian
Borrowers hereunder or under the Canadian Swing Line Note to make payments
of principal of or interest on the Canadian Swing Line Note when due.
SECTION 3. BANKERS' ACCEPTANCES.
SECTION 3.1. ACCEPTANCE AND PURCHASE. Subject to the terms and conditions
hereof, each Canadian Bank severally agrees to accept and purchase Bankers'
Acceptances drawn upon it by the Canadian Borrowers
54
denominated in Canadian Dollars. The Canadian Borrowers shall notify the
Canadian Agent by irrevocable written notice (each a "Bankers' Acceptance
Notice") by 11:00 a.m. (Toronto time) within one (1) Canadian Business Day of
the date of any borrowing by way of Bankers' Acceptances. Each borrowing by way
of Bankers' Acceptances shall be in a minimum aggregate face amount of
C$3,000,000 or an integral multiple of C$100,000 thereof. The face amount of
each Bankers' Acceptance shall be C$100,000 or any integral multiple thereof.
Each Bankers' Acceptance Notice shall be in the form of Exhibit F. In no event
shall the Dollar Equivalent of the aggregate face amount of all outstanding
Bankers' Acceptances exceed the remainder of (i) the Total Canadian Commitment
minus (ii) the sum of (A) the outstanding amount of all Canadian Loans
denominated in U.S. Dollars, plus (B) the Dollar Equivalent of the outstanding
amount of all Canadian Loans denominated in Canadian Dollars.
(a) TERM. Each Bankers' Acceptance shall be issued and shall
mature on a Canadian Business Day. Each Bankers' Acceptance shall have a
term of 1, 2, 3 or 6 months, shall mature no later than five (5) days
prior to the Maturity Date, and shall be in form and substance reasonably
satisfactory to the Canadian Bank which is accepting such Bankers'
Acceptance.
(b) BANKERS' ACCEPTANCES IN BLANK. To facilitate the acceptance of
Bankers' Acceptances under this Agreement, the Canadian Borrowers shall,
upon execution of this Agreement and from time to time as required,
provide to the Canadian Agent bills of exchange or depository bills, in
form satisfactory to the Canadian Agent, duly executed and endorsed in
blank by the Canadian Borrowers in quantities sufficient for each Canadian
Bank to fulfill its obligations hereunder. In addition, the Canadian
Borrowers hereby appoint each Canadian Bank as its attorney to sign and
endorse on its behalf, in handwriting or by facsimile or mechanical
signature as and when deemed necessary by such Canadian Bank, blank forms
of Bankers' Acceptances. The Canadian Borrowers recognize and agree that
all Bankers' Acceptances signed and/or endorsed on its behalf by a
Canadian Bank shall bind the Canadian Borrowers as fully and effectually
as if signed in the handwriting of and duly issued by the proper signing
officers of the Canadian Borrowers. Each Canadian Bank is hereby
authorized to issue such Bankers' Acceptances endorsed in blank in such
face amounts as may be determined by such Canadian Bank provided that the
aggregate amount thereof is equal to the aggregate amount of Bankers'
Acceptances required to be accepted by such Bank pursuant to clause (d)
below. No Canadian Bank shall be responsible or liable for its failure to
accept a Bankers' Acceptance if the cause of such failure is, in whole or
in part, due to the failure of the Canadian Borrowers to provide duly
executed and endorsed bills of exchange or depository bills to the
Canadian Agent on a timely basis nor shall any Canadian Bank or the
Canadian Agent
55
be liable for any damage, loss or other claim arising by reason of any
loss or improper use of any such instrument except loss or improper use
arising by reason of the gross negligence or willful misconduct of such
Bank or the Canadian Agent, its officers, employees, agents or
representatives. Each Canadian Bank shall maintain a record with respect
to Bankers' Acceptances (i) received by it from the Canadian Agent in
blank hereunder, (ii) voided by it for any reason, (iii) accepted by it
hereunder, (iv) purchased by it hereunder, and (v) cancelled at their
respective maturities. Each Canadian Bank further agrees to retain such
records in the manner and for the statutory periods provided in the
various Canadian provincial or federal statutes and regulations which
apply to such Canadian Bank.
(c) DEPOSITORY BILLS. All Bankers' Acceptances accepted by the
Canadian Bank issued in the form of a depository bill (as defined in the
Depository Bills and Notes Act (Canada) ("DBNA")) shall be deposited with
the Canadian Depository for Securities and shall be made payable to CDS &
Co. In order to give effect to the foregoing, the Canadian Agent may,
acting reasonably, establish and notify the Canadian Borrowers and the
other Canadian Banks of any additional procedures, consistent with the
terms of this Agreement and the requirements, of the DBNA, as are
reasonably necessary to accomplish the parties intention, including,
without limitation: (i) inserting a phrase in the drafts held by the
Canadian Agent to the effect that the Bankers' Acceptance is issued
pursuant to the DBNA; (ii) removing any reference to authentication of a
Bankers' Acceptance; and (iii) removing any reference to the bearer of the
depository bill.
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(d) EXECUTION OF BANKERS' ACCEPTANCES. Bills of exchange or
depository bills of the Canadian Borrowers to be accepted as Bankers'
Acceptances hereunder shall be duly executed by one or more duly
authorized officers on behalf of the Canadian Borrowers. Notwithstanding
that any person whose signature appears on any Bankers' Acceptance as a
signatory for the Canadian Borrowers may no longer be an authorized
signatory for the Canadian Borrowers at the date of issuance of a Bankers'
Acceptance, such signature shall nevertheless be valid and sufficient for
all purposes as if such authority had remained in force at the time of
such issuance and any such Bankers' Acceptance so signed shall be binding
on the Canadian Borrowers. As a condition precedent to each Canadian
Bank's obligation to accept and, if applicable, purchase Bankers'
Acceptances hereunder, each of the Canadian Borrowers hereby agrees to the
Power of Attorney Terms - Bankers' Acceptances set out in Annex A hereto
and hereby grants to each Canadian Bank a power of attorney on the terms
set out in such Annex A; provided that if either of the Canadian Borrowers
revoke such power of attorney, the Canadian Banks shall not be entitled to
issue Bankers' Acceptances hereunder unless the Canadian Borrowers, the
Canadian Agent and all of the Canadian Banks have agreed on amendments to
this Agreement which would allow the Canadian Borrowers to again issue
Bankers' Acceptances.
(e) ISSUANCE OF BANKERS' ACCEPTANCES. Promptly following receipt
of a Bankers' Acceptance Notice, the Canadian Agent shall so advise the
Canadian Banks of the face amount of each Bankers' Acceptance to be
accepted by it and the term thereof. The aggregate face amount of Bankers'
Acceptances to be accepted by a Canadian Bank shall be determined by the
Canadian Agent by reference to the respective Canadian Commitments of the
Canadian Banks, except that, if the face amount of a Bankers' Acceptance,
which would otherwise be accepted by a Canadian Bank, would not be
C$100,000 or an integral multiple thereof, such face amount shall be
increased or reduced by the Canadian Agent in its sole and absolute
discretion to the nearest integral multiple of C$100,000.
(f) ACCEPTANCE OF BANKERS' ACCEPTANCES. Each Bankers' Acceptance
to be accepted by a Canadian Bank shall be accepted at such Bank's office
shown on Schedule 1 hereof or as otherwise designated by said Canadian
Bank from time to time.
(g) PURCHASE OF BANKERS' ACCEPTANCES. On the relevant date of
borrowing, each Canadian Bank severally agrees to purchase from the
Canadian Borrowers, at the face amount thereof discounted by the
Applicable BA Discount Rate, any Bankers' Acceptance accepted by it and
provide to the Canadian Agent, for the account of the Canadian Borrowers,
the BA Discount Proceeds in respect thereof after
57
deducting therefrom the amount of the Acceptance Fee and, if applicable,
the Additional Fee, payable by the Canadian Borrowers to such Bank under
Section 3.3 in respect of such Bankers' Acceptance.
(h) SALE OF BANKERS' ACCEPTANCES. Each Canadian Bank may at any
time and from time to time hold, sell, rediscount or otherwise dispose of
any or all Bankers' Acceptances accepted and purchased by it.
(i) WAIVER OF PRESENTMENT AND OTHER CONDITIONS. The Canadian
Borrowers waive presentment for payment and any other defense to payment
of any amounts due to a Canadian Bank in respect of a Bankers' Acceptance
accepted by such Canadian Bank pursuant to this Agreement which might
exist solely by reason of such Bankers' Acceptance being held, at the
maturity thereof, by such Bank in its own right. The Canadian Borrowers
shall not claim or require any days of grace or require the Canadian Agent
or any Canadian Bank to claim any days of grace for the payment of any
Bankers' Acceptance.
SECTION 3.2 REFUNDING BANKERS' ACCEPTANCES. With respect to each Bankers'
Acceptance, the Canadian Borrowers, except during the occurrence and
continuation of an Event of Default, may give irrevocable telephone or written
notice (or such other method of notification as may be agreed upon between the
Canadian Agent and the Canadian Borrowers) to the Canadian Agent at or before
11:00 a.m. (Toronto time) within one (1) Canadian Business Day of such maturity
date of such Bankers' Acceptance of any Canadian Borrower's intention to issue
one or more Bankers' Acceptances on such maturity date (each a "Refunding
Bankers' Acceptance") to provide for the payment of such maturing Bankers'
Acceptance (it being understood that payments by the Canadian Borrowers and
fundings by the Canadian Banks in respect of each maturing Bankers' Acceptance
and each related Refunding Bankers' Acceptance shall be made on a net basis
reflecting the difference between the face amount of such maturing Bankers'
Acceptance and the BA Discount Proceeds (net of the applicable Acceptance Fee)
of such Refunding Bankers' Acceptance). Any funding on account of any maturing
Bankers' Acceptance must be made at or before 12:00 noon (Toronto time) on the
maturity date of such Bankers' Acceptance. If the Canadian Borrowers fail to
give such notice, the Canadian Borrowers shall be irrevocably deemed to have
requested and to have been advanced a Canadian Loan bearing interest at the
Canadian Prime Rate in the face amount of such maturing Bankers' Acceptance on
the maturity date of such maturing Bankers' Acceptance from the Canadian Bank
which accepted such maturing Bankers' Acceptance, which Loan shall thereafter
bear interest as such in accordance with the provisions hereof and otherwise
shall be subject to all provisions of this Agreement applicable to Canadian
Loans until paid in full. Notwithstanding anything to the contrary contained
herein, the Canadian Borrowers shall not prepay the
58
outstanding amount of any Bankers' Acceptance, as a whole or in part, at any
time.
SECTION 3.3 ACCEPTANCE FEE. An acceptance fee (the "Acceptance Fee") shall
be payable by the Canadian Borrowers to each Canadian Bank and each Canadian
Bank shall deduct the amount of such Acceptance Fee from the BA Discount
Proceeds (in the manner specified in Section 3.1(g) in respect of each Bankers'
Acceptance), said fee to be calculated at a rate per annum equal to the
Applicable Acceptance Fee Rate calculated on the face amount of such Bankers'
Acceptance and computed on the basis of the number of days in the term of such
Bankers' Acceptance and a year of 365 days. In addition to the Acceptance Fee an
additional fee (the "Additional Fee") shall be payable by the Canadian Borrowers
to each Non-Schedule I Bank and each Non-Schedule I Bank shall deduct such
Additional Fee from the BA Discount Proceeds (in the manner specified in
Section 3.1(f) in respect of each Bankers' Acceptance) said fee to be calculated
at a rate per annum equal to eight one-hundredths of one-percent (0.08%)
calculated on the face amount of such Bankers' Acceptance and computed on the
basis of the number of days in the term of such Bankers' Acceptance and a year
of 365 days.
SECTION 4. LETTERS OF CREDIT.
SECTION 4.1. LETTER OF CREDIT COMMITMENTS.
(a) COMMITMENTS TO ISSUE DOMESTIC LETTERS OF CREDIT.
Subject to the terms and conditions set forth herein, (A) the
Issuing Bank agrees, in reliance upon the agreements of the Domestic
Banks set forth in this Section 4, (1) from time to time on any
Business Day during the period from the Closing Date until the
Letter of Credit Expiration Date, to issue Letters of Credit for the
account of Ryder and/or any of its domestic Subsidiaries, and to
amend or extend Letters of Credit previously issued by it, in each
case denominated in Dollars, in accordance with subsection (b)
below, and (2) to honor drawings under the Letters of Credit; and
(B) the Domestic Banks severally agree to participate in Letters of
Credit issued for the account of Ryder and/or any of its domestic
Subsidiaries and any drawings thereunder; provided, however, that
after giving effect to any L/C Credit Extension with respect to any
Letter of Credit, (a) the sum of the outstanding L/C Obligations
shall not exceed the Letter of Credit Sublimit at any one time, (b)
the sum of (i) the outstanding L/C Obligations with respect to
Letters of Credit issued for the account of Ryder and/or its
domestic Subsidiaries, plus (ii) the outstanding principal amount of
the Domestic Loans, shall not, at any time and after giving effect
to all amounts requested, exceed the Total Domestic Commitment and
(c) with respect to any Domestic Bank, the sum of (i) such
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Domestic Bank's Domestic Commitment Percentage of the outstanding
L/C Obligations with respect to all Letters of Credit issued for the
account of Ryder and/or its domestic Subsidiaries, plus (ii) the
outstanding principal amount of the Domestic Loans owed to such
Domestic Bank, shall not, at any time and after giving effect to all
amounts requested, exceed such Domestic Bank's Domestic Commitment.
Each request by Ryder and/or any domestic Subsidiary for the
issuance or amendment of a Letter of Credit shall be deemed to be a
representation by Ryder that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject to the
terms and conditions hereof, Ryder's and/or any of its domestic
Subsidiaries' ability to obtain Letters of Credit shall be fully
revolving, and accordingly Ryder and/or its domestic Subsidiaries
may, during the foregoing period, obtain Letters of Credit to
replace Letters of Credit that have expired or that have been drawn
upon and reimbursed.
(b) The Issuing Bank shall not issue any Letter of Credit, if:
(i) subject to Section 4.2(c), the expiry date of such
requested Letter of Credit would occur more than twelve months after
the date of issuance or last extension, unless the Majority Banks
have approved such expiry date; or
(ii) the expiry date of such requested Letter of Credit would
occur after the Letter of Credit Expiration Date, unless all the
Banks have approved such expiry date.
(c) The Issuing Bank shall not be under any obligation to issue
any Letter of Credit if:
(i) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or
restrain the Issuing Bank from issuing such Letter of Credit, or any
international, foreign, federal, state and local statutes, treaties,
rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities (including the interpretation
or administration thereof by any Governmental Authority) applicable
to the Issuing Bank or any request or directive (whether or not
having the force of law) from any Governmental Authority with
jurisdiction over the Issuing Bank shall prohibit, or request that
the Issuing Bank refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular;
60
(ii) the issuance of such Letter of Credit would violate any
international, foreign, federal, state and local statutes, treaties,
rules, guidelines, regulations, ordinances, codes and administrative
or judicial precedents or authorities (including the interpretation
or administration thereof by any Governmental Authority) or one or
more policies of the Issuing Bank;
(iii) except as otherwise agreed by the Administrative Agent
and the Issuing Bank, such Letter of Credit is in an initial face
amount less than $100,000, in the case of a commercial Letter of
Credit, or $100,000, in the case of a standby Letter of Credit;
(iv) such Letter of Credit is to be denominated in a currency
other than Dollars;
(v) such Letter of Credit contains any provisions for
automatic reinstatement of the stated amount after any drawing
thereunder;
(vi) a default of any Domestic Bank's (other than the
Domestic Bank which is the Issuing Bank) obligations to fund under
Section 4.3 exists or any Domestic Bank (other than a Domestic Bank
which is the Issuing Bank) has failed to fund any portion of any
participations in L/C Obligations required to be funded by it
hereunder, unless the Issuing Bank has entered into satisfactory
arrangements with Ryder or such Domestic Bank to eliminate the
Issuing Bank's risk with respect to such Domestic Bank.
(d) The Issuing Bank shall not amend any Letter of Credit if the
Issuing Bank would not be permitted at such time to issue such Letter of
Credit in its amended form under the terms hereof or the beneficiary of
such Letter of Credit does not accept the proposed amendment to such
Letter of Credit.
(e) The Issuing Bank shall be under no obligation to amend any
Letter of Credit if (i) the Issuing Bank would have no obligation at such
time to issue such Letter of Credit in its amended form under the terms
hereof, or (ii) the beneficiary of such Letter of Credit does not accept
the proposed amendment to such Letter of Credit.
SECTION 4.2. PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT;
AUTO-EXTENSION LETTERS OF CREDIT.
(a) Each Letter of Credit shall be issued or amended, as the case
may be, upon the request of Ryder and/or its domestic Subsidiary delivered
to the Issuing Bank (with a copy to the
61
Administrative Agent) in the form of a Letter of Credit Application,
appropriately completed and signed by a duly authorized officer of Ryder
and/or its domestic Subsidiary. Such Letter of Credit Application must be
received by the Issuing Bank and the Administrative Agent not later than
11:00 a.m. (local time for each of the Issuing Bank and the Administrative
Agent) at least two Business Days (or such later date and time as the
Administrative Agent and the Issuing Bank may agree in a particular
instance in their sole discretion) prior to the proposed issuance date or
date of amendment, as the case may be. In the case of a request for an
initial issuance of a Letter of Credit, such Letter of Credit Application
shall specify in form and detail reasonably satisfactory to the Issuing
Bank: (i) the proposed issuance date of the requested Letter of Credit
(which shall be a Business Day); (ii) the amount thereof; (iii) the expiry
date thereof; (iv) the name and address of the beneficiary thereof; (v)
the documents to be presented by such beneficiary in case of any drawing
thereunder; (vi) the full text of any certificate to be presented by such
beneficiary in case of any drawing thereunder; and (vii) such other
matters as the Issuing Bank may require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail satisfactory to the Issuing
Bank (i) the Letter of Credit to be amended; (ii) the proposed date of
amendment thereof (which shall be a Business Day); (iii) the nature of the
proposed amendment; and (iv) such other matters as the Issuing Bank may
reasonably require. Additionally, Ryder shall furnish to the Issuing Bank
and the Administrative Agent such other documents and information
pertaining to such requested Letter of Credit issuance or amendment,
including any Issuer Documents, as the Issuing Bank or the Administrative
Agent may reasonably require.
(b) Promptly after receipt of any Letter of Credit Application,
the Issuing Bank will confirm with the Administrative Agent (by telephone
or in writing) that Administrative Agent has received a copy of such
Letter of Credit Application from Ryder and, if not, the Issuing Bank will
provide the Administrative Agent with a copy thereof. Unless the Issuing
Bank has received written notice from any Bank, any Agent or any Borrower,
at least one Business Day prior to the requested date of issuance or
amendment of the relevant Letter of Credit, that one or more applicable
conditions contained in Sections.11 and 12 shall not then be satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall,
on the requested date, issue a Letter of Credit for the account of Ryder
and/or its domestic Subsidiaries, as the case may be, or enter into the
applicable amendment, as the case may be, in each case in accordance with
the Issuing Bank's usual and customary business practices. Immediately
upon the issuance of each Letter of Credit, the Domestics Banks shall be
deemed to, and hereby irrevocably and unconditionally agree to, purchase
from the Issuing Bank a risk participation in such Letter of
62
Credit in an amount equal to the product of such Bank's Domestic
Commitment times the amount of such Letter of Credit. The Issuing Bank
will provide updated information quarterly to the Domestic Banks with
respect to the Letters of Credit outstanding at such time.
(c) If Ryder and/or any of its domestic Subsidiaries so requests
in any applicable Letter of Credit Application, the Issuing Bank may, in
its sole and absolute discretion, agree to issue a Letter of Credit that
has automatic extension provisions (each, an "Auto-Extension Letter of
Credit"); provided that any such Auto-Extension Letter of Credit must
permit the Issuing Bank to prevent any such extension at least once in
each twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit is
issued. Unless otherwise directed by the Issuing Bank, Ryder and/or any of
its domestic Subsidiaries shall not be required to make a specific request
to the Issuing Bank for any such extension. Once an Auto-Extension Letter
of Credit has been issued, the Domestic Banks shall be deemed to have
authorized (but may not require) the Issuing Bank to permit the extension
of such Letter of Credit at any time to an expiry date not later than the
Letter of Credit Expiration Date; provided, however, that the Issuing Bank
shall not permit any such extension if (i) the Issuing Bank has determined
that it would not be permitted, or would have no obligation, at such time
to issue such Letter of Credit in its revised form (as extended) under the
terms hereof (by reason of the provisions of Section 4.1(b) and (c) or
otherwise), or (ii) it has received notice (which may be by telephone or
in writing) on or before the day that is five Business Days before the
Non-Extension Notice Date (A) from the Administrative Agent that the
Majority Banks have elected not to permit such extension or (B) from any
Agent, any Bank or any Borrower that one or more of the applicable
conditions specified in Section 12 is not then satisfied, and in each such
case directing the Issuing Bank not to permit such extension.
(d) If any Letter of Credit contains provisions providing for
automatic reinstatement of the stated amount after any drawing thereunder,
(i) unless otherwise directed by the Issuing Bank, Ryder and/or any of its
domestic Subsidiaries shall not be required to make a specific request to
the Issuing Bank to permit such reinstatement, and (ii) the Administrative
Agent and the Domestic Banks hereby authorize and direct the Issuing Bank
to permit such automatic reinstatement, whether or not a Default then
exists, unless the Issuing Bank has received a notice (which may be by
telephone or in writing) on or before the day that is two Business Days
before the reinstatement date from any Agent, the Majority Banks or any
Borrower that one or more of the applicable conditions specified in
63
SECTION 12 is not then satisfied and directing the Issuing Bank to cease
permitting such automatic reinstatement of such Letter of Credit.
(e) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto
or to the beneficiary thereof, the Issuing Bank will also deliver to Ryder
and the Administrative Agent a true and complete copy of such Letter of
Credit or amendment.
SECTION 4.3. DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(a) Upon receipt from the beneficiary of any Letter of Credit of
any notice of a drawing under such Letter of Credit, the Issuing Bank
shall notify Ryder and the Administrative Agent thereof not later than
1:00 p.m. (Boston time) on the date of drawing under such Letter of
Credit. Not later than 11:00 a.m. (Boston time) on the Business Day next
following the later of (i) the date of any payment by the Issuing Bank
under a Letter of Credit (each such date of payment by the Issuing Bank,
an "Honor Date") or (ii) the date that the Issuing Bank provides notice to
Ryder of a drawing by the beneficiary under a Letter of Credit, Ryder
shall reimburse the Issuing Bank through the Administrative Agent in an
amount equal to the amount of such drawing, together with interest thereon
at a rate per annum equal to the Domestic Base Rate. If Ryder fails to so
reimburse the Issuing Bank by such time, the Administrative Agent shall
promptly notify each Domestic Bank, of the Honor Date, the amount of the
unreimbursed drawing (the "Unreimbursed Amount"), and the amount of such
Domestic Bank's applicable Commitment Percentage thereof. In such event,
Ryder shall be deemed to have requested a Base Rate Loan to be disbursed
on the Honor Date in an amount equal to the Unreimbursed Amount, without
regard to the minimum and multiples specified in Section 2.7 for the
principal amount of Loans, but subject to the amount of the unutilized
portion of the Total Domestic Commitment and the conditions set forth in
Section 12 (other than the delivery of a Domestic Loan Request). Any
notice given by the Issuing Bank or the Administrative Agent pursuant to
this Section 4.3(a) may be given by telephone if immediately confirmed in
writing; provided that the lack of such an immediate confirmation shall
not affect the conclusiveness or binding effect of such notice.
(b) Each Domestic Bank (including the Domestic Bank acting as
Issuing Bank, if applicable) shall upon any notice pursuant to
Section 4.3(a) make funds available to the Administrative Agent for the
account of the Issuing Bank at the Administrative Agent's Head Office in
an amount equal to its Domestic Commitment Percentage of the Unreimbursed
Amount not later than 1:00 p.m. (local time of the Administrative Agent)
on the Business Day specified in such notice by the Administrative Agent,
whereupon, subject to the provisions of
64
SECTION 4.3(c), each Domestic Bank that so makes funds available shall be
deemed to have made a Base Rate Loan to Ryder in such amount. The
Administrative Agent shall remit the funds so received to the Issuing
Bank.
(c) With respect to any Unreimbursed Amount that is not fully
refinanced by a Base Rate Loan pursuant to this Section 4.3 because the
conditions set forth in Section 12 cannot be satisfied or for any other
reason, Ryder shall be deemed to have incurred from the Issuing Bank an
L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand
(together with interest) and shall bear interest in accordance with
Section 6.11. In such event, each Domestic Bank's payment to the
Administrative Agent for the account of the Issuing Bank pursuant to
Section 4.3(b) shall be deemed payment in respect of its participation in
such L/C Borrowing and shall constitute an L/C Advance from such Bank in
satisfaction of its participation obligation under this Section 4.
