<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 13, 1997
REGISTRATION NO. 333-20397
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
----------------
RYDER TRS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 7513 38-331-3542
(STATE OR OTHER (PRIMARY STANDARD (I.R.S. EMPLOYER
JURISDICTION OF INDUSTRIAL CLASSIFICATION IDENTIFICATION NO.)
INCORPORATION OR CODE NUMBER)
ORGANIZATION)
8669 NW 36TH STREET, MIAMI, FLORIDA 33166, (305) 500-4545
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
THE REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
GERALD R. RIORDAN
PRESIDENT AND CHIEF OPERATING OFFICER
RYDER TRS, INC.
8669 NW 36TH STREET
MIAMI, FLORIDA 33166
(305) 500-4545
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
WITH A COPY TO:
CORNELIUS T. FINNEGAN III, ESQ.
WILLKIE FARR & GALLAGHER
ONE CITICORP CENTER
153 EAST 53RD STREET
NEW YORK, NEW YORK 10022
(212) 821-8000
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED OFFER TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If any of the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [_]
----------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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- -------------------------------------------------------------------------------
<PAGE>
RYDER TRS, INC.
CROSS-REFERENCE SHEET
PURSUANT TO ITEM 501(B) OF REGULATION S-K
<TABLE>
<CAPTION>
FORM S-4 ITEM NUMBER LOCATION IN PROSPECTUS
-------------------- ----------------------
<S> <C>
1.Forepart of the Registration
Statement and Outside Front Forepart of the Registration Statement
Cover Page of Prospectus........ and Outside Front Cover Page of
Prospectus
2.Inside Front and Outside Back
Cover Pages of Prospectus....... Inside Front and Outside Back Cover
Pages of Prospectus
3.Risk Factors, Ratio of Earnings to
Fixed Charges and Other Risk Factors; Summary; Selected
Information..................... Historical and Pro Forma Financial
Information
4.Terms of the Transaction.......... Summary; Risk Factors; The Exchange
Offer; Description of Notes; Plan of
Distribution
5.Pro Forma Financial Information... Selected Historical and Pro Forma
Financial Information; Unaudited Pro
Forma Financial Information
6.Material Contracts with the
Company Being Acquired.......... Not Applicable
7.Additional Information Required
for Reoffering by Persons and Not Applicable
Parties Deemed to be
Underwriters....................
8.Interests of Named Experts and Legal Matters; Experts
Counsel.........................
9.Disclosure of Commission Position
on Indemnification for Not Applicable
Securities Act Liabilities......
10.Information with Respect to S-3 Not Applicable
Registrants.....................
11.Incorporation of Certain Not Applicable
Information by Reference........
12.Information with Respect to S-2 or Not Applicable
S-3 Registrants.................
13.Incorporation of Certain Not Applicable
Information by Reference........
14.Information with Respect to
Registrants Other than S-3 or S- Summary; Risk Factors; Capitalization;
2 Registrants................... Selected Historical and Pro Forma
Financial Information; Management's
Discussion and Analysis of Financial
Condition and Results of Operations;
Business; Financial Statements
15.Information with Respect to S-3 Not Applicable
Companies.......................
16.Information with Respect to S-2 or Not Applicable
S-3 Companies...................
17.Information with Respect to Not Applicable
Companies Other Than S-3 or S-2
Companies.......................
18.Information if Proxies, Consents
or Authorizations are to be Not Applicable
Solicited.......................
19.Information if Proxies, Consents
or Authorizations are not to be Summary; The Exchange Offer; Management;
Solicited or in an Exchange Ownership of Capital Stock; Description
Offer........................... of Notes
</TABLE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<C> <S>
3.1** Restated Certificate of Incorporation of the Company.
3.2** Restated and Amended By-Laws of the Company.
3.3** Amended and Restated Certificate of Incorporation of Leasco.
3.4** By-Laws of Leasco.
4.1** Indenture, dated as of November 25, 1996, between the Company and The
Bank of New York, as trustee, relating to $175,000,000 principal
amount of 10% Senior Subordinated Notes due 2006, including forms of
Senior Subordinated Notes.
4.2** Credit Agreement, dated as of October 17, 1996, among the Company, The
Chase Manhattan Bank and other lending institutions.
4.3** Security Agreement, dated October 17, 1996, among the Company, the
Guarantor Subsidiaries, and Citicorp, U.S.A., Inc.
4.4** Guarantee Agreement, dated as of October 17, 1996, among the Guarantor
Subsidiaries and Citicorp, U.S.A., Inc.
4.5** Pledge Agreement, dated as of October 17, 1996, among the Company,
certain of its Subsidiaries and Citicorp, U.S.A., Inc.
4.6** Indemnity, Subrogation and Contribution Agreement, dated as of October
17, 1996, among the Company, the Guarantor Subsidiaries and Citicorp,
U.S.A., Inc.
4.7** Exchange and Registration Rights Agreement, dated November 25, 1996,
between the Company and Chase Securities Inc.
5* Opinion of Willkie Farr & Gallagher.
10.1** Purchase Agreement, dated November 20, 1996, between the Company and
Chase Securities Inc., relating to the Senior Subordinated Notes.
10.2** Asset and Stock Purchase Agreement dated as of September 19, 1996
between Ryder Truck Rental, Inc. and the Company.
10.3+ Dealer Agreement dated October 17, 1996 between Ryder Truck Rental,
Inc. and the Company.
10.4+ Vehicle Maintenance Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.5+ Used Truck Sales Agreement dated as of October 17, 1996 between Ryder
Truck Rental, Inc. and the Company.
10.6+ Administrative Services Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.7+ MIS Support Agreement dated as of October 17, 1996 between Ryder Truck
Rental, Inc. and the Company.
10.8+ Sublease Agreement dated as of October 17, 1996 between Ryder System,
Inc. and the Company.
10.9+ Office License Agreements dated as of October 17, 1996 between Ryder
Truck Rental, Inc. and the Company.
10.10** Trademark License Agreement dated October 17, 1996 between Ryder
System, Inc. and the Company.
10.11** Patent License Agreement dated as of October 17, 1996 between Ryder
Truck Rental, Inc. and the Company.
10.12** Copyright License Agreement dated as of October 17, 1996 between Ryder
Truck Rental, Inc. and the Company.
10.13** Software License Agreement dated as of October 17, 1996 between Ryder
Truck Rental, Inc. and the Company.
10.14** Management and Consulting Agreement dated as of October 17, 1996
between the Company and Questor Management Company.
</TABLE>
II-1
<PAGE>
<TABLE>
<C> <S>
10.15 Letter Agreement dated October 15, 1996 between the Company and Jay
Alix & Associates, Inc.
10.16** Master Motor Vehicle Lease Agreement, dated as of October 17, 1996,
between the Company and Leasco.
10.17** Vehicle Title Nominee Agreement, dated as of October 17, 1996, between
Leasco and RTR.
12** Statement Regarding Computation of Ratio of Earnings to Fixed Charges.
21** Subsidiaries of the Company.
23.1** Consent of Coopers & Lybrand L.L.P.
23.2** Consent of KPMG Peat Marwick LLP.
23.3* Consent of Willkie Farr & Gallagher (included in its opinion to be
filed as Exhibit 5).
24.1** Powers of Attorney (included on signature pages to this Registration
Statement on Form S-4).
25.1** Statement on Form T-1 of Eligibility of Trustee.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Letter to Clients.
99.4* Form of Letter to Nominees.
</TABLE>
- --------
* To be filed by amendment.
** Previously filed.
+ Confidential treatment has been requested for portions of these agreements,
which portions have been omitted herefrom and filed separately with the
Commission.
(b) Financial Statement Schedules:
Schedules have been omitted because they are not applicable or not required
or the required information is included in the financial statements or notes
thereto.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has duly
caused this Amendment to the Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Miami, State of
Florida on the 13th day of March, 1997.
Ryder TRS, Inc.
/s/ Gerald R. Riordan
By: _________________________________
Gerald R. Riordan President
Pursuant to the requirements of the Securities Act of 1933, this Amendment
to the Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
SIGNATURE TITLE DATE
/s/ Jay Alix Chairman of the March 13, 1997
- ------------------------------------- Board and Chief
JAY ALIX Executive Officer
(principal
executive officer)
/s/ Lawrence J. Ramaekers Vice Chairman of the March 13, 1997
- ------------------------------------- Board of Directors
LAWRENCE J. RAMAEKERS
/s/ Gerald R. Riordan President and Chief March 13, 1997
- ------------------------------------- Operating Officer
GERALD R. RIORDAN and Director
II-3
<PAGE>
SIGNATURE TITLE DATE
/s/ Larry D. Thogmartin Vice President and March 13, 1997
- ------------------------------------- Controller
LARRY D. THOGMARTIN (principal
financial officer
and controller)
/s/ Christopher G. Mumford Director March 13, 1997
- -------------------------------------
CHRISTOPHER G. MUMFORD
/s/ Alfred A. Piergallini Director March 13, 1997
- -------------------------------------
ALFRED A. PIERGALLINI
/s/ Thomas R. Reusche Director March 13, 1997
- -------------------------------------
THOMAS R. REUSCHE
/s/ Edward L. Scarff Director March 13, 1997
- -------------------------------------
EDWARD L. SCARFF
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. NO.
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<C> <S> <C>
3.1** Restated Certificate of Incorporation of the Company.
3.2** Restated and Amended By-Laws of the Company.
3.3** Amended and Restated Certificate of Incorporation of Leasco.
3.4** By-Laws of Leasco.
4.1** Indenture, dated as of November 25, 1996, between the Company
and The Bank of New York, as trustee, relating to $175,000,000
principal amount of 10% Senior Subordinated Notes due 2006,
including forms of Senior Subordinated Notes.
4.2** Credit Agreement, dated as of October 17, 1996, among the
Company, The Chase Manhattan Bank and other lending
institutions.
4.3** Security Agreement, dated October 17, 1996, among the Company,
the Guarantor Subsidiaries, and Citicorp, U.S.A., Inc.
4.4** Guarantee Agreement, dated as of October 17, 1996, among the
Guarantor Subsidiaries and Citicorp, U.S.A., Inc.
4.5** Pledge Agreement, dated as of October 17, 1996, among the
Company, certain of its Subsidiaries and Citicorp, U.S.A.,
Inc.
4.6** Indemnity, Subrogation and Contribution Agreement, dated as of
October 17, 1996, among the Company, the Guarantor
Subsidiaries and Citicorp, U.S.A., Inc.
4.7** Exchange and Registration Rights Agreement, dated November 25,
1996, between the Company and Chase Securities Inc.
5* Opinion of Willkie Farr & Gallagher.
10.1** Purchase Agreement, dated November 20, 1996, between the
Company and Chase Securities Inc., relating to the Senior
Subordinated Notes.
10.2** Asset and Stock Purchase Agreement dated as of September 19,
1996 between Ryder Truck Rental, Inc. and the Company.
10.3+ Dealer Agreement dated October 17, 1996 between Ryder Truck
Rental, Inc. and the Company.
10.4+ Vehicle Maintenance Agreement dated as of October 17, 1996
between Ryder Truck Rental, Inc. and the Company.
10.5+ Used Truck Sales Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.6+ Administrative Services Agreement dated as of October 17, 1996
between Ryder Truck Rental, Inc. and the Company.
10.7+ MIS Support Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.8+ Sublease Agreement dated as of October 17, 1996 between Ryder
System, Inc. and the Company.
10.9+ Office License Agreements dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.10** Trademark License Agreement dated October 17, 1996 between
Ryder System, Inc. and the Company.
10.11** Patent License Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT PAGE
NO. NO.
------- ----
<C> <S> <C>
10.12** Copyright License Agreement dated as of October 17, 1996
between Ryder Truck Rental, Inc. and the Company.
10.13** Software License Agreement dated as of October 17, 1996 between
Ryder Truck Rental, Inc. and the Company.
10.14** Management and Consulting Agreement dated as of October 17,
1996 between the Company and Questor Management Company.
10.15 Letter Agreement dated October 15, 1996 between the Company and
Jay Alix & Associates, Inc.
10.16** Master Motor Vehicle Lease Agreement, dated as of October 17,
1996, between the Company and Leasco.
10.17** Vehicle Title Nominee Agreement, dated as of October 17, 1996,
between Leasco and RTR.
12** Statement Regarding Computation of Ratio of Earnings to Fixed
Charges.
21** Subsidiaries of the Company.
23.1** Consent of Coopers & Lybrand L.L.P.
23.2** Consent of KPMG Peat Marwick LLP.
23.3* Consent of Willkie Farr & Gallagher (included in its opinion to
be filed as Exhibit 5).
24.1** Powers of Attorney (included on signature pages to this
Registration Statement on Form S-4).
25.1** Statement on Form T-1 of Eligibility of Trustee.
99.1* Form of Letter of Transmittal.
99.2* Form of Notice of Guaranteed Delivery.
99.3* Form of Letter to Clients.
99.4* Form of Letter to Nominees.
</TABLE>
- --------
*To be filed by amendment.
**Previously filed.
+ Confidential treatment has been requested for portions of these
agreements, which portions have been omitted herefrom and filed separately
with the Commission.
<PAGE>
Exhibit 10.3
------------
DEALER AGREEMENT
This Dealer Agreement ("Agreement"), dated October 17, 1996, is between
RYDER TRS, INC. (f/k/a RCTR HOLDINGS, INC.), with its principal place of
business at 8669 N.W. 36th Street, Miami, Florida 33166 ("TRS") and RYDER TRUCK
RENTAL, INC., with its principal place of business at 3600 N.W. 82nd Avenue,
Miami, Florida 33166 ("Ryder").
RYDER AND TRS AGREE AS FOLLOWS:
TRS appoints Ryder as its commission agent for and in connection with the
rental of TRS vehicles and accessory equipment ("Rental Equipment") from the
Ryder operating locations listed on Schedule "A" (collectively, "Ryder
Locations", and singularly, "Ryder Location") only and Ryder accepts this
appointment.
All money paid by renters to Ryder in connection with these rentals will be
remitted weekly to TRS at the corresponding address listed on Schedule "A". TRS
will remit its check to Ryder monthly for commissions earned by Ryder for
rentals reported to TRS during the preceding month. Such check will be sent to
Ryder's Shared Services Center at Attn.: Group Director - Ryder Shared Services
Center, 6000 Windward Parkway, Alpharetta, Georgia and will be mailed by TRS in
sufficient time so that Ryder should receive it by the 15th of the month. With
such check, TRS will send Ryder a break down by Ryder Location of the commission
attributable to each such Ryder Location. Commissions earned by Ryder will be
computed on gross rental revenues collected by Ryder in accordance with the
Dealer Manual. Gross rental revenues include all revenue from renters, but do
not include money paid by renters designated as sales, use or other tax or
surcharge, deposits, or collection or credit fees.
Ryder's basic commission on Rental Equipment will be 13.50 percent of gross
rental revenues unless the Dealer Manual provides for a higher percentage with
respect to incidental items (e.g. towing equipment hook ups and un-hooking) or a
higher percentage otherwise applies with respect to such items (e.g. extra
commission incentive programs on certain protection products at certain times).
Additionally, TRS agrees to pay Ryder each month a bonus commission of 3.00
percent on all gross rental revenues from each Ryder Location that has strictly
complied with all written programs, procedures, and standards established by TRS
from time to time in accordance with paragraph 2.A. of this Agreement. TRS
reserves the right to pay bonus commission to Ryder in the absence of such
strict compliance. Any payment of the bonus commission will not be an
acknowledgment by TRS that Ryder has strictly complied, and will not be deemed
to be a waiver by TRS of its right to demand strict compliance.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Further, withholding of the bonus commission from Ryder will not be TRS's only
remedy for noncompliance. Starting 12/31/98: (a) Ryder's commission rate will be
adjusted to match the standard commission rate given to all TRS dealers at such
time under TRS's standard dealer agreement, and (b) TRS may deduct, from Ryder's
total commission each month thereafter, a monthly user fee for FIRST at each
Ryder Location, if any. Such FIRST fees will not exceed the same standard FIRST
fees charged to other TRS dealers at such time.
1. TRS AGREES:
A. To make available within the respective Ryder Location's local market
team, Rental Equipment, supplies, forms and instructions reasonably deemed
necessary by TRS to operate a TRS dealership on each Ryder Location. TRS
reserves the right to reasonably determine the amount, type and kind of Rental
Equipment, and supplies required by Ryder under this Agreement. Title to all
Rental Equipment and supplies will remain exclusively with TRS.
B. To pay Ryder the commissions provided for in this Agreement.
C. To assume responsibility for theft, loss, or damage to Rental
Equipment while in Ryder's custody, except however, that Ryder will be
responsible to, and reimburse TRS for theft, loss, or damage to Rental Equipment
caused by (1) the wanton, willful, reckless or intentional acts, or omissions of
Ryder, its agents, or employees, or (2) actions of Ryder, its agents, or
employees which are outside the scope of the limited agency relationship
established by this Agreement.
D. To defend, indemnify and hold Ryder, its affiliates, directors,
officers, employees, agents, subcontractors and the assigns of each harmless
from any and all claims, costs, expenses (including reasonable attorney fees)
and liability for property damage or personal injury to third parties occasioned
by (1) the negligence of TRS, (2) defects in Rental Equipment provided it is
being rented pursuant to a duly executed TRS Rental Agreement, and when a tow
dolly or car carrier is rented as part of the Rental Equipment, that an
appropriate Tow Dolly or Car Carrier Guide and Instructions has also been
furnished to the renter, and (3) the rental of Rental Equipment under this
Agreement, including the negligence of Ryder, provided Ryder was acting
according to TRS programs, procedures and standards and in furtherance of TRS's
business, and provided further that Ryder's acts or omissions are not wanton,
willful, reckless or intentional.
Types of Insurance Provided. During the Term, TRS will maintain the types
---------------------------
of insurance, in the coverage limits, listed
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-2-
<PAGE>
in the insurance policy schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
<TABLE>
<CAPTION>
Type of Insurance Policy Coverage Limits -
<S> <C>
Standard Automobile Twenty-Five Million and no/100 Dollars
Liability Insurance ($25,000,000.00) Per Occurrence with an excess
Policy (the "Automobile layer of at least Fifty Million and no/100 Dollars
Liability Insurance ($50,000,000.00) aggregate
Policy")
Commercial General Seventy-Five Million and no/100 Dollars
Liability Insurance ($75,000,000.00)
Policy with Broad Form
Contractual Liability
Insurance Coverage (the
"CGL Insurance Policy"
Workers Compensation Statutory
Employer's Liability Five Million and no/100 Dollars ($5,000,000.00)
</TABLE>
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Agreement.
TRS may self insure up to One Million Dollars ($1,000,000) as a deductible.
Insurance Policy Requirements.
-----------------------------
1. Each liability Insurance Policy shall:
(1) be written by an insurance company reasonably acceptable to Ryder
(it being understood that an insurance company rated A- or better
by A.M. Best & Company is acceptable);
(2) name TRS as an insured, and be amended to name Ryder, its
employees, officers, directors, contractors, agents and affiliates
(each an "Additional Insured") as additional insureds as their
interests may appear;
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-3-
<PAGE>
(3) provide that if such insurance is cancelled, or any material
change is made in the coverage which affects the interest of any
Additional Insured, such cancellation or change shall not be
effective as to the Additional Insured for ten (10) days after
receipt by the Additional Insured of written notice from such
insurers of such cancellation or change;
(4) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any
Additional Insured;
(5) provide that in respect of the interests of any Additional Insured
in such policies, the insurance shall not be invalidated by any
action or inaction of TRS or any other Person and shall insure
each Additional Insured regardless of any breach or violation of
any warranty, declaration or condition contained in such policies
by TRS or any other Person;
(6) shall expressly provide that all of the provisions thereof, except
the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(7) in accordance with the terms and conditions of the contractual
liability coverage provided by such Insurance Policy, insure the
obligations of TRS to indemnify the Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of automobile liability
insurance and general liability insurance shall each be on an occurrence form.
The first Twenty-Five Million Dollars of automobile liability insurance shall
not be subject to any annual aggregate limit of liability.
Each liability Insurance Policy and any all-risks Insurance Policy of TRS
which covers vehicles shall waive any rights of subrogation against the
Additional Insureds.
Proof of Insurance. At least once a year, from time to time at Ryder's
------------------
request, and any time a new policy is to go into effect, TRS shall provide Ryder
with insurance certificates and other evidence, reasonably satisfactory to
Ryder, that the benefits and coverage required by this Section are in full force
and effect. The certificate shall describe the perils covered by each policy of
insurance then in force, identify the insurer or insurers with which such
policies of insurance are carried and maintained, specify the amounts of
insurance coverage provided
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-4-
<PAGE>
against each such peril, and describe the provisions contained in such policies
of insurance so as to evidence compliance with the requirements of this Section.
Ryder shall have no duty to examine such insurance certificates or the Insurance
Policies to verify compliance. TRS shall provide a copy of its insurance
policies to Ryder promptly following a request therefor, if available.
E. To give Ryder the nonexclusive restricted license to use TRS's
registered service marks on signs and rental materials provided by TRS, but only
in the manner authorized by TRS. Ryder will not use any of TRS's registered
service marks in Ryder's business name or in any published manner, including,
but not limited to, telephone listings and advertisements, without TRS's prior
written consent in each such instance, which consent may be withheld in TRS's
discretion. This paragraph shall not in any way apply to any trademarks/service
marks licensed by Ryder to TRS under the trademark license agreement between
Ryder and TRS dated the same date as this Agreement ("Trademark License
Agreement").
F. That it will not enforce against Ryder any provision of this Agreement
which is substantially the same as any provision of TRS's standard dealer
agreement as it exists on the date of this Agreement (including any program,
procedure and/or standard hereunder) to an extent greater than against its other
dealers generally or in a manner not applied against its other dealers
generally; provided that the foregoing limitation shall not apply to the timing
of any payment due from Ryder hereunder.
2. RYDER AGREES:
A. To comply with all programs, procedures, and standards, including, but
not limited to, Dealer Marketing and Operations Manual ("Dealer Manual")
procedures, Dealer Recognition program standards (e.g., TRS President's Cup),
and moving supplies standards in effect as of the date of this Agreement unless
this Agreement expressly provides for a different standard. TRS may, in its
discretion, add, delete, and change programs, procedures, and standards from
time to time, provided (1) TRS gives Ryder at least 30 days prior notice of any
such additions, deletions and/or changes, and (2) such additions, deletions
and/or changes do not conflict with any other provision of this Agreement and do
not adversely affect Ryder Locations generally more than other TRS dealer
locations generally. Notwithstanding the foregoing, if TRS adds, deletes and/or
changes in any material way any of the attached programs, procedures and/or
standards during the term of this Agreement and seeks to apply such additions,
deletions and/or changes against Ryder Locations hereunder, Ryder will have the
right (notwithstanding anything to the contrary in this Agreement) to terminate
this Agreement as to one or more or all Ryder Locations adversely affected by
such addition, deletion
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-5-
<PAGE>
and/or change by giving TRS 60 days notice, and Ryder will not be required to
comply with such program, procedure or standard during such termination notice
period at any Ryder Location that terminates because of such addition, deletion
and/or change to any program, procedure or standard.