(d) Until each Domestic Bank funds its Base Rate Loan or L/C
Advance pursuant to this Section 4.3 to reimburse the Issuing Bank for any
amount drawn under any Letter of Credit, interest in respect of such
Domestic Bank's Domestic Commitment Percentage of such amount shall be
solely for the account of the Issuing Bank.
(e) Each Domestic Bank's obligation to make Base Rate Loans or L/C
Advances to reimburse the Issuing Bank for amounts drawn under Letters of
Credit, as contemplated by this Section 4.3, shall be absolute and
unconditional and shall not be affected by any circumstance, including (i)
any set-off, counterclaim, recoupment, defense or other right which such
Bank may have against the Issuing Bank, any Borrower or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default
or Event of Default; or (iii) any other occurrence, event or condition,
whether or not similar to any of the foregoing; provided, however, that
each Domestic Bank's obligation to make Base Rate Loans pursuant to this
Section 4.3 is subject to the conditions set forth in Section 12 (other
than delivery by Ryder of a Domestic Loan Request). No such making of an
L/C Advance shall relieve or otherwise impair the obligation of Ryder to
reimburse the Issuing Bank for the amount of any payment made by the
Issuing Bank under any Letter of Credit, together with interest as
provided herein.
(f) If any Domestic Bank fails to make available to the
Administrative Agent for the account of the Issuing Bank any amount
required to be paid by such Bank pursuant to the foregoing provisions of
this Section 4.3 by the time specified in Section 4.3(b), the Issuing Bank
shall be entitled to recover from such Domestic Bank (acting through the
Administrative Agent), on demand, such amount with interest thereon
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for the period from the date such payment is required to the date on which
such payment is immediately available to the Issuing Bank at a rate per
annum equal to the Federal Funds Effective Rate from time to time in
effect. A certificate of the Issuing Bank submitted to any Domestic Bank
(through the Administrative Agent) with respect to any amounts owing under
this clause (f) shall be conclusive absent manifest error.
SECTION 4.4. REPAYMENT OF PARTICIPATIONS.
(a) At any time after the Issuing Bank has made a payment under
any Letter of Credit and has received from any Domestic Bank such Bank's
L/C Advance in respect of such payment in accordance with Section 4.3, if
the Administrative Agent receives for the account of the Issuing Bank any
payment in respect of the related Unreimbursed Amount or interest thereon
(whether directly from Ryder or otherwise, including proceeds of Cash
Collateral applied thereto by the Administrative Agent), the
Administrative Agent will distribute to such Bank its Domestic Commitment
Percentage thereof (appropriately adjusted, in the case of interest
payments, to reflect the period of time during which such Bank's L/C
Advance was outstanding) in the same funds as those received by the
Administrative Agent.
(b) If any payment received by the Administrative Agent for the
account of the Issuing Bank pursuant to Section 4.3(a) is required to be
returned in connection with any proceeding under any Debtor Relief Law
(including pursuant to any settlement entered into by the Issuing Bank in
its discretion), each Domestic Bank shall pay to the Administrative Agent
for the account of the Issuing Bank its Domestic Commitment Percentage
thereof on demand of the Administrative Agent, plus interest thereon from
the date of such demand to the date such amount is returned by such Bank,
at a rate per annum equal to the Federal Funds Effective Rate from time to
time in effect.
SECTION 4.5. OBLIGATIONS ABSOLUTE. The obligation of Ryder to reimburse
the Issuing Bank for each drawing under each Letter of Credit and to repay each
L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(a) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other Loan Document;
(b) the existence of any claim, counterclaim, set-off, defense or
other right that Ryder or any Subsidiary may have at any time against any
beneficiary or any transferee of such Letter of Credit (or any Person for
whom any such beneficiary or any such transferee may be acting), the
Issuing Bank or any other Person, whether in
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connection with this Agreement, the transactions contemplated hereby or by
such Letter of Credit or any agreement or instrument relating thereto, or
any unrelated transaction;
(c) any draft, demand, certificate or other document presented
under such Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under such
Letter of Credit;
(d) any payment by the Issuing Bank under such Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit; or any payment made by the
Issuing Bank under such Letter of Credit to any Person purporting to be a
trustee in bankruptcy, debtor-in-possession, assignee for the benefit of
creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of such Letter of Credit, including any
arising in connection with any proceeding under any Debtor Relief Law; or
(e) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including any other circumstance that
might otherwise constitute a defense available to, or a discharge of, the
Borrower or any Subsidiary.
Ryder shall promptly examine a copy of each Letter of Credit and each
amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with Ryder's instructions or other irregularity, Ryder will
immediately notify the Issuing Bank. Ryder shall be conclusively deemed to have
waived any such claim against the Issuing Bank and its correspondents unless
such notice is given as aforesaid.
SECTION 4.6. ROLE OF ISSUING BANK.
Each Domestic Bank and Ryder agrees that, in paying any drawing under a
Letter of Credit, the Issuing Bank shall not have any responsibility to obtain
any document (other than any sight draft, certificates and documents expressly
required by the Letter of Credit) or to ascertain or inquire as to the validity
or accuracy of any such document or the authority of the Person executing or
delivering any such document. None of the Issuing Bank, the Administrative Agent
nor any of their respective officers, directors, employees, agents or
attorneys-in-fact or affiliates, correspondents, participants or assignees of
the Issuing Bank or Administrative Agent shall be liable to any Domestic Bank
for (i) any action taken or omitted in connection herewith at the request or
with the approval of the Domestic Banks or the Majority Banks, as applicable;
(ii) any action taken or omitted in the absence of gross negligence or willful
misconduct; or
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(iii) the due execution, effectiveness, validity or enforceability of any
document or instrument related to any Letter of Credit or Letter of Credit
Application. Ryder hereby assume all risks of the acts or omissions of any
beneficiary or transferee with respect to its use of any Letter of Credit;
provided, however, that this assumption is not intended to, and shall not,
preclude Ryder's pursuing such rights and remedies as it may have against the
beneficiary or transferee at law or under any other agreement. None of the
Issuing Bank, any Administrative Agent nor any of their respective officers,
directors, employees, agents or attorneys-in-fact or affiliates, correspondents,
participants or assignees of the Issuing Bank or the Administrative Agent, shall
be liable or responsible for any of the matters described in clauses (a) through
(e) of Section 4.5; provided, however, that anything in such clauses to the
contrary notwithstanding, Ryder may have a claim against the Issuing Bank, and
the Issuing Bank may be liable to Ryder, to the extent, but only to the extent,
of any direct, as opposed to consequential or exemplary, damages suffered by
Ryder which Ryder proves were caused by the Issuing Bank's willful misconduct or
gross negligence or the Issuing Bank's willful failure to pay under any Letter
of Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, and the Issuing Bank shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
SECTION 4.7. CASH COLLATERAL. Upon the request of the Administrative
Agent, (i) if the Issuing Bank has honored any full or partial drawing request
under any Letter of Credit and such drawing has resulted in an L/C Borrowing, or
(ii) if, as of the Letter of Credit Expiration Date, any Letter of Credit for
any reason remains outstanding and partially or wholly undrawn, Ryder shall
immediately Cash Collateralize the then outstanding amount of all L/C
Obligations (in an amount equal to such outstanding amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). Sections 6.4 and 13.1 set forth certain additional requirements to
deliver Cash Collateral hereunder. For purposes of this Section 4, and
Sections 6.4 and 13.1, "Cash Collateralize" means to pledge and deposit with or
deliver to the Administrative Agent, for the benefit of the Issuing Bank and the
Domestic Banks, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the Issuing Bank (which documents are hereby consented
to by the Domestic Banks). Derivatives of such term have corresponding meanings.
Ryder hereby grants to the Administrative Agent, for the benefit of the Issuing
Bank and the Domestic Banks, a security interest in all such cash, deposit
accounts and all balances therein and all proceeds of the
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foregoing. Cash Collateral shall be maintained in blocked, non-interest bearing
deposit accounts at the Administrative Agent.
SECTION 4.8. APPLICABILITY OF ISP AND UCP. Unless otherwise expressly
agreed by the Issuing Bank and Ryder when a Letter of Credit is issued, (i) the
rules of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
SECTION 4.9. LETTER OF CREDIT FEES. Ryder shall pay to the Administrative
Agent, for the account of each Domestic Bank in accordance with its Domestic
Commitment Percentage a Letter of Credit fee (the "Letter of Credit Fee") for
each Letter of Credit issued for Ryder's or any of its domestic Subsidiaries'
account equal to the Applicable Margin times the daily maximum amount available
to be drawn under such Letter of Credit (whether or not such maximum amount is
then in effect under such Letter of Credit). Letter of Credit Fees shall be (i)
computed on a quarterly basis in arrears and (ii) due and payable on the first
Business Day after the end of each March, June, September and December,
commencing with the first such date to occur after the issuance of such Letter
of Credit, on the Letter of Credit Expiration Date and thereafter on demand. If
there is any change in the Applicable Margin during any quarter, the daily
maximum amount of each Letter of Credit shall be computed and multiplied by the
Applicable Margin separately for each period during such quarter that such
Applicable Margin was in effect. Notwithstanding anything to the contrary
contained herein, while any Event of Default exists, all Letter of Credit Fees
shall accrue at a rate equal to the sum of the Applicable Margin plus 2% per
annum.
SECTION 4.10. FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE
TO ISSUING BANK. Ryder shall pay directly to the Issuing Bank for its own
account a fronting fee with respect to each Letter of Credit issued for Ryder's
or any of its domestic Subsidiaries' account at the per annum rate of 0.10%
payable on the actual daily maximum amount available to be drawn under such
Letter of Credit (whether or not such maximum amount is then in effect under
such Letter of Credit). Such fronting fee shall be computed on a quarterly basis
in arrears. Such fronting fee shall be due and payable on the first Business Day
after the end of each March, June, September and December, commencing with the
first such date to occur after the issuance of such Letter of Credit, on the
Letter of Credit Expiration Date and thereafter on demand. In addition, Ryder
shall pay directly to the Issuing Bank for its own account the customary
issuance, presentation, amendment and other processing fees, and other standard
costs and charges, of the Issuing Bank relating to letters of credit as from
time to time in effect. Such customary fees and standard costs and charges are
due and payable on demand and are nonrefundable.
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SECTION 4.11. CONFLICT WITH ISSUING DOCUMENTS. In the event of any
conflict between the terms hereof and the terms of any Issuer Document, the
terms hereof shall control.
SECTION 4.12. LETTERS OF CREDIT ISSUED FOR DOMESTIC SUBSIDIARIES.
Notwithstanding that a Letter of Credit issued or outstanding hereunder is in
support of any obligations of, or is for the account of, any of Ryder's domestic
Subsidiaries, Ryder shall be obligated to reimburse the Issuing Bank hereunder
for any and all drawings under such Letter of Credit. Ryder hereby acknowledges
that the issuance of Letters of Credit for the account of its domestic
Subsidiaries inures to the benefit of Ryder, and that Ryder's business derives
substantial benefits from the businesses of such domestic Subsidiaries.
SECTION 5. GUARANTY.
SECTION 5.1. GUARANTY OF PAYMENT. Ryder hereby irrevocably guarantees to
the Agents, the Issuing Bank and the Banks, the full and punctual payment when
due (whether at stated maturity, by required pre-payment, by acceleration or
otherwise) of all of the Obligations of Ryder PR, each of the Canadian
Borrowers, each of the U.K. Borrowers and each of Ryder's domestic Subsidiaries,
including, without limitation, the principal and interest accruing on the
Canadian Loans, the obligations with respect to Bankers' Acceptances, the U.K.
Loans, the PR Loans, the obligations with respect to the Letters of Credit and
the L/C Obligations and all such Obligations which would become due but for the
operation of the automatic stay pursuant to Section 362(a) of the Federal
Bankruptcy Code or any similar provision of any other bankruptcy or insolvency
law and the operation of Sections 502(b) and 506(b) of the Federal Bankruptcy
Code or any similar provision of any other bankruptcy or insolvency law (such
obligations of Ryder PR, the Canadian Borrowers and the U.K. Borrowers being
referred to herein as the "Guaranteed Obligations"). This Guaranty is an
absolute, unconditional and continuing guaranty of the full and punctual payment
of all of the Guaranteed Obligations and not of their collectability only and is
in no way conditioned upon any requirement that the Agents, the Issuing Bank or
any Bank first attempt to collect any of the Guaranteed Obligations from Ryder
PR, either of the Canadian Borrowers or either of the U.K. Borrowers or resort
to any collateral security or other means of obtaining payment. Should an Event
of Default occur as a result of a default by Ryder PR, either of the Canadian
Borrowers or either of the U.K. Borrowers in the payment of any of the
Guaranteed Obligations, the Obligations of Ryder hereunder with respect to such
Guaranteed Obligations in default shall, upon demand by the applicable Agent(s),
become immediately due and payable to the applicable Agent(s), for the benefit
of the Banks, the Issuing Bank and the Agents, without demand or notice of any
nature, all of which are expressly waived by Ryder. Payments by Ryder hereunder
may be required by the Agents on any number of occasions. All payments by Ryder
hereunder shall be made to the applicable Agent(s), in the manner and at
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the place of payment specified therefor in Section 6.1 hereof, for the account
of the Banks, the Issuing Bank and the Agents.
SECTION 5.2. RYDER'S AGREEMENT TO PAY ENFORCEMENT COSTS, ETC. Ryder
further agrees, as the principal obligor and not as a guarantor only, to pay to
the applicable Agents, on demand, all reasonable costs and expenses (including
court costs and legal expenses) incurred or expended by any Agents, the Issuing
Bank or any Bank in connection with the Guaranteed Obligations, this Guaranty
and the enforcement thereof, together with interest on amounts recoverable under
this Section 5.2 from the time when such amounts become due until payment,
whether before or after judgment, at the rate of interest for overdue principal
set forth in Section 6.11 hereof, provided that if such interest exceeds the
maximum amount permitted to be paid under applicable law, then such interest
shall be reduced to such maximum permitted amount.
SECTION 5.3. WAIVERS BY RYDER; BANKS' FREEDOM TO ACT. Ryder agrees that
the Guaranteed Obligations will be paid strictly in accordance with their
respective terms, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Agents, the Issuing Bank or any Bank with respect thereto. Ryder waives
promptness, diligence, presentment, demand, protest, notice of acceptance,
notice of any Guaranteed Obligations incurred and all other notices of any kind,
all defenses which may be available by virtue of any valuation, stay, moratorium
law or other similar law now or hereafter in effect, any right to require the
marshalling of assets of Ryder PR, either of the Canadian Borrowers or either of
the U.K. Borrowers or any other entity or other Person primarily or secondarily
liable with respect to any of the Guaranteed Obligations, and all suretyship
defenses generally. Without limiting the generality of the foregoing, Ryder
agrees to the provisions of any instrument evidencing, securing or otherwise
executed in connection with any Guaranteed Obligation and agrees that the
Guaranteed Obligations of Ryder hereunder shall not be released or discharged,
in whole or in part, or otherwise affected by (i) the failure of the Agents, the
Issuing Bank or any Bank to assert any claim or demand or to enforce any right
or remedy against Ryder PR, either of the Canadian Borrowers or either of the
U.K. Borrowers or any other entity or other person primarily or secondarily
liable with respect to any of the Guaranteed Obligations; (ii) any extensions,
compromise, refinancing, consolidation or renewals of any Guaranteed Obligation;
(iii) any change in the time, place or manner of payment of any of the
Guaranteed Obligations or any rescissions, waivers, compromise, refinancing,
consolidation or other amendments or modifications of any of the terms or
provisions of this Agreement, the other Loan Documents or any other agreement
evidencing, securing or otherwise executed in connection with any of the
Guaranteed Obligations; (iv) the addition, substitution or release of any entity
or other person primarily or secondarily liable for any Guaranteed Obligation;
(v) the adequacy of any rights which the Agents, the Issuing Bank or any Bank
may have against any collateral security or other
71
means of obtaining repayment of any of the Guaranteed Obligations; (vi) the
impairment of any collateral securing any of the Guaranteed Obligations,
including without limitation the failure to perfect or preserve any rights which
the Agents, the Issuing Bank or any Bank might have in such collateral security
or the substitution, exchange, surrender, release, loss or destruction of any
such collateral security; or (vii) any other act or omission which might in any
manner or to any extent vary the risk of Ryder or otherwise operate as a release
or discharge of Ryder (other than the indefeasible payment in full, in cash, of
all of the Guaranteed Obligations and the irrevocable termination of each of the
Commitments), all of which may be done without notice to Ryder. To the fullest
extent permitted by law, Ryder hereby expressly waives any and all rights or
defenses arising by reason of (A) any "one action" or "anti-deficiency" law
which would otherwise prevent the Agents, the Issuing Bank or any Bank from
bringing any action, including any claim for a deficiency, or exercising any
other right or remedy (including any right of set-off), against Ryder before or
after the Agent's, the Issuing Bank's or such Bank's commencement or completion
of any foreclosure action, whether judicially, by exercise of power of sale or
otherwise, or (B) any other law which in any other way would otherwise require
any election of remedies by the Agents, the Issuing Bank or any Bank.
SECTION 5.4. UNENFORCEABILITY OF GUARANTEED OBLIGATIONS. If for any reason
Ryder PR, either of the Canadian Borrowers or either of the U.K. Borrowers has
no legal existence or is under no legal obligation to discharge any of the
Guaranteed Obligations, or if any of the Guaranteed Obligations have become
irrecoverable from Ryder PR, either of the Canadian Borrowers or either of the
U.K. Borrowers by reason of such Person's insolvency, bankruptcy or
reorganization or by other operation of law or for any other reason (other than
the indefeasible payment in full, in cash, of all of the Guaranteed Obligations
and the irrevocable termination of each of the Commitments), to the extent
permitted by law, this Guaranty shall nevertheless be binding on Ryder to the
same extent as if Ryder at all times had been the principal obligor on all such
Guaranteed Obligations. In the event that acceleration of the time for payment
of any of the Guaranteed Obligations is stayed upon the insolvency, bankruptcy
or reorganization of Ryder PR, either of the Canadian Borrowers or either of the
U.K. Borrowers, or for any other reason, all such amounts otherwise subject to
acceleration under the terms of this Agreement, the other Loan Documents or any
other agreement evidencing, securing or otherwise executed in connection with
any Obligation shall be immediately due and payable by Ryder.
SECTION 5.5. SUBROGATION; SUBORDINATION.
SECTION 5.5.1. POSTPONEMENT OF RIGHTS. Until the final payment
in full in cash of all of the Guaranteed Obligations: Ryder shall
not exercise any rights against Ryder PR, either of the Canadian
Borrowers or either of the U.K. Borrowers arising
72
as a result of payment by Ryder hereunder, by way of subrogation,
reimbursement, restitution, contribution or otherwise, and will not
prove any claim in competition with the Agents, the Issuing Bank or
any Bank in respect of any payment hereunder in any bankruptcy,
insolvency or reorganization case or proceedings of any nature;
Ryder will not claim any setoff, recoupment or counterclaim against
Ryder PR, either of the Canadian Borrowers or either of the U.K.
Borrowers in respect of any liability of Ryder to Ryder PR, either
of the Canadian Borrowers or either of the U.K. Borrowers; and Ryder
waives any benefit of and any right to participate in any collateral
security which may be held by the Agents, the Issuing Bank or any
Bank.
SECTION 5.5.2. SUBORDINATION. The payment of any amounts due
with respect to any indebtedness of Ryder PR, either of the Canadian
Borrowers or either of the U.K. Borrowers for money borrowed or
credit received now or hereafter owed to Ryder is hereby
subordinated to the prior final payment in full in cash of all of
the Guaranteed Obligations; provided that, so long as no Event of
Default has occurred and is continuing, Ryder PR, the Canadian
Borrowers or the U.K. Borrowers may pay, and Ryder may receive, such
payment. Ryder agrees that, after the occurrence of any Event of
Default, Ryder will not demand, sue for or otherwise attempt to
collect any such indebtedness of Ryder PR, the Canadian Borrowers or
the U.K. Borrowers to Ryder until all of the Guaranteed Obligations
shall have been irrevocably paid in full in cash. If,
notwithstanding the foregoing sentence, Ryder shall collect, enforce
or receive any amounts in respect of such indebtedness while any
Guaranteed Obligations are still outstanding, such amounts shall be
collected, enforced and received by Ryder as trustee for the Banks,
the Issuing Bank and the Agents and be paid over to the Agents, for
the benefit of the Banks, the Issuing Bank and the Agents, on
account of the Guaranteed Obligations without affecting in any
manner the liability of Ryder under the other provisions of this
Guaranty.
SECTION 5.5.3. PROVISIONS SUPPLEMENTAL. The provisions of this
Section 5.5 shall be supplemental to and not in derogation of any
rights and remedies of the Banks, the Issuing Bank and the Agents
under any separate subordination agreement which the Agents or any
of them may at any time and from time to time enter into with Ryder
for the benefit of the Banks, the Issuing Bank and the Agents.
SECTION 5.6. FURTHER ASSURANCES. Ryder agrees that it will from time to
time, at the request of the Agents, do all such things and execute all such
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documents as the Agents may reasonably consider necessary or desirable to give
full effect to this Guaranty and to perfect and preserve the rights and powers
of the Banks, the Issuing Bank and the Agents hereunder. Ryder acknowledges and
confirms that it has established its own adequate means of obtaining from Ryder
PR, each of the Canadian Borrowers and each of the U.K. Borrowers on a
continuing basis all information desired by it concerning the financial
condition of such Persons and that it will look to such Persons and not to the
Agents, the Issuing Bank or any Bank in order for it to keep adequately informed
of changes in any of such Person's financial condition.
SECTION 5.7. REINSTATEMENT. Notwithstanding any termination of this
Guaranty upon the final and indefeasible payment in full, in cash, of the
Guaranteed Obligations, this Guaranty shall continue to be effective or be
reinstated, if at any time any payment made or value received with respect to
any Obligation is rescinded or must otherwise be returned by the Agents, the
Issuing Bank or any Bank upon the insolvency, bankruptcy or reorganization of
Ryder PR, either of the Canadian Borrowers or either of the U.K. Borrowers, or
otherwise, all as though such payment had not been made or value received.
SECTION 5.8. SUCCESSORS AND ASSIGNS. This Guaranty shall be binding upon
Ryder, its successors and assigns, and shall inure to the benefit of the Agents,
the Issuing Bank and the Banks and their respective successors, transferees and
assigns. Without limiting the generality of the foregoing sentence, each Bank
may, in accordance with the provisions of Section 21 and subject to the
limitations set forth therein, assign or otherwise transfer this Agreement, the
other Loan Documents or any other agreement or note held by it evidencing,
securing or otherwise executed in connection with the Guaranteed Obligations, or
sell participations in any interest therein, to any other entity or other
person, and such other entity or other person shall thereupon become vested, to
the extent set forth in the agreement evidencing such assignment, transfer or
participation, with all the rights in respect thereof granted to such Bank
herein. Ryder may not assign any of its Guaranteed Obligations hereunder.
SECTION 5.9. CURRENCY OF PAYMENT. Ryder shall pay the Guaranteed
Obligations in the currency in which such Obligations were incurred by the
applicable Borrower(s).
SECTION 5.10. CONCERNING JOINT AND SEVERAL LIABILITY OF THE U.K. BORROWERS
AND THE CANADIAN BORROWERS.
(a) Each U.K. Borrower hereby irrevocably and unconditionally jointly
and severally guarantees to the U.K. Agent and the U.K. Banks the full and
punctual payment when due (whether at stated maturity, by required pre-payment,
by acceleration or otherwise) of all of the Obligations of the other U.K.
Borrower hereunder and under the other Loan Documents in
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consideration of the financial accommodations to be provided by the Banks, the
Agents and the Issuing Bank under this Credit Agreement, for the mutual benefit,
directly and indirectly, of each U.K. Borrower and in consideration of the
undertakings of the other U.K. Borrower to accept joint and several liability
for the Obligations. Each U.K. Borrower agrees that this is an absolute,
unconditional and continuing guaranty of the full and punctual payment of all of
the Obligations of the other U.K. Borrower hereunder and under the other Loan
Documents and not of their collectability only and is in no way conditioned upon
any requirement that the U.K. Agent or any U.K. Bank first attempt to collect
any of such Obligations from such U.K. Borrower or resort to any collateral
security or other means of obtaining payment. Each U.K. Borrower, jointly and
severally, hereby irrevocably and unconditionally accepts, not merely as a
surety but also as a co-debtor, joint and several liability with the other U.K.
Borrower with respect to the payment and performance of all of the Obligations
(including, without limitation, any Obligations arising under this
Section 5.10(a)), it being the intention of the parties hereto that all of the
Obligations of the U.K. Borrowers shall be the joint and several Obligations of
each U.K. Borrower without preferences or distinction among them.
(a) Each Canadian Borrower hereby irrevocably and unconditionally
jointly and severally guarantees to the Canadian Agent and the Canadian Banks
the full and punctual payment when due (whether at stated maturity, by required
pre-payment, by acceleration or otherwise) of all of the Obligations of the
other Canadian Borrower hereunder and under the other Loan Documents in
consideration of the financial accommodations to be provided by the Banks, the
Agents and the Issuing Bank under this Credit Agreement, for the mutual benefit,
directly and indirectly, of each Canadian Borrower and in consideration of the
undertakings of the other Canadian Borrower to accept joint and several
liability for the Obligations. Each Canadian Borrower agrees that this is an
absolute, unconditional and continuing guaranty of the full and punctual payment
of all of the Obligations of the other Canadian Borrower hereunder and under the
other Loan Documents and not of their collectability only and is in no way
conditioned upon any requirement that the Canadian Agent or any Canadian Bank
first attempt to collect any of such Obligations from such Canadian Borrower or
resort to any collateral security or other means of obtaining payment. Each
Canadian Borrower, jointly and severally, hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with the other Canadian Borrower with respect to the payment and
performance of all of the Obligations (including, without limitation, any
Obligations arising under this Section 5.10(b)), it being the intention of the
parties hereto that all of the Obligations of the Canadian Borrowers shall be
the joint and several Obligations of each Canadian Borrower without preferences
or distinction among them.
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SECTION 6. PROVISIONS RELATING TO ALL LOANS.
SECTION 6.1. FUNDS FOR PAYMENTS. All payments of principal, interest, fees
(other than the Acceptance Fee) and any other amounts due hereunder or under any
of the other Loan Documents shall be made to the Administrative Agent, the
Canadian Agent or the U.K. Agent, as applicable, received at such Agent's Head
Office in immediately available funds, without setoff, deduction, counterclaim
or other withholding of any kind (other than any withholding resulting from the
failure of a Bank to comply with the provisions of Section 6.2), by 12:00 noon
(local time for such Agent) on any due date. Subject to the provisions of
Section 28, if a payment is received by such Agent at or before 2:00 p.m. (local
time for such Agent) on any Business Day, such Agent shall on the same Business
Day transfer in immediately available funds to (1) each of the Domestic Banks,
their pro-rata portion of such payment in accordance with their respective
Domestic Commitment Percentages, in the case of payments with respect to
Domestic Loans, (2) the Administrative Agent in the case of payments with
respect to Domestic Swing Line Loans, (3) each of the Canadian Banks, their
pro-rata portion of such payment in accordance with their respective Canadian
Commitment Percentages in the case of payments with respect to Canadian Loans
and Bankers' Acceptances, except to the extent necessary to reflect Bankers'
Acceptances issued on a non-pro-rata basis pursuant to Section 3.1(e), (4) the
Canadian Agent with respect to payments of Canadian Swing Line Loans, (5) each
of the U.K. Banks, their pro-rata portion of such payment in accordance with
their respective U.K. Commitment Percentages in the case of payments with
respect to the U.K. Loans, (6) the U.K. Agent with respect to payments of U.K.
Swing Line Loans, (7) each of the PR Banks, their pro-rata portion of such
payment in accordance with their respective PR Commitment Percentages in the
case of payments with respect to PR Loans, (8) the Issuing Bank in the case of
payments with respect to L/C Obligations payable to the Issuing Bank, and (9)
the Domestic Banks, their pro-rata portion of such payment in accordance with
their respective applicable Commitment Percentages in the case of payments with
respect to L/C Obligations payable to such Domestic Banks. If such payment is
received by such Agent after 2:00 p.m. (local time for such Agent) on any
Business Day, such transfer shall be made by such Agent to the applicable
Bank(s) on the next Business Day. In the event that such Agent fails to make
such transfer to any Bank or Issuing Bank as set forth above, such Agent shall
pay to such Bank or the Issuing Bank on demand an amount equal to the product of
(i) the average, computed for the period referred to in clause (iii) below, of
the weighted average interest rate paid by such Bank or Issuing Bank for funds
acquired by such Bank or Issuing Bank during each day included in such period,
times (ii) the amount (A) equal to such Bank's Domestic Commitment Percentage of
such payment in the case of payments with respect to Domestic Loans, (B) equal
to such Bank's Canadian Commitment Percentage of such payment in the case of
payments with respect to Canadian Loans, (C) equal to such Bank's U.K.
Commitment Percentage of such payment in the case of payments with respect to
U.K.
76
Loans, (D) equal to such Bank's PR Commitment Percentage of such payment in the
case of payments with respect to PR Loans, (E) of such payment in the case of
payments made with respect to L/C Obligations payable to the Issuing Bank or (F)
equal to such Bank's Domestic Commitment Percentage of such payment in the case
of payments with respect to L/ C Obligations payable to the Domestic Banks,
times (iii) a fraction, the numerator of which is the number of days that elapse
from and including the date of payment to and including the date on which the
amount due to such Bank shall become immediately available to such Bank, and the
denominator of which is 365. A statement of such Bank submitted to the
applicable Agent with respect to any amounts owing under this Section 6.1 shall
be prima facie evidence of the amount due and owing to such Bank by such Agent.
SECTION 6.2. EXEMPTION FROM WITHHOLDING.
(a) Each Bank (including any assignee) that is not a U.S. Person
as defined in Section 7701(a)(30) of the Code for federal income tax
purposes (a "Non-U.S. Bank") hereby agrees that, if and to the extent it
is legally able to do so, it shall, prior to the date of the first payment
by the Borrowers hereunder to be made to such Bank or the Administrative
Agent or for such Bank's or the Administrative Agent's account, deliver to
the Borrowers and the Administrative Agent, as applicable, such
certificates, documents or other evidence, as and when required by the
Code or Treasury Regulations issued pursuant thereto, including (a) in the
case of a Non-U.S. Bank that is a "bank" for purposes of Section
881(c)(3)(A) of the Code, two (2) duly completed copies of Internal
Revenue Service Form W-8BEN or Form W-8ECI and any other certificate or
statement of exemption required by Treasury Regulations, or any subsequent
versions thereof or successors thereto, properly completed and duly
executed by such Bank establishing that with respect to payments of
principal, interest or fees hereunder it is (i) not subject to United
States federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Bank of a trade or business
in the United States or (ii) totally exempt or partially exempt from
United States federal withholding tax under a provision of an applicable
tax treaty and (b) in the case of a Non-U.S. Bank that is not a "bank" for
purposes of Section 881(c)(3)(A) of the Code, a certificate in form and
substance reasonably satisfactory to the Administrative Agent and the
Borrowers and to the effect that (i) such Non-U.S. Bank is not a "bank"
for purposes of Section 881(c)(3)(A) of the Code, is not subject to
regulatory or other legal requirements as a bank in any jurisdiction, and
has not been treated as a bank for purposes of any tax, securities law or
other filing or submission made to any governmental authority, any
application made to a rating agency or qualification for any exemption
from any tax, securities law or other legal requirements, (ii) is not a
ten (10) percent shareholder for
77
purposes of Section 881(c)(3)(B) of the Code and (iii) is not a controlled
foreign corporation receiving interest from a related person for purposes
of Section 881(c)(3)(C) of the Code, together with a properly completed
Internal Revenue Service Form W-8 or W-9, as applicable (or successor
forms). Each Bank agrees that it shall, promptly upon a change of its
lending office or the selection of any additional lending office, to the
extent the forms previously delivered by it pursuant to this section are
no longer effective, and promptly upon the Borrowers' or the
Administrative Agent's reasonable request after the occurrence of any
other event (including the passage of time) requiring the delivery of a
Form W-8BEN, Form W-8ECI, Form W-8 or W-9 in addition to or in replacement
of the forms previously delivered, to the extent it may lawfully do so,
deliver to the Borrowers and the Administrative Agent, as applicable, if
and to the extent it is properly entitled to do so, a properly completed
and executed Form W-8BEN, Form W-8ECI, Form W-8 or W-9, as applicable (or
any successor forms thereto).
(b) The Borrowers shall not be required to pay any additional
amounts in respect of Domestic Loans to any Non-U.S. Bank in respect of
United States Federal withholding tax pursuant to Section 19 to the extent
that (i) the obligation to withhold amounts with respect to United States
Federal withholding tax existed on the date such Non-U.S. Bank became a
party to this Agreement or, with respect to payments to a different
lending office designated by the Non-U.S. Bank as its applicable lending
office (a "New Lending Office"), the date such Non-U.S. Bank designated
such New Lending Office with respect to a Loan; provided, however, that
this clause (i) shall not apply to any transferee or New Lending Office as
a result of a Reallocation or an assignment, transfer or designation made
at the request of the Borrowers; and provided further, however, that this
clause (i) shall not apply to the extent the indemnity payment or
additional amounts any transferee, or Bank through a New Lending Office,
would be entitled to receive without regard to this clause (i) do not
exceed the indemnity payment or additional amounts that the Person making
the assignment or transfer to such transferee, or Bank making the
designation of such New Lending Office, would have been entitled to
receive in the absence of such assignment, transfer or designation; or
(ii) the obligation to pay such additional amounts would not have arisen
but for a failure by such Non-U.S. Bank (that could lawfully do so) to
comply with the provisions of paragraph (a) above.
(c) Notwithstanding the foregoing, each Bank agrees to use
reasonable efforts (consistent with legal and regulatory restrictions) to
change its lending office to avoid or to minimize any amounts otherwise
payable under Section 19 in each case solely if such change (i) can be
made in a manner so that such Bank does not incur any costs or expenses
unless the Borrowers have agreed to reimburse such Person
78
therefor and (ii) does not result in any legal or regulatory disadvantage
to such Person.
SECTION 6.3. CURRENCY OF PAYMENT. Payments of principal or interest with
respect to any Loan or obligation with respect to Bankers' Acceptance or Letters
of Credit shall be made in the currency in which such Loan was advanced or in
which such Bankers' Acceptance or such Letter of Credit was issued.
Notwithstanding the foregoing, the Acceptance Fee shall be payable solely in
Canadian Dollars and any and all other fees payable hereunder shall be payable
in solely U.S. Dollars unless, with respect to any fees payable by the Canadian
Borrowers and the U.K. Borrowers, otherwise agreed to by the Canadian Agent
and/or the U.K. Agent respectively.
SECTION 6.4. MANDATORY REPAYMENTS OF THE LOANS. Except as provided in
Section 6.16 hereof, if at any time
(i) the sum of (A) the outstanding L/C Obligations with respect to
Letters of Credit issued for the account of Ryder and its domestic
Subsidiaries, plus (B) the outstanding principal amount of the Domestic
Loans exceeds the Total Domestic Commitment, whether by reduction of the
Total Domestic Commitment or otherwise, or
(ii) the sum of (A) the outstanding principal amount of the
Canadian Loans denominated in U.S. Dollars, plus (B) the Dollar Equivalent
of the outstanding principal amount of the Canadian Loans denominated in
Canadian Dollars, plus (C) the Dollar Equivalent of the aggregate amount
of Bankers' Acceptances then outstanding exceeds the Total Canadian
Commitment, whether by reduction of the Total Canadian Commitment or
otherwise, or
(iii) the sum of (A) the outstanding principal amount of the U.K.
Loans denominated in U.S. Dollars, plus (B) the Dollar Equivalent of the
outstanding principal amount of the U.K. Loans denominated in Sterling,
plus (C) the Dollar Equivalent of the outstanding principal amount of the
U.K. Loans denominated in Euros exceeds the Total U.K. Commitment, whether
by reduction of the Total U.K. Commitment or otherwise, or
(iv) the sum of the outstanding principal amount of the PR Loans
exceeds the Total PR Commitment, whether by reduction of the Total PR
Commitment or otherwise,
then the applicable Borrower(s) shall immediately pay the amount of such
excess to the Administrative Agent in the case of clauses (i) and (iv) above,
the Canadian Agent, in the case of clause (ii) above or the U.K. Agent, in the
case of clause (iii) above, (a) for application to the Loans in the following
order: first, pro rata to any Unreimbursed Amounts (including any L/C
Borrowings) with respect to the Letters of Credit issued for the account of such
Borrower (if applicable), second, pro rata to Domestic Swing Line
79
Loans, Canadian Swing Line Loans, and U.K. Swing Line Loans, and third, pro rata
to Domestic Loans, Canadian Loans, U.K. Loans and PR Loans, subject to Section
6.10, or (b) if no Loans shall be outstanding, to be held pro rata by the
Administrative Agents (in the case of Letters of Credit) and the Canadian Agent
(in the case of Bankers' Acceptances) for the benefit of the Issuing Bank or (as
the case may be) the Domestic Banks in the case of Letters of Credit and/or the
Canadian Banks in the case of Bankers' Acceptances, as applicable, as collateral
security for the amount of Bankers' Acceptances and as Cash Collateral for the
Letters of Credit; provided, however, that if the amount of cash collateral held
by the Administrative Agents (in the case of Letters of Credit) and the Canadian
Agent (in the case of Bankers' Acceptances) pursuant to this Section 6.4 exceeds
the amount of Bankers' Acceptances and the Letters of Credit, as the case may
be, from time to time, the Administrative Agent or the Canadian Agent shall
return such excess to Ryder or the Canadian Borrowers, as applicable.
SECTION 6.5. COMPUTATIONS.
(a) Except as otherwise expressly provided herein, all
computations of interest and the Facility Fee shall be based on a 365 or
366, as applicable, day year and paid for the actual number of days
elapsed, except that computations of the Domestic LIBOR Rate, the EURIBOR
Rate, the Canadian Dollar LIBOR Rate, the U.K. Dollar LIBOR Rate, and all
other fees hereunder shall be based on a 360-day year and paid for the
actual number of days elapsed. Whenever a payment hereunder or under any
of the other Loan Documents becomes due on a day that is not a Business
Day, the due date for such payment shall be extended to the next
succeeding Business Day, and interest shall accrue during such extension;
provided that for any Interest Period for any LIBOR Rate Loan if such next
succeeding Business Day falls in the next succeeding calendar month or
after the Maturity Date, it shall be deemed to end on the next preceding
Business Day.
(b) All computations of outstanding Loans, Commitment
availability, mandatory prepayments, or other matters hereunder shall be
made in U.S. Dollars or Dollar Equivalents.
SECTION 6.6. ILLEGALITY; INABILITY TO DETERMINE LIBOR RATE OR EURIBOR
RATE. Notwithstanding any other provision of this Agreement if (a) the
introduction of, any change in, or any change in the interpretation of, any law
or regulation applicable to any Bank or Agent shall make it unlawful, or any
central bank or other governmental authority having jurisdiction thereof shall
assert that it is unlawful, for any Bank or any such Agent to perform its
obligations in respect of any LIBOR Rate Loans or EURIBOR Rate Loans, or (b) if
any Bank or any such Agent, as applicable shall reasonably determine with
respect to LIBOR Rate Loans or EURIBOR Rate Loans that (i) by reason of
circumstances affecting any eurodollar interbank
80
market, adequate and reasonable methods do not exist for ascertaining the LIBOR
Rate and/or EURIBOR Rate which would otherwise be applicable during any Interest
Period, or (ii) deposits in the relevant currency and amount for the relevant
Interest Period are not available to such Bank or such Agent in any eurodollar
interbank market, then such Bank or such Agent shall promptly give notice of
such determination to the Borrowers (which notice shall be conclusive and
binding upon such Borrowers). Upon such notification by such Bank or such Agent,
the obligation of the Banks and such Agent to make LIBOR Rate Loans or EURIBOR
Rate Loans, as the case may be, shall be suspended until the Banks or such
Agent, as the case may be, determine that such circumstances no longer exist,
and to the extent permitted by law the outstanding LIBOR Rate Loans and/or
EURIBOR Rate Loans shall continue to bear interest at the applicable rate based
on the LIBOR Rate and/or EURIBOR Rate, respectively, until the end of the
applicable Interest Period, and thereafter shall be deemed converted to Domestic
Base Rate Loans, Canadian Base Rate Loans or U.K. Base Rate Loans, as
applicable, in equal principal amounts of such former LIBOR Rate Loans or
EURIBOR Rate Loans.
SECTION 6.7. ADDITIONAL COSTS, ETC. Except for any matters addressed by
Section 19, and except as otherwise reflected in the interest rate applicable
under this Agreement, if any change in any present applicable law (which
expression, as used herein, includes statutes, rules and regulations thereunder
and interpretations thereof by any competent court or by any governmental or
other regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time hereafter made upon or otherwise issued to any Bank or
the Issuing Bank by any central bank or other fiscal, monetary or other
authority, whether or not having the force of law) or if any applicable law
adopted after the date hereof shall:
(a) subject such Bank or the Issuing Bank to any tax, levy,
impost, duty, charge, fee, deduction or withholding of any nature with
respect to this Agreement, the other Loan Documents, such Bank's
Commitment, the Loans, any Letters of Credit or the Bankers' Acceptances
(other than taxes based upon or measured by the income, capital or profits
of such Bank or the Issuing Bank imposed by the jurisdiction of its
incorporation or organization, or the location of its lending office or
any political subdivision thereof); or
(b) materially change the basis of taxation (except for changes in
taxes on income, capital or profits of such Bank or the Issuing Bank
imposed by the jurisdiction of its incorporation or organization, or the
location of its lending office or any political subdivision thereof) of
payments to such Bank or the Issuing Bank of the principal or of the
interest on any Loans or Letters of Credit or the Bankers' Acceptances or
any other amounts payable to such Bank or the Issuing Bank under this
Agreement or the other Loan Documents; or
81
(c) impose or increase or render applicable (other than to the
extent specifically provided for elsewhere in this Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or reimbursement
obligations owed to, or commitments of, an office of any Bank or the
Issuing Bank with respect to this Agreement, the other Loan Documents,
such Bank's Commitment, the Loans, the Letters of Credit or the Bankers'
Acceptances; or
(d) impose on such Bank or the Issuing Bank any other conditions
or requirements with respect to this Agreement, the other Loan Documents,
the Loans, the Bankers' Acceptances, any Letters of Credit, such Bank's
Commitment, or any class of loans or commitments of which any of the
Loans, such Letters of Credit or such Bank's Commitment forms a part, and
the result of any of the foregoing is:
(i) to increase the cost to such Bank or the Issuing Bank of
making, funding, issuing, renewing, extending or maintaining the
Loans or such Bank's Commitment or any Letter of Credit or accepting
and purchasing Bankers' Acceptances;
(ii) to reduce the amount of principal, interest,
reimbursement obligations or other amount payable to such Bank or
the Issuing Bank hereunder on account of such Bank's Commitment or
the Loans or Bankers' Acceptances or any Letter of Credit; or
(iii) to require such Bank or the Issuing Bank to make any
payment or to forego any interest or other sum payable hereunder,
the amount of which payment or foregone interest or other sum is
calculated by reference to the gross amount of any sum receivable or
deemed received by such Bank or the Issuing Bank from the Borrowers
hereunder,
then, and in each such case, the applicable Borrower will, upon
demand made by such Bank or the Issuing Bank at any time and from time to
time as often as the occasion therefore may arise (which demand shall be
accompanied by a statement setting forth the basis of such demand which
shall be conclusive absent manifest error), pay such reasonable additional
amounts as will be sufficient to compensate such Bank or the Issuing Bank
for such additional costs, reduction, payment or foregone interest or
other sum. A Borrower shall only be obligated to pay a Bank or the Issuing
Bank such additional amounts to the extent such Bank or the Issuing Bank
has allocated such additional costs, reduction, payment or foregone
82
interest or other sum among its like situated customers in good faith and
on an equitable and nondiscriminatory basis.
SECTION 6.8. CAPITAL ADEQUACY. Except as otherwise reflected in the
interest rate applicable under this Agreement, if any Bank or the Issuing Bank
shall have determined that, after the date hereof, the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change in
any such law, rule, or regulation, or any change in the interpretation or
administration thereof by any governmental authority, central bank or comparable
agency charged with the interpretation or administration thereof, or any request
or directive regarding capital adequacy (whether or not having the force of law)
of any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on capital of such Bank or the Issuing
Bank (or any corporation controlling such Bank or the Issuing Bank) as a
consequence of such Bank's or the Issuing Bank's obligations hereunder to a
level below that which such Bank or the Issuing Bank (or any corporation
controlling such Bank or the Issuing Bank) could have achieved but for such
adoption, change, request or directive (taking into consideration its policies
with respect to capital adequacy) by an amount deemed by such Bank or the
Issuing Bank to be material, then from time to time, within fifteen (15) days
after demand by such Bank or the Issuing Bank, the applicable Borrower shall pay
to such Bank or the Issuing Bank such additional amount or amounts as will, in
such Bank's or the Issuing Bank's reasonable determination, fairly compensate
such Bank or the Issuing Bank (or any corporation controlling such Bank or the
Issuing Bank) for such reduction. A Borrower shall only be obligated to pay a
Bank or the Issuing Bank such cost increases to the extent such Bank or the
Issuing Bank has allocated such costs among its customers in good faith and on
an equitable and nondiscriminatory basis.
SECTION 6.9. CERTIFICATE; ETC. A certificate setting forth the additional
amounts payable pursuant to Section 6.7 or Section 6.8 and a reasonable
explanation of such amounts which are due, submitted by any Bank or the Issuing
Bank to the applicable Borrower(s), shall be conclusive, absent manifest error,
that such amounts are due and owing. Such certificate shall contain a
certification as to the matters specified in the last sentence of Section 6.7 or
Section 6.8, as the case may be. A Borrower shall only be obligated to pay
additional amounts under Section 6.7 or Section 6.8 hereof which accrue or are
incurred after a Bank or the Issuing Bank has given notice to a Borrower
pursuant to this Section 6.9. Any additional amounts paid by a Borrower to a
Bank or the Issuing Bank pursuant to Section 6.7 or Section 6.8 hereof which are
subsequently refunded to such Bank or the Issuing Bank shall be refunded to the
applicable Borrower.
SECTION 6.10. EURODOLLAR INDEMNITY. Each Borrower agrees to indemnify the
applicable Banks and the applicable Agents, and to hold them harmless from and
against any reasonable loss, cost or expense that any such Bank
83
or such Agent may sustain or incur as a consequence of (a) the default by such
Borrower in payment of the principal amount of or any interest on any LIBOR Rate
Loans or EURIBOR Rate Loans, as and when due and payable, including any such
loss or expense arising from interest or fees payable by any Bank or such Agent
to lenders of funds obtained by it in order to maintain its LIBOR Rate Loans or
EURIBOR Rate Loans, (b) the default by such Borrower in making a borrowing of a
LIBOR Rate Loan or EURIBOR Rate Loan or conversion of a LIBOR Rate Loan, EURIBOR
Rate Loan or a prepayment of a LIBOR Rate Loan or EURIBOR Rate Loan other than
on an Interest Payment Date after such Borrower has given a Domestic Loan
Request, a Canadian Loan Request, a U.K. Loan Request, or a PR Loan Request, a
notice pursuant to Section 2.8, or a notice pursuant to Section 2.11, Section
2.12, Section 2.13 or Section 2.14, and (c) the making of any payment of a LIBOR
Rate Loan or EURIBOR Rate Loan, or the making of any conversion of any LIBOR
Rate Loan or EURIBOR Rate Loan to a Base Rate Loan, or the Reallocation of any
LIBOR Rate Loan or EURIBOR Rate Loan pursuant to Section 2.4 on a day that is
not the last day of the applicable Interest Period with respect thereto. So long
as no Event of Default shall have occurred and be continuing, the Borrowers may
elect to avoid the payment of such breakage costs by requesting that the
applicable Agent apply amounts received with respect to LIBOR Rate Loans or
EURIBOR Rate Loans to cash collateralize such LIBOR Rate Loans or EURIBOR Rate
Loans, as the case may be, but in no event shall a Borrower be deemed to have
paid such LIBOR Rate Loans or EURIBOR Rate Loans until such cash has been paid
to the applicable Agent for application to such LIBOR Rate Loans or EURIBOR Rate
Loans, respectively. Such loss or reasonable expense shall include an amount
equal to the excess, if any, as reasonably determined by each Bank of (i) its
cost of obtaining the funds for the LIBOR Rate Loan or EURIBOR Rate Loan being
paid, prepaid, converted, not converted, reallocated, or not borrowed, as the
case may be (based on the applicable LIBOR Rate or EURIBOR Rate, as the case may
be) for the period from the date of such payment, prepayment, conversion, or
failure to borrow or convert, as the case may be, to the last day of the
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for the Loan which would have commenced on the date of such
failure to borrow) over (ii) the amount of interest (as reasonably determined by
such Bank) that would be realized by such Bank in reemploying the funds so paid,
prepaid, converted, or not borrowed, converted, or prepaid for such period or
Interest Period, as the case may be, which determinations shall be conclusive
absent manifest error.