B. To promote the rental of Rental Equipment (subject however to the
terms of Section 6 of the Asset Purchase Agreement between TRS and Ryder as of
September 19, 1996 ("Asset Purchase Agreement") and paragraph 2.J. of this
Agreement) and to keep both the interior and exterior of all Rental Equipment
neat and clean to the extent required generally of TRS dealers under the Dealer
Manual, but in no event will Ryder be required to wash Rental Equipment under
this Agreement.
C. To have the TRS Rental Agreement completely and properly filled out
and signed by the renter and Ryder, and to collect the prescribed fees prior to
dispatching the Rental Equipment to the extent required generally of TRS dealers
under the Dealer Manual.
D. To pick up Rental Equipment within the respective Ryder Location's
local market team to meet Ryder's rental needs for TRS Rental Equipment at such
Ryder Location at Ryder's sole cost, except that TRS will reimburse Ryder for
the cost of fuel. Notwithstanding the foregoing, TRS acknowledges and agrees
that (1) Ryder will not be obligated to pick up any TRS Rental Equipment unless
Ryder does not have a sufficient quantity of its own rental equipment to rent
under paragraph 2.J. to a TRS rental reservation and (2) that Ryder may not be
able to pick up Rental Equipment at certain locations and at certain times. If
a Ryder Location does not pick up Rental Equipment when required to do so under
this Agreement, TRS may deliver such Rental Equipment to the Ryder Location and
charge Ryder a fee for such service (which fee will not exceed TRS's standard
fee for such service to other dealers) or TRS may move the rental from Ryder to
another dealer in the local market team to effect the rental.
E. To perform repair work on Rental Equipment designated as Minor
Maintenance in the Dealer Manual in accordance with the provisions of the
Maintenance Agreement between TRS and Ryder dated the same date as this
Agreement.
F. To instruct each renter in the safe and proper use and operation of
the Rental Equipment and to furnish renter with copies of all appropriate
instructional materials in accordance with the procedures set forth in the
Dealer Manual.
G. [IF FIS IS SELECTED] To, consistent with practice on the date of this
--------------------
Agreement and in lieu of the Weekly Report requirements set forth in the Dealer
Manual, periodically transmit a Weekly Report(s) to TRS in the same manner and
form as
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-6-
<PAGE>
currently transmitted, of Ryder's rental transactions including a current Rental
Equipment inventory list at each Ryder Location.
OR
--
[IF FIRST IS SELECTED] To mail to TRS at the corresponding address listed
----------------------
on Schedule "A", postmarked no later than Tuesday of every week, a complete,
accurate, and honest report of Ryder's rental transactions by Ryder Location for
the preceding seven days including a current Rental Equipment inventory list at
each Ryder Location irrespective of whether or not any rental transactions have
occurred. This report of rental transactions is the Weekly Report, the format
and preparation of which are detailed in the Dealer Manual. Rental Equipment
not on the Ryder Location when the Weekly Report is mailed to TRS, but which is
to be returned to the Ryder upon the termination of a rental, will be considered
as a part of current inventory. TRS Rental Agreements covering such Rental
Equipment and prepaid fees thereon must be remitted weekly and accounted for in
the Weekly Report during the duration of such rentals even though the Rental
Equipment has not been returned to Ryder.
Ryder will collect sales, use, and other tax, or surcharge applicable to
rentals from the renter and report and remit these monies to TRS as a part of
its Weekly Report(s). With its Weekly Report(s), Ryder will include its check
or money order for all monies collected from renters during said seven days.
H. That all money collected by Ryder in connection with TRS Rental
Equipment under this Agreement is collected in Ryder's capacity as TRS's agent.
The title and ownership of such money is vested at all times in TRS and the
relationship between the parties with respect to such money is one of trust.
I. That authorized TRS representatives may, during normal business hours
and with reasonable advance notice, enter Ryder Locations to audit, inspect, or
copy TRS specific accounting records required to be maintained by Ryder under
the Dealer Manual; and/or to remove Rental Equipment and all other TRS property.
Ryder agrees to retain all TRS specific business records generated by it as a
dealer for at least three years. [IF FIS IS SELECTED - Ryder will store all
completed rental contracts from the location. /[IF FIRST IS SELECTED - TRS will
store all completed rental contracts from the location]
J. That, except as may be restricted in Section 6 of the Asset Purchase
Agreement, Ryder may, at its option, rent or sell or permit any person or,
business entity to rent, provide, or sell any trailer or truck rental equipment
of any kind, including accessory equipment or supplemental programs offered by
TRS such as TRS Protection Plus Plans on or about Ryder Locations. Except as
may be restricted by Section 6 of the Asset Purchase
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-7-
<PAGE>
Agreement, Ryder reserves the right to rent Ryder's own vehicles and accessories
and offer Ryder's own supplemental programs to customers first (including,
without limitation, when the rental reservation/customer comes from TRS), before
renting TRS's Rental Equipment and/or offering TRS's supplemental programs.
However, Ryder will not offer Ryder's protection products to a renter in TRS
Rental Equipment, nor offer TRS's protection products to a renter in a Ryder
vehicle.
K. That Ryder will pay the monthly cost of and charges on the TRS
telephone and telephone line/number which TRS will place at each Ryder Location
(excluding any long distance charges for calls to other TRS locations and any
charges for the telephone book listing therefor, which charges will be credited
to Ryder on each monthly commission payment statement from TRS). TRS will pay
any initial acquisition and installation costs for any TRS telephone and
telephone line/number. Any such telephone and telephone line/number will be the
exclusive property of TRS and be in the name of TRS. Ryder will acquire no
rights or interests in any TRS telephone and telephone line/number and will
comply with all programs, procedures, and standards established by TRS from time
to time in connection with any TRS telephone and telephone line/number in
accordance with paragraph 2.A. of this Agreement. Ryder will cooperate with TRS
in transferring the telephone and telephone line/number at a Ryder Location upon
termination of this Agreement at that Ryder Location.- Ryder acknowledges and
agrees that TRS may, from time to time, anonymously audit Ryder's compliance
with any such programs, procedures, and standards by monitoring telephone calls
to Ryder, its agents or employees.
L. To provide TRS with at least 30 days notice of Ryder's intent to
relocate from a Ryder Location. This Agreement is not a franchise or
distributorship, and Ryder waives the benefit of any franchise, distributorship,
dealership, business opportunity or sales representative law that may be
applicable to this Agreement to the extent such laws are inconsistent with the
terms of this Agreement. Ryder does not have the exclusive right to rent Rental
Equipment in any particular geographic area. TRS may, at any time, including,
but not limited to, during the term of this Agreement, establish one or more of
its own locations or other TRS locations near any Ryder Location, or within or
around the area where the Ryder Location is situated or that the Ryder Location
serves, upon such terms and conditions as TRS deems acceptable.
M. To defend, indemnify, and hold TRS, its affiliates, directors,
officers, employees, agents, subcontractors and the assigns of each harmless
from and against any and all claims, costs, expenses (including reasonable
attorney fees) and liability for personal injury to third parties occasioned by
any unsafe or dangerous condition on any Ryder Location.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-8-
<PAGE>
N. That upon termination of this Agreement, Ryder will immediately cease
using any TRS registered service marks and will surrender all TRS Rental
Equipment, signs, telephones, equipment, and materials to TRS. This paragraph
shall not in any way apply to any trademarks/service marks licensed by Ryder to
TRS under the Trademark License Agreement.
O. To account for and be responsible to TRS as more fully detailed in the
Dealer Manual for (1) all odometer mileage accumulated on Rental Equipment while
in Ryder's possession, (2) all rental agreement books, and each agreement
therein, issued to Ryder, (3) all unaccounted for fuel, and (4) accessory items
such as hand trucks, furniture pads, dollies, and tow dollies and car carriers.
P. To maintain during the term of this Agreement a policy of garage or
general business liability insurance with limits of not less than $100,000
combined single limits per occurrence, which policy will only cover Ryder's
liability to TRS under paragraph 2.M. of this Agreement.
Q. TRS and Ryder will mutually agree whether to use FIS or FIRST at each
Ryder Location.
[IF FIS IS SELECTED] That Ryder may rent TRS's Rental Equipment using
--------------------
Ryder's computer automation rental system at Ryder Locations ("FIS"). TRS
acknowledges and agrees that: (1) FIS is exclusively Ryder's property and TRS
has no, and will acquire no, rights or interests in FIS under this Agreement,
(2) NEITHER RYDER NOR ANY OF ITS VENDORS MAKES ANY WARRANTY, WHETHER EXPRESS OR
IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY
PARTICULAR PURPOSE), WHATSOEVER IN CONNECTION WITH FIS OR ITS USE, AND (3)
NEITHER RYDER NOR ANY OF ITS VENDORS WILL BE RESPONSIBLE FOR ANY DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, ARISING OUT OF, OR RELATED TO, FIS OR ITS USE.
OR
--
[IF FIRST IS SELECTED] That TRS will place at each Ryder Location a
----------------------
computer automation system, including, but not limited to, any computer
hardware, software, telephone lines, and materials (collectively "FIRST").
Except as may be set forth otherwise in the Asset Purchase Agreement or any
agreement entered into in connection with the Asset Purchase Agreement, Ryder
acknowledges and agrees that: (1) FIRST is exclusively TRS's property and Ryder
has no rights or interests in FIRST, other than the right to use FIRST in
accordance with this Agreement, (2) FIRST contains copyright protected,
proprietary, and confidential information, and Ryder will only use such
information in an authorized manner and will not permit any such information or
any other aspect of FIRST to be disclosed to, or
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-9-
<PAGE>
used by or for the benefit of, any unauthorized party in any manner, (3) Ryder
will make no modifications to FIRST, and will not disassemble, reverse engineer,
tamper with, bypass, or otherwise alter any aspect of FIRST, (4) FIRST will only
be used by Ryder, at Ryder Locations and on the computer hardware provided by
TRS, and Ryder will not transfer FIRST to another computer or party, (5) Ryder
will comply with all programs, procedures, and standards established by TRS from
time to time in connection with FIRST in accordance with paragraph 2.A. of this
Agreement,(6) Ryder will be responsible for any electricity necessary to operate
FIRST, (7) Ryder will treat FIRST with care and will place it in a safe and
suitable place at each Ryder Location, (8) TRS will assume responsibility for
theft, loss, or damage to FIRST, except however, Ryder will be responsible to
and reimburse TRS for theft, loss or damage to FIRST caused by (a) the negligent
or intentional acts or omissions of Ryder, its agents, or employees, or (b)
actions of Ryder, its agents, or employees which are in violation of this
Agreement, (9) NEITHER TRS NOR ANY OF ITS VENDORS MAKE ANY WARRANTY, WHETHER
EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR ANY PARTICULAR PURPOSE), WHATSOEVER IN CONNECTION WITH FIRST OR ITS USE, AND
NEITHER TRS NOR ANY OF ITS VENDORS WILL BE RESPONSIBLE FOR ANY DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, ARISING OUT OF, OR RELATED TO, FIRST OR ITS USE, and (10) Ryder will
immediately cease using and return FIRST to TRS or TRS's designee upon any
termination of this Agreement.
R. That all items purchased from TRS or any affiliated company are
purchased at bona fide wholesale prices for resale in the ordinary course of
business unless written notice to the contrary is given.
3. THE PARTIES MUTUALLY AGREE:
A. That this Agreement will continue in full force and effect until
terminated by either party in accordance with the terms of this Agreement.
B. That, from the date of this Agreement until December 31, 1996, either
party may terminate this Agreement without cause, as to one or more Ryder
Locations, by giving the other party 60 days prior notice for each such Ryder
Location, but in no event can either party alone terminate more than a total
number of Ryder Locations that accounted for $1,000,000 in total Consumer Truck
Rental ("Division") annual Rental Equipment rental revenue in 1995.
C. That, from January 1, 1997 until December 31, 1997, either party may
terminate this Agreement without cause, as to one or more Ryder Locations, by
giving the other party 60 days prior notice for each such Ryder Location, but in
no event can
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
either party alone terminate more than a total number of Ryder
Locations that accounted for $6,000,000 in total Division annual Rental
Equipment rental revenue in 1996.
D. That, each calendar year after December 31, 1997, either party may
terminate this Agreement without cause, as to one or more or all Ryder
Locations, to the extent below the terminating party's * Annual Termination
Limit (as defined below), by giving the other party 60 days prior notice for
each such Ryder Location. The " * Annual Termination Limit" will be equal to
a total number of Ryder Locations that accounted for $12,000,000 in total
Division annual Rental Equipment rental revenue in the calendar year immediately
preceding the calendar year of termination.
E. That, notwithstanding any restrictions in 3.B., 3.C. and 3.D., either
party may terminate this Agreement at any time with respect to any Ryder
Location upon material violation by the other party of any of the Agreement's
terms or conditions at or with respect to such Ryder Location, by giving the
other party 30 days' notice of and opportunity to cure such violation at such
Ryder Location.
F. That all notices, consents and other communications hereunder shall be
sufficiently given for all purposes hereunder if in writing and delivered
personally, sent by documented overnight delivery service or registered or
certified mail return receipt requested to the appropriate address set forth
below. Notices to Ryder shall be addressed to:
Ryder Truck Rental, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: President
with a copy to:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: General Counsel
or at such other address and to the attention of such other person as Ryder may
designate by written notice to IRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, Florida 33166
Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
with a copy to:
Questor Management Company
4000 Town Center, Suite 530
Southfield, Michigan 48075
Attention: President
and with an additional copy to:
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino
or at such other address and to the attention of such other person as TRS may
designate by written notice to Ryder.
G. THAT THIS AGREEMENT (INCLUDING THE SCHEDULES HERETO) WILL, EXCEPT AS
PROVIDED IN THIS AGREEMENT OR THE ASSET PURCHASE AGREEMENT OR ANY AGREEMENT
ENTERED INTO IN CONNECTION WITH THE ASSET PURCHASE AGREEMENT, CONSTITUTE THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES NOTWITHSTANDING ANY
PREVIOUS WRITING OR ORAL UNDERTAKINGS, AND ITS TERMS WILL NOT BE ALTERED BY ANY
ORAL AGREEMENT OR INFORMAL WRITING, NOR BY FAILURE TO INSIST UPON PERFORMANCE,
OR FAILURE TO EXERCISE ANY RIGHT OR PRIVILEGE. FURTHER, THE TERMS OF THIS
AGREEMENT WILL CONTROL OVER ANY CONFLICTING COURSE OF DEALING OR PERFORMANCE,
AND ALTERATIONS, ADDITIONS, OR CHANGES IN THIS AGREEMENT WILL BE ACCOMPLISHED
ONLY BY WRITTEN ENDORSEMENT HEREON, OR AMENDMENT, EXECUTED BY A DULY AUTHORIZED
TRS OFFICIAL AND RYDER OFFICIAL.
H. That, in the event either party is required to resort to litigation to
enforce its rights under this Agreement, the prevailing party will be entitled
to reasonable attorney's fees, costs and expenses.
I. That, other than for the limited purposes specifically set forth in
this Agreement, Ryder is not TRS's agent for any purpose and under no
circumstances will Ryder, its agents, or employees, be deemed to be TRS
employees.
J. That in the event any term or condition of this Agreement is
determined by a Court of competent jurisdiction to be in violation of or
prohibited by any applicable law, such term or condition will be of no force and
effect to the extent of such violation or prohibition without otherwise
invalidating the other terms and conditions of this Agreement.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
K. That any dispute arising under or in connection with this Agreement
and any claim affecting its validity, construction, effect, performance or
termination may be resolved by the federal courts in the Southern District of
Florida or state courts located in Dade, Broward or Monroe County, Florida, to
the jurisdiction of which the parties hereby irrevocably submit.
L. That this Agreement will not be binding on TRS until executed by a
duly authorized TRS official and will be deemed made and entered into in the
State of Florida and will be governed and construed under and in accordance with
the laws of the State of Florida without regard to the application of Florida's
conflict of laws rules.
M. Neither party may assign this Agreement without the prior consent of
the other party. Notwithstanding the foregoing: (1) TRS may assign this
Agreement, upon 10 days prior notice to and without the consent of Ryder, to a
party who purchases or acquires, as a going concern, the business of TRS or all
or substantially all of TRS's assets, provided, however, that any assignee of
this Agreement must (a) agree with Ryder, in writing, to be bound by the terms
and provisions hereof, (b) have a debt/equity ratio as good as, TRS's at the
time of execution hereof, (c) be the assignee of the competition provisions in
Section 6.2(d) of the Asset Purchase Agreement and the following agreements
defined in the Asset Purchase Agreement (to the extent such agreements are still
existing at the time of such assignment): (i) the Copyright License Agreement,
(ii) the Software License Agreement, (iii) the Trademark License Agreement, (iv)
the Administrative Services Agreement, (v) the Maintenance Agreement, (vi) the
MIS Support Agreement, and (vii) the Used Truck Sales Agreement, and (d) not be
one of the parties or an affiliate (as that term is defined in the Asset
Purchase Agreement) set forth in paragraph number 8 on Schedule 3 of the
Trademark Agreement. In addition, TRS may assign its rights hereunder to any
lenders which provide financing to TRS for the purpose of consummating the
transactions contemplated under the Asset Purchase Agreement, or refinancing any
such financing, including any successor thereto. (2) Ryder may assign this
Agreement, upon 10 days prior notice to and without the consent of TRS, to a
party who purchases or acquires, as a going concern, the business of Ryder or
all or substantially all of Ryder's assets, provided, however, that any assignee
of this Agreement must (a) agree with TRS, in writing, to be bound by the terms
and provisions hereof, and (b) have a debt/equity ratio as good as, Ryder's at
the time of execution hereof.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Dealer Agreement to be
executed by their duly authorized officers as of the date first written above.
RYDER TRS, INC. (f/k/a RYDER TRUCK RENTAL, INC.
RCTR HOLDINGS, INC.) "RYDER"
"TRS"
By: /s/ Wallace L. Rueckel By: /s/ Dwight D. Denny
---------------------- ----------------------
Wallace L. Rueckel Dwight D. Denny
Senior V.P. & Treasurer Executive Vice President
Development
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
EXHIBIT 10.4
------------
VEHICLE MAINTENANCE AGREEMENT
-----------------------------
THIS VEHICLE MAINTENANCE AGREEMENT is entered into as of the 17th day
of October, 1996 between Ryder TRS, Inc. (f/k/a RCTR Holdings, Inc.), with its
principal place of business at 8669 N.W. 36th Street, Miami, Florida 33166
("TRS") and Ryder Truck Rental, Inc., with its principal place of business at
3600 N.W. 82nd Avenue, Miami, Florida 33166 ("Ryder").
WHEREAS, Ryder and TRS are parties to an Asset Purchase Agreement
dated September 19, 1996 (the "Asset Purchase Agreement") under which TRS is
purchasing from Ryder certain assets and businesses of Ryder's Consumer Truck
Rental division and under which RCTR, Inc., a wholly owned subsidiary of TRS, is
purchasing certain motor vehicles, car carriers and tow dollies from Ryder (the
"Purchased Vehicles"); and
WHEREAS, the motor vehicles, car carriers and tow dollies involved in
the business of TRS are owned by RCTR, Inc., a wholly owned subsidiary of TRS,
and in the future are likely to continue to be owned by RCTR, Inc. or another
third party (in either case, "RCTR"); and
WHEREAS, TRS desires to hire Ryder to perform inspections,
maintenance, repairs, and other related services on and to the Purchased
Vehicles in accordance with the terms and condition contained herein; and
WHEREAS, TRS also desires to hire Ryder to perform inspections,
maintenance, repairs, and other related services on and to other motor vehicles
having technology the same as or comparable to the Purchased Vehicles
(excluding, for example, vehicles powered by alternative fuel, such as propane)
which it may from time to time own or lease for use in its truck rental business
("Comparable Vehicles") in accordance with the terms and conditions contained
herein. The Purchased Vehicles and Comparable Vehicles shall be referred to
collectively in this Agreement as the "Vehicles"; and
NOW, THEREFORE, in consideration of the rights and obligations set
forth herein and in the Asset Purchase Agreement, the adequacy of which is
hereby acknowledged, the parties agree as follows:
1. DEFINITIONS; GENERAL EXPECTATIONS OF QUALITY SERVICE
For the purposes of this Agreement, capitalized terms which are not otherwise
defined herein shall have the meanings set forth in Schedule 1 attached hereto
and incorporated by reference herein.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Ryder will apply (a) the same work standards, except as otherwise set
forth herein, to Repairs and other work accomplished under Section 2 hereunder,
as Ryder applies to similar work done on its own light commercial vehicles and
(b) Allocation Standards, as between TRS and its own light commercial vehicles
which treat TRS equitably in the allocation of services required hereunder. The
foregoing sentence is a statement of general applicability to each category of
service in the aggregate, and shall not be deemed a measurement of any one
instance of performance/nonperformance apart from other
performances/nonperformances of similar services.
2. TERM; REPAIRS TO BE PERFORMED; FORECASTING
A. REPAIRS TO BE PERFORMED BY RYDER. Ryder agrees to perform the
--------------------------------
inspections, maintenance and repairs requested by TRS on and to the Vehicles
designated by TRS ("Repair(s)") in accordance with the terms and conditions
contained in this Agreement. Ryder shall have no obligation to inspect, repair
or maintain (or perform any other services under this Agreement with respect to)
any motor vehicle or equipment other than a Vehicle.
TRS covenants that it has all necessary authorized from RCTR to allow
Ryder to perform all Repairs hereunder. Ryder shall have no duty to inquire of
TRS whether such authorizations have been obtained. Ryder may rely upon TRS'
covenant in the first sentence of this paragraph. If, however, Ryder at any
time has reason to doubt that any such necessary authorization has not been
obtained, Ryder shall not be obligated to perform any duty hereunder to which
the authorization relates, until such authorization shall have been obtained and
evidence of such, reasonably satisfactory to Ryder, has been delivered to Ryder.
Failure to obtain such authorization shall not relieve TRS of any duty which it
has to Ryder hereunder.
(i) Mechanics. All Repairs shall be performed by competent
---------
mechanics.
(ii) Parts. Except for tire casings, which will remain TRS's
-----
property, as described in the next paragraph, all parts permanently removed from
the Vehicles during the performance of the Repairs will become Ryder's property;
provided, however, that Ryder shall, consistent with current practices, attempt
- -------- -------
to obtain, and shall pass through to TRS: (a) any cost savings from the Vehicle
manufacturer resulting from the delivery of the removed parts as part of any
warranty claim, (b) any monetary discounts to the purchase price of replacement
parts attributable to the salvage value of the removed parts, and (c) any other
salvage value realized by Ryder which is readily identifiable, and trackable
under Ryder's current business practices, to TRS's parts. Ryder will not give
tire casing credits to TRS for tires removed from Vehicles, but upon TRS's
request Ryder will make available at Repair Facilities, for pick-
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
2
<PAGE>
up by Bandag, Inc. or another designated representative of TRS, the tire casings
Ryder removes from Vehicles due to damage or a condition of being worn beyond
limits. It is not Ryder's intention to store the casings other than temporarily,
for pick up no less frequently than weekly.
TRS will determine whether to recap the tire casings, and shall
arrange and pay for any recapping, with any recapper, it determines to do.
Ryder and TRS shall in good faith develop a program to allow TRS to benefit from
use of those recaps, when appropriate, if Ryder needs to put replacement tires
onto a Vehicle during the course of Repairs.
(iii) Emergency Road Service. TRS shall be responsible for
----------------------
arranging for towing, emergency road service and road side assistance of and for
the Vehicles. If TRS requests and Ryder agrees to perform these services from
time to time, the hours expended in performance shall be considered Repair Hours
hereunder.
(iv) Vehicle Washing. At TRS's request, Ryder will wash the exterior,
---------------
interior cab, and cargo compartment interior, of Vehicles during the time the
Vehicles are at a Repair Facility being serviced under this Agreement, if the
Repair Facility is properly equipped to perform Vehicle washing.
(v) Scheduling and Authorizing Repairs. TRS and Ryder shall schedule
----------------------------------
and authorize Repairs through Shop Management Agreements generated by Ryder's
FIS "Ryder First" computer software, the use of which shall be exclusively
governed by a separate written Software License Agreement between Ryder and TRS
dated of even date herewith, and via telephone communications between the
parties' respective maintenance representatives. TRS and each Ryder District
will determine the Repair Facility where each Repair will be performed.
Within * hours of receipt of a Vehicle from TRS, Ryder will provide
TRS with the estimated date for completion of the Repairs. If it is later
determined that the repair completion date will not be met, Ryder will advise
TRS as early as reasonably possible. Ryder will use all reasonable efforts,
consistent with its undertaking in the second paragraph of Section 1 above, to
perform the Repairs in compliance with the time standards then-established by
Ryder's Shop Management System. If TRS and Ryder both own the same type of
vehicle, determination of the time standard for the same type of repair of any
one of those vehicles will not vary due to the fact that TRS, not Ryder, owns
the Vehicle.
If after commencing performance of a Repair, Ryder determines that the
actual labor hours required to complete the Repair exceed the number of labor
hours prescribed by Ryder's Shop Management System or determines that a
different or "follow
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
3
<PAGE>
up" Repair is required, then Ryder shall be authorized to
complete the work without contacting TRS if the labor hour excess is not more
than twenty percent (20%) or the cost of the different or "follow-up" Repair is
not more than $1,000; provided, however, that such latitude shall be reduced to
the extent, if any, that the Repair Facility has less latitude to perform
repairs on Ryder's own trucks without approval of the applicable Ryder district.
If the labor hour excess is more than twenty percent or the cost of the
different or "follow-up" Repair is more than $1,000 or such lower amount as is
established under the above proviso, then Ryder shall provide TRS with a revised
estimate of the labor hours required to complete the Repair and shall obtain
TRS's approval to complete such Repair. In the event that TRS refuses to
authorize completion of the Repair, then Ryder shall terminate performance of
the Repair and shall invoice TRS only for the labor and parts provided by Ryder
prior to such termination. Except in the event of early termination of the
Repair, Ryder will complete all "follow-up" items on the Vehicles before they
are released to TRS, unless TRS advises otherwise.
(vi) Vehicle Delivery and Retrieval. TRS shall be solely and
------------------------------
exclusively responsible for the transportation of all Vehicles to the designated
Repair Facility at the designated time for the performance of the Repairs and
for the retrieval of such Vehicles from that Repair Facility upon completion of
the Repairs. Ryder's obligation to perform the Repairs and to meet its volume
commitments to Repair shall be conditioned on TRS's delivery of the Vehicles to
the designated Repair Facility at the designated time. Upon completion of the
Repairs, Ryder shall advise TRS's designated representative that the Vehicles
are available for retrieval by TRS.
Notwithstanding the previous paragraph, Ryder may from time to time
pick up and deliver Vehicles upon TRS request.
(vii) Ryder will use its Shop Management System to generate Repair
agreements covering each Repair ("shop agreements") at all Ryder Locations which
have that System (the "System"). The terms of those shop agreements shall be
subject to this Agreement; any conflict between any such agreement and this
Agreement will be resolved in favor of this Agreement. The following provisions
of this clause (vii) will apply to use of the System.
Ryder agrees to open a new shop agreement in the System for follow-up
Repair after close out of the agreement covering the preventive maintenance
inspection in which the need for the follow-up Repair was determined.
If the shop agreement has not already been opened prior to receipt of
the Vehicle at the Repair Facility, then Ryder will open the shop agreement no
later than the end of the day the
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
4
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Vehicle arrives at the Repair Facility, assuming arrival to be at least one hour
prior to the end of normal business hours at that Facility. If the Vehicle is
received thereafter, Ryder will open the shop agreement no later than a
reasonable time after start of business at the Repair Facility the next business
day. The shop agreement will be closed out no later than the end of the day on
which the Repair is completed.
(viii) Ryder will use good faith efforts consistent with its
undertaking in the second paragraph of Section 1 above, to advise TRS within *
if Ryder discovers that it will not meet the completion date for a Repair which
is estimated in the shop agreement.
As a part of the forecasting process described in Section 2C. below,
at TRS's request the parties will agree upon targeted average, time-out-of-
service maximums for certain identified Repair processes carried out by the
Ryder district. Ryder will use good faith efforts to meet those targets.
B. TERM OF COMMITMENT TO REPAIR; FLEXIBILITY.
-----------------------------------------
(i) Term; Commitment to Repair. This Agreement shall continue and
--------------------------
remain in full force and effect until terminated by either party in accordance
with the terms hereof (the "Term").
Subject to clauses (ii), (iii) and (iv) below, the parties agree that
during each year after 1996, TRS will order from Ryder, and Ryder will deliver
to TRS, Repairs on Vehicles under this Agreement comprising at least the Minimum
Annual Labor Hours. "Minimum Annual Labor Hours" shall mean * Repair Hours.
In the remainder of 1996 following Closing, TRS will order from Ryder, and
Ryder will deliver to TRS, Repairs on Vehicles under this Agreement comprising
at least * Repair Hours in October (prorated for any portion of such month
preceding the Closing), * Repair Hours in November and * Repair Hours in
December.
(ii) If it is determined by the parties that the number of Repair
Hours incurred by Ryder in a given year to accomplish road calls is less than *
, then the Minimum Annual Labor Hours shall be adjusted to reflect such
reduction.
Ryder agrees to perform the Repairs at the Repair Facilities, subject
to each parties' right to withdraw Repair Facilities upon Required Notice to the
extent allowable under clause (iii) below.
(iii) Flexibility. In order to allow management flexibility for
-----------
each party, Ryder and TRS shall each have the unilateral right within each
calendar year to remove Repair Facilities as providers of Repairs, or
substantially reduce the
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
5
<PAGE>
volume of Repairs at Repair Facilities, to an aggregate annualized effect of the
following number of Repair Hours:
1997 - 10% of Minimum Annual Labor Hours
1998 and each
subsequent year - 20% of Minimum Annual Labor
Hours
These numbers are not cumulative. A party may, for example, flex down
by removing, or reducing volume at, Repair Facilities to the extent of * hours
in 1997, another * hours in 1998 and another * hours in 1999 (in each case
assuming no other adjustment to Minimum Labor Hours is applicable pursuant to
clause B(ii) and B(iv) of this Section. The other party may or may not flex
down by removing, or reducing volume at, the same or other Repair Facilities to
the same extent.
The "annualized effect" of removal of a Repair Facility as a provider
of Repairs shall be determined by adding the number of Repair Hours projected
for that Repair Facility pursuant to the latest forecast done under Section 2C
below to the number of Repair Hours actually incurred by that Repair Facility in
such number of previous months as, combined with the months in the forecast,
equals twelve. The parties' rights under this Section are not intended to alter
Required Notice. The calculations described in this Section are not meant to
include temporary monthly changes in volume between Repair Facilities which are
agreed between the parties during the forecasting process described in Paragraph
C below.
(iv) For purposes of this paragraph, a Repair Facility shall be
considered to be an "Unacceptable Facility" if it would be in Material Breach of
this Agreement were such definition under Section 13 A.(ii) hereof applied to it
and its services performed hereunder instead of to Ryder and Ryder's services
performed hereunder. If TRS wishes to remove Unacceptable Facilities as
providers of Repairs hereunder, then Newco shall have the right to remove such
Repair Facilities under the provisions of clause (iii) above upon only ten days
further prior written notice of termination in lieu of Required Notice. If,
however, the aggregate annualized effect of removal of all Unacceptable
Facilities together with any other removals effected under clause (iii) above
would exceed 10% of Minimum Annual Labor Hours in 1997 or 20% of Minimum Annual
Labor Hours in any year thereafter (the "Threshold"), then Newco may
nevertheless remove as providers of Repairs hereunder, upon only ten (10) days
further prior written notice of termination in lieu of Required Notice, those
Repair Facilities whose removal constitutes an aggregate annualized effect of
more than the Threshold, provided that TRS first meets with Seller's Vice
President, Maintenance, to explain its reasons for seeking removal, and gives
reasonable consideration to such improvement program as he may offer that Ryder
is willing to undertake to prevent the removals. If TRS
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
6
<PAGE>
concludes that a Repair Facility either is, or is imminently about to become, an
Unacceptable Facility and intends to notify Ryder of its election to remove or
reduce volume at such Repair Facility, but has not done so, then in connection
with its next request to exercise its unilateral right to remove Repair
Facilities pursuant to clause (iii) above, it will include in such requested
removal any such Repair Facilities.
C. FORECASTING; LABOR HOUR QUOTA. Throughout the Term, TRS's and
-----------------------------
Ryder's respective maintenance representatives shall conduct periodic
discussions and reach written agreement as to the forecasted allocation of the
Minimum Annual Labor Hours amongst the Ryder Districts and Repair Facilities for
each month of the Term. The number of monthly labor hours so allocated to each
individual Ryder District or Repair Facility pursuant to the parties' written
agreement shall be referred to in this Agreement as a "Labor Hour Quota." Ryder
and TRS will each use good faith efforts to meet the Labor Hour Quotas.
3. FUEL
At TRS's request, Ryder will provide fuel for the Vehicles, either
from the Repair Facilities which dispense that type of fuel, or, if the Repair
Facility does not dispense that type of fuel, from offsite. * The charge for
fuel will vary over time and will be billed to TRS in addition to the other
charges provided under this Agreement. If TRS's account becomes past-due, then
Ryder may terminate providing fuel by giving TRS five (5) days written notice,
regardless of whether Ryder places TRS in default of this Agreement pursuant to
Section 13 below. If TRS purchases fuel from sources other than Repair
Facilities, TRS will be responsible for the charges for all such fuel.
4. WARRANTY ADMINISTRATION
TRS will pay Ryder for all Repairs without regard to whether such
Repairs are subject to a manufacturer's or other vendor's warranty. Ryder will,
as TRS's agent, administer and process TRS's warranty claims against original
equipment manufacturers and other providers of rebuilt components (for purposes
of this Section 4, each shall be known as an "OEM") for (i) Repairs to the
Vehicles performed by Ryder, (ii) as may be requested by TRS, repairs and
maintenance to the Vehicles performed by a third party repair facility that is
authorized, certified, and approved by the OEM to perform such repairs and
maintenance, and (iii) tires (subject to clause 2A(ii) above) and warranted
rebuilt components Ryder removes from Vehicles as damaged, malfunctioning or
worn beyond limits (collectively, "Warranty Administration Services"); provided,
--------
however, (a) that TRS provides Ryder with all documents, information, and other
- -------
assistance requested by Ryder for the performance of the Warranty Administration
Services, (b) that Ryder's obligation to provide service under this Section 4 is
subject to continuing permission from the OEM
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
7
<PAGE>
for Ryder to process such claims for TRS. TRS hereby appoints Ryder as its agent
to perform the Warranty Administration Services and to collect and receive the
associated warranty proceeds during the term of this Agreement, which
appointment shall terminate upon the expiration or termination of this Agreement
as provided in the last paragraph of this Section 4. At Ryder's request, TRS
shall execute and deliver to Ryder a limited power of attorney in a form
mutually satisfactory to Ryder and TRS authorizing Ryder to perform the Warranty
Administration Services. Ryder shall permit TRS access to the electronic
information system which Ryder uses to identify and assimilate warranty claims,
so that TRS can provide electronically some or all of the information described
in (a) above.
All proceeds from warranty claims will initially be remitted to Ryder
as TRS's agent. Each month, Ryder shall subtract from the proceeds an
administrative fee for Ryder's performance of the Warranty Administration
Services in an amount equal to * of the total warranty proceeds actually paid
to Ryder during that month. Ryder shall remit the balance * of the warranty
proceeds actually paid to Ryder during that month) to TRS, provided, however,
-------- -------
that Ryder reserves the right to offset such balance against any unpaid invoiced
charges under this Agreement or any past due charges under any other Service
Agreement. This process of offset and remission shall occur within ten (10)
Business Days (M-F) after the end of the month.
TRS may terminate all of Ryder's services under this Section 4 at any
time upon ninety (90) days prior written notice to Ryder.
5. RECORD KEEPING
TRS shall be solely and exclusively responsible for the Vehicles'
maintenance records and all matters related thereto, including, but not limited
to, the storing, updating, and maintenance thereof, except that Ryder shall have
the liability of a bailee for such records in Ryder's possession.
Ryder will keep such records for seven years unless sooner requested
to turn those records over to TRS. This obligation shall survive the
termination of this Agreement.
TRS shall have the ability to print replica repair orders. If Ryder
subcontracts repairs to third party maintenance providers, Ryder shall mail or
otherwise deliver to TRS the documentation of repair from the third party.
Ryder shall also mail or otherwise deliver to TRS preventive maintenance check-
offs completed on each Vehicle under the terms of this Agreement. In addition,
at TRS's request, Ryder will assist TRS in locating, retrieving, copying and
organizing warranty and maintenance Vehicle records in Ryder's possession
(collectively, the "Record Keeping Services"). If such requests exceed ordinary
course
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
8
<PAGE>
under Business practices in effect at the time of execution of this
Agreement, Ryder may elect to charge TRS an administrative fee of Eighteen and
no/100 Dollars Per Hour ($18.00/hour), plus copying costs of five cents per page
($.05/page) for performing the Record Keeping Services in excess of ordinary
course.
TRS shall have the right during normal business hours and with at
least 48 hours advance notice to enter Repair Facilities to audit, inspect or
copy maintenance records. TRS representatives may enter the shop area to
observe Repairs, subject to compliance with Ryder shop floor policies and
procedures and to the requirements of law, and in a manner which is not
disruptive of work flow.
6. REPAIR CHARGES; BILLING; PAYMENT TERMS; TAXES; CONFIDENTIALITY
A. REPAIR CHARGES. Ryder will charge TRS for all Repairs on a
--------------
repair-by-repair basis and for exterior vehicle washing at the rates set forth
in the repair rate table set forth below:
REPAIR RATE TABLE
GOOD OR SERVICE RATE
Labor Performed by Ryder * of Ryder's then-prevailing Internal Charge-Out
Rate for labor at the Repair Facility performing
the Repair; provided, however, that if Ryder
changes its present methodology for calculating
the Internal Charge-Out Rate, the parties shall
amend this provision to adjust the * so that the
effect of the change in methodology is
counteracted.
Parts Provided by Ryder Invoice Cost to Ryder District
(including parts provided
by Network Sales)
Services and Goods Provided Invoice Cost to Ryder District
and Performed by Third Party
Vendors retained by Ryder
Vehicle Washing *
Ryder will use good faith efforts to acquire Fast Moving Parts through
Network Sales and to make them available for Repairs.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
9
<PAGE>
B. BILLING AND PAYMENT TERMS. Ryder shall invoice TRS weekly for
-------------------------
all charges for Repairs performed during that week, according to the number of
Repair Hours associated with each Repair, which invoice shall be accompanied by
reasonable documentation or explanation supporting such charges, and TRS shall
pay Ryder, as to time periods within the first year following the date hereof,
no later than thirty (30) days after each invoice date, and as to all subsequent
periods, no later than fifteen (15) days after each invoice date. All payments
hereunder shall be without deduction (except for charges billed in error), set
off, recoupment or counterclaim. In the case of charges believed to be billed
in error, TRS shall timely pay the undisputed portion of the invoice, and on or
before the due date for payment of the charges ("Due Date"), TRS shall notify
Ryder in writing of the portion believed to be billed in error and give Ryder an
explanation, in reasonable detail, of the reasons for its belief. The due date
for these disputed sums shall then be extended for ten (10) days (or such later
time as both parties agree in writing) from the Due Date to give the parties
time to negotiate resolution of the dispute, which both parties will do in good
faith.
All charges shall conclusively be presumed correct unless Ryder
receives notice within one hundred eighty (180) days of the invoice date.
All overdue amounts shall bear interest at a rate equal to the lower
of: (i) ten percent (10%) per annum or (ii) the highest rate permitted by law
("Past Due Interest").
C. LETTER OF CREDIT. TRS shall obtain and maintain a letter of
----------------
credit, in favor of Ryder, in the amount of two and one-half million dollars
($2,500,000.00), the issuer or confirming bank of which will be a bank
reasonably acceptable to Ryder and the terms of which shall be substantially in
accordance with the form attached hereto as Exhibit B (the "Letter of Credit"),
which may be drawn by Ryder in the event of a Material Breach by TRS under
clause 13.A(i) of this Agreement or any of the other agreements between the
parties of even date herewith entitled Administrative Services Agreement, MIS
Support Agreement or Used Truck Sales Agreement, as any of them may be amended
from time to time, or as otherwise provided in Schedule 9.6(c) of the Asset
Purchase Agreement. Such Letter of Credit shall be for a term of at least one
year. One master $2.5 million letter of credit which complies with the terms of
this paragraph shall constitute the Letter of Credit under each of the foregoing
listed agreements ("Support Agreements"). TRS shall be obligated to promptly
replace the Letter of Credit or restore it to its full amount, respectively,
should Ryder draw such Letter of Credit in full or in part due to the occurrence
of a Material Breach under this Agreement.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
Notwithstanding the foregoing, TRS may terminate, or not renew, the
Letter of Credit after the first anniversary of the date hereof, if it is not in
default of this Agreement at such time; provided, however, that should TRS,
after such time either (i) commit a Material Breach of this Agreement due to
failure to pay charges due hereunder or under any Support Agreement (except if
prevented by a force majeure under Section 16.K below) or (ii) twice within a
twelve-month period fail to timely pay charges due hereunder or under any
Support Agreement (except if prevented by a force majeure under Section 16.K
below), then TRS shall again be obligated to obtain and maintain the Letter of
Credit pursuant to the first two sentences of the previous paragraph, and to
promptly replace the Letter of Credit or restore it to its full amount,
respectively, should Ryder draw such Letter of Credit in full or in part due to
the occurrence of a Material Breach under this Agreement. If, however, during
the following twelve months TRS timely pays all charges coming due hereunder,
and is not at such time otherwise in default of this Agreement, or in
bankruptcy, then TRS may again terminate, or not renew, the Letter of Credit,
and TRS's obligations hereunder to maintain the Letter of Credit shall cease,
subject to the last stated proviso above.
D. FINANCIAL STATEMENTS. TRS agrees to provide Ryder with the
--------------------
following financial statements and information on a quarterly basis (or upon
Ryder's reasonable request from time to time for the purpose of evaluating the
creditworthiness of TRS: (1) TRS's combined Balance Sheet in the form set forth
in Exhibit C; (ii) TRS's Combined Statement of Earnings in the form set forth in
Exhibit D; (iii) TRS's Interest Coverage Ratios; and (iv) TRS's Debt-to-Equity
Ratio. Such information shall be provided to Ryder's credit department and
shall not be disseminated beyond such department except to the Controller of
Ryder and the Chief Financial Officer of its parent company.
E. TAXES. TRS shall be responsible and pay for all fees and taxes
-----
accruing, arising, or imposed on services performed under this Agreement,
including, but not limited to, sales tax, provided, however, that TRS shall not
be responsible for any net income, gross income or similar taxes imposed on
Ryder.
F. CONFIDENTIALITY. Ryder and TRS agree to keep, and to cause each
---------------
of its affiliates, directors, officers, and employees to keep, confidential any
and all confidential information of the other party that it receives in the
course of performing its obligations hereunder (except that such information may
be shared, on a confidential basis, with the party's attorneys and auditors) and
will not without the other party's written consent, use any of such confidential
information except as reasonably necessary to perform its duties under this or
another of its agreements with the other party. Upon termination of this
Agreement, each party will return, and will cause its affiliates to return, to
the other party, all original documents
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
11
<PAGE>
and copies of the confidential information which are in its possession.
7. NOTICE OF HAZARDOUS ACTIVITY
TRS shall advise Ryder in writing, each time prior to requesting
Repair of a Vehicle, if TRS uses that Vehicle, for, or knows that since the last
Repair by Ryder it has rented the Vehicle to a customer who is in the business
of, transporting hazardous materials in a quantity which requires placarding by
the United States Department of Transportation or transporting any radioactive,
biological, or medical waste, (in each case, a "Hazardous Activity") and in each
case TRS shall identify the substance. Ryder shall have the right to refuse to
perform Repairs on such Vehicle without penalty hereunder.
8. INSURANCE
A. TYPES OF INSURANCE PROVIDED. During the Term, TRS will maintain
---------------------------
the types of insurance, in the coverage limits, listed in the insurance policy
schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
TYPE OF INSURANCE POLICY COVERAGE LIMITS
Standard Automobile Liability Twenty-Five Million and
Insurance Policy (the "Auto- no/100 Dollars ($25,000,000.00)
mobile Liability Insurance Per Occurrence with an excess
Policy") layer of at least Fifty Million
and no/100 Dollars ($50,000,000.00) aggregate
Commercial General Liability Seventy-Five Million and
Insurance Policy with Broad no/100 Dollars ($75,000,000.00)
Form Contractual Liability
Insurance Coverage (the
"CGL Insurance Policy")
Workers Compensation Statutory
Employer's Liability Five Million and no/100 Dollars
($5,000,000.00)
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Agreement.
TRS may self-insure up to One Million and no/100 Dollars
($1,000,000.00) as a deductible.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
12
<PAGE>
B. INSURANCE POLICY REQUIREMENTS.
-----------------------------
1. Each liability Insurance Policy shall:
-- --------------------------------------
(a) be written by an insurance company reasonably acceptable to
Ryder (it being understood that an insurance company rated A- or better by
A.M. Best & Company is acceptable);
(b) name TRS as an insured, and be amended to name Ryder, its
employees, officers, directors, contractors, agents and affiliates (each an
"Additional Insured") as additional insureds as their interests may appear;
(c) provide that if such insurance is cancelled, or any material
change is made in the coverage which affects the interest of any Additional
Insured, such cancellation or change shall not be effective as to the
Additional Insured for ten (10) days after receipt by the Additional
Insured of written notice from such insurers of such cancellation or
change;
(d) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any Additional
Insured;
(e) provide that in respect of the interests of any Additional
Insured in such policies, the insurance shall not be invalidated by any
action or inaction of TRS or any other Person and shall insure each
Additional Insured regardless of any breach or violation of any warranty,
declaration or condition contained in such policies by TRS or any other
Person;
(f) shall expressly provide that all of the provisions thereof,
except the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(g) in accordance with the terms and conditions of the
contractual liability coverage provided by such Insurance Policy, insure
the obligations of TRS to indemnify the Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of automobile liability
insurance and general liability insurance shall each be on an occurrence form.