SECTION 6.11. INTEREST ON OVERDUE AMOUNTS. Overdue principal and (to the
extent permitted by applicable law) interest on the Loans, the L/C Borrowings,
the Bankers' Acceptances and all other overdue amounts payable hereunder or
under any of the other Loan Documents shall bear interest compounded monthly and
payable on demand at a rate per annum equal to the Domestic Base Rate, Canadian
Prime Rate, the RBS-U.K. Sterling Reference Rate, the RBS-U.K. Euro Reference
Rate, as applicable,
84
plus 2%, until such amount shall be paid in full (after as well as before
judgment).
SECTION 6.12. INTEREST LIMITATION. Notwithstanding any other term of this
Agreement or the Notes, any other Loan Document or any other document referred
to herein or therein, the maximum amount of interest which may be charged to or
collected from any Person liable hereunder or under the Notes by any Bank shall
be absolutely limited to, and shall in no event exceed, the maximum amount of
interest which could lawfully be charged or collected by such Bank under
applicable laws (including, to the extent applicable, the provisions of Section
5197 of the Revised Statutes of the United States of America, as amended, 12
U.S.C. Section 85, as amended and the Criminal Code (Canada)).
SECTION 6.13. REASONABLE EFFORTS TO MITIGATE. Each Bank and the Issuing
Bank agrees that as promptly as practicable after it becomes aware of the
occurrence of an event or the existence of a condition that would cause it to be
affected under Sections 6.6, 6.7 or 6.8, such Bank or the Issuing Bank will give
notice thereof to the applicable Borrower(s), with a copy to the applicable
Agent and, to the extent so requested by such Borrower(s) and not inconsistent
with such Bank's or the Issuing Bank's internal policies, such Bank or the
Issuing Bank shall use reasonable efforts and take such actions as are
reasonably appropriate if as a result thereof the additional moneys which would
otherwise be required to be paid to such Bank or the Issuing Bank pursuant to
such subsections would be materially reduced, or the illegality or other adverse
circumstances which would otherwise require a conversion of such Loans or result
in the inability to make such Loans pursuant to such sections would cease to
exist, and in each case if, as determined by such Bank or the Issuing Bank in
its sole discretion, the taking of such actions would not adversely affect such
Loans or such Bank or otherwise be disadvantageous to such Bank or the Issuing
Bank.
SECTION 6.14. REPLACEMENT OF BANKS. If any Bank or the Issuing Bank (an
"Affected Bank") (i) makes demand upon a Borrower for (or if a Borrower is
otherwise required to pay) amounts pursuant to Sections 6.7, 6.8 or 19, (ii) is
unable to make or maintain LIBOR Rate Loans as a result of a condition described
in Section 6.6 or (iii) defaults in its obligation to make Loans, or accept and
purchase Bankers' Acceptances or reimburse the Issuing Bank for the amount of
each draft paid under any Letter of Credit, in accordance with the terms of this
Agreement (such Bank or the Issuing Bank being referred to as a "Defaulting
Bank"), such Borrower may, within ninety (90) days of receipt of such demand,
notice (or the occurrence of such other event causing such Borrower to be
required to pay such compensation or causing Section 6.6 to be applicable), or
default, as the case may be, by notice (a "Replacement Notice") in writing to
the Agents and such Affected Bank (A) request the Affected Bank to cooperate
with such Borrower in obtaining a replacement bank or financial institution
satisfactory to the Agents and such Borrower (the "Replacement Bank"); (B)
request the relevant non-
85
Affected Banks to acquire and assume all of the Affected Bank's Loans and
Commitment and accept and purchase Bankers' Acceptances and reimburse the
Issuing Bank for the amount of each draft paid under any Letter of Credit, as
provided herein, but none of such Banks shall be under an obligation to do so;
or (C) designate a Replacement Bank reasonably satisfactory to the Agents (which
shall be deemed to be satisfactory if an Eligible Assignee). If any satisfactory
Replacement Bank shall be obtained, and/or if any one or more of the
non-Affected Banks shall agree to acquire and assume all of the Affected Bank's
Loans and Commitment and accept and purchase Bankers' Acceptances, as the case
may be, and reimburse the Issuing Bank for the amount of each draft paid under
any Letter of Credit, then such Affected Bank shall assign, in accordance with
Section 21, all of its Commitment, Loans, Bankers' Acceptances, Letter of Credit
Participations, Notes and other rights and obligations under this Agreement and
all other Loan Documents to such Replacement Bank or non-Affected Banks, as the
case may be, in exchange for payment of the principal amount so assigned and all
interest and fees accrued on the amount so assigned, plus all other Obligations
then due and payable to the Affected Bank; provided, however, that (i) such
assignment shall be without recourse, representation or warranty and shall be on
terms and conditions reasonably satisfactory to such Affected Bank and such
Replacement Bank and/or non-Affected Banks, as the case may be, and (ii) prior
to any such assignment, such Borrower shall have paid to such Affected Bank all
amounts properly demanded and unreimbursed under Sections 6.7, 6.8 and 6.10.
Upon the effective date of such assignment, such Borrower shall issue
replacement Notes to such Replacement Bank and/or non-Affected Banks, as the
case may be, and such institution shall become a "Bank" for all purposes under
this Agreement and the other Loan Documents.
SECTION 6.15. ADVANCES BY ADMINISTRATIVE AGENT; CANADIAN AGENT; AND U.K.
AGENT. (a) The Administrative Agent, the Canadian Agent or the U.K. Agent, as
applicable, may (unless earlier notified to the contrary by any Bank by 12:00
noon (local time for such Agent) one (1) Business Day prior to any Drawdown
Date) assume that each Bank has made available (or will before the end of the
applicable Drawdown Date make available) to such Agent the amount of such Bank's
Domestic Commitment Percentage, Canadian Commitment Percentage, U.K. Commitment
Percentage or PR Commitment Percentage, as applicable, with respect to the Loans
to be made on such Drawdown Date, and such Agent may (but shall not be required
to), in reliance upon such assumption, make available to the applicable Borrower
a corresponding amount. If any Bank makes such amount available to such Agent on
a date after such Drawdown Date, such Bank shall pay such Agent on demand an
amount equal to the product of (i) the average, computed for the period referred
to in clause (iii) below, of the weighted average annual interest rate paid by
such Agent for funds acquired by such Agent during each day included in such
period times (ii) the amount equal to such Bank's Domestic Commitment Percentage
of such Domestic Loan, Canadian Commitment Percentage of such Canadian Loan,
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U.K. Commitment Percentage of such U.K. Loan and PR Commitment Percentage of
such PR Loan, as applicable, times (iii) a fraction, the numerator of which is
the number of days that elapse from and including such Drawdown Date to but not
including the date on which the amount equal to such Bank's Domestic Commitment
Percentage, Canadian Commitment Percentage, U.K. Commitment Percentage or PR
Commitment Percentage, as applicable, of such Loans, shall become immediately
available to such Agent, and the denominator of which is 365. A statement of
such Agent submitted to such Bank with respect to any amounts owing under this
paragraph shall be prima facie evidence of the amount due and owing to such
Agent by such Bank. If such amount is not in fact made available to such Agent
by such Bank within three (3) Business Days of such Drawdown Date, such Agent
shall be entitled to recover such amount from the applicable Borrower(s), with
interest thereon at the applicable rate per annum; provided that, with respect
to any Domestic Swing Line Loan advanced pursuant to Section 2.12(c), any U.K.
Swing Line Loan advanced pursuant to Section 2.13(c) and any Canadian Swing Line
Loan advanced pursuant to Section 2.14(c), the applicable Borrower(s) shall have
seven (7) Business Days following the receipt by such Borrower of notice from
the applicable Agent of the making of such Loan to repay such amount to the
applicable Agent (it being understood that, subject to the conditions set forth
herein, such repayment may be made from the proceeds of an additional Loan
hereunder).
(b) Unless Ryder, the Canadian Borrowers, the U.K. Borrowers or Ryder PR,
as the case may be, has notified the Administrative Agent, the Canadian Agent or
the U.K. Agent, as applicable, prior to the date any payment is required to be
made by it to the applicable Agent hereunder, that such Borrower will not make
such payment, the applicable Agent may assume that such Borrower has timely made
such payment and may (but shall not be so required to), in reliance thereon,
make available a corresponding amount to such Bank. If and to the extent that
such payment was not in fact made to the applicable Agent by the applicable
Borrower in immediately available funds, then each applicable Bank shall
forthwith on demand repay to the applicable Agent the portion of such assumed
payment that was made available to such Bank in immediately available funds,
together with interest thereon in respect of each day from and including the
date such amount was made available by the applicable Agent to such Bank to the
date such amount is repaid to the applicable Agent in immediately available
funds at the Federal Funds Effective Rate from time to time in effect.
(c) A notice of the applicable Agent to any Bank or any Borrower with
respect to any amount owing under Sections 6.15(a) and (b) shall be conclusive,
absent manifest error.
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SECTION 6.16. CURRENCY FLUCTUATIONS.
(a) Not later than 1:00 p.m. (Boston time) on the last Business
Day of each calendar month or any other Business Day if requested by an
Agent before 10:00 a.m. on such day (the "Calculation Date"), the
Administrative Agent shall determine the Exchange Rate as of such date.
The Exchange Rate so determined shall become effective on the first
Business Day immediately following such determination (a "Reset Date") and
shall remain effective until the next succeeding Reset Date. Nothing
contained in this Section 6.16 shall be construed to require the
Administrative Agent to calculate compliance under this Section 6.16 more
frequently than once each month, unless requested to do so by an Agent
pursuant to the first sentence of this Section 6.16(a).
(b) Not later than 4:00 p.m. (Boston time) on each Reset Date, the
Administrative Agent shall, in consultation with the Canadian Agent and
the U.K. Agent, determine the Dollar Equivalent of the outstanding
Canadian Loans denominated in Canadian Dollars, Bankers' Acceptances and
U.K. Loans denominated in Sterling and Euros.
(c) If, on any Reset Date, the aggregate outstanding amount of the
Dollar Equivalent of all Canadian Loans and the aggregate face amount of
all Bankers' Acceptances, exceeds the Total Canadian Commitment (the
amount of such excess referred to herein as the "Canadian Excess Amount")
by more than one percent (1%) of the aggregate amount of such Commitment,
then (A) the Canadian Agent shall give notice thereof to the Canadian
Borrowers, the Issuing Bank and the Canadian Banks and (B) within two (2)
Business Days thereafter, the Canadian Borrowers shall repay or prepay
Canadian Loans in an aggregate principal amount such that, after giving
effect thereto, the aggregate outstanding amount of the Dollar Equivalent
of all Canadian Loans and the aggregate face amount of all Bankers'
Acceptances no longer exceeds the Total Canadian Commitment.
Notwithstanding the foregoing, to avoid the incurrence of breakage costs
with respect to Canadian Loans which are LIBOR Rate Loans, the Canadian
Borrowers shall not be obligated to repay any Canadian Loan that is a
LIBOR Rate Loan until the end of the Interest Period relating thereto to
the extent that the unused amount of the Domestic Commitments of the
Domestic Banks which are affiliates of the Canadian Banks shall be greater
than or equal to the Canadian Excess Amount. On each Reset Date and until
the Canadian Loans are repaid in accordance with the first sentence of
this paragraph (c), the Total Domestic Commitment shall be automatically
reduced by an amount equal to the Canadian Excess Amount. Such reduction
shall be made by reducing the Domestic Commitments of each such Domestic
Bank that is an affiliate of a Canadian Bank by an amount
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equal to such Domestic Bank's Domestic Commitment Percentage of the
Canadian Excess Amount.
(d) If, on any Reset Date, the aggregate outstanding amount of the
Dollar Equivalent of all U.K. Loans exceeds the Total U.K. Commitment (the
amount of such excess referred to herein as the "U.K. Excess Amount") by
more than one percent (1%) of the aggregate amount of such Commitment,
then (A) the U.K. Agent shall give notice thereof to the U.K. Borrowers
and the U.K. Banks and (B) within two (2) Business Days thereafter, the
U.K. Borrowers shall repay or prepay U.K. Loans in an aggregate principal
amount such that, after giving effect thereto, the aggregate outstanding
amount of the Dollar Equivalent of all U.K. Loans no longer exceeds the
Total U.K. Commitment. Notwithstanding the foregoing, to avoid the
incurrence of breakage costs with respect to U.K. Loans which are LIBOR
Rate Loans, the U.K. Borrowers shall not be obligated to repay any U.K.
Loan that is a LIBOR Rate Loan until the end of the Interest Period
relating thereto to the extent that the unused amount of the Domestic
Commitments of the Domestic Banks which are affiliates of the U.K. Banks
shall be greater than or equal to the U.K. Excess Amount. On each Reset
Date and until the U.K. Loans are repaid in accordance with the first
sentence of this paragraph (d), the Total Domestic Commitment shall be
automatically reduced by an amount equal to the U.K. Excess Amount. Such
reduction shall be made by reducing the Domestic Commitments of each such
Domestic Bank that is an affiliate of a U.K. Bank by an amount equal to
such Domestic Bank's Domestic Commitment Percentage of the U.K. Excess
Amount.
SECTION 7. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
represents and warrants to the Banks and the Issuing Bank that:
SECTION 7.1. CORPORATE AUTHORITY.
(a) INCORPORATION; GOOD STANDING. Each of the Borrowers and each
of Ryder's Consolidated Subsidiaries (other than Immaterial Subsidiaries)
(i) is a corporation duly organized, validly existing and in good standing
under the laws of its respective jurisdiction of incorporation, (ii) has
all requisite corporate power to own its property and conduct its material
business operations so that the Borrowers and their Consolidated
Subsidiaries, taken as a whole, may conduct business substantially in the
manner presently conducted by them, and (iii) is in good standing (or such
qualification can be readily obtained without material penalty) as a
foreign corporation and is duly authorized to do business in each
jurisdiction in which its property or business as presently conducted or
contemplated makes such qualification necessary, except where a failure to
be so qualified would not have a material adverse effect on the business,
assets or
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financial condition of Ryder and its Consolidated Subsidiaries, taken as a
whole.
(b) AUTHORIZATION. The execution, delivery and performance of this
Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby (i) are within the corporate authority of each of the
Borrowers, (ii) have been duly authorized by all necessary corporate
proceedings on the part of each of the Borrowers, (iii) do not materially
conflict with or result in any material breach or contravention of any
provision of law, statute, rule or regulation to which any of the
Borrowers is subject or any judgment, order, writ, injunction, license or
permit applicable to any of the Borrowers, and (iv) do not conflict with
any provision of the corporate charter, bylaws or constitutional documents
of any of the Borrowers or any material agreement or other material
instrument binding upon any of the Borrowers.
(c) ENFORCEABILITY. The execution, delivery and performance of
this Agreement and the other Loan Documents by each of the Borrowers will
result in valid and legally binding obligations of each of the Borrowers
enforceable against each such Borrower in accordance with the respective
terms and provisions hereof and thereof, except as enforceability is
limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting generally the enforcement of creditors'
rights and except to the extent that availability of the remedy of
specific performance or injunctive relief is subject to the discretion of
the court before which any proceeding therefor may be brought.
SECTION 7.2. GOVERNMENTAL APPROVALS. The execution, delivery and
performance of this Agreement and the other Loan Documents by each of the
Borrowers and the consummation by each of the Borrowers of the transactions
contemplated hereby and thereby do not require any approval or consent of, or
filing with, any governmental agency or authority other than those already
obtained.
SECTION 7.3. TITLE TO PROPERTIES; LEASES. Ryder and its Consolidated
Subsidiaries own all of the assets reflected in the consolidated balance sheet
of Ryder and its Consolidated Subsidiaries as at the Balance Sheet Date or
acquired since that date (except property and assets (a) sold or otherwise
disposed of in the ordinary course of business since that date or as otherwise
permitted pursuant to Section 9.3 or (b) held pursuant to lease, trust or
conditional sales agreement), subject to no mortgages, conditional sales
agreements, title retention agreements, liens or other encumbrances except
Permitted Liens.
SECTION 7.4. FINANCIAL STATEMENTS. There have been furnished to the Banks
the consolidated balance sheet of Ryder and its Consolidated
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Subsidiaries dated the Balance Sheet Date and the consolidated statements of
income, shareholders' equity and cash flow for the fiscal periods then ended,
certified by KPMG LLP. All said balance sheets and statements of operations have
been prepared in accordance with GAAP (but, in the case of any of such financial
statements which are unaudited, only to the extent GAAP is applicable to interim
unaudited reports) and fairly present the financial condition of Ryder and its
Consolidated Subsidiaries as at the close of business on the Balance Sheet Date
and the results of operations for the period then ended (subject, in the case of
unaudited interim financial statements, to changes resulting from audit and
normal year-end adjustments and to the absence of complete footnotes). There are
no contingent liabilities of Ryder and its Consolidated Subsidiaries involving
material amounts, known to the officers of Ryder, which have not been disclosed
in said balance sheets and the related notes thereto or otherwise in writing to
the Administrative Agent.
SECTION 7.5. LITIGATION. Except as set forth on Schedule 7.5, there are no
actions, suits, proceedings or investigations of any kind pending or, to the
knowledge of each of the Borrowers, threatened against Ryder or any of Ryder's
Consolidated Subsidiaries before any court, tribunal or administrative agency or
board which, either in any case or in the aggregate, if adversely determined,
Ryder reasonably believes would be expected to have a material adverse effect on
the financial condition, business, or assets of Ryder and its Consolidated
Subsidiaries, considered as a whole, or materially impair the right of Ryder and
its Consolidated Subsidiaries, considered as a whole, to carry on business
substantially as now conducted, or result in any substantial liability not
adequately covered by insurance, or for which adequate reserves are not
maintained on the consolidated balance sheet or which question the validity of
any of the Loan Documents to which Ryder or any of its Consolidated Subsidiaries
is a party, or any action taken or to be taken pursuant hereto or thereto.
SECTION 7.6. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC. None of the
Borrowers nor any of Ryder's Consolidated Subsidiaries is (a) violating any
provision of its charter documents or by-laws or (b) any agreement or instrument
to which any of them may be subject or by which any of them or any of their
properties may be bound or any decree, order, judgment, or, to the knowledge of
Ryder's officers, any statute, license, rule or regulation, in a manner which
materially and adversely affects the financial condition, business or assets of
Ryder and its Consolidated Subsidiaries, considered as a whole.
SECTION 7.7. TAX STATUS. Each Borrower and each of Ryder's Consolidated
Subsidiaries (other than its Immaterial Subsidiaries) have (a) made or filed all
federal, state, provincial and territorial income and all other tax returns,
reports and declarations (or obtained extensions with respect thereto) required
by applicable law to be filed by them, other than state or provincial tax
returns covering immaterial amounts, (b) paid all taxes and other
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governmental assessments and charges as shown or determined to be due on such
returns, reports and declarations, except those being contested in good faith,
and (c) set aside on their books provisions reasonably adequate for the payment
of all taxes for periods subsequent to the periods to which such returns,
reports or declarations apply. Except as set forth on Schedule 7.7, there are no
unpaid taxes in any amount material to Ryder and its Consolidated Subsidiaries,
taken as a whole, claimed to be due by the taxing authority of any jurisdiction,
and the officers of the Borrowers know of no basis for any such claim.
SECTION 7.8. NO EVENT OF DEFAULT. No Default or Event of Default has
occurred and is continuing.
SECTION 7.9. HOLDING COMPANY AND INVESTMENT COMPANY ACTS. Neither Ryder
nor any of its Subsidiaries is a "holding company", or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company", as such terms are
defined in the Public Utility Holding Company Act of 1935; nor is any of them a
"registered investment company", or an "affiliated company" or a "principal
underwriter" of a "registered investment company", as such terms are defined in
the Investment Company Act of 1940, as amended.
SECTION 7.10. ABSENCE OF FINANCING STATEMENTS, ETC. Except as permitted by
Section 9.2 of this Agreement, (i) there is no Indebtedness senior to the
Obligations and (ii) there is no effective financing statement, security
agreement, chattel mortgage, real estate mortgage or other document filed or
recorded with any filing records, registry, or other public office, which
purports to cover, affect or give notice of any present or possible future lien
on, or security interests in, any assets or property of Ryder or any of its
Consolidated Subsidiaries or right thereunder.
SECTION 7.11. EMPLOYEE BENEFIT PLANS.
(a) IN GENERAL. Each Employee Benefit Plan has been maintained and
operated in compliance in all material respects with the provisions of
ERISA and, to the extent applicable, the Code, including but not limited
to the provisions thereunder respecting prohibited transactions.
(b) TERMINABILITY OF WELFARE PLANS. Under each Employee Benefit
Plan which is an employee welfare benefit plan within the meaning of
Section 3(1) or Section 3(2)(B) of ERISA, no benefits are due unless the
event giving rise to the benefit entitlement occurs prior to plan
termination (except as required by Title I, part 6 of ERISA.) Each of
Ryder, its Subsidiaries, or an ERISA Affiliate, as appropriate, may
terminate each such plan at any time (or at any time subsequent to the
expiration of any applicable bargaining agreement) in the
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discretion of Ryder, its Subsidiary, or such ERISA Affiliate without
material liability to any Person.
(c) GUARANTEED PENSION PLANS. Each contribution required to be
made to a Guaranteed Pension Plan, whether required to be made to avoid
the incurrence of an accumulated funding deficiency, the notice or lien
provisions of Section 302(f) of ERISA, or otherwise, has been timely made.
No waiver of an accumulated funding deficiency or extension of
amortization periods has been received with respect to any Guaranteed
Pension Plan. No liability to the PBGC (other than required insurance
premiums, all of which have been paid) has been incurred by any Borrower
or any ERISA Affiliate with respect to any Guaranteed Pension Plan and
there has not been any ERISA Reportable Event, or any other event or
condition which presents a material risk of termination of any Guaranteed
Pension Plan by the PBGC. Based on the latest valuation of each Guaranteed
Pension Plan (which in each case occurred within twelve months of the date
of this representation), and on the actuarial methods and assumptions
employed for that valuation, the aggregate benefit liabilities of all such
Guaranteed Pension Plans within the meaning of Section 4001 of ERISA did
not exceed the aggregate value of the assets of all such Guaranteed
Pension Plans, disregarding for this purpose the benefit liabilities and
assets of any Guaranteed Pension Plan with assets in excess of benefit
liabilities.
(d) MULTIEMPLOYER PLANS. None of Ryder, any of its Subsidiaries,
nor any ERISA Affiliate has incurred any material liability (including
secondary liability) to any Multiemployer Plan as a result of a complete
or partial withdrawal from such Multiemployer Plan under Section 4201 of
ERISA or as a result of a sale of assets described in Section 4204 of
ERISA. None of Ryder, any of its Subsidiaries, nor any ERISA Affiliate has
been notified that any Multiemployer Plan is in reorganization or is
insolvent under and within the meaning of Section 4241 or Section 4245 of
ERISA or has been terminated under Section 4041A of ERISA.
SECTION 7.12. ENVIRONMENTAL COMPLIANCE. In the ordinary course of its
business, each Borrower reviews the effect of Environmental Laws on the
business, operations and properties of such Borrower and its Subsidiaries, in
the course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, capital or operating expenditures required for
clean-up or closure of properties presently or previously owned, capital or
operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any periodic or permanent shutdown of any facility
or reduction in the level or change in the nature of operation conducted
thereat, any costs or liabilities in connection with off-site disposal of wastes
or Hazardous Substances, and any actual or potential liabilities to third
parties, including employees, and any related
93
costs and expenses). Except as set forth on Schedule 7.12, on the basis of this
review, each Borrower has reasonably concluded that such associated liabilities
and costs, including the costs of compliance with Environmental Laws, are
unlikely to have a material adverse effect on the business, financial condition,
results of operations or prospects of Ryder and its Consolidated Subsidiaries,
taken as a whole.
Section 7.13. DISCLOSURE. The representations and warranties made by the
Borrowers in this Agreement or by the Borrowers in any agreement, instrument,
document, certificate, statement or letter furnished to the Banks in connection
with the transactions contemplated by the Loan Documents do not, taken as a
whole, together with all other information provided by or on behalf of the
Borrowers, which includes (i) any information provided pursuant Section 8.4 or
otherwise provided by the Borrowers to the Agents and the Banks in writing and
(ii) all information contained in the reports filed by Ryder with the Securities
and Exchange Commission, contain any untrue statement of a material fact or omit
to state a material fact necessary in order to make such representation,
warranties and information, taken as a whole, in light of the circumstances
under which they were made, not misleading in any material respect.
Section 7.14. LOCATION OF CHIEF EXECUTIVE OFFICE. Ryder's chief executive
office and the location where its books and records are kept is 3600 N.W. 82nd
Avenue, Miami, Florida 33166 (except as the same may be updated pursuant to
Section 8.2). Ryder is incorporated under the laws of the state of Florida.
Section 7.15. DEBT RATINGS. Schedule 7.15 contains a true and accurate
list as of the Closing Date of the Senior Public Debt Ratings.