The first Twenty-Five Million Dollars of automobile liability insurance shall
not be subject to any annual aggregate limit of liability.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
13
<PAGE>
2. Each liability Insurance Policy and any all-risks Insurance
Policy of TRS which covers vehicles shall waive any rights of subrogation
against the Additional Insureds.
C. PROOF OF INSURANCE. At least once a year, from time to time at
------------------
Ryder's request, and any time a new policy is to go into effect, TRS shall
provide Ryder with insurance certificates and other evidence, reasonably
satisfactory to Ryder, that the benefits and coverage required by this Section 8
are in full force and effect. The certificate shall describe the perils covered
by each policy of insurance then in force, identify the insurer or insurers with
which such policies of insurance are carried and maintained, specify the amounts
of insurance coverage provided against each such peril, and describe the
provisions contained in such policies of insurance so as to evidence compliance
with the requirements of this Article 8. Ryder shall have no duty to examine
such insurance certificates or the Insurance Policies to verify compliance. TRS
shall provide a copy of its insurance policies to Ryder promptly following
request therefor.
9. INDEMNIFICATION *
Notwithstanding anything in this Agreement to the contrary, and *
shall release, indemnify, defend and hold harmless * , its affiliates,
directors, officers, employees, agents, subcontractors and assigns of each (the
* ) from and against any and all claims, liabilities, damages, losses, costs,
expenses (including, without limitation forum costs and reasonable attorneys'
fees, fines and penalties), related to claims of third parties for (including
but not limited to claims of * employees and agents) injury to or death of any
person or loss of or damage to any property or otherwise (collectively, "Third
Party Claims"), arising out of the ownership, repair, inspection, maintenance,
use or operation of any Vehicle, including any such Third Party Claim which is
caused by the negligence of the * Indemnified Parties in performing or failing
to perform the Repairs but not in any event to the extent of the gross
negligence or willful misconduct of the * Indemnified Parties in performing or
failing to perform Repairs.
* SHALL RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS THE * FROM AND
AGAINST ANY AND ALL THIRD PARTY CLAIMS ARISING OUT OF THE * .
10. NO CONSEQUENTIAL DAMAGES
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, NEITHER
PARTY SHALL BE LIABLE FOR, AND EACH PARTY WAIVES AND RELEASES THE OTHER FROM
(AND AS TO RCTR'S DAMAGES, TRS INDEMNIFIES AND HOLDS HARMLESS THE RYDER
INDEMNIFIED PARTIES FROM), ANY AND ALL INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
14
<PAGE>
PROFITS, LOSS OF USE OR BUSINESS INTERRUPTION, WHETHER SUSTAINED BY TRS, RYDER
OR ANY OTHER PERSON, EVEN IF SUCH DAMAGES ARE FORESEEABLE BUT NOT IF THEY ARE
DIRECT DAMAGES.
11. NOTICE OF MAJOR INCIDENT
If a Major Incident occurs involving any Vehicle, * agrees to
promptly notify * , provide * with copies of any reports that * has
provided to * insurer or any governmental agency, and to assist * and the
insurer in any investigation of the incident which * or the insurer wishes
to undertake.
12. DISCLAIMER OF WARRANTIES
Ryder will pass through the actual benefits of any manufacturer's
warranties covering the Repairs as described in Section 4.
RYDER, HOWEVER, MAKES NO WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WITH
RESPECT TO ANY REPAIR (INCLUDING WITHOUT LIMITATION, WORKMANSHIP) OR ANY GOODS,
PARTS, MATERIALS OR SUPPLIES UTILIZED OR PROVIDED IN CONNECTION THEREWITH
("PARTS"). RYDER HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES WITH
RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Ryder shall have no
liability for any failure or delay in delivery of any part by any manufacturer
or for the breach of any representation or warranty by the manufacturer of any
vehicle or any component part thereof.
13. DEFAULT
A. DEFAULT PROCEDURE. If at any time any party is in Material
-----------------
Breach of this Agreement, then in addition to all other rights and remedies
available under applicable law or in equity, the other party shall have the
right to terminate this Agreement without further notice or demand. "Material
Breach" shall mean (i) as to a failure of payment, that full payment has not
been received within five (5) days after the owing party's receipt of written
notice that the payment was due, (ii) as to any other type of failure, a
material failure or performance of a party's obligations under this Agreement if
such failure remains uncured thirty (30) days after receipt of written notice of
the failure, and (iii) as to TRS, failure to cause the replacement or
restoration of the Letter of Credit, as applicable, within five (5) days
following its complete or partial draw due to the occurrence of a Material
Breach hereunder except, as to (i), (ii) or (iii) above, if prevented by a force
majeure under Section 16.K below.
B. BANKRUPTCY AND INSOLVENCY. This Agreement shall automatically
-------------------------
terminate, without notice required, upon the occurrence of any of the following
events: (i) the other party
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
voluntarily enters into proceedings in bankruptcy or insolvency; (ii) the other
party shall make an assignment for the benefit of credits; (iii) a petition
shall be filed against the other party under a bankruptcy law, a corporate
reorganization law, or any other law for the relief of debtors (or similar law
in purpose or effect) and such petition shall not have been dismissed within
sixty (60) days; or (iv) the other party enters into liquidation or dissolution
proceedings.
C. DRAWS ON LETTER OF CREDIT. Subject to the provisions of the next
-------------------------
paragraph, in the event of Material Breach by TRS pursuant to clause (i) of
Section 13A, Ryder may draw from the Letter of Credit, without court proceeding,
order or otherwise, such sums to which Ryder is entitled due to TRS's Material
Breach, and Ryder shall apply such sums against such entitlement. If the
application of such sums is sufficient to cure the Material Breach, including
Past Due Interest owed to date of draw, then the Material Breach shall be deemed
cured and Ryder shall not terminate this Agreement due to such Material Breach;
if the application of such sums is not sufficient for such purpose, then Ryder
may terminate this Agreement due to the Material Breach pursuant to Section 13A.
It is agreed, however, that if it shall later be determined by a court of
competent jurisdiction or by mutual agreement of the parties that TRS did not in
fact owe Ryder all of the sums drawn from the Letter of Credit, then Ryder shall
return those sums not owed with interest thereon computed at the same annual
rate of interest as set forth above in the definition of "Past Due Interest."
If and to the extent a failure of payment by TRS arises from an
assertion by TRS, timely disputed pursuant to Section 6.B above, that Ryder did
not perform a service billed to TRS, then Ryder shall not be entitled to draw
the Letter of Credit with respect to such failure of payment until the later of
(i) such time as Ryder would be entitled to draw the Letter of Credit under the
preceding paragraph, (ii) fifteen Business Days after the date Ryder notifies
TRS in writing that Ryder has investigated the dispute and that its records or
its personnel confirm the service to have been performed and has offered TRS
access to such records or personnel or (iii) such date as Ryder and TRS mutually
agree in writing. It is agreed that the foregoing sentence does not apply to a
dispute over the quality or conformity of the service or to any attempt by TRS
to set off another matter against Ryder's invoice.
D. ATTORNEY'S FEES. In the event either party resorts to
---------------
litigation, arbitration or other proceeding to enforce its rights under this
Agreement, the prevailing party will be entitled to reasonable attorney's fees,
costs and expenses.
14. NONSOLICITATION OF EMPLOYEES
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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During the Term and for a period of six months thereafter, TRS shall
not solicit any employees of Seller who perform services hereunder or who manage
the performance of those services without the prior express written consent of
Ryder's District Manager for the district in which the employee works.
15. RELATIONSHIP OF THE PARTIES
Except as specifically set forth in Paragraph 4 with respect to the
Warranty Administration Services, it is expressly understood and agreed that in
rendering the Services hereunder, Ryder is acting as an independent contractor
and that this Agreement does not constitute either party as an employee,
partner, joint venturer, agent or other representative of the other party for
any purpose whatsoever. Neither party has the right or authority to enter into
any contract, warranty, guarantee or other undertaking in the name of or for the
account of the other party, or to assume or create any obligation or liability
of any kind, express or implied, on behalf of the other party, or to bind the
other party in any manner whatsoever, or hold itself out as having any right,
power or authority to create any such obligation or liability on behalf of the
other or to bind the other party in any manner whatsoever (except as to any
actions taken by either party at the express written request and direction of
the other party).
16. MISCELLANEOUS
A. CUMULATIVE AND NON-EXCLUSIVE RIGHTS AND REMEDIES. The parties'
------------------------------------------------
rights and remedies under this Agreement are non-exclusive and are cumulative
with its rights and remedies at law or in equity.
B. COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this section,
provided receipt of copies of such counterparts is confirmed.
C. GOVERNING LAW; JURISDICTION AND FORUM. (a) This Agreement shall
-------------------------------------
be governed by and construed in accordance with the laws of the State of New
York without reference to the choice of law principles thereof, except for
matters of Florida corporate law, as to which such law shall apply.
(b) Ryder and TRS herby irrevocably submit to the jurisdiction of any
New York State or Federal court sitting in the City of New York in any action or
proceeding arising out of this Agreement or the transactions contemplated
hereby. Ryder
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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and TRS hereby irrevocably waive the defense of an inconvenient forum to the
maintenance of any such action or proceeding.
(c) By the execution and delivery of this Agreement, TRS (i)
irrevocably designates and appoints Jay Alix & Associates ("JA&A"), 575 Fifth
Avenue, New York, New York 10017, as its authorized agent upon which process
may be served in any action or proceeding arising out of or relating to this
Agreement so long as JA&A maintains a place of business at an address in New
York City; provided that TRS may at any time designate and appoint in lieu of
JA&A The Corporation Trust Company ("CTC") care of CT Corporation System, at
---
1633 Broadway, 23rd floor, in the City of New York, County of New York, State of
New York to so serve, (ii) submits to the personal jurisdiction of any state or
federal court in the State of New York in any such action or proceeding, and
(iii) agrees that service of process upon CTC shall be deemed in every respect
effective service of process upon TRS in any such action or proceeding. TRS
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CTC in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights of any
party to serve process in any other manner permitted by law.
D. ENTIRE AGREEMENT. This Agreement and the Schedules and Exhibits
----------------
hereto contain the entire agreement between the parties with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other than those set forth or
referred to herein. This Agreement is not intended to confer upon anyone not a
party hereto any rights or remedies hereunder.
E. NOTICES. All notices shall be in writing and delivered
-------
personally or sent by nationally recognized overnight delivery service (e.g.,
Federal Express) or registered or certified mail, return receipt requested, to
the appropriate address set forth below. Notices to Ryder shall be addressed
to:
Ryder Truck Rental, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: President
with a copy to:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: General Counsel
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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or at such other address and to the attention of such other person as Ryder may
designate by written notice to TRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
c/o Questor Management Company
4000 Town Center, Suite 530
Southfield, Michigan 48075
Attention: President
with a copy to:
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, Florida 33166
Attention: Gerald R. Riordan
Willkie Farr & Gallagher
153 East 53rd Street
New York, New York 10022
Attention: Thomas M. Cerabino, Esq.
or at such other address and to the attention of such other person as TRS may
designate by written notice of Ryder.
F. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, that neither party may assign this Agreement
without the prior consent of the other party. Notwithstanding the foregoing:
(1) TRS may assign this Agreement, upon 10 days prior notice to and without the
consent of Ryder, to a party who purchases or acquires, as a going concern, the
business of TRS or all or substantially all of TRS's assets, provided, however,
that any assignee of this Agreement must (a) agree with Ryder, in writing, to be
bound by the terms and provisions hereof, (b) have a debt/equity ratio as good
as, TRS's at the time of execution hereof, (c) be the assignee of the
competition provisions in Section 6.2(d) of the Asset Purchase Agreement and the
following agreements defined in the Asset Purchase Agreement (to the extent such
agreements are still existing at the time of such assignment): (i) the
Copyright License Agreement, (ii) the Software License Agreement, (iii) the
Trademark Agreement, (iv) the Administrative Services Agreement, (v) the Dealer
Agreement, (vi) the Dealer Agreement and (vii) the Used Truck Sales Agreement,
and (d) not be one of the parties set forth in paragraph number 8 on Schedule 3
of the Trademark Agreement, (2) Ryder may assign this Agreement upon 10 days
prior notice to and without the consent of TRS, to a party who purchases or
acquires as a going concern, the business of Ryder or all or substantially all
of Ryder's assets, provided, however, that any assignee of this Agreement must
(a) agree with TRS, in writing, to be bound by the terms and provisions hereof,
and (b) have a debt/equity ratio as good as, Ryder's at the time
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
of execution hereof. TRS may assign its rights hereunder to any lenders which
provide financing to TRS for the purpose of consummating the transactions
contemplated under the Asset Purchase Agreement, or refinancing any such
financing, including any successors thereto.
G. HEADINGS; DEFINITIONS. The headings contained in this Agreement
---------------------
are inserted for convenience of reference only and will not affect the meaning
or interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
H. AMENDMENTS AND WAIVERS. This Agreement may not be modified or
----------------------
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought.
Either party hereto may, only by an instrument in writing, waive compliance by
the other party hereto with any term or provision hereof on the part of such
other party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision hereof shall not be construed as a
waiver of any subsequent breach.
I. INTERPRETATION; ABSENCE OF PRESUMPTION. This Agreement shall be
--------------------------------------
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
J. SEVERABILITY. Any provision hereof which is invalid or
------------
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
K. FORCE MAJEURE. Neither party shall be liable for its failure or
-------------
delay in fulfilling its obligations here, if such failure or delay is caused by
fire, flood, weather conditions or other Acts of God, invasions, insurrections,
riots, closing of the public highways, delays or failures of manufacturer or
distributor in providing parts, strike, lockout or other labor dispute, civil
unrest, war or any other reason beyond the reasonable control of the party. In
the case of strikes, lockouts or other labor disputes, it is understood that
such event is beyond the reasonable control of the party suffering the event
unless and until the party is able to resolve it in a manner which such party
deems reasonable and appropriate.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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IN WITNESS WHEREOF, the parties have caused this Maintenance Agreement to
be executed by their duly authorized officers as of the date first written
above.
Ryder Truck Rental, Inc. Ryder TRS, Inc. (f/k/a
("Ryder") RCTR Holdings, Inc.)
("TRS")
BY:/s/ Dwight D. Denny BY: /s/ Wallace L. Rueckel
------------------- ----------------------
Dwight D. Denny Wallace L. Rueckel
Executive V.P.-Development Senior Vice President & Treasurer
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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Schedule 1 to
Vehicle Maintenance Agreement
dated as of October 17, 1996
between Ryder TRS, Inc. and
Ryder Truck Rental, Inc.
CLOSING. "Closing" shall mean the Closing as defined in the Asset Purchase
- -------
Agreement.
FAST MOVING PARTS. "Fast Moving Parts" shall mean Vehicle parts and components
- -----------------
which are necessary in order to accomplish an "A", "B" or "C" PM as those
preventive maintenance inspections are currently defined, not including follow-
up repair work which might be discovered to be needed during the inspection
component of such PMs.
HIGH VOLUME LOCATION. A "High Volume Location" shall mean a Repair Facility at
- --------------------
which, during the previous calendar year, the total labor hours for inspections,
maintenance, and repairs performed for TRS or Ryder's Consumer Truck Rental
Division taken in the aggregate comprised at least twenty-five percent (25%) of
the total labor hours performed for all inspection, maintenance, and repairs.
INTERNAL CHARGE-OUT RATE FOR LABOR. "Internal Charge-Out Rate for labor" shall
- ----------------------------------
mean the blended labor rate at a Repair Facility which is identified by such
name in Ryder's inter-district accounting systems, is inclusive of benefits and
is the basis of charges to other Ryder branches for repair of their vehicles.
MAJOR INCIDENT. "Major Incident" shall mean:
- --------------
-- Vehicular incident involving permanent or expected total disability,
loss of limb, or multiple hospitalizations
-- explosion, fire, or accident resulting in physical damage in excess of
$500,000
-- Vehicular accident involving a fatality
-- any event involving Vehicles likely to receive significant media
attention
REPAIR FACILITY(IES). "Repair Facility(ies)" shall mean the repair facilities
- --------------------
listed on Exhibit A attached hereto and incorporated herein, each of which is
located within the Ryder Commercial Leasing Districts (each a "Ryder District")
shown on Exhibit A.
REPAIR HOUR(S). "Repair Hour(s)" shall mean each labor hour actually provided
- --------------
by Ryder or one of Ryder's subcontractors in performing the Repairs as opposed
to the number of labor hours
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
for those Repairs prescribed by the time standards in Ryder's Shop Management
System. It does not include labor provided at Service Centers.
REQUIRED NOTICE. "Required Notice" shall be given for removal of a Repair
- ---------------
Facility as a provider of Repairs, or a reduction in annualized average Repair
Hours at a Repair Facility in excess of Two Thousand (2,000) labor hours that is
reasonably likely to be permanent, and shall mean (i) sixty (60) days prior
written notice (ninety (90) days prior written notice for a High Volume
Location).
Furthermore, the parties shall use reasonable good faith efforts to
notify each other of any lesser reductions in Repair Hours at a Repair Facility
which are not de minimis and are reasonably likely to be permanent.
RYDER. For purposes of Sections 8, 9 and 10 hereof, "Ryder" shall mean
- -----
(individually and collectively) Ryder as defined above, its affiliates,
employees, directors, agents and contractors.
SERVICE CENTERS. "Service Centers" shall mean the following facilities:
- ---------------
INDIANAPOLIS SERVICE CENTER
---------------------------
4709 W. 96th Street
Indianapolis, Indiana
DALLAS SERVICE CENTER
---------------------
5125 Cockerell Hill Road
Dallas, Texas
ATLANTA SERVICE CENTER
----------------------
6802 Buford Highway
Doraville, Georgia
PENNSBURG SERVICE CENTER
------------------------
2703 Geryville Pike
Pennsburg, Pennsylvania
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
EXHIBIT 10.5
------------
USED TRUCK SALES AGREEMENT
--------------------------
THIS USED TRUCK SALES AGREEMENT is entered into as of this 17th day of
October, 1996 between Ryder Truck Rental, Inc., with its principal place of
business at 3600 N.W. 82nd Avenue Miami, Florida 33166 ("Ryder") and Ryder TRS,
Inc. (f/k/a RCTR Holdings, Inc.), with its principal place of business at 8669
N.W. 36th Street, Miami, Florida 33166 ("TRS").
WHEREAS, Ryder and TRS are parties to an Asset Purchase Agreement
dated September 19, 1996 (the "Asset Purchase Agreement") under which TRS is
purchasing from Ryder certain assets and businesses of Ryder's Consumer Truck
Rental division ("Division").
WHEREAS, the trucks utilized in the business of TRS are owned by RCTR,
Inc., a wholly owned subsidiary of TRS, and in the future are likely to continue
to be owned by RCTR, Inc. or another third party (in either case, "RCTR").
WHEREAS, Ryder sells its own used trucks at its own Used Truck Centers
and other Ryder locations throughout the country (collectively, "Ryder
Locations");
WHEREAS, RCTR has authorized, and expects, TRS to sell used trucks for
and on behalf of RCTR in the ordinary course of its business and wishes to hire
Ryder as its agent to sell such trucks at the Ryder Locations;
NOW, THEREFORE, in consideration of the rights and obligations set
forth herein, the adequacy of which is hereby acknowledged, the parties agree as
follows:
1. TRS AGREES:
(a) To make available and consign to Ryder at Ryder Locations, for
sale by Ryder as RCTR's agent acting for and on behalf of RCTR, at least such
quantity of RCTR trucks previously used in TRS's truck rental business
("Vehicles") as provided in Section 1(b) below.
(b) To reasonably agree with Ryder from time to time on the number and
make-up (type, make, model and year) of Vehicles to be consigned to Ryder at
each Ryder Location, considering physical capacity and market characteristics,
among other things. Subject to the provisions of the last sentence of Section
3(a), the total number of Vehicles consigned to Ryder by TRS each year during
the term of this Agreement will not be less than the following
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
percentage of the total number of trucks used in TRS' business which are sold or
traded each such year:
40% 1997
35% 1998
30% 1999
25% 2000
20% 2001
After December 31, 2001, either party may terminate this Agreement
upon at least sixty (60) days prior written notice to the other party.
(c) To be responsible for transferring/delivering Vehicles to the
Ryder Locations. TRS and Ryder may from time to time agree that Ryder will
accomplish the transfer/delivery for TRS, in which case Ryder will charge TRS
for the time of the drivers to get the Vehicle to the new location and return
(at the rate described in the Maintenance Agreement between Ryder and TRS) in
addition to such mileage rate as may be agreed between TRS and management of the
applicable Ryder district from time to time for any other vehicle which is to be
used to accomplish the transfer.
(d) The Vehicles delivered to Ryder Locations shall be in a condition
that meets the * . If any Vehicle is not in such condition, Ryder may, at
TRS's expense, perform such repairs or work Ryder deems necessary to put the
Vehicle into such condition; provided that Ryder will get TRS's prior approval
for any such repairs or work costing in excess of $250 per Vehicle. Any such
repairs or work will be governed by the Maintenance Agreement between Ryder and
TRS. Other than as expressly provided for in this Agreement, Ryder is not
authorized to incur any billable expenses for the sale of any certain Vehicle
without TRS's consent.
(e) To provide Ryder with power(s) of attorney from RCTR allowing
Ryder to execute a sales agreement for Vehicles, endorse titles to Vehicles, and
accomplish such other actions and sign such other documents as are appropriate
to the sale and transfer of title of Vehicles hereunder (the "Power of
Attorney"), and with supplies, forms, instructions and other materials necessary
to sell Vehicles on RCTR's behalf at Ryder Locations. Such items must be
reasonably acceptable to Ryder.
(f) TRS's printed warranty of the Vehicles to have the same terms and
conditions as Ryder's standard printed warranty as it may exist from time to
time, provided, however, that Ryder will advise TRS prior to making any change
in its standard printed warranty and that TRS's warranty will not be required to
be improved even though Ryder may improve Ryder's standard printed warranty
after the date hereof, and further provided that TRS's warranty will not be
called a "Road Ready" warranty or anything
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
confusingly similar thereto. Unless TRS otherwise directs Ryder in writing,
Ryder may sell each Vehicle with the benefit of RCTR's standard printed warranty
described above.