Section 7.16. CONSOLIDATED SUBSIDIARIES. Each of the Consolidated
Subsidiaries of Ryder and the other Borrowers as of the date hereof is listed on
Schedule 7.16 attached hereto.
Section 7.17. FOREIGN ASSETS CONTROL REGULATIONS, ETC. None of the
requesting or borrowing of the Loans, the Bankers' Acceptances, the requesting
or issuance, extension or renewal of any Letters of Credit or the use of the
proceeds of any thereof will violate the Trading With the Enemy Act (50 U.S.C.
Section 1 et seq., as amended) (the "Trading With the Enemy Act") or any of the
foreign assets control regulations of the United States Treasury Department (31
CFR, Subtitle B, Chapter V, as amended) (the "Foreign Assets Control
Regulations") or any enabling legislation or executive order relating thereto
(which for the avoidance of doubt shall include, but shall not be limited to (a)
Executive Order 13224 of September 21, 2001 Blocking Property and Prohibiting
Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism
(66 Fed. Reg. 49079 (2001)) (the "Executive Order") and (b) the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct
94
Terrorism Act of 2001 (Public Law 107-56)). Furthermore, neither the Borrower
nor any of its Subsidiaries or other affiliates (a) is a "blocked person" as
described in the Executive Order, the Trading With the Enemy Act or the Foreign
Assets Control Regulations or (b) engages in any dealings or transactions, or be
otherwise associated, with any such "blocked person".
SECTION 8. AFFIRMATIVE COVENANTS OF THE BORROWERS. Each of the Borrowers
agrees that, so long as any Obligation is outstanding or the Banks have any
obligation to make Loans, or the Canadian Banks have any Obligations with
respect to Bankers' Acceptances, or the Issuing Bank has any obligation to
issue, extend or renew any Letters of Credit:
SECTION 8.1. PUNCTUAL PAYMENT. The applicable Borrower(s) will duly and
punctually pay or cause to be paid the principal and interest on the Loans, all
Bankers' Acceptances, all Letters of Credit, fees and other amounts provided for
in this Agreement and the other Loan Documents, all in accordance with the terms
of this Agreement and such other Loan Documents.
SECTION 8.2. MAINTENANCE OF CHIEF EXECUTIVE OFFICE. Ryder will maintain
its chief executive office at the location referred to in Section 7.14 or at
such other place in the United States of America as Ryder shall designate upon
thirty (30) days prior written notice to the Agents.
SECTION 8.3. RECORDS AND ACCOUNTS. Each of the Borrowers will, and will
cause each of its Consolidated Subsidiaries to, (a) keep true and accurate
records and books of account in which full, true and correct entries will be
made in accordance with (i) with respect to Ryder and its Consolidated
Subsidiaries only, GAAP and (ii) with respect to each such Person, the
requirements of all regulatory authorities and (b) maintain adequate accounts
and reserves for all taxes (including income taxes), depreciation, depletion,
obsolescence and amortization of its properties, all other contingencies, and
all other proper reserves in accordance with GAAP with respect to Ryder and its
Consolidated Subsidiaries and in accordance with all regulatory authorities with
respect to each of the other Borrowers, provided that if any changes in GAAP
with which Ryder's independent accountants concur or changes in the application
of GAAP with which Ryder's independent accountants concur result in a change
(other than an immaterial change) in the method of calculation or the basis upon
which such calculation is made of any of the financial covenants, standards or
terms contained in this Agreement, the Borrowers and the Banks agree to amend
such provisions to reflect such changes in GAAP so that the criteria for
evaluating the consolidated financial condition of Ryder and its Consolidated
Subsidiaries shall be the same after such accounting changes as if such changes
had not been made.
SECTION 8.4. FINANCIAL STATEMENTS, CERTIFICATES AND INFORMATION. Ryder
will deliver to each of the Banks, the Issuing Bank and the Agents:
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(a) as soon as practicable, but, in any event not later than one
hundred twenty (120) days after the end of each fiscal year of Ryder, the
consolidated balance sheet of Ryder and its Consolidated Subsidiaries as
at the end of such year, and the consolidated statements of income and
cash flows for Ryder and its Consolidated Subsidiaries for the fiscal year
then ended, each setting forth in comparative form the figures for the
previous fiscal year, all such consolidated financial statements to be in
reasonable detail, prepared, in accordance with GAAP and certified by KPMG
LLP or by other independent certified public accountants of nationally
recognized standing selected by Ryder. In addition, within one hundred
twenty (120) days of the end of each such fiscal year, Ryder shall provide
the Banks with a written statement from such accountants to the effect
that they have read a copy of this Agreement, and that, in making the
examination necessary to said certification, they have obtained no
knowledge of any Default or Event of Default, or, if such accountants
shall have obtained knowledge of any then existing Default or Event of
Default they shall disclose in such statement any such Default or Event of
Default; provided that such accountants shall not be liable to the Banks
for failure to obtain knowledge of any Default or Event of Default;
(b) as soon as practicable, but in any event not later than sixty
(60) days after the end of each of the first three fiscal quarters of each
fiscal year of Ryder, copies of the consolidated balance sheets of Ryder
and its Consolidated Subsidiaries as at the end of such quarter, and the
related consolidated statements of income and cash flows for the portion
of the fiscal year then ended, all in reasonable detail and prepared in
accordance with GAAP (to the extent GAAP is applicable to interim
unaudited financial statements) with a certification by the principal
financial officer of Ryder that the consolidated financial statements are
prepared in accordance with GAAP (to the extent GAAP is applicable to
interim unaudited financial statements) and fairly present the
consolidated financial condition of Ryder and its Consolidated
Subsidiaries on a consolidated basis as at the close of business on the
date thereof and the results of operations for the period then ended;
(c) simultaneously with the delivery of the financial statements
referred to in (a) and (b) above, a certificate in the form of Exhibit C
hereto (the "Compliance Certificate") signed by the principal financial
officer, treasurer or assistant treasurer of Ryder, stating that Ryder and
its Consolidated Subsidiaries are in compliance with Section 10 hereof as
of the end of the applicable period setting forth in reasonable detail
computations evidencing such compliance and certifying (i) no Default or
Event of Default exists or if a Default or Event of Default shall then
exist, specifying the nature thereof and (ii) such other matters as are
set forth therein;
96
(d) as soon as practicable but, in any event, within thirty (30)
Business Days after the issuance thereof, copies of all material of a
financial nature filed with the Securities and Exchange Commission or sent
to the stockholders of Ryder or any of its Subsidiaries generally; and
(e) from time to time, and with reasonable promptness, such other
financial data and other information as the Banks may reasonably request.
The Borrowers hereby authorize each Bank to disclose any information
obtained pursuant to this Agreement to all appropriate governmental regulatory
authorities where required by law.
SECTION 8.5. CORPORATE EXISTENCE; COMPLIANCE WITH LAWS, OTHER AGREEMENTS.
Each of the Borrowers will, and Ryder will cause each of its Consolidated
Subsidiaries (other than its Immaterial Subsidiaries) to, (a) keep in full force
and effect their respective corporate existence and all rights, licenses, leases
and franchises reasonably necessary to the conduct of its business, and (b)
comply with (i) all applicable laws and regulations (including, without
limitation, all Environmental Laws) wherever its business is conducted, (ii) the
provisions of its charter documents, by-laws and constitutional documents, and
(iii) all agreements and instruments by which it or any of its properties may be
bound and all applicable decrees, orders and judgments, in each case in such
manner that there will not result a material and adverse effect on the financial
condition, properties or business of the Borrowers, considered separately, or
Ryder and its Consolidated Subsidiaries considered as a whole.
SECTION 8.6. MAINTENANCE OF PROPERTIES. Each of the Borrowers will, and
Ryder will cause each of its Consolidated Subsidiaries to, cause all material
properties used or useful in the conduct of its business to be maintained and
kept in good condition, repair and working order (ordinary wear and tear
excepted) and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
Ryder and its Consolidated Subsidiaries may be necessary for the conduct of
their business; provided, however, that nothing in this section shall prevent
Ryder or any of its Consolidated Subsidiaries from discontinuing the operation
and maintenance of any of its properties if such discontinuance is, in the
judgment of such Person, desirable in the conduct of its business and which does
not in the aggregate materially adversely affect the financial condition,
business or assets of Ryder and its Consolidated Subsidiaries, taken as a whole.
SECTION 8.7. INSURANCE. Each of the Borrowers will, and Ryder will cause
each of its Consolidated Subsidiaries to, maintain (either in the name of such
Borrower or in such Subsidiary's own name), insurance with respect to their
properties in at least such amounts and against at least such risks
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(and with such risk retention) as are usually insured against in the same
general area by companies of established repute engaged in the same or a similar
business and of similar size; and will furnish to the Banks, upon request of the
Administrative Agent, information presented in reasonable detail as to the
insurance so carried.
SECTION 8.8. TAXES. Each of the Borrowers will, and Ryder will cause each
of its Consolidated Subsidiaries to, duly pay and discharge, or cause to be paid
and discharged, before the same shall become overdue, all taxes, assessments and
other governmental charges imposed upon it and its real properties, sales and
activities, or any part thereof, or upon the income or profits therefrom, as
well as all claims for labor, materials or supplies, which if unpaid might by
law become a lien or charge upon any of its property; provided that the
Borrowers or any Consolidated Subsidiary shall not be required to pay any such
tax, assessment, charge or levy if the same shall not at the time be due and
payable or can be paid thereafter without penalty; or if the validity thereof
shall currently be contested in good faith by appropriate proceedings if it
shall have set aside on its books reserves deemed by it adequate with respect to
such tax, assessment, charge or levy; or if the failure to pay such tax,
assessment, charge or levy shall not result in a material adverse change in the
financial position, results of operations, business or other condition of the
Borrowers and their Consolidated Subsidiaries, taken as a whole.
SECTION 8.9. INSPECTION OF PROPERTIES, BOOKS AND CONTRACTS. The Banks,
through the Agents or any of their designated representatives, shall have the
right to visit and inspect any of the properties of the Borrowers to examine
their books of account (and to make copies thereof and extracts therefrom), and
to discuss the affairs, finances and accounts of the Borrowers with, and to be
advised as to the same by, its officers, all at such reasonable times and
intervals as the Banks may reasonably request.
SECTION 8.10. NOTICE OF POTENTIAL CLAIMS OR LITIGATION. Each of the
Borrowers shall deliver to the Banks, within thirty (30) days of receipt
thereof, written notice of the initiation of any action, claim, complaint, or
any other notice of dispute or potential litigation against any of the Borrowers
or any of Ryder's Consolidated Subsidiaries wherein the potential liability is
in excess of $50,000,000 and which are required to be reported pursuant to
Regulation S-K under the Securities Act of 1933.
SECTION 8.11. NOTICE OF DEFAULT. Each of the Borrowers will promptly
notify the Banks in writing of the occurrence of any Default or Event of
Default.
SECTION 8.12. USE OF PROCEEDS. The proceeds of the Loans, borrowings by
Bankers' Acceptances and the Letters of Credit shall be used for general
corporate purposes and working capital purposes, including, without limitation,
to provide liquidity enhancement to the commercial paper financing program
maintained by Ryder. No Loans or Bankers' Acceptances
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or any portion of any Letter of Credit shall be used in any way that will
violate Regulations T, U or X of the Board of Governors of the Federal Reserve
System. The Borrower will not use the proceeds of any Loan or borrowing by way
of Bankers' Acceptances or any portion of any Letter of Credit to purchase or
carry any "margin security" or "margin stock" (as such terms are defined in said
Regulations U and X).
SECTION 8.13. DEBT RATINGS. The Borrowers will notify the Agents promptly
upon becoming aware thereof, of any publicly announced change in the Senior
Public Debt Ratings and/or any change in the rating of any other Indebtedness of
any of their Subsidiaries which is rated by S&P, Moody's or Fitch.
SECTION 8.14. FURTHER ASSURANCES. Each of the Borrowers will cooperate
with the Administrative Agent and execute such further instruments and documents
as the Administrative Agent shall reasonably request to carry out to the Banks'
satisfaction the transactions contemplated by this Agreement.
SECTION 9. CERTAIN NEGATIVE COVENANTS OF THE BORROWERS. Each of the
Borrowers agrees that, so long as any Obligation is outstanding or the Banks
have any obligation to make Loans, or the Canadian Banks have any Obligations
with respect to Bankers' Acceptances, or the Issuing Bank has any obligation to
issue, extend or renew any Letters of Credit:
SECTION 9.1. RESTRICTIONS ON SECURED INDEBTEDNESS. None of the Borrowers
nor any of their Consolidated Subsidiaries shall create, incur, assume, or be or
remain liable, contingently or otherwise, with respect to any Secured
Indebtedness other than:
(a) Secured Indebtedness consisting of (i) Indebtedness of Ryder's
Consolidated Subsidiaries to a Borrower and (ii) unsecured Intercompany
Indebtedness; and
(b) other Secured Indebtedness (including, without limitation,
Indebtedness under capitalized leases), provided that the aggregate amount
of Secured Indebtedness outstanding, pursuant to this Section 9.1(b) shall
not exceed at any time thirty percent (30%) of the Adjusted Consolidated
Tangible Assets of Ryder and its Consolidated Subsidiaries, determined at
such time.
For purposes of calculating the amount of Secured Indebtedness of Ryder and its
Consolidated Subsidiaries under Section 9.1(b), Ryder shall be deemed to have
incurred Secured Indebtedness in an amount equal to the aggregate amount of all
Derivatives Obligations which are secured by a lien permitted pursuant to
Section 9.2(e).
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SECTION 9.2. RESTRICTIONS ON LIENS. None of the Borrowers will, nor will
Ryder permit any of its Consolidated Subsidiaries to, create or incur or suffer
to be created or incurred or to exist any lien, encumbrance, mortgage, pledge,
charge, restriction or other security interest of any kind upon any property or
assets of any character, except as follows (the "Permitted Liens"):
(a) liens securing Secured Indebtedness, provided that such
Secured Indebtedness is permitted by Section 9.1 hereof, and provided
further that the aggregate net book value of the assets of Ryder and its
Consolidated Subsidiaries securing Secured Indebtedness which (i) consists
of Indebtedness included within clause (i) of the definition of "Secured
Indebtedness" and (ii) is incurred pursuant to Section 9.1(b), shall not,
at any time, exceed an amount equal to two-hundred percent (200%) of the
aggregate outstanding principal amount of such Secured Indebtedness;
(b) any encumbrances consisting of zoning restrictions,
exceptions, easements, leases or other like restrictions on the use of
real property which do not materially impair the use of such property;
(c) the following liens or charges which are not yet due or are
payable without penalty or of which the amount, applicability or validity
is being contested in good faith by appropriate proceedings:
(i) liens for taxes,assessments or other governmental
charges;
(ii) liens given in the ordinary course of business pursuant
to any governmental regulation in order to allow Ryder or a
Consolidated Subsidiary to maintain self-insurance, or to
participate in any fund or participate in any benefits in connection
with worker's compensation, unemployment insurance, old age pensions
or other social security, or for any other purpose at any time
required by law or governmental regulation as a condition to the
transaction of business or the exercise of any privilege or license;
(iii) mechanic's, carrier's, worker's, warehouseman's,
landlord's or other like liens arising in the ordinary course of
business, including liens incident to construction;
(iv) any inchoate liens arising under ERISA to secure any
contingent liability of Ryder or a Consolidated Subsidiary; and
(v) other liens incidental to the conduct of business or
ownership of property and assets which were not incurred in
connection with the borrowing of money and which do not in the
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aggregate materially impair the use of property or assets of Ryder
or its Consolidated Subsidiaries;
(d) liens on accounts receivable subject to the Receivables
Purchase Agreements referred to in Section 9.3(d);
(e) liens on cash, cash equivalents and marketable securities
securing Derivatives Obligations; and
(f) liens on assets subject to the securitization permitted
pursuant to Section 9.3(e).
SECTION 9.3. CORPORATE CHANGES AND SALES OR DISPOSITIONS OF ASSETS. Each
of the Borrowers will not, and Ryder will not permit any of its Consolidated
Subsidiaries to, become a party to any merger, consolidation, asset acquisition,
stock acquisition or disposition of assets, with the following exceptions,
provided that such merger, consolidation, acquisition or disposition would not
cause Ryder to not be in compliance with all the covenants and conditions of
this Agreement:
(a) mergers of a Consolidated Subsidiary into another Consolidated
Subsidiary of Ryder, or mergers or consolidations pursuant to which Ryder
is the surviving Person;
(b) acquisitions of interests in other corporations or business
entities (either through the purchase of assets or capital stock or
otherwise);
(c) dispositions of assets in the ordinary course of business;
(d) sales by Ryder and its Subsidiaries of their accounts
receivable pursuant to the Receivables Purchase Agreements, provided that
(i) the aggregate face amount of all accounts receivable of Ryder treated
as purchased receivables and sold by Ryder and/or its Subsidiaries to the
securitization conduit under the Receivables Purchase Agreements shall not
exceed at any time the lesser of (A) 75% of the aggregate face amount of
all accounts receivable of Ryder and its Consolidated Subsidiaries, taken
as a whole, including the accounts receivables which constitute purchased
receivables under the Receivables Purchase Agreements and (B)
$425,000,000, and (ii) from and after the date of the first sale of
accounts receivable pursuant to the Receivables Purchase Agreements, the
cumulative net cash proceeds received by Ryder from sales of accounts
receivable thereunder shall not be less than 75% of the cumulative face
amount of all accounts receivable of Ryder sold thereunder;
(e) the securitization, in one or more securitization
transactions, by Ryder of trucks, tractors and trailers (collectively, the
"Securitized Assets") together with the financial component of their
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associated lease and service agreements, provided that (i) the unamortized
balance of all Indebtedness of Ryder and its Consolidated Subsidiaries or
of any special purpose securitization conduit incurred in connection with
such securitization programs (excluding any Indebtedness as to which Ryder
or any of its Consolidated Subsidiaries is the holder) shall not, at any
time, exceed $1,250,000,000 and (ii) the cumulative net cash proceeds
received by Ryder in connection with such securitization transactions
shall not be less than eighty percent (80%) of the net book value of all
such Securitized Assets; and
(f) other dispositions of assets not otherwise permitted by the
foregoing clauses of this section, provided that (i) the aggregate fair
market value of assets so disposed of in any consecutive twelve (12) month
period shall not exceed ten percent (10%) of the aggregate book value of
all Consolidated Tangible Assets of Ryder and its Consolidated
Subsidiaries, determined in accordance with GAAP, measured as of the first
day of such twelve (12) month period and (ii) the revenue attributable to
the assets so disposed of in any consecutive twelve (12) month period
shall not exceed twenty percent (20%) of the revenues of Ryder and its
Consolidated Subsidiaries during such twelve (12) month period, determined
in accordance with GAAP.
SECTION 9.4. LEASEBACKS. Each of the Borrowers will not, and Ryder will
not permit any of its Consolidated Subsidiaries to, sell, transfer or otherwise
convey any property of Ryder or any Consolidated Subsidiary more than one
hundred twenty (120) days after the acquisition thereof for purposes of leasing
back such property except:
(a) leasebacks with a term of three years or less (including all
permitted extensions and renewals);
(b) leasebacks whereby the proceeds from the sale or transfer of
property are used to reduce the Obligations or other Indebtedness of a
rank at least equal to the Obligations; or
(c) leasebacks permitted by Section 9.1 and Section 9.2.
SECTION 9.5. LIMITATION ON AGREEMENTS. Each of the Borrowers will not, and
Ryder will not permit any of its Consolidated Subsidiaries to, enter into any
agreement which restricts or prohibits any guarantees, advances, dividends or
distributions (i) from any Consolidated Subsidiary to such Borrower, or (ii)
between or among Consolidated Subsidiaries. Notwithstanding the foregoing, any
Consolidated Subsidiary of Ryder may issue capital stock which is preferred as
to dividends or upon liquidation to any other capital stock of such Consolidated
Subsidiary ("Preferred Stock"); provided that (i) the aggregate liquidation
preference of all such Preferred
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Stock issued by Ryder's Consolidated Subsidiaries which is not owned by Ryder
and its Consolidated Subsidiaries does not, at any time, exceed five percent
(5%) of Consolidated Adjusted Tangible Net Worth at such time, (ii) immediately
before, and immediately after, and after giving effect to such issuance of
Preferred Stock, no Default or Event of Default shall have occurred and be
continuing, and (iii) prior to the issuance by any Subsidiary of Preferred
Stock, such Subsidiary shall have delivered to the Administrative Agent, for the
benefit of the Banks, the Issuing Bank and the Agents, a guarantee of the
Obligations in form and substance satisfactory to the Administrative Agent (it
being understood that the obligations of such Subsidiary under such guaranty
shall be limited to the aggregate amount of the liquidation preference of all
such Preferred Stock issued by such Subsidiary which is not owned by Ryder and
its Consolidated Subsidiaries), together with corporate authority documentation
and a legal opinion, in form and substance satisfactory to the Administrative
Agent, as to the authorization, execution, delivery and enforceability of such
guaranty. The Borrowers, the Agents, the Issuing Bank and the Banks agree that
each such guaranty shall be deemed to be a "Loan Document" hereunder.
SECTION 9.6. EMPLOYEE BENEFIT PLANS. Each Borrower and each ERISA
Affiliate will not:
(a) engage in any "prohibited transaction" within the meaning of
Section 406 of ERISA or Section 4975 of the Code which could result in a
material liability for a Borrower or any of its Subsidiaries;
(b) permit any Guaranteed Pension Plan to incur an "accumulated
funding deficiency", as such term is defined in Section 302 of ERISA,
whether or not such deficiency is or may be waived;
(c) fail to contribute to any Guaranteed Pension Plan to an extent
which, or terminate any Guaranteed Pension Plan in a manner
which, could result in the imposition of a lien or encumbrance on the
assets of a Borrower or any of its Subsidiaries pursuant to Section 302(f)
or Section 4068 of ERISA; or
(d) permit or take any action which would result in the aggregate
benefit liabilities (with the meaning of Section 4001 of ERISA) of all
Guaranteed Pension Plans exceeding the value of the aggregate assets of
such Plans, disregarding for this purpose the benefit liabilities and
assets of any such Plan with assets in excess of benefit liabilities.
SECTION 10. FINANCIAL COVENANT OF THE BORROWERS. Each of the Borrowers
agrees that, so long as any Obligation is outstanding or the Banks have any
obligation to make Loans, or the Canadian Banks have any Obligations with
respect to Bankers' Acceptances, or the Issuing Bank has any obligation to
issue, extend or renew any Letters of Credit:
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SECTION 10.1. DEBT TO CONSOLIDATED TANGIBLE NET WORTH. Ryder will not, at
any time, permit the ratio of (a) the aggregate amount of Indebtedness of Ryder
and its Consolidated Subsidiaries to (b) Consolidated Adjusted Tangible Net
Worth of Ryder and its Consolidated Subsidiaries to exceed 3.0:1.0.
SECTION 11. CONDITIONS TO EFFECTIVENESS. The effectiveness of this
Agreement and the obligations of the Banks to make any Loans, of the Canadian
Banks to accept or purchase any Bankers' Acceptance, of the Issuing Bank to
issue, extend or renew any Letter of Credit and of the Banks to otherwise be
bound by the terms of this Agreement shall be subject to the satisfaction of
each of the following conditions precedent which shall occur no later than May
11, 2004:
SECTION 11.1. CORPORATE ACTION. All corporate action necessary for the
valid execution, delivery and performance by the Borrowers of the Loan Documents
shall have been duly and effectively taken, and evidence thereof certified by
authorized officers of the Borrowers and satisfactory to the Banks shall have
been provided to the Banks.
SECTION 11.2. LOAN DOCUMENTS, ETC. Each of the Loan Documents shall have
been duly and properly authorized, executed and delivered by the respective
parties thereto and shall be in full force and effect in a form satisfactory to
the Banks. Each of the representations and warranties of the Borrowers contained
in Section 7 of this Agreement shall be true as of the Closing Date.
SECTION 11.3. CERTIFIED COPIES OF CHARTER DOCUMENTS. The Administrative
Agent shall have received from each of the Borrowers a copy, certified by a duly
authorized officer of such Person to be true and complete on the Closing Date,
of (a) its charter or other incorporation documents as in effect on such date of
certification and (b) its by-laws as in effect on such date.
SECTION 11.4. INCUMBENCY CERTIFICATE. The Administrative Agent shall have
received an incumbency certificate, dated as of the Closing Date, signed by duly
authorized officers giving the name and bearing a specimen signature of each
individual who shall be authorized: (a) to sign the Loan Documents on behalf of
each of the Borrowers; (b) to make Loan Requests and to apply for Letters of
Credit; and (c) to give notices and to take other action on the Borrowers'
behalf under the Loan Documents.
SECTION 11.5. CERTIFICATES OF INSURANCE. The Banks shall have received a
certificate of insurance, dated as of the Closing Date, or within thirty (30)
days prior thereto, identifying insurers, types of insurance, insurance limits,
and policy terms.
SECTION 11.6. OPINION OF COUNSEL. The Banks shall have received a
favorable legal opinion from (i) Ryder Law Department, United States counsel to
the Borrowers, (ii) Ryder Law Department, United Kingdom
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counsel to the U.K. Borrowers, (iii) Borden Ladner & Gervais, Ontario counsel to
Ryder Canada Limited, (iv) Stewart McKelvey Stirling Scales, Nova Scotia counsel
to Ryder Holdings Canada and (v) Ryder Law Department, counsel to Ryder PR, in
each case, addressed to the Banks, dated the Closing Date, in form and substance
satisfactory to the Administrative Agent and the Banks.
SECTION 11.7. EXISTING DEBT. The Administrative Agent shall have received
payoff and termination letters in a form satisfactory to the Administrative
Agent with respect to the existing revolving credit facilities of Ryder, Ryder
PR, the Canadian Borrowers and the U.K. Borrowers.
SECTION 11.8. FINANCIAL CONDITION; DEBT RATINGS. No material adverse
change, in the judgment of the Majority Banks, shall have occurred in the
financial condition, results of operations, business, properties or prospects of
Ryder and its Consolidated Subsidiaries, taken as a whole, since the audited
financial statements of Ryder and its Consolidated Subsidiaries for the fiscal
year ending December 31, 2003. There shall have occurred no material adverse
change in the Senior Public Debt Ratings since December 31, 2003.
SECTION 11.9. PAYMENT OF FEES. Each of the Borrowers shall have paid the
fees required to be paid on the Closing Date.
SECTION 11.10. CLOSING DATE COMPLIANCE CERTIFICATE. Each of the Banks
shall have received a Compliance Certificate, dated the Closing Date, in form
and substance satisfactory to the Banks, evidencing the Borrowers' compliance
with Section 10.1 hereto.
SECTION 11.11. RECEIPT OF FINANCIAL STATEMENTS. Each of the Banks shall
have received the financial statements of Ryder and its Consolidated
Subsidiaries required to be delivered pursuant to Section 8.4(a) with respect to
the fiscal year of Ryder ended December 31, 2003 and any financial statements of
Ryder and its Consolidated Subsidiaries required to be delivered pursuant to
Section 8.4(b) with respect to any subsequent period for which such information
becomes available on or prior to the Closing Date, in form and substance
satisfactory to the Banks.
SECTION 12. CONDITIONS TO ALL LOANS. The obligations of the Banks to make
any Loan, the obligation of the Canadian Banks to accept or purchase any
Bankers' Acceptance and the obligation of the Issuing Bank to issue, extend or
renew any Letter of Credit, in each case, at the time of and subsequent to the
Closing Date is subject to the following conditions precedent:
SECTION 12.1. REPRESENTATIONS TRUE. Each of the representations and
warranties contained in Sections 7.1, 7.2, 7.6(a), 7.9, 7.10, 7.14 and 7.17
shall be true at and as of the time of the making of such Loan or the acceptance
or purchase of such Bankers' Acceptance or the issuance, extension or
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renewal of such Letter of Credit, as applicable, with the same effect as if made
at and as of that time (except to the extent of changes resulting from
transactions contemplated or permitted by this Agreement and changes occurring
in the ordinary course of business which singly or in the aggregate are not
materially adverse to the business, assets or financial condition of Ryder and
its Consolidated Subsidiaries, taken as a whole, or to the extent that such
representations and warranties relate expressly and solely to an earlier date).
SECTION 12.2. PERFORMANCE; NO EVENT OF DEFAULT. The Borrowers shall have
performed and complied with all terms and conditions required by Sections 2, 3,
or 4, as applicable, and this Section 12, there shall exist no Default or Event
of Default or condition which would result in a Default or an Event of Default
upon consummation of such Loan or the acceptance and purchase of such Bankers'
Acceptance or the issuance, extension or renewal of such Letter of Credit, as
applicable. Each request for a Loan or for the acceptance or purchase of a
Bankers' Acceptance or for the issuance, extension or renewal of a Letter of
Credit shall constitute certification by the Borrowers that the conditions
specified in this Section 12.2 will be duly satisfied on the date of such Loan.
SECTION 12.3. NO LEGAL IMPEDIMENT. No change in applicable law shall have
occurred as a consequence of which it shall have become and continue to be
unlawful for (a) the first Loan to be made or the first Bankers' Acceptance to
be accepted and purchased hereunder or the first Letter of Credit to be issued,
renewed or extended hereunder only, or for any Bank or the Issuing Bank to
perform any of its agreements or obligations under any of the Loan Documents to
which it is a party or (b) for any Borrower to perform any of its respective
agreements or obligations under any of the Loan Documents.
SECTION 12.4. DELIVERY OF DOCUMENTS. The Borrower(s) shall have delivered
to the applicable Agent(s) and the Issuing Bank, as applicable, the
documentation required to be delivered hereunder in connection with such Loan or
such Bankers' Acceptance or such Letter of Credit.
SECTION 13. EVENTS OF DEFAULT; ACCELERATION; TERMINATION OF COMMITMENT.
SECTION 13.1. EVENTS OF DEFAULT AND ACCELERATION. If any of the following
events ("Events of Default") shall occur:
(a) if any Borrower shall fail to pay any principal of the Loans
made to such Borrower or any L/C Obligation when the same shall become due
and payable, whether at the stated date of maturity or any accelerated
date of maturity or at any other date fixed for payment and such default
shall not have been remedied within one (1)
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Business Day after written notice thereof shall have been given to such
Borrower and Ryder by an Agent;
(b) if the applicable Borrowers shall fail to pay any interest or
fees owing by such Borrower hereunder when the same shall become due and
payable, whether at the stated date of maturity or any accelerated date of
maturity or at any other date fixed for payment and such default shall not
have been remedied within three (3) Business Days after written notice
thereof shall have been given to such Borrower and Ryder by an Agent;
(c) if the Borrowers shall fail to comply with any of the
covenants contained in Sections 9.1, 9.2, 9.3, or 10.1 hereof;
(d) if the Borrowers shall fail to perform any term, covenant or
agreement contained herein or in any of the other Loan Documents or pay
any amounts (other than those specified in subsections (a), (b), and (c)
above) and such failure shall not be remedied within twenty (20) days
after written notice of such failure shall have been given to the
Borrowers and Ryder by an Agent;
(e) if any representation, warranty or certification made in
writing by or on behalf of any Borrower contained in this Agreement or in
any document or instrument delivered pursuant to this Agreement shall
prove to have been false in any material respect upon the date when made
or repeated and such representation, warranty or certification shall be
material at the time it shall have been determined to have been false or
incorrect, and if such false representation, warranty or certification or
its adverse effects shall be susceptible of cure, the Borrowers shall not,
within a period of twenty (20) days after written notice thereof has been
given to the Borrowers and Ryder by the Administrative Agent, (i) have
cured (to the satisfaction of the Majority Banks) the representation,
warranty or certification and (ii) have cured the adverse effect of the
failure of such representation, warranty or certification to have been
true and correct when made or repeated;
(f) if any of the Borrowers or any of Ryder's Consolidated
Subsidiaries shall (i) fail to pay within the later of (A) three (3)
Business Days after maturity and (B) three (3) Business Days after any
applicable period of grace, any Indebtedness, reimbursement obligation in
respect of any letter of credit or the aggregate amount of any Derivatives
Obligation, in each case, in an aggregate amount greater than $50,000,000,
or (ii) fail to observe or perform any material term, covenant or
agreement contained in any one or more agreements by which it is bound,
evidencing or securing any Indebtedness, reimbursement obligation in
respect of any letter of credit or the aggregate amount of any Derivatives
Obligation, in each
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case, in an aggregate amount greater than $50,000,000, resulting in the
acceleration of such Indebtedness;
(g) if any of the Borrowers or any of Ryder's Consolidated
Subsidiaries makes an assignment for the benefit of creditors, or admits
in writing its inability to pay or generally fails to pay its debts as
they mature or become due, or petitions or applies for the appointment of
a trustee or other custodian, liquidator or receiver of any such Person,
or of any substantial part of the assets of any such Person or commences
any case or other proceeding relating to any such Person under any
bankruptcy, reorganization, arrangement, insolvency, readjustment of debt,
dissolution or liquidation or similar law of any jurisdiction, now or
hereafter in effect, or takes any action to authorize or in furtherance of
any of the foregoing, or if any such petition or application is filed or
any such case or other proceeding is commenced against any such Person or
any such Person indicates its approval thereof, consent thereto or
acquiescence therein;
(h) if a decree or order is entered appointing any trustee,
custodian, liquidator or receiver or adjudicating any of the Borrowers or
any of Ryder's Consolidated Subsidiaries bankrupt or insolvent, or
approving a petition in any such case or other proceeding, or a decree or
order for relief is entered in respect of any such Person in an
involuntary case under the bankruptcy laws of any jurisdiction or any
analogous proceeding, procedure or step is taken in any jurisdiction as
now or hereafter constituted, and such decree or order remains in effect
for more than sixty (60) days, whether or not consecutive;
(i) if there shall remain in force, undischarged, unsatisfied and
unstayed, for more than sixty (60) days, whether or not consecutive, any
judgment or order against any of the Borrowers or any of Ryder's
Consolidated Subsidiaries which, with other outstanding judgments or
orders against any such Person exceeds in the aggregate $50,000,000;
(j) if any judicial lien or attachment on the property of any
Borrower or any of Ryder's Consolidated Subsidiaries in an amount of
$50,000,000 or greater shall not be released or provided for to the
satisfaction of the Administrative Agent and the Majority Banks within
sixty (60) days after such lien or attachment shall have come into
existence;
(k) if, with respect to any Guaranteed Pension Plan, an ERISA
Reportable Event shall have occurred and the Majority Banks shall have
determined in their reasonable discretion that such event reasonably could
be expected to result in liability of any of the Borrowers or any of their
Subsidiaries to the PBGC or such Plan in an aggregate amount exceeding
$50,000,000 and such event in the
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circumstances occurring reasonably could constitute grounds for the
partial or complete termination of such Plan by the PBGC or for the
appointment by the appropriate United States District Court of a trustee
to administer such Plan; or a trustee shall have been appointed by the
appropriate United States District Court to administer such Plan; or the
PBGC authorities shall have instituted proceedings to terminate such Plan;
or
(l) if any person or group of persons (within the meaning of
Section 13 or 14 of the Securities Exchange Act of 1934, as amended) shall
have acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the Securities and Exchange Commission under said Act) of
fifty percent (50%) or more of the outstanding shares of common voting
stock of Ryder; or, during any period of twelve consecutive calendar
months, individuals who were directors of Ryder on the first day of such
period shall cease to constitute a majority of the board of directors of
Ryder (excluding any directors elected or nominated by such board);
then, and in any such event, so long as the same may be continuing, the
Administrative Agent may, and upon the written or telephonic (confirmed in
writing) requests of the Majority Banks, shall, by written notice to the
Borrowers, declare all amounts under this Agreement and the Notes and all L/C
Obligations to be forthwith due and payable, whereupon the same shall forthwith
mature and become immediately due and payable, together with accrued interest
thereon, without presentment, demand, protest or notice, all of which are hereby
waived by each of the Borrowers, provided that in the case of the occurrence of
any event specified in paragraphs (g) or (h) of this Section 13.1, all such
amounts outstanding hereunder and under the Notes shall become due and payable
forthwith without the requirement of any such notice or the action of any Person
and without presentment, demand, protest or other notice of any kind, all of
which are hereby expressly waived by each of the Borrowers. Upon written demand
by the Majority Banks after the occurrence of any Event of Default, and
automatically without the necessity of demand in the event of any Event of
Default specified in paragraphs (g) or (h) of this Section 13.1, Ryder shall
immediately provide to the Administrative Agent cash in an amount equal to the
aggregate L/C Obligations on all then outstanding Letters of Credit issued for
the account of Ryder or any of its domestic Subsidiaries to be held by the
Administrative Agent as Cash Collateral for such L/C Obligations.
SECTION 13.2. TERMINATION OF COMMITMENTS. If any Event of Default pursuant
to Sections 13.1(g) or 13.1(h) hereof shall occur, any unused portion of the
Total Commitment hereunder shall forthwith terminate and the Banks and the
Agents shall be relieved of all obligations to make Loans or to accept and
purchase Bankers' Acceptances hereunder and the Issuing Bank shall be relieved
of all further obligations to issue, extend or renew Letters of Credit; or if
any other Event of Default shall occur, the Majority Banks
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may by notice to the Borrowers terminate the unused portion of the Total
Commitment hereunder, and, upon such notice being given, such unused portion of
the Total Commitment hereunder shall terminate immediately and the Banks and the
Agents shall be relieved of all further obligations to make Loans or to accept
and purchase Bankers' Acceptances and the Issuing Bank shall be relieved of all
further obligations to issue, extend or renew Letters of Credit. No termination
of any portion of the Total Commitment hereunder shall relieve the Borrowers of
any of their existing Obligations to the Banks, the Issuing Bank or the Agents
hereunder or elsewhere.
SECTION 13.3. REMEDIES. In case any one or more of the Events of Default
shall have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Loans and other Obligations pursuant to Section
13.1, each Bank, upon notice to the other Banks, if owed any amount with respect
to the Loans, may proceed to protect and enforce its rights by suit in equity,
action at law or other appropriate proceeding, whether for the specific
performance of any covenant or agreement contained in this Agreement and the
other Loan Documents or any instrument pursuant to which the Obligations to such
Bank are evidenced, including, without limitation, as permitted by applicable
law the obtaining of the ex parte appointment of a receiver, and, if such amount
shall have become due, by declaration or otherwise, proceed to enforce the
payment thereof or any legal or equitable right of such Bank. No remedy herein
conferred upon any Bank, the Issuing Bank or the Agents or the holder of any
Note or purchaser of any Letter of Credit Participation is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other provision of law.
SECTION 13.4. JUDGMENT CURRENCY. If, for the purpose of obtaining judgment
in any court or obtaining an order enforcing a judgment, it becomes necessary to
convert any amount due under this Agreement in Dollars or in any other currency
(hereinafter in this Section 13.4 called the "first currency") into any other
currency (hereinafter in this Section 13.4 called the "second currency"), then
the conversion shall be made at the applicable Agent's spot rate of exchange for
buying the first currency with the second currency prevailing at the applicable
Agent's close of business on the Business Day next preceding the day on which
the judgment is given or (as the case may be) the order is made. Any payment
made to the Agents, the Issuing Bank or any Bank pursuant to this Agreement in
the second currency shall constitute a discharge of the obligations of the
applicable Borrowers to pay to the Agents, the Issuing Bank and the Banks any
amount originally due to the Agent, the Issuing Bank and the Banks in the first
currency under this Agreement only to the extent of the amount of the first
currency which the applicable
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Agent, the Issuing Bank and each of the applicable Banks is able, on the date of
the receipt by it of such payment in any second currency, to purchase, in
accordance with the applicable Agent's, the Issuing Bank's and such Lender's
normal banking procedures, with the amount of such second currency so received.
If the amount of the first currency falls short of the amount originally due to
the applicable Agent, the Issuing Bank and the applicable Lenders in the first
currency under this Agreement, each of the applicable Borrowers agrees that it
will indemnify the applicable Agent, the Issuing Bank and each of the applicable
Lenders against and save the applicable Agent, the Issuing Bank and each of the
applicable Lenders harmless from any shortfall so arising. This indemnity shall
constitute an obligation of each such Borrower separate and independent from the
other obligations contained in this Agreement, shall give rise to a separate and
independent cause of action and shall continue in full force and effect
notwithstanding any judgment or order for a liquidated sum or sums in respect of
amounts due to the applicable Agent, the Issuing Bank or any applicable Lender
under this Agreement or under any such judgment or order. Any such shortfall
shall be deemed to constitute a loss suffered by the applicable Agent, the
Issuing Bank and each such Lender, as the case may be, and the applicable
Borrowers shall not be entitled to require any proof or evidence of any actual
loss. The covenant contained in this Section 13.4 shall survive the payment in
full of all of the other obligations of the Borrowers under this Credit
Agreement.
SECTION 14. SETOFF. Regardless of the adequacy of any collateral, during
the continuance of any Event of Default, any deposits or other sums credited by
or due from any of the Banks or any affiliate of a Bank to any of the Borrowers
and any securities or other property of any of the Borrowers in the possession
of such Bank or such affiliate of a Bank may be applied to or set off by such
Bank against the payment of Obligations and, with respect to Ryder, Guaranteed
Obligations, and any and all other liabilities, direct, or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, of such
Borrower to such Bank, the other Banks, the Issuing Bank and the Agents. Any
amounts set off pursuant to this Section 14 shall be distributed ratably in
accordance with Section 28 among all of the Banks by the Bank setting off such
amount. If any Bank fails to share such setoff ratably, the Administrative
Agent, the Canadian Agent and/or the U.K. Agent, as applicable, shall have the
right to withhold such Bank's share of any Borrower's payments until each of the
Banks shall have, in the aggregate, received a pro rata repayment.
SECTION 15. EXPENSES. Whether or not the transactions contemplated herein
shall be consummated, the Borrowers hereby promise to reimburse the Agents for
all reasonable out-of-pocket fees and disbursements (including all reasonable
attorneys' fees) incurred or expended in connection with the preparation,
filing, recording, syndication and administration of this Agreement and the
other Loan Documents, or any amendment, modification, approval, consent or
waiver hereof or thereof. The Borrowers further promise to reimburse the Agents,
the Issuing Bank and the Banks for all reasonable out-of-pocket fees and
disbursements (including all reasonable legal fees) incurred or expended in
connection with the
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enforcement of any Obligations, or preservation of any rights or remedies under
this Agreement or any of the other Loan Documents (including all such costs and
expenses incurred during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law) or the satisfaction of any indebtedness of the Borrowers
hereunder or under any other Loan Document. The agreements in this Section 15
shall survive the termination of the Total Commitments and repayment of all
other Obligations.
SECTION 16. THE AGENTS.
SECTION 16.1. AUTHORIZATION.
(a) Each Agent is authorized to take such action on behalf of each
of the Banks and to exercise all such powers as are hereunder and under
any of the other Loan Documents and any related documents delegated to
such Agent, together with such powers as are reasonably incidental
thereto, provided that no duties or responsibilities not expressly assumed
herein or therein shall be implied to have been assumed by any Agent.
(b) The relationship between each Agent and each of the Banks is
that of an independent contractor. The use of the term "Agent" is for
convenience only and is used to describe, as a form of convention, the
independent contractual relationship between each Agent and each of the
Banks. Nothing contained in this Agreement nor the other Loan Documents
shall be construed to create an agency, trust or other fiduciary
relationship between any Agent and any of the Banks and no implied
covenants, functions, responsibilities duties, obligations or liabilities
shall be read into this Agreement or any other Loan Document or otherwise
exist against any Agent.
(c) As an independent contractor empowered by the Banks to
exercise certain rights and perform certain duties and responsibilities
hereunder and under the other Loan Documents, each Agent is nevertheless a
"representative" of the Banks, as that term is defined in Article 1 of the
Uniform Commercial Code, for purposes of actions for the benefit of the
Banks and such Agent with respect to all collateral security and
guaranties contemplated by the Loan Documents.
(d) The Issuing Bank shall act on behalf of the Domestic Banks
with respect to any Letters of Credit issued by it and the documents
associated therewith, and the Issuing Bank shall have all of the benefits
and immunities (i) provided to the Agents in this Section 16 with respect
to any acts taken or omissions suffered by the Issuing Bank in connection
with Letters of Credit issued by it or proposed to be issued by it and the
applications and agreements for letters of credit pertaining to such
Letters of Credit as fully as if the term "Agent" as
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used in this Section 16 included the Issuing Bank with respect to such
acts or omissions (and including any affiliates of the Issuing Bank and
the officers, directors, employees, agents and attorneys-in-fact of the
Issuing Bank and any affiliates), and (ii) as additionally provided herein
with respect to the Issuing Bank.
SECTION 16.2. EMPLOYEES AND AGENTS. Each Agent may exercise its powers and
execute its duties by or through employees or agents and shall be entitled to
take, and to rely on, advice of counsel concerning all matters pertaining to its
rights and duties under this Agreement and the other Loan Documents. Each Agent
may utilize the services of such Persons as such Agent in its sole discretion
may reasonably determine, and all reasonable fees and expenses of any such
Persons shall be paid by the Borrowers. No Agent shall be responsible for the
negligence or misconduct of any agent or attorney-in-fact that such Agent
selects in the absence of such Agent's gross negligence or willful misconduct.
SECTION 16.3. NO LIABILITY. None of the Agents nor any of their
shareholders, directors, officers or employees nor any other Person assisting
them in their duties nor any agent or employee thereof, shall be liable for any
waiver, consent or approval given or any action taken, or omitted to be taken,
in good faith by it or them hereunder or under any of the other Loan Documents,
or in connection herewith or therewith, or be responsible for the consequences
of any oversight or error of judgment whatsoever, except that the Agents or such
other Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence. Each Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex, electronic mail message, statement or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to any Borrower), independent
accountants and other experts selected by such Agent. Each Agent shall be fully
justified in failing or refusing to take any action under any Loan Document
unless it shall first receive such advice or concurrence of the Majority Banks
as it deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by the Banks against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such action.
Each Agent shall in all cases be fully protected in acting, or in refraining
from acting, under this Agreement or any other Loan Document in accordance with
a request or consent of the Majority Banks (or such greater number of Banks as
may be expressly required hereby in any instance) and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Banks.
SECTION 16.4. NO REPRESENTATIONS.
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SECTION 16.4.1. GENERAL. None of the Agents shall be responsible
for the execution or validity or enforceability of this Agreement, the
Notes, the Bankers' Acceptances, the Letters of Credit, any of the other
Loan Documents or any instrument at any time constituting, or intended to
constitute, collateral security for the Notes, or for the value of any
such collateral security or for the validity, enforceability or
collectability of any such amounts owing with respect to the Notes, or for
any recitals or statements, warranties or representations made herein or
in any of the other Loan Documents or in any certificate or instrument
hereafter furnished to it by or on behalf of any Borrower or any of their
Subsidiaries, or be bound to ascertain or inquire as to the performance or
observance of any of the terms, conditions, covenants or agreements herein
or in any instrument at any time constituting, or intended to constitute,
collateral security for the Notes or to inspect any of the properties,
books or records of any of the Borrowers or any of their Subsidiaries.
None of the Agents shall be bound to ascertain whether any notice,
consent, waiver or request delivered to it by a Borrower or any holder of
any of the Notes shall have been duly authorized or is true, accurate and
complete. None of the Agents have made nor does any Agent now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of any of the Borrowers or any of their Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the
Agents or any other Bank, and based upon such information and documents as
it has deemed appropriate, made its own credit analysis and decision to
enter into this Agreement. Except for notices, reports and other documents
expressly required to be furnished to the Banks by the Agents herein, the
Agents shall not have any duty or responsibility to provide any Bank with
any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
any of the Borrowers or any of their respective affiliates which may come
into the possession of any Agent or any of its affiliates and the
officers, directors, employees, agents and attorneys-in-fact of such
Agent.
SECTION 16.4.2. CLOSING DOCUMENTS, ETC. For purposes of determining
compliance with the conditions set forth in Section 11, each Bank that has
executed this Agreement shall be deemed to have consented to, approved or
accepted, or to be satisfied with, each document and matter either sent,
or made available by any of the Agents to such Bank for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
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approved by or acceptable or satisfactory to such Bank unless an officer
of the Administrative Agent acting upon the Borrowers' account shall have
received notice from such Bank prior to the Closing Date specifying such
Bank's objection thereto and such objection shall not be withdrawn by
notice to the Administrative Agent to such effect on or prior to the
Closing Date.
SECTION 16.5. PAYMENTS.
SECTION 16.5.1. PAYMENTS TO AGENTS. A payment by a Borrower to the
applicable Agent hereunder or any of the other Loan Documents for the
account of any Bank shall constitute a payment to such Bank. Subject to
Section 28, each Agent agrees promptly to distribute to each Bank such
Bank's pro rata share of payments received by such Agent for the account
of the Banks except as otherwise expressly provided herein or in any of
the other Loan Documents.
SECTION 16.5.2. DISTRIBUTION BY AGENTS. If in the opinion of any
Agent the distribution of any amount received by it in such capacity
hereunder, under the Notes or under any of the other Loan Documents might
involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge
that any amount received and distributed by such Agent is to be repaid,
each Person to whom any such distribution shall have been made shall
either repay to such Agent its proportionate share of the amount so
adjudged to be repaid or shall pay over the same in such manner and to
such Persons as shall be determined by such court.