(g) To release and hold Ryder harmless from, and to assume
responsibility for, all losses and damages suffered by RCTR, TRS or anyone due
to theft, loss, or damage to Vehicles or cargo while in Ryder's custody
(including when being test driven by potential purchasers), except however, that
Ryder will be responsible to TRS, and reimburse TRS, for theft, loss, or damage
to Vehicles (but not cargo) caused by the * . TRS shall tender the Vehicles
to Ryder, empty of all cargo, at the Ryder Locations or, if TRS and Ryder agree
that Ryder will transfer the Vehicles to the Ryder Location, then at the point
of pick-up. In no event will Ryder have any responsibility to RCTR, TRS or any
other Person for cargo left in the Vehicles.
(h) To maintain the types of insurance, in the coverage limits, listed
in the insurance policy schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
Type of Insurance Policy Coverage Limits
Standard Automobile Liability Twenty-Five Million and no/100
Insurance Policy (the "Auto- Dollars ($25,000,000.00) Per
mobile Liability Insurance Occurrence with an excess layer
Policy") of at least Fifty Million and
no/100 Dollars ($50,000,000.00)
aggregate
Commercial General Liability Seventy-Five Million and
Insurance Policy with Broad no/100 Dollars ($75,000,000.00)
Form Contractual Liability
Insurance Coverage (the
"CGL Insurance Policy")
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Agreement.
TRS may self insure up to One Million and No/100 Dollars ($1,000,000.00) as a
deductible.
Each liability Insurance Policy shall:
(i) be written by an insurance company reasonably acceptable to
Ryder (it being understood that an insurance
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
company rated A- or better by A.M. Best & Company is acceptable);
(ii) name TRS and RCTR as an insured, and be amended to name Ryder,
its employees, officers, directors, contractors, agents and affiliates
(each an "Additional Insured") as additional insureds as their interests
may appear;
(iii) provide that if such insurance is canceled, or any material
change is made in the coverage which affects the interest of any Additional
Insured, such cancellation or change shall not be effective as to the
Additional Insured for ten (10) days after receipt by the Additional
Insured of written notice from such insurers of such cancellation or
change;
(iv) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any Additional
Insured;
(v) provide that in respect of the interests of any Additional
Insured in such policies, the insurance shall not be invalidated by any
action or inaction of TRS, RCTR or any other Person and shall insure each
Additional Insured regardless of any breach or violation of any warranty,
declaration or condition contained in such policies by RCTR or any other
Person;
(vi) shall expressly provide that all of the provisions thereof,
except the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(vii) in accordance with the terms and conditions of the
contractual liability coverage provided by such Insurance Policy, insure
the obligations of TRS to indemnify the Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of automobile liability
insurance and general liability insurance shall each be on an occurrence form.
The first Twenty-Five Million Dollars of automobile liability insurance shall
not be subject to any annual aggregate limit of liability.
Each liability Insurance Policy and any all-risks Insurance Policy of TRS or
RCTR which covers vehicles shall waive any rights of subrogation against the
Additional Insureds, except to the extent of Ryder's obligation to indemnify TRS
pursuant to Section 2(f) below.
At least once a year, from time to time at Ryder's request, and any time a new
policy is to go into effect, TRS shall provide
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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Ryder with insurance certificates and other evidence, reasonably satisfactory to
Ryder, that the benefits and coverage required by this Section 1(h) are in full
force and effect. The certificate shall describe the perils covered by each
policy of insurance then in force, identify the insurer or insurers with which
such policies of insurance are carried and maintained, specify the amounts of
insurance coverage provided against each such peril, and describe the provisions
contained in such policies of insurance so as to evidence compliance with the
requirements of this Section 1(h). Ryder shall have no duty to examine such
insurance certificates or the Insurance Policies to verify compliance. TRS shall
provide a copy of its insurance policies to Ryder promptly following a request
therefor, if available.
(i) To, notwithstanding anything in this Agreement to the contrary, and in
addition to the insurance requirements listed in Section 1(h) above, release,
indemnify, defend and hold harmless * , its affiliates, directors, officers,
employees, agents, subcontractors and assigns of each (the " * Indemnified
Parties") from and against any and all claims, liabilities, damages, losses,
costs, expenses (including, without limitation, forum costs and reasonable
attorneys' fees), fines and penalties), related to claims of third parties
(including but not limited to claims of * employees and agents) for injury to
or death of any person or loss of or damage to any property or otherwise
(collectively "Third Party Claims"), arising out of: (a) the terms of any *
or other warranty under which Vehicles are sold hereunder, (b) any allegation of
* that a sale of a Vehicle under this agreement was not authorized, (c) the
failure of * to remove any Liens as defined in Section 2(a)4 below, (d) any
failure of * to obtain authorization by * to allow any action or inaction
required or permitted of * hereunder, or (e)
* .
(j) TRS shall Ryder of one or more RCTR accounts into which funds received
from purchasers of Vehicles are to be deposited (excepting checks representing
customer deposits, which Ryder may hold until Ryder places into the account, the
rest of the funds due on sale of the Vehicle or until the deposits become
cashable due to the customer's failure to purchase the Vehicle). Ryder will
mail or make such deposits as promptly as practicable and in any event within
three (3) business days of receipt of the funds from the purchasers without
deduction, set off, recoupment or counterclaim.
(k) TRS will contribute each year, as specifically hereinafter provided,
toward advertising which is directly and indirectly for the sale of Vehicles.
Advertising which is specifically for the sale of Vehicles shall be proposed by
TRS and agreed between Ryder and TRS, and TRS shall pay therefor at such time as
payment for such advertising is to be made to a third party. Ryder shall not be
required to advance funds for such
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
5
<PAGE>
advertising. TRS's contribution to general advertising for the sale of trucks at
Ryder Locations ("General Advertising") shall be * per Vehicle sold hereunder
and shall be paid quarterly in arrears, on or before the fifteenth day after the
end of each quarter; provided, however, that in no event shall such payments
annually exceed TRS's pro rata portion (determined by the ratio of Vehicles sold
during the year to the total of Vehicles and Ryder trucks sold during that year)
of the aggregate sum spent by Ryder for General Advertising.
(l) TRS shall obtain and maintain a letter of credit, in favor of Ryder,
in the amount of two and one half million dollars ($2,500,000.00), the issuer or
confirming bank of which will be a bank reasonably acceptable to Ryder and the
terms of which shall be substantially in accordance with the form attached
hereto as Exhibit A (the "Letter of Credit") which may be drawn by Ryder in the
event of Material Breach by TRS under clause (i) of the third paragraph of
Section 3(c) of this Agreement or any of the other agreements between the
parties of even date herewith entitled Vehicle Maintenance Agreement, MIS
Support Agreement, or Administrative Services Agreement, as any of them may be
amended from time to time or as otherwise provided in Schedule 9.6(c) of the
Asset Purchase Agreement. Such Letter of Credit shall be for a term of at least
one year. One master $2.5 million letter of credit which complies with the
terms of this paragraph shall constitute the Letter of Credit under each of the
foregoing listed agreements ("Support Agreements"). TRS shall be obligated to
promptly replace the Letter of Credit or restore it to its full amount,
respectively, should Ryder draw such Letter of Credit in full or in part due to
the occurrence of a Material Breach under this Agreement.
Notwithstanding the foregoing, TRS may terminate, or not renew, the
Letter of Credit after the first anniversary of the date hereof, if it is not in
default of this Agreement at such time; provided, however, that should TRS,
after such time, either (i) commit a Material Breach of this Agreement due to
failure to pay charges due hereunder or under any Support Agreement (except if
prevented by a force majeure under Section 4(k) below), or (ii) twice within a
twelve month period, fail to timely pay charges due hereunder or under any
Support Agreement (except if prevented by a force majeure under Section 4(k)
below), then TRS shall again be obligated to obtain and maintain the Letter of
Credit pursuant to the first two sentences of the previous paragraph, and to
promptly replace the Letter of Credit or restore it to its full amount,
respectively, should Ryder draw such Letter of Credit in full or in part due to
the occurrence of a Material Breach under this Agreement. If, however, during
the following twelve months TRS timely pays all charges coming due hereunder,
and is not at such time otherwise in default of this Agreement, or in
bankruptcy, then TRS may again terminate, or not renew, the Letter of Credit,
and TRS's obligations hereunder to
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
6
<PAGE>
maintain the Letter of Credit shall cease, subject to the last stated proviso
above.
(m) TRS agrees to provide Ryder with the following financial statements and
information on a quarterly basis (or upon Ryder's reasonable request from time
to time for the purpose of evaluating the creditworthiness of TRS: (1) TRS's
combined Balance Sheet in the form set forth in Exhibit B; (ii) TRS's combined
Statement of Earnings in the form set forth in Exhibit C; (iii) TRS's Interest
Coverage Ratio; and (iv) TRS's Debt-to-Equity Ratio. Such information shall be
provided to Ryder's credit department and shall not be disseminated beyond such
department, except to the Controller of Ryder and the Chief Financial Officer of
its parent company.
(n) TRS agrees to obtain from RCTR such authorizations as are necessary to
accomplish all of the foregoing matters. Ryder shall have no duty to inquire of
TRS whether such authorizations have been obtained. Ryder may rely upon TRS'
covenant in the first sentence of this clause (n). If, however, Ryder at any
time has reason to doubt that any such necessary authorization has not been
obtained, Ryder shall not be obligated to perform any duty hereunder to which
the authorization relates, until such authorization shall have been obtained and
evidence of such, reasonably satisfactory to Ryder, has been delivered to Ryder.
Failure to obtain such authorization shall not relieve TRS of any duty which it
has to Ryder hereunder.
(o) All charges by Ryder under this Agreement, whether for maintenance or
repair of Vehicles, for sales fees or commissions or otherwise, shall be billed
to TRS, which shall be responsible to pay Ryder therefor in accordance with the
terms of this Agreement.
2. RYDER AGREES:
(a) To devote good faith efforts to sell Vehicles to customers in the
ordinary course of Ryder's business (i) subject to the criteria set forth below,
and (ii) in a manner which, except as otherwise expressly set forth herein, is
consistent with the manner in which Ryder sells its own light commercial
vehicles; and to devote good faith efforts to safeguard the Vehicles in a manner
which is consistent with the manner in which Ryder safeguards its own vehicles
which are being sold at the Ryder locations. The clause in (ii) above
constitutes a statement of general applicability to all aspects of the sale of
vehicles in the aggregate, and shall not be deemed a measurement of any one
instance of performance/nonperformance apart from other
performances/nonperformances of similar aspects of service.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
7
<PAGE>
(1) Unless otherwise agreed between Ryder and TRS on a case by case
basis, all sales of Vehicles will be for cash, not credit, and will be paid
by certified funds payable to RCTR or by customer's check if Ryder's
policies would permit the Ryder Location to accept a check in similar
amount from such customer were that customer purchasing a Ryder vehicle.
It is not intended that customers be able to purchase Vehicles with a
credit card.
(2) The asking price for each Vehicle ("Asking Price") and an
acceptable sale price for each Vehicle ("Take Price") will be reasonably
determined by TRS, with Ryder's assistance. Ryder may refuse to sell any
Vehicle for which the Asking Price or the Take Price is not reasonable in
Ryder's opinion. Ryder will not sell a Vehicle if the sale price is $500
or more below the Take Price, unless TRS and Ryder approve such a lower
price prior to each such sale.
(3) Unless otherwise indicated in the Vehicle Title Nominee Agreement
between Ryder and RCTR, the title to the Vehicles shall be and remain in
the name of RCTR until sold by Ryder, at which time Ryder, pursuant to the
power of attorney from RCTR, will transfer title to purchaser. Ryder will
not receive title to the Vehicles. TRS will cause RCTR to grant the Power
of Attorney to Ryder prior to the sale of the first Vehicle hereunder, and
to take such other actions and execute such other documents as is necessary
for Ryder to accomplish sale of Vehicles and concomitant transfer of title
to Vehicles to purchasers thereof.
(4) TRS shall be solely responsible, however, and Ryder shall have no
responsibility, for removing liens, interests and encumbrances ("Liens")
from the Vehicles. TRS shall remove all such Liens, or arrange for such
Liens to be removed without further action than is provided for herein upon
sale of each Vehicle to a purchaser, prior to delivery of the Vehicle to a
Ryder Location for sale.
(5) All sales proceeds shall belong to RCTR, provided that Ryder may,
if required by government authorities or permitted by RCTR, submit required
sales tax directly to such authorities as agent of RCTR.
(6) All Vehicle inspections or repairs accomplished by Ryder will be
governed by the Maintenance Agreement of even date herewith between Ryder
and TRS; provided, however that in the event of any conflict between the
terms of that agreement and this Agreement, this Agreement shall control.
(b) To not remove, transfer or otherwise use the Vehicles without TRS's
prior written consent except in connection with the
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
8
<PAGE>
sale of the Vehicles or otherwise in connection with this Agreement.
(c) To have RCTR's Sale Agreement completely and properly filled out and
signed by the purchaser.
(d) That authorized TRS representatives may, after giving at least 48
hours' advance written notice, enter Ryder Locations during regular business
hours to audit, inspect, or copy, at TRS's expense, RCTR-specific business
records maintained by Ryder and/or remove Vehicles.
(e) Ryder shall not make any post-sale Vehicle repairs covered by a TRS
warranty without TRS's prior approval if TRS would be charged in excess of $250
for those repairs.
(f) Ryder shall release indemnify, defend and hold harmless TRS, RCTR and
their respective directors, officers, employees, agents, subcontractors and
assigns from and against any and all Third Party Claims arising out of the gross
negligence or willful misconduct of the Ryder Indemnified Parties in performing
or failing to perform Repairs.
(g) That upon termination of this Agreement, Ryder will tender Vehicles and
materials for pickup by TRS at the Ryder Locations.
(h) To notify TRS within three (3) business days of the sale of any Vehicle
by sending to TRS a signed copy of the Bill of Sale for the sold Vehicle.
3. OTHER AGREEMENTS:
(a) TRS shall pay Ryder * per Vehicle sold plus such sums as shall be
sufficient to pay, and Ryder shall then pay, the Ryder salesperson a per Vehicle
commission as calculated under the Ryder Used Truck Representative Sales
Compensation Plan (which shall give equal treatment to the sale of Ryder and
RCTR vehicles) (the "Plan") in effect at the time of such sale. Ryder shall
have sole discretion to change the Plan from time to time, provided that (i)
Ryder shall give TRS at least ten (10) days prior written notice of the change
and (ii) the Plan shall not discriminate in any material way between Ryder
vehicles and RCTR Vehicles; and provided further that if the percentage of
commission to be paid under the Plan for any certain type of Vehicle increases
by more than 100% from the date hereof, then (1) TRS shall have the option to
refuse the increase in commission, in which case Ryder shall have the option to
terminate this Agreement, or reduce the number of Vehicles it sells under this
Agreement, upon sixty (60) days written notice,
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
9
<PAGE>
or (2) TRS shall be allowed to reduce the percentage of Vehicles required to be
consigned to Ryder under this Agreement by 50%.
(b) Ryder shall invoice TRS weekly for all commissions and other charges
due hereunder, which invoice shall be accompanied by reasonable documentation or
explanation supporting such commissions and charges, and TRS shall pay Ryder, as
to time periods within the first year following the date hereof, no later than
thirty (30) days after each invoice date, and as to all subsequent periods, no
later than fifteen (15) days after each invoice date. All payments hereunder
shall be made without deduction (except for charges billed in error), set off,
recoupment or counterclaim. If a party at any time believes that sums it is
charged hereunder are calculated in error, then it shall timely pay the
undisputed portion of the charge, and on or before the due date for payment of
the charge ("Due Date"), shall notify the other party in writing of the portion
it believes to be in error and give to the other party an explanation, in
responsible detail, of the reasons for its belief. The due date for payment of
the disputed sums shall then be extended for ten (10) days (or such later time
as both parties agree in writing) from the Due Date to give the parties time to
negotiate resolution of the dispute, which both parties will do in good faith.
(c) This Agreement will continue in full force and effect until terminated
by either party in accordance with the terms of this Agreement. If at any time
any party is in Material Breach of this Agreement, then in addition to all other
rights and remedies available under applicable law or in equity, the other party
shall have the right to terminate this Agreement without further notice or
demand. "Material Breach" shall mean (i) as to a failure of payment, that full
payment has not been received within five (5) days, after the owing party's
receipt of written notice that the payment was due, (ii) as to any other type of
failure, a material failure of performance of a party's obligations under this
Agreement, if such failure remains uncured thirty (30) days after receipt of
written notice of the failure and (iii) as to TRS, failure to cause the
replacement or restoration of the Letter of Credit as applicable, within five
(5) days following its complete or partial draw due to the occurrence of a
Material Breach hereunder except, as to (i), (ii) or (iii) above, if prevented
by a force majeure under Section 4(k) below.
In addition, this Agreement shall automatically terminate, without
notice required, upon the occurrence of any of the following events: (i) the
other party voluntarily enters into proceedings in bankruptcy or insolvency;
(ii) the other party shall make an assignment for the benefit of creditors;
(iii) a petition shall be filed against the other party under a bankruptcy law,
a corporate reorganization law, or any other law
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
10
<PAGE>
for the relief of debtors (or similar law in purpose or effect) and such
petition shall not have been dismissed within sixty (60) days; or (iv) the other
party enters into liquidation or dissolution proceedings.
Subject to the provisions of the next paragraph, in the event of
Material Breach by TRS pursuant to clause (i) of the first paragraph of this
Section 3(c), Ryder may draw from the Letter of Credit, without court
proceeding, order or otherwise such sums to which Ryder is entitled due to TRS's
Material Breach, and Ryder shall apply such sums against such entitlement. If
the application of such sums is sufficient to cure the Material Breach, then the
Material Breach shall be deemed cured and Ryder shall not terminate this
Agreement due to such Material Breach; if the application of such sums is not
sufficient for such purpose, then Ryder may terminate this Agreement due to the
Material Breach pursuant to the first paragraph of this Section 3(c). It is
agreed, however, that if it shall later be determined by a court of competent
jurisdiction or by mutual agreement of the parties that TRS did not in fact owe
Ryder all of the sums drawn from the Letter of Credit, then Ryder shall return
these sums not owed.
If and to the extent a failure of payment by TRS arises from an
assertion by TRS, timely disputed pursuant to Section 3(b) above, that Ryder did
not perform a service billed to TRS, then Ryder shall not be entitled to draw
the Letter of Credit with respect to such failure of payment until the later of
(i) such time as Ryder would be entitled to draw the Letter of Credit under the
preceding paragraph, (ii) fifteen business days after the date Ryder notifies
TRS in writing that Ryder has investigated the dispute and that its records or
personnel confirm the service to have been performed and has offered TRS access
to such records or personnel or (iii) such date as Ryder and TRS mutually agree
in writing. It is agreed that the foregoing sentence does not apply to a
dispute over the quality or conformity of the service or to any attempt by TRS
to set off another matter against Ryder's invoice.
(d) Ryder may, at its option, sell for its own account, or permit any
person or business entity to sell, vehicles (including trucks which are not
Vehicles) of any kind on or about Ryder Locations.
(e) The Vehicles will be sold without warranty of any kind, except that
TRS' printed warranty shall apply unless TRS otherwise directs Ryder in writing.
(f) Under no circumstances will Ryder, its agents, or employees be deemed
to be TRS' or RCTR's employees.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
11
<PAGE>
(g) In the event either party resorts to litigation, arbitration or other
proceeding to enforce its rights under this Agreement, the prevailing party will
be entitled to reasonable attorney's fees, costs and expenses.
(h) Ryder and TRS agree to keep, and to cause each of its affiliates,
directors, officers, and employees to keep, confidential any and all
confidential information of the other party that it receives in the course of
performing its obligations hereunder (except that such information may be
shared, on a confidential basis, with the party's attorneys and auditors) and
will not, without the other party's written consent, use any of such
confidential information except as reasonably necessary to perform its duties
under this or another of its agreements with the other party. Upon termination
of this Agreement, each party will return, and will cause its affiliates to
return, to the other party, all original document and copies of the confidential
information which are in its possession.
(i) Notwithstanding anything to the contrary in this Agreement, neither
party shall be liable for, and each party waives and releases the other from
(and as to RCTR's damages, TRS indemnifies and holds harmless the Ryder
Indemnified Parties from), any and all indirect, incidental, special or
consequential damages, including, but not limited to, lost profits, loss of use
or business interruption, even if such damages are foreseeable but not if they
are direct damages.
4. MISCELLANEOUS:
(a) Cumulative and Non-exclusive Rights and Remedies. The parties' rights
------------------------------------------------
and remedies under this Agreement are non-exclusive and are cumulative with its
rights and remedies at law or in equity.
(b) Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this section,
provided receipt of copies of such counterparts is confirmed.
(c) Governing Law; Jurisdiction and Forum.
-------------------------------------
(1) This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to the choice of
law principles thereof, except
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
12
<PAGE>
for matters of Florida corporate law, as to which such law shall apply.
(2) Ryder and TRS hereby irrevocably submit to the jurisdiction of any
New York State or Federal court sitting in the City of New York in any
action or proceeding arising out of this Agreement or the transactions
contemplated hereby. Ryder and TRS hereby irrevocably waive the defense of
an inconvenient forum to the maintenance of any such action or proceeding.
(3) By the execution and delivery of this Agreement, TRS (i)
irrevocably designates and appoints Jay Alix & Associates ("JA&A"), 575
Fifth Avenue, New York, New York 10017, as its authorized agent upon which
process may be served in any action or proceeding arising out of or
relating to this Agreement so long as JA&A maintains a place of business at
an address in New York City; provided that TRS may at any time designate
and appoint in lieu of JA&A The Corporation Trust Company ("CTC") care of
CT Corporation System, at 1633 Broadway, 23rd floor, in the City of New
York, County of New York, State of New York to so serve, (ii) submits to
the personal jurisdiction of any state or federal court in the State of New
York in any such action or proceeding, and (iii) agrees that service of
process upon CTC shall be deemed in every respect effective service of
process upon TRS in any such action or proceeding. TRS further agrees to
take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CTC in full force and effect so long as this
Agreement shall be in effect. The foregoing shall not limit the rights of
any party to serve process in any other manner permitted by law.
(d) Entire Agreement. This Agreement and the Schedules and Exhibits hereto
----------------
contain the entire agreement between the parties with respect to the subject
matter hereof and there are no agreements, understandings, representations or
warranties between the parties other than those set forth or referred to herein.
This Agreement is not intended to confer upon anyone not a party hereto any
rights or remedies hereunder.
(e) Notices. All notices shall be in writing and delivered personally or
-------
sent by nationally recognized overnight delivery service (e.g., Federal Express)
or registered or certified mail, return receipt requested, to the appropriate
address set forth below. Notices to Ryder shall be addressed to:
Ryder Truck Rental, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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Attention: President
with a copy to:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: General Counsel
or at such other address and to the attention of such other person as Ryder may
designate by written notice to TRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
c/o Questor Management Company
4000 Town Center
Southfield, MI 48075
Attention: President
with a copy to:
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, Florida 33116
Attention: Gerald R. Riorden
or at such other address and to the attention of such other person as TRS may
designate by written notice of Ryder.