SECTION 16.5.3. DELINQUENT BANKS. Notwithstanding anything to the
contrary contained in this Agreement or any of the other Loan Documents,
any Bank that fails (i) to make available to the applicable Agent its pro
rata share of any Loan or (with respect to the Canadian Banks) to purchase
and accept any Bankers' Acceptance or reimburse the Issuing Bank for the
amount of each draft paid under any Letter of Credit or (ii) to comply
with the provisions of Section 14 with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its pro rata
share of such payments due and payable to all of the Banks, in each case
as, when and to the full extent required by the provisions of this
Agreement, shall be deemed delinquent (a "Delinquent Bank") and shall be
deemed a Delinquent Bank until such time as such delinquency is
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satisfied. A Delinquent Bank shall be deemed to have assigned any and all
payments due to it from such Borrower, whether on account of outstanding
Loans, Bankers' Acceptances, L/C Borrowings, interest, fees or otherwise,
to the remaining nondelinquent Banks for application to, and reduction of,
their respective pro rata shares of all outstanding Loans, Bankers'
Acceptances and L/C Borrowings. Each Delinquent Bank hereby authorizes the
applicable Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding Loans
and L/C Borrowings. A Delinquent Bank shall be deemed to have satisfied in
full a delinquency when and if, as a result of application of the assigned
payments to all outstanding Loans and Bankers' Acceptances of the
nondelinquent Banks, the Banks' respective pro rata shares of all
outstanding Loans, Bankers' Acceptances and L/C Borrowings have returned
to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
SECTION 16.6. HOLDERS OF NOTES. Each Agent may deem and treat the payee of
any Note or the purchaser of any Letter of Credit Participation as the absolute
owner or purchaser thereof for all purposes hereof until it shall have been
furnished in writing with a different name by such payee or by a subsequent
holder, assignee or transferee.
SECTION 16.7. INDEMNITY. The Banks ratably agree hereby to indemnify and
hold harmless the Agents (including any affiliates of the Agents and the
officers, directors, employees, agents and attorneys-in-fact of the Agents) from
and against any and all claims, actions and suits (whether groundless or
otherwise), losses, damages, costs, expenses (including any expenses for which
any Agent has not been reimbursed by a Borrower as required by Section 15), and
liabilities of every nature and character arising out of or related to this
Agreement, the Notes, the Bankers' Acceptances, the Letters of Credit or any of
the other Loan Documents or the transactions contemplated or evidenced hereby or
thereby, or any Agent's actions taken hereunder or thereunder, except to the
extent any of the same shall be determined in a final, nonappealable judgment by
a court of competent jurisdiction to have resulted from such Agent's own gross
negligence or willful misconduct; provided that no action taken in accordance
with the Majority Banks shall be deemed to constitute gross negligence or
willful misconduct for the purposes of this Section 16. Without limitation of
the foregoing, each Bank shall reimburse the Agents upon demand for its ratable
share of any costs or out-of-pocket expenses (including attorney's fees and
disbursements) incurred by the Agents in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document,
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or any document contemplated by or referred to herein, to the extent that the
Agents are not reimbursed for such expenses by or on behalf of the Borrowers.
The undertaking in this Section 16 shall survive termination of the Total
Commitments, the payment of all other Obligations and the resignation of any
Agent.
SECTION 16.8. AGENTS AS BANK. Each Agent and its respective affiliates may
make loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with each of the Borrowers
and their respective affiliates as though such Agent were not the Agent or the
Issuing Bank (as the case may be) hereunder and without notice to or consent of
the Banks. In its individual capacity, each Agent shall have the same
obligations and the same rights, powers and privileges in respect to its
Commitment and the Loans made by it, and as the holder of any of the Notes, as
the purchaser of any participating interests in the applicable Borrower's
Letters of Credit and the Bankers' Acceptances (if any) issued by it as it would
have were it not also an Agent. The Banks acknowledge that, pursuant to such
activities, the Agent or their respective affiliates may receive information
regarding any Borrower or its affiliates (including information that may be
subject to confidentiality obligations in favor of such Borrower or such
affiliate) and acknowledge that no Agent shall be under any obligation to
provide such information to them. The Banks identified as a "Syndication Agent"
or "Co-Documentation Agent" herein shall have no duties or obligations
hereunder, other than those applicable to such Persons in their capacity as
Banks hereunder. The Persons identified as "Joint Lead Arrangers and Book
Managers" herein shall have no duties or obligations hereunder.
SECTION 16.9. RESIGNATION OF AGENTS. An Agent may resign at any time by
giving sixty (60) days' prior written notice thereof to the Banks, the Issuing
Bank and the Borrowers. Upon any such notice of resignation, the Banks (other
than the resigning Agent) shall have the right to appoint a successor Agent
(which shall be acceptable to Ryder) from among the Banks. If no successor to
such Agent shall have been so appointed by the Banks and shall have accepted
such appointment within thirty (30) days after the retiring Agent's giving of
notice of resignation, then the retiring Agent may, on behalf of the Banks,
appoint a successor Agent from among the remaining Banks, which shall be a
financial institution having a combined capital and surplus in excess of
$1,000,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Agreement shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
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SECTION 16.10. NOTIFICATION OF DEFAULTS AND EVENTS OF DEFAULT. Each Agent
shall not be deemed to have knowledge or notice of the occurrence of any Default
or Event of Default, except with respect to defaults in the payment of
principal, interest and fees required to be paid to the such Agent for the
account of the Banks and/or the Issuing Bank, unless such Agent shall have
received written notice from a Bank or any Borrowers referring to this
Agreement, describing such Default and stating that such notice is a "notice of
default." Each Bank and Issuing Bank hereby agrees that, upon learning of the
existence of a Default or an Event of Default, it shall promptly notify the
Administrative Agent thereof. The Administrative Agent hereby agrees that upon
receipt of any notice under this Section 16.10 it shall promptly notify the
other Banks, the Issuing Bank and Ryder of the existence of such Default or
Event of Default.
SECTION 16.11. AGENT MAY FILE PROOFS OF CLAIM. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
any Borrower, the Administrative Agent, or in the case of such a proceeding not
in the United States of America, the applicable local Agent (irrespective of
whether the principal of any Loan, Bankers' Acceptance or L/C Obligation shall
then be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether any Agent shall have made any demand on such Borrower)
shall be entitled and empowered (but shall not be required), by intervention in
such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, Bankers'
Acceptances, L/C Obligation and all other Obligations that are owing and
unpaid and to file such other documents as may be necessary or advisable
in order to have the claims of the Banks, the Issuing Bank and the Agents
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Banks, the Issuing Bank and the Agents
and their respective agents and counsel and all other amounts due the
Banks, the Issuing Bank and the Agents under Sections 2.2, 3.3, 4.6 and
15) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator
or other similar official in any such judicial proceeding is hereby authorized
by each Bank and the Issuing Bank to make such payments to the Agents and, in
the event that the Agents shall consent to the making of such payments directly
to the Banks and/or the Issuing Bank, to pay to the Agents any amount due for
the reasonable compensation, expenses, disbursements and advances of such Agent
and
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its agents and counsel, and any other amounts due to such Agent under Sections
2.2, 3.3, 4.6 and 15.
Nothing contained herein shall be deemed to authorize the Agents to
authorize or consent to or accept or adopt on behalf of any Bank or Issuing Bank
any plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Bank or Issuing Bank or to authorize the Agents
to vote in respect of the claim of any Bank or Issuing Bank in any such
proceeding.
SECTION 17. CONSENTS, AMENDMENTS, WAIVERS, ETC. Any action to be
taken (including the giving of notice) may be taken, any consent or approval
required or permitted by this Agreement or any other Loan Document to be given
by the Banks may be given, any term of this Agreement, any other Loan Document
or any other instrument, document or agreement related to this Agreement or the
other Loan Documents or mentioned therein may be amended, and the performance or
observance by the Borrowers or any other Person of any of the terms thereof and
any Default or Event of Default (as defined in any of the above-referenced
documents or instruments) may be waived (either generally or in a particular
instance and either retroactively or prospectively), only with the written
consent of the Majority Banks; provided, however, that no such consent or
amendment which affects the rights, duties or liabilities of any Agent or the
Issuing Bank shall be effective without the written consent of such Agent or the
Issuing Bank, as applicable. Notwithstanding the foregoing, no amendment, waiver
or consent shall do any of the following unless in writing and signed by each of
the Banks affected thereby (a) increase the principal amount of such Bank's
Commitment (or subject any Bank to any additional obligations); (b) reduce the
principal of or interest on the Loans or any Letter of Credit, L/C Obligations
or any Bankers' Acceptance (including, without limitation, interest on overdue
amounts) or any fees payable hereunder; (c) postpone any date fixed for any
payment in respect of principal or interest (including, without limitation,
interest on overdue amounts) on the Notes or any L/C Obligation, or any fee
hereunder; (d) change the definition of "Majority Banks" or the number of Banks
which shall be required for the Banks or any of them to take any action under
the Loan Documents; (e) amend this Section 17; (f) change the Commitment
Percentage of any Bank, except pursuant to Sections 2.4 or 21, or (g) release
any Borrower or Ryder in its capacity as guarantor from its obligations
hereunder or reduce any of the Guaranteed Obligations.
SECTION 18. INDEMNIFICATION. The Borrowers hereby agree to indemnify the
Agents, the Issuing Bank and the Banks and their shareholders, directors,
agents, officers, subsidiaries and affiliates (each, an "Indemnified Party") and
hold the Indemnified Parties harmless from and against any and all liabilities,
losses, damages, costs and expenses of any kind, including, without limitation,
the reasonable fees and disbursements of counsel, which may be incurred by any
Indemnified Party in connection with any litigation,
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proceeding or dispute, whether arising hereunder or otherwise, in any way
related to any Agent's, the Issuing Bank's and the Banks' relationship with the
Borrowers or any of their Subsidiaries under this Agreement or any actual or
proposed use of proceeds of Loans or the Bankers' Acceptances or the Letters of
Credit, other than as directly caused by the gross negligence or willful
misconduct of such Indemnified Party. The preceding sentence shall not apply to
matters covered by Section 15 hereof or to any litigation, proceeding or dispute
between the Borrowers or any of their Subsidiaries and the Agents, the Issuing
Bank or the Banks if the final judgment in such litigation, proceeding or
dispute is in favor of the Borrowers or any of their Subsidiaries. In any
investigation, proceeding or litigation, or the preparation therefor, the
Agents, the Issuing Bank and the Banks shall be entitled to select their own
counsel, which counsel shall be reasonably satisfactory to the Borrowers, with
such approval not to be unreasonably withheld or delayed. The Borrowers will
not, without the prior written consent of the Agents, the Issuing Bank and the
Banks, settle or compromise any such investigation, proceeding or litigation if
such settlement or compromise requires an admission of any Agent's, the Issuing
Bank's or any Banks' wrong-doing, and, unless the Agents, the Issuing Bank or
the Banks or any other Indemnified Party, as the case may be, shall have
notified the Borrowers that such Person is waiving its right to indemnification
by the Borrowers hereunder, neither the Agents, the Issuing Bank or the Banks
nor any other Indemnified Party will settle or compromise any such
investigation, proceeding or litigation without the prior written consent of the
Borrowers if the Borrowers are required to indemnify the Agents, the Issuing
Bank or the Banks or such other Indemnified Party therefor. No Indemnified Party
shall be liable for any damages arising from the use by others of any
information or other materials obtained through IntraLinks or other similar
information transmission systems in connection with this Agreement. The
agreements in this Section 18 shall survive the resignation of the Agents, the
replacement of any Bank, the termination of the Total Commitments and the
repayment, satisfaction or discharge of all the other Obligations.
SECTION 19. WITHHOLDING TAXES. The Borrowers hereby agree that:
(a) Any and all payments made by any of the Borrowers hereunder
and under the other Loan Documents shall be made free and clear of, and
without deduction for, any and all taxes, levies, fees, duties, imposts,
deductions, charges or withholdings of any nature whatsoever, in each such
case, imposed by reason of a change in the Code or other applicable law or
treaty after the Closing Date, excluding, in the case of the Agents, the
Issuing Bank or the Banks or any holder of the Notes, (i) taxes imposed
on, or measured by, its net income or profits, (ii) franchise taxes
imposed on it, (iii) taxes imposed by any jurisdiction as a direct
consequence of it, or any of its affiliates, having a present or former
connection with such jurisdiction, including, without limitation, being
organized, existing or
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qualified to do business, doing business or maintaining a permanent
establishment or office in such jurisdiction, (iv) taxes imposed by reason
of its failure to comply with any applicable certification,
identification, information, documentation or other reporting requirement,
or (v) any backup withholding (all such non-excluded taxes being
hereinafter referred to as "Indemnifiable Taxes"). In the event that any
withholding or deduction from any payment to be made by the Borrowers
hereunder is required in respect of any Indemnifiable Taxes pursuant to
any applicable law, or governmental rule or regulation, then the Borrowers
will (i) direct to the relevant taxing authority the full amount required
to be so withheld or deducted, (ii) forward to the applicable Agent for
delivery to the applicable Bank or the Issuing Bank an official receipt or
other documentation satisfactory to the applicable Agent and the
applicable Bank or the Issuing Bank evidencing such payment to such taxing
authority, and (iii) direct to the applicable Agent for the account of the
applicable Banks or the Issuing Bank such additional amount or amounts as
is necessary to ensure that the net amount actually received by each
relevant Bank will equal the full amount such Bank would have received had
no such withholding or deduction (including any Indemnifiable Taxes on
such additional amounts) been required. Moreover, if any Indemnifiable
Taxes are directly asserted against the applicable Agent, the Issuing Bank
or any Bank with respect to any payment received by the Agents, the
Issuing Bank or such Bank by reason of a Borrower's failure to properly
deduct and withhold such Indemnifiable Taxes from such payment, the
applicable Agent, the Issuing Bank or such Bank may pay such Indemnifiable
Taxes and such Borrower will promptly pay all such additional amounts
(including any penalties, interest or reasonable expenses) as are
necessary in order that the net amount received by such Person after the
payment of such Indemnifiable Taxes (including any Indemnifiable Taxes on
such additional amount) shall equal the amount such Person would have
received had not such Indemnifiable Taxes been asserted. Any such payment
shall be made promptly after the receipt by such Borrower from the
applicable Agent, the Issuing Bank or such Bank, as the case may be, of a
written statement setting forth in reasonable detail the amount of the
Indemnifiable Taxes and the basis of the claim. If the Borrowers shall pay
any taxes or make any payments with respect to any taxes which are not
Indemnifiable Taxes, then the applicable Agent, the Issuing Bank or the
Bank which has received any such payment or with respect to which any such
payment was made shall reimburse the applicable Borrower, within five (5)
Business Days of request by such Borrower, the amount so paid by such
Borrower, together with interest at the rate then applicable to Base Rate
Loans from the date such amounts were paid by such Borrower.
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(b) The Borrowers shall pay any present or future stamp or
documentary taxes or any other excise or any other similar levies which
arise from any payment made hereunder or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any other
Loan Document ("Other Taxes"), it being expressly understood that the term
"Other Taxes" does not include (without limitation) any taxes imposed on
or measured by any Bank's, the Issuing Bank's or Agent's assets, property,
net or gross income, franchise, receipts, gains or profits, any taxes
imposed as a result of any transfer by any Bank, the Issuing Bank or any
Agent of this Agreement, any Note or any interest in the foregoing, and
any taxes imposed on or with respect to a transferee (or subsequent
transferee) of an original Bank, the Issuing Bank or Agent to the extent
the amount of such taxes exceeds the amount of Other Taxes which would
have been imposed on or with respect to such original Bank, Issuing Bank
or Agent.
(c) The Borrowers hereby indemnify and hold harmless the Agents,
the Issuing Bank and each Bank for the full amount of Indemnifiable Taxes
or Other Taxes (including, without limitation, any Indemnifiable Taxes or
Other Taxes imposed on amounts payable under this Section 19) paid by the
Agents, the Issuing Bank or such Bank, as the case may be, and any
liability (including penalties, interest and reasonable expenses) arising
therefrom or with respect thereto, by reason of the Borrowers' failure to
properly deduct and withhold Indemnifiable Taxes pursuant to paragraph (a)
above or to properly pay Other Taxes pursuant to paragraph (b) above. Any
indemnification payment from the Borrowers under the preceding sentence
shall be made promptly after receipt by the Borrowers from the applicable
Agent, the Issuing Bank or Bank of a written statement setting forth in
reasonable detail the amount of such Indemnifiable Taxes or such Other
Taxes, as the case may be, and the basis of the claim.
(d) If the Borrowers pay any amount under this Section 19 to the
Agents, the Issuing Bank or any Bank and such payee knowingly receives a
refund of any taxes with respect to which such amount was paid, the
Agents, the Issuing Bank or such Bank, as the case may be, shall pay to
the Borrowers the amount of such refund promptly following the receipt
thereof by such payee.
(e) In the event any taxing authority notifies any of the
Borrowers that any of them has improperly failed to deduct or withhold any
taxes (other than Indemnifiable Taxes) from a payment made hereunder to
the Agents, the Issuing Bank or any Bank, the Borrowers shall timely and
fully pay such taxes to such taxing authority.
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(f) The Agents, the Issuing Bank or the Banks shall, upon the
request of the Borrowers, take reasonable measures to avoid or mitigate
the amount of Indemnifiable Taxes required to be deducted or withheld from
any payment made hereunder if such measures can be taken without the
imposition on such Person of any costs or expenses unless the Borrowers
have agreed to reimburse such Person therefor or result in such Person in
its reasonable judgment suffering any material legal or regulatory
disadvantage; provided that if after the date hereof, any change in
applicable law, regulation or treaty results in the imposition on the
Borrowers of a deduction or withholding obligation with respect to amount
payable to banks or bank holding companies, to the extent that any such
change in applicable law, regulation or treaty relates to amounts payable
hereunder and to the extent that such change results in banks or bank
holding companies receiving an undue benefit arising as a result of the
payment of such additional amount by the Borrowers, the Borrowers and the
Agents shall make a reasonable, good faith effort to negotiate a change in
the terms of this Agreement that would allocate the benefits and costs (if
any) of such deductions and withholdings among the affected parties in a
manner equitable to the Borrowers and the Banks (including the Issuing
Bank, if applicable).
(g) Without prejudice to the survival of any other agreement of
the parties hereunder, the agreements and obligations of the Borrowers
contained in this Section 19 shall survive the payment in full of the
Obligations.
SECTION 20. SURVIVAL OF COVENANTS, ETC. Unless otherwise stated herein,
all covenants, agreements, representations and warranties made herein, in the
other Loan Documents or in any documents or other papers delivered by or on
behalf of the Borrowers pursuant hereto shall be deemed to have been relied upon
by the Banks, the Issuing Bank and the Agents, notwithstanding any investigation
heretofore or hereafter made by them, and shall survive the making by the Banks
of the Loans and the acceptance and purchase of any Bankers' Acceptance and the
issuance, extension or renewal of any Letters of Credit, as herein contemplated,
and shall continue in full force and effect so long as any amount due under this
Agreement, any Obligation, any Bankers' Acceptance, any Letter of Credit or any
Note remains outstanding and unpaid or any Bank has any obligation to make any
Loans or the Canadian Banks have any obligation to purchase and accept Bankers'
Acceptances or the Issuing Bank has any obligation to issue, extend or renew any
Letter of Credit. All statements contained in any certificate or other paper
delivered by or on behalf of the Borrowers pursuant hereto shall constitute
representations and warranties by the Borrowers hereunder.
SECTION 21. ASSIGNMENT AND PARTICIPATION.
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SECTION 21.1. GENERAL CONDITIONS. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that no Borrower may
assign or otherwise transfer any of its rights or obligations hereunder without
the prior written consent of each Bank and no Bank may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of Section 21.2, (ii) by way of
participation in accordance with the provisions of Section 21.4, (iii) by way of
pledge or assignment of a security interest pursuant to Section 21.6, or (iv) to
an SPC in accordance with the provisions of Section 21.7 (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided by Section 21.4
and, to the extent expressly contemplated hereby, the Indemnified Parties) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
SECTION 21.2. CONDITIONS TO ASSIGNMENT BY BANKS. Except as provided
herein, each Bank may assign to one or more Eligible Assignees all or a portion
of its interests, rights and obligations under this Agreement, including, as
applicable, all or a portion of its Domestic Commitment Percentage, its Canadian
Commitment Percentage, its U.K. Commitment Percentage and/or its PR Commitment
Percentage, provided that (i) unless such assignment is to a Bank or an
affiliate of a Bank or an Approved Fund, each of the Administrative Agent and,
unless an Event of Default shall have occurred and be continuing, Ryder shall
have given its prior written consent to such assignment (such consent not to be
unreasonably withheld or delayed), (ii) except in the case of an assignment of
the entire remaining amount of the assigning Bank's Commitment and the Loans at
the time owing to it or in the case of an assignment to a Bank or an affiliate
of a Bank or an Approved Fund with respect to a Bank, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
subject to each such assignment, determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the Administrative
Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than $5,000,000 unless each of the
Administrative Agent and, so long as no Event of Default has occurred and is
continuing, Ryder otherwise consents (each such consent not to be unreasonably
withheld or delayed); (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Bank's rights and
obligations under this Agreement with respect to the Loans or the Commitment
assigned, except that this clause (iii) shall not apply to rights in respect of
Swing Line Loans; and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. Ryder shall not be deemed to have
unreasonably withheld its consent for the purposes of this section if it advises
the
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Administrative Agent and the applicable assignor Bank in good faith of the
business reasons why Ryder does not desire a business relationship with the
proposed assignee. Subject to acceptance and recording thereof by the
Administrative Agent pursuant to Section 21.3, from and after the effective date
specified in each Assignment and Assumption, the Eligible Assignee thereunder
shall be a party to this Agreement and, to the extent of the interest assigned
by such Assignment and Assumption, have the rights and obligations of a Bank
under this Agreement, and the assigning Bank thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 6.7, 6.8, 6.10, 15, 18 and 19 with
respect to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Borrower (at its expense) shall execute and
deliver a Note to the assignee Bank. In the case of any assignments by and
between any Bank and any affiliate of such Bank, such Persons shall use their
reasonable best efforts to coordinate the administration of this Agreement and
approvals of any amendment, modification or waiver of any provision of this
Agreement so as to minimize (to the extent reasonably possible) the
administrative burden on the Borrowers.
SECTION 21.3. REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the Administrative
Agent's Head Office a copy of each Assignment and Assumption delivered to it and
a register for the recordation of the names and addresses of the Banks, and the
Commitments of, and principal amounts of the Loans, Bankers' Acceptances and L/C
Obligations owing to, each Bank pursuant to the terms hereof from time to time
(the "Register"). The entries in the Register shall be conclusive absent
manifest error, and the Borrowers, the Agents and the Banks may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as a
Bank hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrowers at any
reasonable time and from time to time upon reasonable prior notice. In addition,
at any time that a request for a consent for a material or other substantive
change to the Loan Documents is pending, any Bank wishing to consult with other
Banks in connection therewith may request and receive from the Administrative
Agent a copy of the Register.
SECTION 21.4. PARTICIPATIONS. Any Bank may at any time, without the
consent of, or notice to, the Borrowers or the Administrative Agent, sell
participations to any Person (other than (x) a natural person, (y) the Borrowers
or any of the Borrower's affiliates or Subsidiaries or (z) General Electric
Capital Corporation or any affiliate of General Electric Capital Corporation)
(each, a "Participant") in all or a portion of such Bank's rights and/or
obligations under this Agreement (including all or a portion of its
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Commitment and/or the Loans (including such Bank's participations in L/C
Obligations and/or Swing Line Loans, if applicable) owing to it) and/or Bankers'
Acceptances; provided that (i) each such participation shall be in an amount of
not less than $5,000,000, (ii) such Bank's obligations under this Agreement
shall remain unchanged, (iii) such Bank shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iv) the
Borrowers, the Administrative Agent and the other Banks shall continue to deal
solely and directly with such Bank in connection with such Bank's rights and
obligations under this Agreement. Any agreement or instrument pursuant to which
a Bank sells such a participation shall provide that such Bank shall retain the
sole right to enforce this Agreement and to approve any amendment, modification
or waiver of any provision of this Agreement; provided that such agreement or
instrument may provide that such Bank will not, without the consent of the
Participant, agree to any amendment, waiver or other modification that would
reduce the principal of or the interest rate on any Loans, L/C Obligations or
Bankers' Acceptances, extend the term or increase the amount of the
Commitment(s) of such Bank as it relates to such participant, if applicable,
reduce the amount of any facility or utilization fees to which such participant
is entitled or extend any regularly scheduled payment date for principal or
interest. Subject to Section 21.5, the Borrower agrees that each Participant
shall be entitled to the benefits of Sections 6.7, 6.8, 6.10 and 19 to the same
extent as if it were a Bank and had acquired its interest by assignment pursuant
to Section 21.2; provided that no Participant shall be entitled to receive any
amounts greater than the amounts that the selling Bank would have been entitled
to receive had it not sold the participation. To the extent permitted by law, so
long as any Bank within 10 Business Days of selling any participation pursuant
to this Section 21.4 notifies Ryder in writing of such participation and the
Participant thereunder, each such identified Participant also shall be entitled
to the benefits of Section 14 as though it were a Bank, provided such
Participant agrees to be subject to Section 28 as though it were a Bank.
SECTION 21.5. PAYMENTS TO PARTICIPANTS. A Participant shall not be
entitled to receive any greater payment under Sections 6.7, 6.8, 6.10 and 19
than the applicable Bank would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with Ryder's prior written consent. A Participant that
would be a Non-U.S. Bank if it were a Bank shall not be entitled to the benefits
of Section 19 unless the Borrowers are notified of the participation sold to
such Participant and such Participant agrees, for the benefit of the Borrowers,
to comply with Section 6.2 as though it were a Bank.
SECTION 21.6. MISCELLANEOUS ASSIGNMENT PROVISIONS. Any Bank may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including under its Note, if any) to secure obligations of
such Bank to any of the twelve Federal Reserve Banks organized under Section 4
of the Federal Reserve Act, 12 U.S.C. Section 341; provided
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that no such pledge or assignment shall release such Bank from any of its
obligations hereunder or substitute any such pledgee or assignee for such Bank
as a party hereto.
SECTION 21.7. SPECIAL PURPOSES FUNDING VEHICLE. Notwithstanding anything
to the contrary contained herein, any Bank (a "Granting Bank") may grant to a
special purpose funding vehicle which is a wholly-owned subsidiary of such
Granting Bank or an affiliate of such Granting Bank identified as such in
writing from time to time by the Granting Bank to the Administrative Agent and
the Borrower (an "SPC") the option to provide all or any part of any Loan that
such Granting Bank would otherwise be obligated to make pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by any
SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or
otherwise fails to make all or any part of such Loan, the Granting Bank shall be
obligated to make such Loan pursuant to the terms hereof or, if it fails to do
so, to make such payment to the Administrative Agent as is required under
Section 6.15(a). Each party hereto hereby agrees that (i) neither the grant to
any SPC nor the exercise by any SPC of such option shall increase the costs or
expenses or otherwise increase or change the obligations of the Borrower under
this Agreement (including its obligations under Sections 6.7, 6.8 and 6.10),
(ii) no SPC shall be liable for any indemnity or similar payment obligation
under this Agreement for which a Bank would be liable, and (iii) the Granting
Bank shall for all purposes, including the approval of any amendment, waiver or
other modification of any provision of any Loan Document, remain the Bank of
record hereunder. The making of a Loan by an SPC hereunder shall utilize the
applicable Commitment of the Granting Bank to the same extent, and as if, such
Loan were made by such Granting Bank. In furtherance of the foregoing, each
party hereto hereby agrees (which agreement shall survive the termination of
this Agreement) that, prior to the date that is one year and one day after the
payment in full of all outstanding commercial paper or other senior debt of any
SPC, it will not institute against, or join any other Person in instituting
against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or
liquidation proceeding under the laws of the United States or any State thereof.
Notwithstanding anything to the contrary contained herein, any SPC may (i) with
notice to, but without prior consent of the Borrowers and the Administrative
Agent and without paying any processing fee therefor, assign all or any portion
of its right to receive payment with respect to any Loan to the Granting Bank
and (ii) disclose on a confidential basis any non-public information relating to
its funding of Loans to any rating agency, commercial paper dealer or provider
of any surety or guarantee or credit or liquidity enhancement to such SPC.
21.8. ACCEDING BANKS; INCREASE IN TOTAL COMMITMENT.
At the Borrowers' option, so long as no Default or Event of Default has
occurred and is then continuing, without the requirement of consent from
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any Bank except as provided below in connection with any increase in such Bank's
Commitment, the Total Commitment may be increased to an amount not to exceed One
Billion Dollars ($1,000,000,000) hereunder; provided, however, that (i) no
Bank's Commitment hereunder shall be increased without such Bank's prior written
consent to such increase, and (ii) one or more commercial banks, other financial
institutions or other Persons approved by the Agent (each such commercial bank,
other financial institution or other Person, an "Acceding Bank") may, at the
request of the Borrowers and with the written consent of the Administrative
Agent (such consent not to be unreasonably withheld), become party to this
Agreement by entering into an Instrument of Accession in substantially the form
of Exhibit H hereto (an "Instrument of Accession") with the Borrowers and the
Administrative Agent and assuming thereunder Commitments in an amount to be
agreed upon by the Borrowers, such Acceding Bank and the Agent, to make Loans,
accept and purchase Bankers' Acceptances and participate in the risk relating to
Letters of Credit, as the case may be, pursuant to the terms hereof, and the
Total Commitment (and, if applicable, the relevant Total Canadian Commitment,
Total U.K. Commitment and/or Total PR Commitment) shall thereupon be increased
by the amount of such Acceding Bank's Commitment or by the amount of the
increase in such Bank's Commitment, as the case may be.
On the effective date of any such increase in the Total Commitment,
Schedule 1 hereto shall be deemed to be and shall be amended to reflect (A) the
name and address of such Acceding Banks (if any), (B) the updated Commitments
and Commitment Percentages of the Banks and any such Acceding Banks, and (C) the
updated Total Commitment as increased by any Bank's or any Acceding Bank's
Commitments and all references to the Total Commitment (and, if applicable, the
Total Canadian Commitment, Total U.K. Commitment and/or Total PR Commitment)
shall be deemed references to the Total Commitment (and, if applicable, the
Total Canadian Commitment, Total U.K. Commitment and/or Total PR Commitment) as
increased by any Bank's or any Acceding Bank's Commitments pursuant to the terms
hereof.
Each Borrowers agrees to indemnify the applicable Banks and the applicable
Agent pursuant to the provisions of Section 6.10 for any costs or expenses
incurred as a consequence of the reallocation of any LIBOR Rate Loan to any
Acceding Bank or any Bank increasing its Commitments in accordance with this
Section 21.8. The Banks, including any Acceding Bank, shall promptly make such
adjustments among themselves, as instructed by the applicable Agent, in order to
insure that each Bank, including any Acceding Bank, has funded its applicable
Commitment Percentage (adjusted after giving effect to the transactions
increasing the Total Commitment pursuant to this Section 21.8) of the
outstanding amount of the Loans, Bankers' Acceptances and all L/C Borrowings.
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SECTION 21.9. RESIGNATION OF ISSUING BANK. Notwithstanding anything to the
contrary contained herein, if at any time the Issuing Bank assigns all of its
Commitments and Loans pursuant to Section 21.2, the Issuing Bank may, upon 45
days' notice to the Borrowers and the Banks, resign in its capacity as the
Issuing Bank. In the event of any such resignation as Issuing Bank, Ryder, with
the consent of the Administrative Agent, shall be entitled to appoint from among
the Domestic Banks a successor Issuing Bank hereunder; provided, however, that
no failure by Ryder to appoint any such successor shall affect the resignation
of the Issuing Bank. If the Issuing Bank resigns in such capacity, it shall
retain all the rights and obligations of the Issuing Bank hereunder with respect
to all Letters of Credit outstanding as of the effective date of its resignation
as Issuing Bank and all L/C Obligations with respect thereto (including the
right to require the Domestic Banks to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 4.3).
SECTION 22. PARTIES IN INTEREST. All the terms of this Agreement and the
other Loan Documents shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto and
thereto; provided, that the Borrowers shall not assign or transfer their rights
or obligations hereunder or thereunder without the prior written consent of each
of the Banks.
SECTION 23. NOTICES, ETC. Except as otherwise expressly provided in this
Agreement, all notices, demands and other communications made or required to be
given pursuant to this Agreement or the other Loan Documents shall be in writing
and shall be delivered in hand, mailed by registered or certified mail, postage
prepaid and return receipt requested, sent by overnight courier, or sent by
telecopier or (subject to the last paragraph of this Section 23) electronic mail
address and confirmed by overnight courier, addressed as follows:
(a) if to Ryder:
3600 N.W. 82nd Avenue
Miami, FL 33166
Telecopier No.305-500-3641
Attention: Treasurer - 2C
with a copy to:
3600 N.W. 82nd Avenue
Miami, FL 33166
Telecopier No. 305-500-3198
Attention: General Counsel - 5C
if to the U.K. Borrowers:
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Ryder House
16 Bath Road
Slough Berkshire
SL13SA England
Telecopier No. 011-44-175-373-5499
Attention: General Manager
if to the Canadian Borrowers:
4308 Village Center Court
Mississauga, Ontario
L4Z1SZ Canada
Telecopier No. 905-276-7486
Attention: General Manager
(b) if to the Administrative Agent or the Issuing Bank, at Fleet
National Bank, 100 Federal Street, Boston, MA 02110, Attention: Robert L.
Wallace, Transportation Division, telephone number: (617) 434-8174
telecopier number: (617) 434-1955; or
(c) if to the Canadian Agent, at Royal Bank of Canada, Global
Banking Agency, 12th Floor, South Tower, Royal Bank Plaza, 200 Bay Street,
Toronto, Ontario MSJ 2J5, Attention: Manager-Agency, telephone number:
(416) 974-0185, telecopier number: (416) 974-2407; or
(d) if to the U.K. Agent, at Royal Bank of Scotland PLC, 101 Park
Avenue, New York, New York 10178, Attention: Juanita Baird, telephone
number 212-401-1420, telecopier number 212-401-1494; or
(e) if to any Bank, at the address set forth next to such Bank's
name on Schedule 1 hereto;
or such other address for notice as shall have last been furnished in writing to
the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective on the Business Day on which actually received or,
if such day of receipt is not a Business Day, at the opening of business on the
following Business Day; provided that such receipt may be evidenced by a return
receipt, if sent by registered or certified mail, a signature of receipt if sent
by overnight courier or a telecopier transmission report, if sent by telecopier.
No notice shall be deemed to be given to a Borrower unless also given to Ryder.
Notices and other communications to the Agents, the Banks or the Issuing
Bank hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Administrative Agent, provided
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that the foregoing shall not apply to notices to any Agent, Bank or the Issuing
Bank pursuant to Sections 2, 3 or 4 if such Person has notified the
Administrative Agent that it is incapable of receiving notices under such
Sections by electronic communication or such Person requests that such notices
are delivered or furnished in hard copy form. Any Agent or any Borrower may, in
its discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it, provided
that approval of such procedures may be limited to particular notices or
communications.
SECTION 24. MISCELLANEOUS. The rights and remedies herein expressed are
cumulative and not exclusive of any other rights which the Banks, the Issuing
Bank, the Administrative Agent or the Agents would otherwise have. The captions
in this Agreement are for convenience of reference only and shall not define or
limit the provisions hereof. This Agreement and any amendment hereof may be
executed in several counterparts and by each party on a separate counterpart,
each of which when so executed and delivered shall be an original, but all of
which together shall constitute one instrument. In proving this Agreement it
shall not be necessary to produce or account for more than one such counterpart
signed by the party against whom enforcement is sought. To the extent permitted
by law, no course of dealing or delay or omission on the part of any of the
Banks or the Agents in exercising any right shall operate as a waiver thereof or
otherwise be prejudicial thereto. No notice to or demand upon the Borrowers
shall entitle the Borrowers to other or further notice or demand in similar or
other circumstances.
SECTION 25. WAIVER OF JURY TRIAL; ETC. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, EACH OF THE BORROWERS, THE BANKS, THE ISSUING BANK AND THE
AGENTS HEREBY WAIVES ITS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY ACTION OR
CLAIM ARISING OUT OF ANY DISPUTE IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR
ANY OF THE OTHER LOAN DOCUMENTS, ANY RIGHTS OR OBLIGATIONS HEREUNDER OR
THEREUNDER OR THE PERFORMANCE OF SUCH RIGHTS AND OBLIGATIONS. EXCEPT AS
PROHIBITED BY LAW, EACH OF THE BORROWERS HEREBY WAIVES ANY RIGHT ANY OF THEM MAY
HAVE TO CLAIM OR RECOVER IN ANY LITIGATION REFERRED TO IN THE PRECEDING SENTENCE
ANY EXEMPLARY OR PUNITIVE DAMAGES OR ANY DAMAGES OTHER THAN, OR IN ADDITION TO,
ACTUAL DAMAGES, SPECIAL DAMAGES, OR CONSEQUENTIAL DAMAGES. EACH OF THE BORROWERS
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY BANK, ISSUING
BANK OR AGENT HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH BANK, ISSUING
BANK OR AGENT WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVERS AND (B) ACKNOWLEDGES THAT THE AGENTS, THE ISSUING BANK AND THE
BANKS HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN
DOCUMENTS BECAUSE
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OF, AMONG OTHER THINGS, THE BORROWERS' WAIVERS AND CERTIFICATIONS CONTAINED
HEREIN.
SECTION 26. GOVERNING LAW. THIS AGREEMENT AND EACH OF THE OTHER LOAN
DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL FOR
ALL PURPOSES BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID
STATE (EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW (OTHER THAN
THE NEW YORK GENERAL OBLIGATIONS LAW Section 5-1401)).
SECTION 27. SEVERABILITY. The provisions of this Agreement are severable
and if any one clause or provision hereof shall be held invalid or unenforceable
in whole or in part in any jurisdiction, then such invalidity or
unenforceability shall affect only such clause or provision, or part thereof, in
such jurisdiction, and shall not in any manner affect such clause or provision
in any other jurisdiction, or any other clause or provision of this Agreement in
any jurisdiction.
SECTION 28. PARI PASSU TREATMENT.
(a) Notwithstanding anything to the contrary set forth herein,
each payment or prepayment of principal and interest received after the
occurrence of an Event of Default hereunder shall be distributed pari
passu among the Banks, in accordance with the aggregate outstanding
principal amount of the Obligations owing to each Bank divided by the
aggregate outstanding principal amount of all Obligations.
(b) Following the occurrence and during the continuance of any
Event of Default, each Bank agrees that if it shall, through the exercise
of a right of banker's lien, setoff or counterclaim against any Borrower
(pursuant to Section 14 or otherwise), including a secured claim under
Section 506 of the Bankruptcy Code or other security or interest arising
from or in lieu of, such secured claim, received by such Bank under any
applicable bankruptcy, insolvency or other similar law or otherwise,
obtain payment (voluntary or involuntary) in respect of the Notes, Loans,
Bankers' Acceptances, Letters of Credit, L/C Obligations and other
Obligations held by it as a result of which the unpaid principal portion
of the Notes and the Obligations held by it shall be proportionately less
than the unpaid principal portion of the Notes and Obligations held by any
other Bank, it shall be deemed to have simultaneously purchased from such
other Bank a participation in the Notes and Obligations held by such other
Bank, so that the aggregate unpaid principal amount of the Notes,
Obligations and participations in Notes and Obligations held by each Bank
shall be in the same proportion to the aggregate unpaid principal amount
of the Notes and Obligations then outstanding as the principal amount of
the Notes and other Obligations held by it
132
prior to such exercise of banker's lien, setoff or counterclaim was to the
principal amount of all Notes and other Obligations outstanding prior to
such exercise of banker's lien, setoff or counterclaim; provided, however,
that if any such purchase or purchases or adjustments shall be made
pursuant to this Section 28 and the payment giving rise thereto shall
thereafter be recovered, such purchase or purchases or adjustments shall
be rescinded to the extent of such recovery and the purchase price or
prices or adjustments restored without interest.
(c) Following the occurrence and during the continuance of any
Event of Default and unless and until the effectiveness of a transfer of
Commitments pursuant to Section 28(d), each Bank agrees that it shall be
deemed to have, automatically upon the occurrence of such Event of
Default, purchased from each other Bank a participation in the risk
associated with the Notes and Obligations held by such other Bank, so that
the aggregate principal amount of the Notes and Obligations held by each
Bank shall be equivalent to such Bank's Total Commitment Percentage. Upon
demand by the Administrative Agent, made at the request of the Majority
Banks, each Bank that has purchased such participation (a "Purchasing
Bank") shall pay the amount of such participation to the Administrative
Agent for the account of each Bank whose outstanding Loans and
participations in Bankers' Acceptances and L/C Obligations exceed their
Total Commitment Percentages. Any such participation may, at the option of
such Purchasing Bank, be paid in Dollars, Canadian Dollars, Sterling or
Euros (the "Funding Currency") (in an amount equal to the then applicable
Dollar Equivalent, Canadian Dollar Equivalent, Sterling Equivalent or Euro
Equivalent, as the case may be, amount of such participation) and such
payment shall be converted by the Administrative Agent at the Exchange
Rate into the currency of the Loan, Bankers' Acceptance or L/C Obligation
in which such participation is being purchased. The Borrowers agree to
indemnify each Purchasing Bank for any loss, cost or expense incurred by
such Purchasing Bank as a result of entering into any reasonable hedging
arrangements between the Funding Currency and the currency of the Loan,
Bankers' Acceptance or L/C Obligation in which such participation is being
purchased in connection with the funding of such participation or as a
result of any payment on account of such participation in a currency other
than that funded by the Purchasing Bank.
(d) Upon the written instruction of the Majority Banks, the Total
U.K. Commitment, Total Canadian Commitment and the Total PR Commitment
shall be immediately transferred by the Borrowers to the Total Domestic
Commitment; provided that (i) no such transfer of Commitments shall occur
until the date that is sixty (60) days after the date of the acceleration
of the Obligations pursuant to Section 13.1 and
133
(ii) prior to requesting any such transfer of Commitments, the Agents and
the Banks shall utilize their reasonable best efforts to avoid the
imposition of withholding tax liability on Ryder which would arise as a
result of any such transfer of Commitments (including, without limitation,
to the extent useful, the use of participations pursuant to Section 28(c)
and the use of fronting banks in the United Kingdom and Canada). Upon the
effectiveness of any such transfer the outstanding U.K. Loans, Canadian
Loans and PR Loans shall be repaid with advances made to Ryder under the
Domestic Commitments, advanced by the Banks in such manner that after
giving effect thereto, the percentage of the outstanding Loans, Bankers'
Acceptances and L/C Obligation of each Bank will equal such Bank's Total
Commitment Percentage of all outstanding Loans, Bankers' Acceptances and
L/C Obligations.
(e) Each Borrower expressly consents to the foregoing arrangements
and agrees that any Person holding such a participation in the Notes and
the Obligations deemed to have been so purchased may exercise any and all
rights of banker's lien, setoff or counterclaim with respect to any and
all moneys owing by such Borrower to such Person as fully as if such
Person had made a Loan directly to such Borrower in the amount of such
participation.
SECTION 29. CONFIDENTIAL INFORMATION.
(a) Each of the Agents, the Issuing Bank and each Bank agrees that
it will not, and it will use their best efforts to cause its agents,
employees, advisors or any other Persons retained or engaged by such Agent
or any such Bank, as the case may be (collectively, "Advisors"), not to,
issue or release for external publication any article or advertising or
publicity matter relating to the transactions contemplated by this
Agreement without the prior written consent of Ryder.
(b) Each of the Agents, the Issuing Bank and each Bank further
agrees that any and all information concerning the Borrowers or any of
their Subsidiaries, whether oral or written, including, without
limitation, all data, reports, interpretations, forecasts and records,
regardless of storage and transmission media or source, and all
information derived, directly or indirectly, therefrom, which such Person
or its Advisors obtains or to which such Person or its Advisors shall be
afforded access in connection with the transactions contemplated by this
Agreement or any of the other Loan Documents (collectively, the
"Confidential Information") shall be held and treated by such Person in
utmost and strictest confidence, and shall not, without the prior written
consent of Ryder (which consent may be given or withheld in Ryder's sole
discretion), be disclosed by such Person or any manner whatsoever, in
whole or in part, or used by
134
such Person, other than in accordance with this Section, and such Person
shall use its best efforts to cause its Advisors to hold and treat such
Confidential Information in utmost and strictest confidence and not to
disclose or use such Confidential Information other than in accordance
with this Section.
(c) Notwithstanding the foregoing, nothing herein shall prevent or
be construed to prevent any Agent, the Issuing Bank or any Bank from
disclosing any document, agreement or information (i) to any assignee or
participant (or prospective assignee or participant) of such Person,
provided that, such assignee or participant (or prospective assignee or
participant) agrees in writing to be bound by the provisions hereof or, at
the option of Ryder, to execute and deliver an appropriate confidentiality
agreement, (ii) upon the order of any governmental authority or
self-regulatory authority having or claiming to have jurisdiction and
authority to issue such order, (iii) upon the request or demand (if such
request or demand shall have the force of law) of, or in connection with
any investigation or audit by, any governmental authority or
self-regulatory authority, or by any governmental authority regulating the
business of banking, (iv) that is in the public domain other than through
violation hereof or through any other action by such Person or its
Advisors, (v) that is otherwise rightfully known to such Person other than
through disclosure by or on behalf of a Borrower or through violation
hereof or any other confidentiality agreement, (vi) in connection with the
exercise of any remedy hereunder, or (vii) to the affiliates, auditors or
attorneys of such Person, who agree to hold such information pursuant to
the terms of this Section. In the case of disclosure under clause (ii) or
(iii) of the preceding sentence of this Section, if permitted by such
governmental authority or self-regulatory authority, each Person, before
making any such disclosure, shall notify Ryder and use all reasonable
efforts to cause such disclosure to be treated confidentially by such
governmental authority.
SECTION 30. USA PATRIOT ACT NOTICE.
Each Bank, each Issuing Bank and each Agent (for itself and not on
behalf of any Bank or the Issuing Bank) hereby notifies each of the
Borrowers that pursuant to the requirements of the USA Patriot Act (Title
III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies the
Borrowers, which information includes the name and address of the
Borrowers and other information that will allow such Bank, the Issuing
Bank or such Agent, as applicable, to identify the Borrowers in accordance
with the Act.
135
SECTION 31. ACKNOWLEDGMENTS. Each of the Borrowers hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation, execution
and delivery of this Agreement and the other Loan Documents;
(b) neither any Agent nor the Issuing Bank nor any Bank has any
fiduciary relationship with or fiduciary duty to any Borrower arising out
of or in connection with this Agreement or any of the other Loan
Documents, and
the relationship between the Agents, the Issuing Bank and the Banks, on
the one hand, and the Borrowers, on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Banks (including the Issuing Bank) or among the Borrowers
and the Banks (including the Issuing Bank) or among the Borrowers and the
Agents.
IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of the date first set forth above.
RYDER SYSTEM, INC.
By:____________________________________________
Name: William J. Williams
Title: Senior Assistant Treasurer
RYDER TRUCK RENTAL CANADA LTD.
By:____________________________________________
Name: William J. Williams
Title: Assistant Treasurer
RYDER TRUCK RENTAL HOLDINGS CANADA LIMITED
By:____________________________________________
Name: William J. Williams
Title: Assistant Treasurer
RYDER PLC
By:____________________________________________
Name: William J. Williams
Title: Assistant Treasurer
[Signature Page to Ryder System, Inc. Credit Agreement]
RYDER SYSTEM HOLDINGS (U.K.) LIMITED
By:____________________________________________
Name: William J. Williams
Title: Assistant Treasurer
RYDER PUERTO RICO, INC.
By:____________________________________________
Name: William J. Williams
Title: Assistant Treasurer
[Signature Page to Ryder System, Inc. Credit Agreement]
FLEET NATIONAL BANK, individually,
as Administrative Agent and as
Issuing Bank
By:____________________________________________
Name: Robert L. Wallace
Title: Managing Director
[Signature Page to Ryder System, Inc. Credit Agreement]
BANK OF AMERICA,N.A.
By: ___________________________________________
Name:
Title:
[Signature Page to Ryder System, Inc. Credit Agreement]
CITICORP USA, INC., individually and as
Syndication Agent
By:____________________________________________
Title:_________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
ROYAL BANK OF CANADA
By:____________________________________________
Title__________________________________________
ROYAL BANK OF CANADA, as Canadian Agent
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
ROYAL BANK OF SCOTLAND PLC
By:____________________________________________
Title__________________________________________
ROYAL BANK OF SCOTLAND PLC, as
U.K. Agent and as Co-Documentation
Agent
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
BANK OF TOKYO - MITSUBISHI TRUST
COMPANY, individually and as Co-
Documentation Agent
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
MIZUHO CORPORATE BANK, LTD.,
individually and as Co-Documentation
Agent
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
MIZUHO CORPORATE BANK (CANADA)
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
WACHOVIA BANK, N.A., individually and
as Co-Documentation Agent
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCHES
By:____________________________________________
Title__________________________________________
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
DEUTSCHE BANK AG, NEW YORK
BRANCH
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
JPMORGAN CHASE BANK
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
KBC BANK N.V.
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
U.S. BANK
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]
BNP PARIBAS
By:____________________________________________
Title__________________________________________
[Signature Page to Ryder System, Inc. Credit Agreement]