(f) Successors and Assigns. This Agreement shall be binding upon and inure
----------------------
to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, that neither party may assign this Agreement
without the prior written consent of the other party. Notwithstanding the
foregoing: (1) TRS may assign this Agreement, upon 10 days prior written notice
to and without the consent of Ryder, to a party who purchases or acquires, as a
going concern, the business of TRS or all or substantially all of TRS's assets,
provided, however, that any assignee of this Agreement must (A) agree with
Ryder, in writing, to be bound by the terms and provisions hereof, (B) have a
debt/equity ratio as good as TRS's at the time of execution hereof, (C) be the
assignee of the competition provisions in Section 6.2(d) of the Asset Purchase
Agreement and the following agreements defined in the Asset Purchase Agreement
(to the extent such agreements are still existing at the time of such
assignment): (i) the Copyright License Agreement, (ii) the Software License
Agreement, (iii) the Trademark Agreement, (iv) the Administrative Services
Agreement, (v) the Vehicle Maintenance Agreement, (vi) the Dealer Agreement and
(vii) the Used Truck Sales Agreement, and (D) not be one of the parties set
forth in paragraph number 8 on Schedule 3 of the Trademark Agreement, (2) Ryder
may assign this Agreement upon 10 days prior
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
14
<PAGE>
written notice to and without the consent of TRS, to a party who purchases or
acquires as a going concern, the business of Ryder or all or substantially all
of Ryder's assets, provided, however, that any assignee of this Agreement must
(A) agree with TRS, in writing, to be bound by the terms and provisions hereof,
and (B) have a debt/equity ratio as good as, Ryder's at the time of execution
hereof. TRS may assign its rights hereunder to any lenders which provide
financing to TRS for the purpose of consummating the transactions contemplated
under the Asset Purchase Agreement, or refinancing any such financing, including
any successors thereto.
(g) Headings; Definitions. The headings contained in this Agreement are
---------------------
inserted for convenience of reference only and will not affect the meaning or
interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
(h) Amendments and Waivers. This Agreement may not be modified or amended
----------------------
except by an instrument or instruments in writing signed by the party against
whom enforcement of any such modification or amendment is sought. Either party
hereto may, only by an instrument in writing, waive compliance by the other
party hereto with any term or provision hereof on the part of such other party
hereto to be performed or complied with. The waiver by any party hereto of a
breach of any term or provision hereof shall not be construed as a waiver of any
subsequent breach.
(i) Interpretation; Absence of Presumption. This Agreement shall be
--------------------------------------
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
(j) Severability. Any provision hereof which is invalid or unenforceable
------------
shall be ineffective to the extent of such invalidity or unenforceability,
without affecting in any way the remaining provisions hereof.
(k) Force Majeure. Neither party shall be liable for its failure or delay
-------------
in fulfilling its obligations hereunder, if such failure or delay is caused by
fire, flood, weather conditions or other Acts of God, invasions, insurrections,
riots, closing of the public highways, delays or failures of manufacturer or
distributor in providing parts, strike, lockout or other labor dispute, civil
unrest, war or any other reason beyond the reasonable control of the party. In
the case of strikes, lockouts or other labor disputes, it is understood that
such event is beyond the reasonable control of the party suffering the \
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
15
<PAGE>
event unless and until the party is able to resolve it in a manner which such
party deems reasonable and appropriate.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
IN WITNESS WHEREOF, the parties have caused this Used Truck Sales Agreement
to be executed by their duly authorized officers as of the date first written
above.
Ryder TRS, Inc. (f/k/a Ryder Truck Rental, Inc.
RCTR Holdings, Inc. ("TRS") ("Ryder")
BY: /s/ Wallace L. Rueckel BY:/s/ Dwight D. Denny
----------------------- -------------------
NAME: Wallace L. Rueckel NAME: Dwight D. Denny
TITLE: Senior Vice President TITLE: Executive V.P.
& Treasurer -Development
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
17
<PAGE>
EXHIBIT 10.6
------------
ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT is entered into as of this 17th
day of October, 1996 between Ryder Truck Rental, Inc., a Florida corporation
with its principal place of business at 3600 N.W. 82nd Avenue, Miami, Florida
33166 ("Ryder") and Ryder TRS, Inc. (f/k/a RCTR Holdings, Inc.), a Delaware
corporation with its principal place of business at 8669 N.W. 36th Street,
Miami, Florida 33166 ("TRS"), wherein it is agreed:
1. Purposes:
--------
1.1 Ryder and TRS are parties to an Asset Purchase Agreement dated
September 19, 1996 (the "Asset Purchase Agreement") under which TRS is
purchasing from Ryder certain assets and businesses of Ryder's Consumer Truck
Rental division (the "Business").
1.2 TRS wishes that Ryder continue to provide, and Ryder agrees to
continue to provide, certain services in support of the Business from and after
the date hereof, on the terms and conditions set forth herein.
2. Term. Subject to the provisions of Section 5 hereof, this
----
Agreement shall be effective from and after the date hereof and shall continue
until the earlier of (a) two years from the date hereof or (b) the date all
services have been terminated pursuant to Section 5 below.
3. Agreement to Perform Selected Services.
--------------------------------------
Subject to all of the terms and conditions hereof, Ryder shall provide
to TRS those administrative and support services described on Schedule A hereto
(the "Services"), provided, however that Ryder shall not be obligated to take
any action that would constitute preparation of an income tax return or would
otherwise result in Ryder's being deemed to be an income tax return preparer
within the meaning of Section 7701 of the Internal Revenue Code of 1986, as
amended, and within the meaning of similar tax laws under state statutes.
3.1 From time to time, TRS may request that the Services be expanded
to include other services which Ryder provided to the Business just prior to the
date hereof, and Ryder shall in good faith negotiate with TRS to provide the
services if Ryder has the capacity to do so; provided, however, that with
respect to any service not scheduled Ryder shall not be obligated to offer any
professional services, such as legal advice or advice on the setting of
accounting reserves, or any service which Ryder in its sole discretion believes
to be inappropriate due to the competitiveness of the parties, or any service
which Ryder does
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
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THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
not possess legal authority to do for a third party. Ryder
shall perform the Services exercising the same skill and in the same manner as
it performed the same or similar services for its own account prior to the date
hereof. The foregoing sentence is a statement of general applicability to all
services in the aggregate, and shall not be deemed a measurement of any one
instance of performance/nonperformance apart from other
performances/nonperformances of similar services.
If TRS desires that a particular Service be performed in a different
way and Ryder is reasonably able to accommodate such desire, then the parties
will agree upon the remuneration Ryder shall receive for performing the Service
that way, and Ryder shall accommodate the request.
From time to time, TRS may request Ryder to perform certain services
for its wholly owned subsidiary, RCTR, Inc. ("RCTR"). TRS agrees to obtain from
RCTR such authorizations as are necessary to accomplish such services. Ryder
shall have no duty to inquire of TRS whether such authorizations have been
obtained. Ryder may rely upon TRS' covenant in the second sentence of this
paragraph. If, however, Ryder at any time has reason to doubt that any such
necessary authorization has not been obtained, Ryder shall not be obligated to
perform any duty to which the authorization relates, until such authorization
shall have been obtained and evidence of such, reasonably satisfactory to Ryder,
has been delivered to Ryder.
3.2 If in Ryder's sole discretion it deems necessary or appropriate,
Ryder may engage the services of third parties to render, or assist in
rendering, certain of the Services. Except for emergencies, Ryder shall discuss
its outsourcing decision with TRS at least ten days prior to implementing the
outsourcing, and Ryder shall only outsource Services (i) as part of a greater
outsourcing of services Ryder provides to itself or its customers or (ii) with
TRS's consent, which shall not be unreasonably withheld. Ryder shall not
utilize outsourcing for the purpose of diminishing the skill or manner with
which Services are performed.
TRS agrees that certain of the Services may require the assistance of
certain former employees of Ryder who are employed by TRS, and that Ryder shall
be entitled to utilize the services of such employees upon reasonable prior
notice provided that such utilization does not unreasonably interfere with the
duties of such employees. The Services to be rendered by such employees shall
be arranged through the Transition Coordinators.
Each of TRS and Ryder shall designate one (1) transition coordinator
(each, a "Transition Coordinator" and collectively, the "Transition
Coordinators") who will provide continuous oversight and coordination of, and
communicate concerning
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
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THE SECURITIES ACT OF 1933, AS AMENDED.
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disputes with respect to, the Services who will be available to TRS and Ryder
during normal business hours and who will be responsible for providing for, or
delegating the provision of assistance regarding, the Services. TRS and Ryder
may from time to time substitute the persons serving as Transition Coordinators
with other persons who, in the reasonable judgment of the party appointing the
Transition Coordinator, are qualified to serve in those positions.
3.3 TRS acknowledges that Ryder's ability to provide the Services,
and to do so on a timely basis, may be in whole or in part dependent on receipt
of accurate, timely and sufficient information from TRS.
4. Charges for Services; Payment:
-----------------------------
4.1 The charges for Services shall be the charges listed in Schedule
B hereto.
In addition to the scheduled charges, TRS shall reimburse to Ryder an
amount equal to the sum of: (i) all direct out-of-pocket fees and expenses
incurred by Ryder in rendering the Services to the extent not already included
in the amounts payable in Schedule B hereof, (ii) * (iii) any and all taxes
(other than taxes based on Ryder's net income or gross income) assessed on the
provision of the Services without any offset or deduction of any nature
whatsoever. Such costs, expenditures and taxes will be billed to TRS in the
monthly invoices rendered pursuant to this paragraph. * .
4.2 Ryder shall invoice TRS weekly in arrears for all charges for
Services to TRS, which invoice shall be accompanied by reasonable documentation
or explanation supporting such charges, and TRS shall pay Ryder, as to time
periods within the first year following the date hereof, no later than thirty
(30) days after each invoice date, and as to all subsequent periods, no later
than fifteen (15) days after each invoice date. All payments hereunder shall be
made without deduction (except for charges billed in error), set off, recoupment
or counterclaim. In the case of charges believed to be billed in error, TRS
shall timely pay the undisputed portion of the invoice, and on or before the due
date for payment of the charges ("Due Date"), TRS shall notify Ryder in writing
of the portion believed to be billed in error and give Ryder an explanation, in
reasonable detail, of the reasons for its belief. The due date for payment of
these disputed sums shall then be extended for ten (10) days (or such later time
as both parties agree in writing) from the Due Date to give the parties time to
negotiate resolution of the dispute, which both parties will do in good faith.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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All charges shall conclusively be presumed correct unless Ryder
receives notice within one hundred eighty (180) days of the invoice date.
All overdue amounts shall bear interest at a rate equal to the lower
of: (i) ten percent (10%) per annum or (ii) the highest rate permitted by law
("Past Due Interest").
4.3 TRS shall obtain and maintain a letter of credit, in favor of
Ryder, in the amount of two and one half million dollars ($2,500,000.00), the
issuer or confirming bank of which will be a bank reasonably acceptable to Ryder
and the terms of which shall be substantially in accordance with the form
attached hereto as Exhibit A (the "Letter of Credit") which may be drawn by
Ryder in the event of Material Breach by TRS under clause 10(i) of this
Agreement or any of the other agreements between the parties of even date
herewith entitled Vehicle Maintenance Agreement, MIS Support Agreement, or Used
Truck Sales Agreement, as any of them may be amended from time to time or as
otherwise provided in Schedule 9.6(c) of the Asset Purchase agreement. Such
Letter of Credit shall be for a term of at least one year. One master $2.5
million letter of credit which complies with the terms of this paragraph shall
constitute the Letter of Credit under each of the foregoing listed agreements
("Support Agreements"). TRS shall be obligated to promptly replace the Letter
of Credit or restore it to its full amount, respectively, should Ryder draw such
Letter of Credit in full or in part due to the occurrence of a Material Breach
under this Agreement.
Notwithstanding the foregoing, TRS may terminate, or not renew, the
Letter of Credit after the first anniversary of the date hereof, if it is not in
default of this Agreement at such time; provided, however, that should TRS,
after such time either (i) commit a Material Breach of this Agreement due to
failure to pay charges due hereunder or under any Support Agreement (except, if
prevented by a force majeure under paragraph 12 below) or (ii) twice within a
twelve month period, fail to timely pay charges due hereunder or under any
Support Agreement (except, if prevented by a force majeure under paragraph 12
below), then TRS shall again be obligated to obtain and maintain the Letter of
Credit pursuant to the first two sentences of the previous paragraph, and to
promptly replace the Letter of Credit or restore it to its full amount,
respectively, should Ryder draw such Letter of Credit in full or in part due to
the occurrence of a Material Breach under this Agreement. If, however, during
the following twelve months TRS timely pays all charges coming due hereunder,
and is not at such time otherwise in default of this Agreement, or in
bankruptcy, then TRS may again terminate, or not renew, the Letter of Credit,
and TRS's obligations hereunder to maintain the Letter of Credit shall cease,
subject to the last stated proviso above.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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4.4 TRS agrees to provide Ryder with the following financial
statements and information on a quarterly basis (or upon Ryder's reasonable
request from time to time for the purpose of evaluating the creditworthiness of
TRS: (i) TRS's Combined Balance Sheet in the form set forth in Exhibit B; (ii)
TRS's Combined Statement of Earnings in the form set forth in Exhibit C; (iii)
TRS's Interest Coverage Ratios; and (iv) TRS's Debt-To-Equity-Ratio. Such
information shall be provided to Ryder's credit department and shall not be
disseminated beyond such department except to the Controller of Ryder and the
Chief Financial Officer of its parent company.
5. Reductions in Services; Termination. The parties recognize that
-----------------------------------
during the Term hereof TRS's requirements for certain Services will decrease and
that TRS intends to reduce or completely phase out Services as no longer
required. Accordingly, at any time after the Closing, TRS may terminate all or
any part of the Services by giving Ryder not less than sixty (60) days advance
notice in writing of any anticipated termination of any Services and, to the
extent practicable, the parties will agree to an orderly reduction or phase-out
of such Services. Once a Service is discontinued, Ryder shall not again be
obligated to later reinstate such Services.
6. Non-Solicitation. TRS covenants to Ryder that neither it nor its
----------------
affiliates controlled by it shall solicit or induce any employee of Ryder or a
Ryder affiliate who provides Services to accept employment with TRS or any
affiliate of TRS during the term in which such Services are provided or within
one year thereafter, without the prior written consent of Ryder. It is
understood, however, that Ryder will not unreasonably withhold its consent as to
any employee who has been primarily engaged in providing Services during the six
months prior to termination of those Services. Ryder agrees that neither
advertising of employment positions nor post-closing contact of an employee of
Ryder or Ryder's affiliate by a contracted head hunter for TRS who is not told
to target one or more of those employees, nor a contact to TRS or an affiliate
controlled by TRS initiated post-closing by one of those employees regarding
employment shall be considered "solicitation" or "inducement" or an attempt to
do so.
7. Software/Hardware - Not Covered. This Agreement does not pertain
-------------------------------
to software or hardware which Ryder utilizes in performing the Services
("Infoware"). The Software License Agreement and MIS Support Agreement, both
entered into by TRS and Ryder of even date herewith (the "MIS Agreements"),
shall set forth any rights in Infoware which TRS may have. Except as may be
expressly set forth in the MIS Agreements, Ryder may modify or remove from use
any Infoware at any time, so long as Ryder is otherwise able to continue to
provide the Services for which the Infoware was used.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
8. Insurance; Indemnification:
--------------------------
8.1 During the Term of this Services Agreement, TRS will maintain the
types of insurance in the coverage limits listed in the insurance policy
schedule set forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
<TABLE>
<CAPTION>
TYPE OF INSURANCE POLICY COVERAGE LIMITS
<S> <C>
Commercial General Liability Seventy-Five Million and
Insurance Policy with Broad no/100 Dollars ($75,000,000.00)
Form Contractual Liability
Insurance Coverage (the
"CGL Insurance Policy")
</TABLE>
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Services Agreement.
TRS may self-insure up to One Million and 00/100 Dollars
($1,000,000.00) as a deductible.
8.2 Each liability Insurance Policy shall:
(i) be written by an insurance company reasonably acceptable to
Ryder (it being understood that an insurance company rated A- or better by
A.M. Best & Company is acceptable);
(ii) name TRS as an insured, and be amended to name Ryder, its
employees, officers, directors, contractors, agents and affiliates (each an
"Additional Insured") as additional insureds as their interests may appear;
(iii) provide that if such insurance is cancelled, or any
material change is made in the coverage which affects the interest of any
Additional Insured, such cancellation or change shall not be effective as
to the Additional Insured for ten (10) days after receipt by the Additional
Insured of written notice from such insurers of such cancellation or
change;
(iv) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any Additional
Insured;
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
(v) provide that in respect of the interests of any Additional
Insured in such policies, the insurance shall not be invalidated by any
action or inaction of TRS or any other Person and shall insure each
Additional Insured regardless of any breach or violation of any warranty,
declaration or condition contained in such policies by TRS or any other
Person (other than TRS);
(vi) shall expressly provide that all of the provisions thereof,
except the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(vii) in accordance with the terms of the contractual liability
coverage provided by such Insurance Policy, insure the obligations of TRS.
The first Twenty-Five Million Dollars ($25,000,000) of general liability
insurance shall be on an occurrence form.
8.3 At least once a year, from time to time at Ryder's request, and
any time a new policy is to go into effect, TRS shall provide Ryder with
insurance certificates and other evidence, reasonably satisfactory to Ryder,
that the benefits and coverage required by this paragraph 8 are in full force
and effect. The certificate shall describe the perils covered by each policy of
insurance then in force, identify the insurer or insurers with which such
policies of insurance are carried and maintained, specify the amounts of
insurance coverage provided against each such peril, and describe the provisions
contained in such policies of insurance so as to evidence compliance with the
requirements of this paragraph 8, and that Ryder shall have no duty to examine
such insurance certificates or the Insurance Policies to verify compliance. TRS
shall provide a copy of its insurance policies to Ryder promptly following a
request therefor, if available.
8.4 Notwithstanding anything to the contrary in this Agreement,
neither party shall be liable for, and each party waives and releases the other
from, (and as to RCTR's damages, TRS indemnifies and holds harmless Ryder from)
ANY AND ALL INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING,
BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE OR BUSINESS INTERRUPTION, EVEN IF
SUCH DAMAGES ARE FORESEEABLE.
9. Confidentiality. Ryder and TRS agree to keep, and to cause each
---------------
of its affiliates, directors, officers, and employees to keep, confidential any
and all confidential information of the other party that it receives in the
course of performing its obligations hereunder (except that such informa-
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
tion may be shared, on a confidential basis, with the party's attorneys and
auditors) and will not, without the other party's written consent, use any of
such confidential information except as reasonably necessary to perform its
duties under this or another of its agreements with the other party. Upon
termination of this Agreement, each party will return, and will cause its
affiliates to return, to the other party, all original documents and copies of
the confidential information which are in its possession.
10. Default. If at any time any party is in Material Breach of this
-------
Agreement, then in addition to all other rights and remedies available under
applicable law or in equity, the other party shall have right to terminate this
Agreement without further notice or demand. "Material Breach" shall mean (i) as
to a failure of payment, that full payment has not been received within five (5)
days, after the owing party's receipt of written notice that the payment was
due, (ii) as to any other type of failure, a material failure of performance of
a party's obligations under this Agreement, if such failure remains uncured
thirty (30) days after receipt of written notice of the failure and (iii) as to
TRS, failure to cause the replacement or restoration of the Letter of Credit as
applicable, within five (5) days following its complete or partial draw due to
the occurrence of a Material Breach hereunder except, as to (i), (ii) or (iii)
above, if prevented by a force majeure under paragraph 12 below.
In addition, this Agreement shall automatically terminate, without
notice required, upon the occurrence of any of the following events: (i) the
other party voluntarily enters into proceedings in bankruptcy or insolvency;
(ii) the other party shall make an assignment for the benefit of creditors;
(iii) a petition shall be filed against the other party under a bankruptcy law,
a corporate reorganization law, or any other law for the relief of debtors (or
similar law in purpose or effect) and such petition shall not have been
dismissed within sixty (60) days; or (iv) the other party enters into
liquidation or dissolution proceedings.
Subject to the provisions of the next paragraph, in the event of
Material Breach by TRS pursuant to clause (i) of the first paragraph of this
paragraph 10, Ryder may draw from the Letter of Credit, without court
proceeding, order or otherwise, such sums to which Ryder is entitled due to
TRS's Material Breach, and Ryder shall apply such sums against such entitlement.
If the application of such sums is sufficient to cure the Material Breach,
including Past Due Interest owed to date of draw, then the Material Breach shall
be deemed cured and Ryder shall not terminate this agreement due to such
Material Breach; if the application of such sums is not sufficient for such
purpose, then Ryder may terminate this Agreement due to the
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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Material Breach pursuant to the first paragraph of this paragraph 10. It is
agreed, however, that if it shall later be determined by a court of competent
jurisdiction or by mutual agreement of the parties that TRS did not in fact owe
Ryder all of the sums drawn from the Letter of Credit, then Ryder shall return
the sums not owed, with interest thereon computed at the same annual rate of
interest as set forth above in the definition of "Past Due Interest".
If and to the extent a failure of payment by TRS arises from an
assertion by TRS, timely disputed pursuant to paragraph 4.2 above, that Ryder
did not perform a service billed to TRS, then Ryder shall not be entitled to
draw the Letter of Credit with respect to such failure of payment until the
later of (i) such time as Ryder would be entitled to draw the Letter of Credit
under the preceding paragraph, (ii) fifteen business days after the date Ryder
notifies TRS in writing that Ryder has investigated the dispute and that its
records or its personnel confirm the service to have been performed and has
offered TRS access to such records or personnel or (iii) such date as Ryder and
TRS mutually agree in writing. It is agreed that the foregoing sentence does
not apply to a dispute over the quality or conformity of the Service or to any
attempt by TRS to set off another matter against Ryder's invoice.
In the event either party resorts to litigation, arbitration or other
proceeding to enforce its rights under this Agreement, the prevailing party will
be entitled to reasonable attorney's fees, costs and expenses.
11. Relationship of the Parties. It is expressly understood and
---------------------------
agreed that in rendering the Services hereunder, Ryder is acting as an
independent contractor and that this Agreement does not constitute either party
as an employee, partner, joint venturer, agent or other representative of the
other party for any purpose whatsoever. Neither party has the right or
authority to enter into any contract, warranty, guarantee or other undertaking
in the name of or for the account of the other party, or to assume or create any
obligation or liability of any kind, express or implied, on behalf of the other
party, or to bind the other party in any manner whatsoever, or hold itself out
as having any right, power or authority to create any such obligation or
liability on behalf of the other or to bind the other party in any manner
whatsoever (except as to any actions taken by either party at the express
written request and direction of the other party).
12. Force Majeure. Neither party shall be liable for its failure or
-------------
delay in fulfilling its obligations hereunder, if such failure or delay is
caused by fire, flood, weather conditions or other Acts of God, invasions,
insurrections, riots, closing of the public highways, strike, lockout or other
labor
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
dispute, civil unrest, war or any other reason beyond the reasonable control of
the party. In the case of strikes, lockouts or other labor disputes, it is
understood that such event is beyond the reasonable control of the party
suffering the event unless and until the party is able to resolve it in a manner
which such party deems reasonable and appropriate.
13. Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this paragraph
provided receipt of copies of such counterparts is confirmed.
14. Governing Law; Jurisdiction and Forum.
-------------------------------------
14.1 This Agreement shall be governed by and construed in accordance
with the laws of the State of New York without reference to the choice of law
principles thereof, except for matters of Florida corporate law, as to which
such law shall apply.
14.2 Ryder and TRS hereby irrevocably submit to the jurisdiction of
any New York State or Federal court sitting in the City of New York in any
action or proceeding arising out of this Agreement or the transactions
contemplated hereby. Ryder and TRS hereby irrevocably waive the defense of an
inconvenient forum to the maintenance of any such action or proceeding.
14.3 By the execution and delivery of this Agreement, TRS (i)
irrevocably designates and appoints Jay Alix & Associates ("JA&A"), 575 Fifth
Avenue, New York, New York 10017, as its authorized agent upon which process may
be served in any action or proceeding arising out of or relating to this
Agreement so long as JA&A maintains a place of business at an address in New
York City; provided that TRS may at any time designate and appoint in lieu of
JA&A The Corporation Trust Company ("CTC") care of CT Corporation System, at
---
1633 Broadway, 23rd floor, in the City of New York, County of New York, State of
New York to so serve, (ii) submits to the personal jurisdiction of any state or
federal court in the State of New York in any such action or proceeding, and
(iii) agrees that service of process upon CTC shall be deemed in every respect
effective service of process upon TRS in any such action or proceeding. TRS
further agrees to take any and all action, including the execution and filing of
any and all such documents and instruments, as may be necessary to continue such
designation and appointment of CTC in full force and effect so long as this
Agreement shall be in effect. The
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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foregoing shall not limit the rights of any party to serve process in any other
manner permitted by law.
15. Entire Agreement. This Agreement and the Schedules and Exhibits
----------------
hereto contain the entire agreement between the parties with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other that those set forth or
referred to herein. This agreement is not intended to confer upon anyone not a
party hereto any rights or remedies hereunder.
16. Notices. All notices shall be in writing and delivered
-------
personally or sent by nationally recognized overnight delivery service (e.g.,
Federal Express) or registered or certified mail, return receipt requested, to
the appropriate address set forth below. Notices to Ryder shall be addressed
to:
Ryder Truck Rental, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: President
with a copy to:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: General Counsel
or at such other address and to the attention of such other person as Ryder may
designate by written notice to TRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
c/o Questor Management
Company
4000 Town Center
Southfield, MI 48075
Attention: President
with a copy to:
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, FL 33166
Attention: Gerald R. Riordan
or at such other address and to the attention of such other person as TRS may
designate by written notice to Ryder.
17. Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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their respective successors and permitted assigns; provided, that neither party
may assign this Agreement without the prior written consent of the other party.
Notwithstanding the foregoing: (i) TRS may assign this Agreement, upon 10 days
prior written notice to and without the consent of Ryder, to a party who
purchases or acquires, as a going concern, the business of TRS or all or
substantially all of TRS's assets, provided, however, that any assignee of this
Agreement must (a) agree with Ryder, in writing, to be bound by the terms and
provisions hereof, (b) have a debt/equity ratio as good as, TRS's at the time of
execution hereof, (c) be the assignee of the competition provisions in Section
6.2(d) of the Asset Purchase Agreement and the following agreements defined in
the Asset Purchase Agreement (to the extent such agreements are still existing
at the time of such assignment): (1) the Copyright License Agreement, (2) the
Software License Agreement, (3) the Trademark Agreement, (4) the Dealer
Agreement, (5) the Vehicle Maintenance Agreement, (6) the MIS Support Agreement,
and (7) the Used Truck Sales Agreement, and (d) not be one of the parties set
forth in paragraph number 8 on Schedule 3 of the Trademark Agreement, (ii) Ryder
may assign this Agreement, upon 10 days prior written notice to and without the
consent of TRS, to a party who purchases or acquires, as a going concern, the
business of Ryder or all or substantially all of Ryder's assets, provided,
however, that any assignee of this Agreement must (a) agree with TRS, in
writing, to be bound by the terms and provisions hereof, and (b) have a
debt/equity ratio as good as, Ryder's at the time of execution hereof. TRS may
assign its rights hereunder to any lenders which provide financing to TRS for
the purpose of consummating the transactions contemplated under the Asset
Purchase Agreement, or refinancing any such financing, including any successors
thereto.
18. Headings; Definitions. The headings contained in this Agreement
---------------------
are inserted for convenience of reference only and will not affect the meaning
or interpretation of this Agreement. All references to paragraphs contained
herein mean paragraphs of this Agreement unless otherwise stated. All
capitalized terms defined herein are equally applicable to both the singular and
plural forms of such terms.
19. Amendments and Waivers. This Agreement may not be modified or
----------------------
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought.
Either party hereto may, only by an instrument in writing, waive compliance by
the other party hereto with any term or provision hereof on the part of such
other party hereto to be performed or complied with. The waiver by any party
hereto of a breach of any term or provision hereof shall not be construed as a
waiver of any subsequent breach.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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20. Interpretation; Absence of Presumption. This Agreement shall be
--------------------------------------
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
21. Severability. Any provision hereof which is invalid or
------------
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-13-
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Administrative
Services Agreement to be executed by their duly authorized officers as of the
date first written above.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC. (f/k/a
"Ryder" RCTR HOLDINGS, INC.)
"TRS"
By: /s/ Dwight D. Denny By: /s/ Wallace L. Rueckel
-------------------- -----------------------
Dwight D. Denny Wallace L. Rueckel
Executive V.P.-Development Senior Vice President &
Treasurer
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-14-
<PAGE>
SCHEDULE A
ADMINISTRATIVE SERVICES FOR TRS,/1/ AS MAY BE REQUESTED:
A. Financial Reporting Activities:
1. Production of daily revenue report.
2. Posting of journal entries.
3. Preparation of monthly income statements and balance sheets.
4. General Ledger reconciliation.
5. General Ledger and location database maintenance.
B. Credit Card and Check Accounting Activities:
1. All reconciliations currently being performed at the corporate
level.
2. Provide Atlanta and Denver area offices necessary information
regarding chargebacks.
3. Maintain vendor interfaces with credit card companies, Telecredit
and Buypass.
C. Fixed Asset Accounting:
1. Initial set up, transfers and deletions of assets on fixed asset
run.
2. Reconciliations.
D. Accounts Payable Services:
1. Check production and distribution to vendors.
2. Reconciliations.
3. Form 1099 administration for vendors and dealers.
4. Vendor set up and deletion.
5. Keypunching of invoices.
E. Vehicle Licensing and Sales Accounting:
1. Applying for all necessary license and permits required for trucks
and auto carriers.
2. Distribution of license plates and permits.
3. Processing of vehicle sales.
F. Vehicle Purchasing Accounting:
1. Processing Invoices.
- ----------------
/1/ With the exception of the services in Sections E, F, L and Q which will be
provided to RCTR, Inc. at the direction and request of TRS, these services are
being provided to TRS only, any services requested for affiliates or
subsidiaries will need to be agreed upon on an as requested basis if the
provision of such services involves an additional internal cost to Ryder.
<PAGE>
2. New vehicle capitalization and depreciation accounting.
3. Depreciation and new vehicle capitalization reconciliations.
G. Payroll Administration:
1. Process and distribute payroll checks, commissions, and other
incentive pay.
2. All pre and post tax deductions.
3. Direct deposit administration.
4. Employment tax deductions and tax returns.
5. W2's.
6. Garnishment deductions and administration to courts.
7. New hire reporting.
H. Sales Tax:
1. Assist in filing all necessary state and local tax reports with
required payments from TRS's funds.
2. Assist in coordinating tax audits.
3. Assist in reconciling tax reserves as required.
I. Ad Valorem Tax:
1. Assist in filing renditions in all requested jurisdictions.
2. Assist with audit and pay all assessments with TRS's funds.
3. Assist in reconciling tax reserves as required.
J. Fuel and Use Tax:
1. Assist in applying for fuel permits as requested.
2. Assist in filing tax returns and submit payments.
3. Assist in coordinating all tax audits.
K. State and Federal Income Tax as follows:
1. Assist in filing state and federal tax returns and submit required
payments.
2. Assist in coordinating all tax audits.
L. BIPD Claims Administration:
1. Investigate and establish required reserves for BIPD claims.
2. Negotiate claim settlements.
2
<PAGE>
3. Submit claim payments on settled claims.
4. Provide necessary claim data.
M. HR Administration:
1. Processing of new hires and profile changes to set up on payroll
system.
2. Produce headcount reports.
N. Reimbursement Accounting Administration:
1. Health Care (closeout).
2. Dependent Day Care (closeout).
O. Benefits Accounting:
1. Health care provider billing and payments.
2. General Ledger billing and reports of employers and employee
charges.
P. National Rental Accounting Billing Services:
1. Invoice national rental accounts regarding central billing.
Q. Vehicle Purchasing Administration:/2/
1. Select unit numbers to process all TRS purchases annually.
2. Maintain all Newco Sample Purchase Orders in Purchasing J512
System.
3. Issue purchase orders (manual) for all car carrier and towing
equipment.
4. Process all vendor invoices for TRS equipment purchased.
5. Provide all required Vehicle Administration (VA) data transfer
unique to TRS.
- ----------------
/2/ Vehicle Purchasing Services Not Provided:
---
1. Vehicle specifications assistance.
2. Vehicle pricing assistance.
3. Purchase package participation or assistance.
4. Purchasing negotiations involvement.
5. Quality assurance.
6. Pilot model inspection assistance.
7. Vendor performance measurements.
8. Delivery management to final destination.
3
<PAGE>
6. Provide status on all chassis equipment ordered until chassis
reaches designated body company.
7. Network Sales -- Parts Distribution.
R. Employee and Dealer Training:/3/
1. Facilitation of the Dealer Process Change Team Project,
development of project recommendation and implementation plan.
Assist business unit in implementing new standards, new roles and
responsibilities, and new dealer compensation strategies.
2. Design and develop CRCS new system training program. This
includes providing a Train the Trainer Program in conjunction with
EDS, and TSR development team.
3. Development of training process and program roll out for the DDM
technology platform.
4. New hire training in the Atlanta and Denver centers.
5. Update and roll out of DDM new hire program including development
of self study guide and associated job tools.
6. Documentation and packaging of all training materials, equipment,
video tapes and prepurchased training programs which are used to
support the CTR/RMM business.
7. Part-time consulting from the Director of CFC will be required
from time to time. His dedicated support is required to complete
the Dealer Process Change Team Project.
8. Development of 1997 CTR/RMM Training Plan which includes
identification of business training requirements and alternative
solutions.
9. In conjunction with the CTR Finance department, develop necessary
training and communication materials for managers to build
understanding of new financial standards (EVA).
10. Support functional process improvement efforts with tools,
facilitation, and analysis as needed.
- ----------------
/**3/ Ryder's Customer Focus Center (CFC) agrees to provide training and
consulting services through December 31, 1996 as agreed in the 1996 business
plan. Notwithstanding anything in the Agreement to the contrary, Ryder shall not
be obligated to provide any Employee and Dealer Training to TRS in 1997 or
subsequent calendar years. The following individuals are a primary resource to
TRS. Joseph Berry-Training Consultant; Daniel Hill-Training Consultant; Steve
Schwarz-Trainer. These employees will continue to support TRS in all aspects of
TRS's training requirements. The listed services describe the key projects in
the 1996 business plan. It is understood that not all of these projects will be
fully completed; however, a monthly status will be furnished indicating
accomplishments and costs incurred. Payment will be made based on monthly
expenses incurred and cannot exceed $100,000 in total without both parties
agreeing.
4
<PAGE>
11. PKS - develop and deliver implementation training for all RMM
users of product knowledge system.
12. Design and deliver follow-up to strategic selling at fall RMM
sales meeting.
5
<PAGE>
EXHIBIT 10.7
------------
MIS SUPPORT AGREEMENT
THIS MIS SUPPORT AGREEMENT ("Agreement") is made as of this 17th day
of October, 1996 (the "Effective Date"), by and between Ryder Truck Rental,
Inc., a Florida corporation with its principal place of business at 3600 N.W.
82nd Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc. (f/k/a RCTR
Holdings, Inc.), a Delaware corporation with its principal place of business at
8669 N.W. 36th Street, Miami, Florida 33166 ("TRS"). Ryder and TRS are at times
referred to herein individually as a "Party" and collectively as the "Parties".
WHEREAS, Ryder and TRS are parties to an Asset and Stock Purchase
Agreement dated September 19, 1996 (the "Asset Purchase Agreement"), under which
TRS is purchasing from Ryder certain assets and businesses of Ryder's Consumer
Truck Rental division ("Division") and, in order to facilitate the orderly
transfer of certain assets of the Division to TRS and at TRS's request, Ryder
agrees to provide certain MIS support services for the Division on a
transitional basis and for a limited period after the Closing in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the rights and obligations set
forth herein and in the Asset Purchase Agreement, the adequacy of which is
hereby acknowledged, the Parties agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall
-----------
have the meanings set forth in the Asset Purchase Agreement.
2. Services to be Provided.
-----------------------
(a) Transition Services. Ryder hereby agrees to provide, or cause
-------------------
its Affiliates (as defined hereinbelow) or a third party to provide, to TRS from
and after the Closing, the administrative and support services described on
Schedules A through K hereto (each, a "Transition Service" and collectively, the
"Transition Services") for such period of time as TRS may determine to be
desirable for the conduct of the Business, but not to exceed the maximum period
for each such Transition Service as may be set forth in the applicable Schedule
hereto (the "Maximum Service Period"). Unless Ryder otherwise agrees (in its
sole discretion), and unless otherwise expressly set forth in the Schedules
hereto, Ryder shall not be required to provide any Transition Service for more
than twenty-four (24) months after the Closing.
From time to time, TRS may request Ryder to perform certain services
for its wholly owned subsidiary, RCTR, Inc.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
("RCTR"). TRS agrees to obtain from RCTR such authorizations as are necessary to
accomplish such services. Ryder shall have no duty to inquire of TRS whether
such authorizations have been obtained. Ryder may rely upon TRS' covenant in the
second sentence of this paragraph. If, however, Ryder at any time has reason to
doubt that any such necessary authorization has not been obtained, Ryder shall
not be obligated to perform any duty to which the authorization relates, until
such authorization shall have been obtained and evidence of such, reasonably
satisfactory to Ryder, has been delivered to Ryder.
(b) Level of Transition Services. The specific service levels and
----------------------------
limitations applicable to each Transition Service shall be set forth in the
relevant Schedule therefor. Nothing in this Agreement shall oblige Ryder to act
in breach of the requirements of any law, rule or regulation applicable to it or
violate any rights of, or any agreements with, any third party.
(c) Third Party Providers. Ryder, in its sole discretion, may (i)
---------------------
outsource all or any part of the Transition Services; and (ii) retain the
services of third parties (including, without limitation, Affiliates, agents,
consultants and subcontractors) to render all or any part of the Transition
Services. Any and all such parties referred to in (i) and (ii) above are
hereinafter referred to as "Third Party Providers." Ryder shall provide TRS at
least thirty (30) days prior notice in the event Ryder elects to outsource
Transition Services under any of Schedules A, B, C, F, J or K which include in
excess of * in monthly billings with respect to any such Schedule, provided,
however, that such notice shall not be required in the event of termination of
any employee (other than for purposes of outsourcing) providing services
hereunder. Ryder shall not utilize outsourcing for the purpose of diminishing
the skill or manner with which Transition Services are performed.
(d) Former Employees. Ryder shall be entitled to use, in the
----------------
provision of the Transition Services, a reasonable amount of the services of
those former employees of Ryder who are employed by TRS as a result of the
acquisition of certain assets relating to the Business by TRS, which employees
shall be made available by TRS to Ryder for this purpose upon reasonable prior
notice. The Scheduling of Services to be rendered by such employees by TRS
shall be mutually agreed upon by the Transition Coordinators from time to time.
(e) New Equipment. Ryder shall obtain on behalf of TRS any
-------------
additional hardware or software required by Ryder to provide a Transition
Service ("New Equipment"); provided, however, that no such purchase shall be
-------- -------
made on behalf of TRS in excess of $5,000 on any one (1) purchase order without
the prior written consent of TRS's Transition Coordinator. Ryder shall not be
liable for any delays in performing any Transition Service
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-2-
<PAGE>
resulting from TRS's failure to give timely approval of any required acquisition
of New Equipment. Further, the parties agree that Ryder shall not be obligated
to perform any Transition Service in the event any necessary New Equipment that
is not approved by TRS pursuant to this section. Ryder shall (i) make
commercially reasonable efforts to identify suppliers with the most favorable
terms for any New Equipment, and (ii) act as TRS's agent in acquiring the New
Equipment on behalf of TRS. TRS shall pay to Ryder, the supplier or a third
party lessor, as applicable, the purchase, license or lease fees in respect of
the New Equipment. Except as otherwise agreed in writing by the Parties or as
otherwise provided in this Agreement, all rights in and title to any New
Equipment purchased by Ryder on behalf of TRS and paid for by TRS shall belong
to TRS.
(f) TRS Software. Solely for purposes of the Transition Services and
------------
without limiting any of Ryder's rights under the Software License Agreement of
even date herewith between Ryder and TRS, TRS hereby grants to Ryder the right
to use, copy, modify and prepare derivative works of any software owned by,
licensed by or used by TRS that is required by Ryder to provide a Transition
Service, which license shall terminate effective upon the termination of the
applicable Transition Service. TRS shall grant a similar license to any Third
Party Provider that may be retained by Ryder to the extent necessary to render
any Transition Service. TRS, at its expense, shall obtain all consents or
approvals necessary to allow Ryder and Third Party Providers to exercise such
rights as necessary to provide the Transition Services.
(g) Ryder's Access. To the extent reasonably required for Ryder's
--------------
personnel to perform the Transition Services, TRS shall provide Ryder's
personnel and Third Party Providers with reasonable access to TRS's facilities,
including, without limitation, office space and dealer locations, and
telecommunications and computer equipment, systems and software. As a condition
to providing any Transition Service, Ryder may restrict or prohibit any changes
in the location of, certain telecommunications and computer equipment and
systems being transferred to TRS pursuant to the Asset Purchase Agreement to the
extent set forth in the applicable Schedules, and TRS shall be bound by all such
requirements and restrictions.
(h) Software Provided by Ryder. From time to time in connection with
--------------------------
Ryder's rendering the Transition Services to TRS, Ryder may provide or make
software available to TRS. Unless otherwise agreed to in writing by the Parties
pursuant to a separate agreement, TRS shall not license, sublicense, lease,
sublease, transfer, copy, modify, adapt, reverse engineer, decompile,
disassemble, disclose or provide any such software, nor create derivative works
therefrom or use the software to provide any services to third parties.
Further, in no event shall such
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-3-
<PAGE>
software be transferred to any machine other than the one (1) machine upon which
the software is installed, or to any location other than the location at which
the software has been installed, without the express prior written consent of
Ryder.
(i) Transition Coordinators. Each of TRS and Ryder shall designate
-----------------------
one (1) transition coordinator (each, a "Transition Coordinator" and
collectively, the "Transition Coordinators") who will provide continuous
oversight and coordination of, and communicate concerning disputes with respect
to, the Transition Services who will be available to TRS and Ryder during normal
business hours and who will be responsible for providing for, or delegating the
provision of assistance regarding, the Transition Services. TRS and Ryder may
from time to time substitute the persons serving as Transition Coordinators with
other persons who, in the reasonable judgment of the Party appointing the
Transition Coordinator, are qualified to serve in those positions.
(j) As used herein the term "Year 2000 Issues" shall mean issues with
respect to computer hardware and software systems arising out of the change from
calendar year 1999 to calendar year 2000. Ryder currently plans to retain one
or more Third Party Providers to ascertain the scope of services which may be
required by Ryder as a result of Year 2000 Issues. The Parties agree that Ryder
shall have no obligation whatsoever to (i) include any of TRS's hardware or
software in said study, nor consult with TRS pertaining thereto or (ii) make any
modifications to Ryder's or TRS's hardware or software as a result of any Year
2000 Issue, provided, that since a portion of Ryder's hardware and software will
--------
be utilized by TRS pursuant to the Asset Purchase Agreement, this Agreement and
the Software License Agreement between the Parties of even date herewith, Ryder,
at its sole expense, shall make said studies available to TRS. At the request
of TRS and subject to (x) TRS's agreement to reimburse Ryder for any related
increased costs and (y) Ryder's rights under its agreements with third party
software developers who may be retained by Ryder, Ryder shall also make
available to TRS any modifications to software shared by Ryder and TRS and which
is being licensed to TRS by Ryder under the Software License Agreement, of even
date, provided however that Ryder shall have no obligation to install any such
modifications and disclaims all representations and warranties with respect
thereto including without limitation the warranties of merchantability, fitness
for a particular purpose and non-infringement.
3. Terms and Termination.
---------------------
(a) Early Termination. Any specific Transition Service may be
-----------------
terminated at TRS's election upon ninety (90) days, prior written notice to
Ryder at any time prior to the expiration of the Maximum Service Period for such
Transition Service
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-4-
<PAGE>
provided, however, that all Transition Services described on the same Schedule
- -------- -------
(other than those Transition Services contained on Schedules A and K) must be
terminated simultaneously. Any termination of any Transition Service shall not
terminate this Agreement with respect to any other Transition Service then being
provided subject to this Agreement. If any Transition Service is terminated by
TRS, TRS may not elect to reinstitute such Transition Service.
(b) Term. Unless earlier terminated by mutual agreement of the
----
Parties or pursuant to the terms hereof, this Agreement will expire with respect
to each Transition Service at the end of the Maximum Service Period for such
Transition Service. TRS specifically acknowledges and agrees that all
obligations of Ryder to provide each Transition Service shall immediately cease
upon the expiration of the Maximum Service Period for such Transition Service
(or any extension thereof which may be mutually agreed to by the Parties), and
Ryder's obligations to provide all of the Transition Services shall immediately
cease upon the termination of this Agreement. Upon the cessation of Ryder's
obligation to provide any Transition Service, TRS shall immediately cease using,
directly or indirectly, such Transition Service (including, without limitation,
any and all Ryder software or third party software and all computer and
telecommunications services and equipment used in connection with Ryder's
provision of such Transition Service, unless the same has been provided to TRS
pursuant to a separate agreement).
4. Compensation; Taxes.
-------------------
(a) Price of Services. The Transition Services shall be provided to
-----------------
TRS at the rates set forth on the applicable Schedules hereto.
(b) Billing. Ryder shall invoice TRS weekly in arrears for all
-------
charges for Transition Services to TRS, which invoice shall be accompanied by
reasonable documentation or explanation supporting such charges, and TRS shall
pay Ryder, as to time periods within the first year following the date hereof,
no later than thirty (30) days after each invoice date, and as to all subsequent
periods, no later than fifteen (15) days after each invoice date. All payments
hereunder shall be made without deduction (except for charges billed in error),
set off, recoupment or counterclaim. In the case of charges believed to be
billed in error, TRS shall timely pay the undisputed portion of the invoice, and
on or before the due date for payment of the charges ("Due Date"), TRS shall
notify Ryder in writing of the portion believed to be billed in error and give
Ryder an explanation, in reasonable detail, of the reasons for its belief. The
due date for these disputed sums shall then be extended for ten (10) days (or
such later time as both parties may agree in writing) from the Due Date to give
the parties time to negotiate
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-5-
<PAGE>
resolution of the dispute, which both parties will do in good faith.
All charges shall conclusively be presumed correct unless Ryder
receives notice within one hundred eighty (180) days of the invoice date.
All overdue amounts shall bear interest at a rate equal to the lower
of: (i) ten percent (10%) per annum or (ii) the highest rate permitted by law
("Past Due Interest").
At Ryder's request, TRS shall pay directly any and all fees payable to
subcontractors that provide Transition Services to TRS.
(c) Additional Fees and Taxes Payable. In addition to the payments
---------------------------------
described in Sections 2(e) and 4(a) hereof, TRS shall reimburse to Ryder an
amount equal to the sum of: (i) subject to and without duplication of the
provisions of Sections 2(e) and 4(a) hereof, all direct out-of-pocket fees and
expenses (e.g. reasonable travel and lodging) incurred by Ryder in rendering the
Transition Services, (ii) * (iii) any and all taxes (other than taxes based on
Ryder's net income or gross income) assessed on the provision of the Transition
Services (including, without limitation, personal property taxes which may be
payable by Ryder or software licensed to or acquired by Ryder in order to render
the Transition Services hereunder) without any offset or deduction of any nature
whatsoever. Such costs, expenditures and taxes will be billed to TRS in the
monthly invoices rendered pursuant to Section 4(a) hereof. * .
(d) Letter of Credit. TRS shall obtain and maintain a letter of
----------------
credit, in favor of Ryder, in the amount of two and one half million dollars
($2,500,000.00), the issuer or confirming bank of which will be a bank
reasonably acceptable to Ryder and the terms of which shall be substantially in
accordance with the form attached hereto as Exhibit A (the "Letter of Credit")
which may be drawn by Ryder in the event of Material Breach by TRS under clause
9(a)(i) of this Agreement or any of the other agreements between the parties of
even date herewith entitled Vehicle Maintenance Agreement, Used Truck Sales
Agreement, or Administrative Services Agreement as any of them may be amended
from time to time or as otherwise provided in Schedule 9.6(c) of the Asset
Purchase Agreement. Such Letter of Credit shall be for a term of at least one
year. One master $2.5 million letter of credit which complies with the terms of
this paragraph shall constitute the Letter of Credit under each of the foregoing
listed agreements ("Support Agreements"). TRS shall be obligated to promptly
replace the Letter of Credit or restore it to its full amount, respectively,
should Ryder draw such Letter of Credit in full or in part due to the occurrence
of a Material Breach under this Agreement.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-6-
<PAGE>
Notwithstanding the foregoing, TRS may terminate, or not renew, the
Letter of Credit after the first anniversary of the date hereof, if it is not in
default of this Agreement at such time; provided, however, that should TRS,
after such time either (i) commit a Material Breach of this Agreement due to
failure to pay charges due hereunder or under any Support Agreement (except, if
prevented by a force majeure under Section 11(c) below or (ii) twice within a
twelve month period, fail to timely pay charges due hereunder or under any
Support Agreement (except, if prevented by a force majeure under Section 11(c)
below), then TRS shall again be obligated to obtain and maintain the Letter of
Credit pursuant to the first two sentences of the previous paragraph, and to
promptly replace the Letter of Credit or restore it to its full amount,
respectively, should Ryder draw such Letter of Credit in full or in part due to
the occurrence of a Material Breach under this Agreement. If, however, during
the following twelve months TRS timely pays all charges coming due hereunder,
and is not at such time otherwise in default of this Agreement, or in
bankruptcy, then TRS may again terminate, or not renew, the Letter of Credit,
and TRS's obligations hereunder to maintain the Letter of Credit shall cease,
subject to the last stated proviso above.
(e) Financial Statements. TRS agrees to provide Ryder with the
--------------------
following financial statements and information on a quarterly basis (or upon
Ryder's reasonable request from time to time) for the purpose of evaluating the
creditworthiness of TRS: (i) TRS's Combined Balance Sheet in the form set forth
in Exhibit B; (ii) TRS's Combined Statement of Earnings in the form set forth in
Exhibit C; (iii) TRS's Interest Coverage Ratios; and (iv) TRS's Debt-to-Equity
Ratio. Such information shall be provided to Ryder's credit department and
shall not be disseminated beyond such department except to the Controller of
Ryder and the Chief Financial Officer of its parent company.
5. Confidential Information. Each Party will keep, and will cause
------------------------
its Affiliates to keep, confidential any and all Confidential Information of the
other Party that it receives in the course of performing its obligations under
this Agreement and will not, without the other Party's written consent, use any
of such Confidential Information except in connection with performing its
obligations hereunder. Access to Confidential Information by officers,
directors, employees and agents of each Party will be restricted on a "need-to-
know" basis. In connection with the implementation of each Transition Service,
the Transition Coordinators will mutually agree upon what methods are necessary,
including, but not limited to, access controls, passwords and other security
measures, to effect the purposes of this Section 5. Notwithstanding the
foregoing, to the extent that a Party may become legally compelled, such Party
may disclose such information if such Party shall first have afforded
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-7-
<PAGE>
the other Party reasonable opportunity to obtain an appropriate protective order
or other assurance of confidential treatment for the information required to be
disclosed. Upon termination of this Agreement, each Party will return, and will
cause its Affiliates to return, to the other Party all tangible embodiments (in
both written and electronic form, including all copies thereof) of the
Confidential Information which are in its respective possession. Ryder and TRS
agree that they will, if requested by the other Party, cause any employees or
agents of it or its Affiliates who are engaged in providing Transition Services
hereunder to agree in writing to be bound by the provisions of this Section 5.
6. Insurance; Indemnities.
----------------------
(a) During the term of this Agreement, TRS will maintain the types of
insurance in the coverage limits listed in the insurance policy schedule set
forth below (each, an "Insurance Policy"):
INSURANCE POLICY SCHEDULE
<TABLE>
<CAPTION>
TYPE OF INSURANCE POLICY COVERAGE LIMITS
<S> <C>
Commercial General Liability Seventy-Five Million and
Insurance Policy with Broad no/100 Dollars ($75,000,000.00)
Form Contractual Liability
Insurance Coverage (the "CGL
Insurance Policy")
</TABLE>
In the event that any Insurance Policy provides coverage on a "claims made" form
rather than on an occurrence form, TRS shall cause the coverage provided by each
such policy to be kept in place for a period of one (1) year after the effective
date of termination or expiration of this Agreement.
TRS may self-insure up to One Million and No/100 Dollars
($1,000,000.00) as a deductible.
(b) Each liability Insurance Policy shall:
(i) be written by an insurance company reasonably acceptable to
Ryder (it being understood that an insurance company rated A or better by
A.M. Best & Company is acceptable);
(ii) name TRS as an insured, and be amended to name Ryder, its
employees, officers, directors, contractors, agents and affiliates (each an
"Additional Insured") as additional insureds as their interests may appear;
(iii) provide that if such insurance is cancelled, or any
material change is made in the coverage which affects
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
the interest of any Additional Insured, such cancellation or change shall
not be effective as to the Additional Insured for ten (10) days after
receipt by the Additional Insured of written notice from such insurers of
such cancellation or change;
(iv) be primary and without right of contribution from any other
insurance which is carried by, or otherwise available to, any Additional
Insured;
(v) provide that in respect of the interests of any Additional
Insured in such policies, the insurance shall not be invalidated by any
action or inaction of TRS or any other Person (other than Ryder) and shall
insure each Additional Insured regardless of any breach or violation of any
warranty, declaration or condition contained in such policies by TRS or any
other Person (other than TRS);
(vi) shall expressly provide that all of the provisions thereof,
except the limits of liability, shall operate in the same manner as if
there were a separate policy covering each Additional Insured; and
(vii) in accordance with the terms and conditions of the
contractual liability coverage provided by such Insurance Policy, insure
the obligations of TRS to indemnify the Additional Insureds hereunder.
The first Twenty-Five Million Dollars ($25,000,000) of general liability
insurance shall be on an occurrence form.
(c) At least once a year, from time to time at Ryder's request, and
any time a new policy is to go into effect, TRS shall provide Ryder with
insurance certificates and other evidence, reasonably satisfactory to Ryder,
that the benefits and coverage required by this Section 6 are in full force and
effect. The certificate shall describe the perils covered by each policy of
insurance then in force, identify the insurer or insurers with which such
policies of insurance are carried and maintained, specify the amounts of
insurance coverage provided against each such peril, and describe the provisions
contained in such policies of insurance so as to evidence compliance with the
requirements of this Article 6. Ryder shall have no duty to examine such
insurance certificates or the Insurance Policies to verify compliance. TRS
shall provide a copy of its insurance policies to Ryder promptly following a
request therefor, if available.
(d) Notwithstanding anything to the contrary in this Agreement,
neither party shall be liable for, and each party waives and releases the other
party from (and as to RCTR's
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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damages, TRS indemnifies and holds harmless Ryder from), ANY AND ALL INDIRECT,
INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO,
LOST PROFITS, LOSS OF USE, OR BUSINESS INTERRUPTION, EVEN IF SUCH DAMAGES ARE
FORESEEABLE.
7. TRS's Exclusive Remedy.
----------------------
(a) Corrective Remedy. TRS agrees that the remedy available to it in
-----------------
the event of a material failure of Ryder to provide any Transition Service
(other than any failure due to the gross negligence or willful misconduct of
Ryder) should be addressed to correcting said failure, rather than to penalizing
Ryder. In recognition of this aim, TRS's sole and exclusive remedy for such a
failure shall be that Ryder shall use commercially reasonable efforts to
complete performance of the applicable Transition Service within a commercially
reasonable time.
(b) Limitation of Remedy.
--------------------
(i) The corrective remedy set forth in Section 7(a) hereof shall
not apply if Ryder's failure to meet any of its obligations hereunder is
due to a failure by TRS or any third party retained by TRS to provide
services, data or materials that Ryder requires to perform the Transition
Services;
(ii) Ryder shall be excused from the corrective remedy set forth
in Section 7(a) if and to the extent that: (i) Ryder's failure to meet its
obligations as to the Transition Service at issue is a direct or indirect
result of TRS's failure to timely and accurately perform its
responsibilities as set forth in this Agreement and (ii) TRS fails to
provide reasonable cooperation in completing performance and correcting the
problems that led to the failure at issue.
(c) Adequacy of Remedy. TRS ACKNOWLEDGES AND AGREES THAT THE
------------------
EXCLUSIVE REMEDY SET FORTH HEREIN SHALL NOT BE DEEMED OR ALLEGED BY TRS TO HAVE
FAILED OF ITS ESSENTIAL PURPOSE.
8. Disclaimer of Warranties.
------------------------
(a) EXCEPT AS PROVIDED IN SECTION 6(e) ABOVE AND AS PROVIDED IN
SCHEDULE A HEREOF OR AS OTHERWISE EXPRESSLY SET FORTH HEREIN OR IN THE ASSET
PURCHASE AGREEMENT, RYDER MAKES NO WARRANTIES, EXPRESS OR IMPLIED (INCLUDING,
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR NON-INFRINGEMENT) REGARDING THE TRANSITION SERVICES OR ANY GOODS
(INCLUDING, WITHOUT LIMITATION, COMPUTER AND TELECOMMUNICATIONS HARDWARE AND
SOFTWARE) WHICH MAY BE PROVIDED OR MADE
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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AVAILABLE TO TRS IN CONNECTION WITH THE PROVISION OF THE TRANSITION SERVICES
HEREUNDER.
9. Default.
-------
(a) Material Breach. If at any time any party is in Material Breach
---------------
of this Agreement, then in addition to all other rights and remedies available
under applicable law or in equity, the other party shall have the right to
terminate this Agreement without further notice or demand. "Material Breach"
shall mean (i) as to a failure of payment, that full payment has not been
received within five (5) days, after the owing party's receipt of written notice
that the payment was due, and (ii) as to any other type of failure, a material
failure of performance of such party's obligations under this Agreement, if such
failure remains uncured thirty (30) days after receipt of written notice of the
failure and (iii) as to TRS, failure to cause the replacement or restoration of
the Letter of Credit, as applicable within five (5) days following its complete
or partial draw due to the occurrence of a Material Breach hereunder except as
to (i), (ii) or (iii) above, if prevented by a force majeure under Section 11(c)
below.
(b) Bankruptcy; Insolvency. This Agreement shall automatically
----------------------
terminate, without notice required upon the occurrence of any of the following
events:
(i) the other Party voluntarily enters into proceedings in
bankruptcy or insolvency;
(ii) the other Party shall make an assignment for the benefit of
creditors;
(iii) a petition shall be filed against the other Party under a
bankruptcy law, a corporate reorganization law, or any other law for
the relief of debtors (or similar law in purpose or effect) and such
petition shall not have been dismissed within sixty (60) days; or
(iv) the other Party enters into liquidation or dissolution
proceedings.
(c) Draws on Letter of Credit. Subject to the provisions of the next
-------------------------
paragraph, in the event of Material Breach by TRS pursuant to clause (i) of
Section 9(a), Ryder may draw from the Letter of Credit, without court
proceeding, order or otherwise, such sums to which Ryder is entitled due to
TRS's Material Breach, and Ryder shall apply such sums against such entitlement.
If the application of such sums is sufficient to cure the Material Breach,
including Past Due Interest owed to date of draw, then the Material Breach shall
be deemed cured and Ryder
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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shall not terminate this Agreement due to such Material Breach; if the
application of such sums is not sufficient for such purpose, then Ryder may
terminate this Agreement due to the Material Breach pursuant to Section 9(a). It
is agreed, however, that if it shall later be determined by a court of competent
jurisdiction or by mutual agreement of the parties that TRS did not in fact owe
Ryder all of the sums drawn from the Letter of Credit, then Ryder shall return
those sums not owed with interest thereon computed at the same annual rate of
interest as set forth above in the definition of "Past Due Interest."
If and to the extent a failure of payment by TRS arises from an
assertion by TRS, timely disputed pursuant to Section 9(a), that Ryder did not
perform a service billed to TRS, then Ryder shall not be entitled to draw the
Letter of Credit with respect to such failure of payment until the later of (i)
such time as Ryder would be entitled to draw the Letter of Credit under the
preceding paragraph, (ii) fifteen business days after the date Ryder notifies
TRS in writing that Ryder has investigated the dispute and that its records or
its personnel confirm the service to have been performed and has offered TRS
access to such records or personnel or (iii) such date as Ryder and TRS mutually
agree in writing. It is agreed that the foregoing sentence does not apply to a
dispute over the quality or conformity of the service or to any attempt by TRS
to set off another matter against Ryder's invoice.
(d) Collection Costs; Attorneys' Fees. In the event either Party
---------------------------------
resorts to litigation, arbitration or other proceeding to enforce its rights
under this Agreement, the prevailing party will be entitled to reasonable
attorney's fees, costs and expenses.
10. No Hiring or Solicitation. TRS covenants to Ryder that neither
-------------------------
it nor its affiliates controlled by it shall solicit or induce any employee of
Ryder or a Ryder Affiliate who provides services to accept employment with TRS
or any Affiliate of TRS hereunder during the term in which such services are
provided or within one year thereafter, without the prior written consent of
Ryder. It is understood, however, that Ryder will not unreasonably withhold its
consent as to any employee who has been primarily engaged in providing services
to TRS hereunder during the six months prior to termination of those services.
Ryder agrees that neither advertising of employment positions nor post-closing
contact of an employee of Ryder by a contracted head hunter for TRS who is not
told to target one or more of those employees nor a contact to TRS or an
Affiliate controlled by TRS initiated post-closing by one of those employees
regarding employment shall be considered "solicitation" or "inducement" or an
attempt to do so.
11. Miscellaneous.
-------------
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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(a) Relationship of the Parties. It is expressly understood and
---------------------------
agreed that in rendering the Transition Services hereunder, Ryder is acting as
an independent contractor and that this Agreement does not constitute either
Party as an employee, partner, joint venturer, agent or other representative of
the other Party for any purpose whatsoever. Neither Party has the right or
authority to enter into any contract, warranty, guarantee or other undertaking
in the name of or for the account of the other Party, or to assume or create any
obligation or liability of any kind, express or implied, on behalf of the other
Party, or to bind the other Party in any manner whatsoever, or hold itself out
as having any right, power or authority to create any such obligation or
liability on behalf of the other or to bind the other Party in any manner
whatsoever (except as to any actions taken by either Party at the express
written request and direction of the other Party).
(b) Dispute Resolution. In the event of any dispute or disagreement
------------------
between the Parties with respect to the interpretation of any provision of this
Agreement, or with respect to the performance of either Party hereunder, the
Parties' respective Transition Coordinators will meet for the purpose of
resolving the dispute. If the Transition Coordinators are unable to resolve the
dispute within five (5) working days, or as otherwise agreed, the dispute will
be submitted to an executive officer of each party (the "Representatives") who
will meet as often as the parties reasonably deem necessary in order to gather
and furnish to each other all essential, non-privileged information that the
parties believe germane to resolution of the matter at issue. During the course
of these non-judicial dispute resolution procedures, documents used to resolve
the dispute shall be limited to essential, non-privileged information. All
requests shall be made in good faith and be reasonable in light of the economics
and time efficiencies intended by the dispute resolution procedures. The
Representatives may mutually agree to appoint a neutral advisor to facilitate
negotiations and, if requested by both parties, to render non-binding opinions.
No formal proceedings for the resolution of any dispute may be commenced until
thirty (30) days following initiation of negotiations under this Section 11(b)
or for such shorter period as the parties may mutually agree to in writing. The
provisions of this Section 11(b) will not apply (a) to an action to seek
injunctive relief to stay a breach of this Agreement or otherwise, (b) in the
event of TRS's failure to pay Ryder in accordance with the terms set forth in
Section 4 hereof or (c) to an action to seek specific performance of Ryder's
willful failure to perform its obligations under this Agreement.
(c) Force Majeure. Neither party shall be liable for its failure or
-------------
delay in fulfilling its obligations hereunder, if such failure or delay is
caused by fire, flood, weather condi-
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
tions or other Acts of God, invasions, insurrections, riots, closing of the
public highways, strike, lockout or other labor dispute, civil unrest, war or
any other reason beyond the reasonable control of the party. In the case of
strikes, lockouts or other labor disputes, it is understood that such event is
beyond the reasonable control of the party suffering the event unless and until
the party is able to resolve it in a manner which such party deems reasonable
and appropriate.
(d) Counterparts. This Agreement may be executed in one or more
------------
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party. Copies of executed counterparts
transmitted by telecopy, telefax or other electronic transmission service shall
be considered original executed counterparts for purposes of this Section,
provided receipt of copies of such counterparts is confirmed.
(e) Governing Law; Jurisdiction and Forum.
-------------------------------------
(i) This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without reference to the
choice of law principles thereof, except for matters of Florida corporate
law, as to which such law shall apply.
(ii) Ryder and TRS hereby irrevocably submit to the jurisdiction
of any New York State or Federal court sitting in the City of New York in
any action or proceeding arising out of this Agreement or the transactions
contemplated hereby. Ryder and TRS hereby irrevocably waive the defense of
an inconvenient forum to the maintenance of any such action or proceeding.
(iii) By the execution and delivery of this Agreement, TRS (i)
irrevocably designates and appoints Jay Alix & Associates ("JA&A"), 575
Fifth Avenue, New York, New York 10017, as its authorized agent upon which
process may be served in any action or proceeding arising out of or
relating to this Agreement so long as JA&A maintains a place of business at
an address in New York City; provided that TRS may at any time designate
and appoint in lieu of JA&A The Corporation Trust Company ("CTC") care of
---
CT Corporation System, at 1633 Broadway, 23rd floor, in the City of New
York, County of New York, State of New York to so serve, (ii) submits to
the personal jurisdiction of any state or federal court in the State of New
York in any such action or proceeding, and (iii) agrees that service of
process upon CTC shall be deemed in every respect effective service of
process upon TRS in any such action or proceeding. TRS further agrees to
take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CTC in full force
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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and effect so long as this Agreement shall be in effect. The foregoing
shall not limit the rights of any party to serve process in any other
manner permitted by law.
(f) Entire Agreement. This Agreement and the Schedules and Exhibits
----------------
hereto contain the entire agreement between the parties with respect to the
subject matter hereof and there are no agreements, understandings,
representations or warranties between the parties other than those set forth or
referred to herein. This Agreement is not intended to confer upon anyone not a
party hereto any rights or remedies hereunder.
(g) Notices. All notices shall be in writing and delivered
-------
personally or sent by nationally recognized overnight delivery service (e.g.,
Federal Express) or registered or certified mail, return receipt requested, to
the appropriate address set forth below. Notices to Ryder shall be addressed
to:
Ryder Truck Rental, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: President
with a copy to:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: General Counsel
or at such other address and to the attention of such other person as Ryder may
designate by written notice to TRS. Notices to TRS shall be addressed to:
Ryder TRS, Inc.
c/o Questor Management Company
4000 Town Center Suite 530
Southfield, MI 48075
Attention: President
with a copy to:
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, FL 33166
Attention: Gerald R. Riordan
Willkie Farr & Gallagher
153 East 53rd Street
New York, NY 10022
Attention: Thomas M. Cerabino, Esq.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
or at such other address and to the attention of such other person as TRS may
designate by written notice to Ryder.
(h) Successors and Assigns. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
permitted assigns; provided, that neither party may assign this Agreement
without the prior written consent of the other party. Notwithstanding the
foregoing: (1) TRS may assign this Agreement, upon 10 days' prior written
notice to and without the consent of Ryder, to a party who purchases or
acquires, as a going concern, the business of TRS or all or substantially all of
TRS's assets, provided, however, that any assignee of this Agreement must (A)
agree with Ryder, in writing, to be bound by the terms and provisions hereof,
(B) have a debt/equity ratio as good as, TRS's at the time of execution hereof,
(C) be the assignee of the competition provisions in Section 6.2(d) of the Asset
Purchase Agreement and the following agreements defined in the Asset Purchase
Agreement (to the extent such agreements are still existing at the time of such
assignment): (i) the Copyright License Agreement, (ii) the Software License
Agreement, (iii) the Trademark Agreement, (iv) the Administrative Services
Agreement, (v) the Vehicle Maintenance Agreement, (vi) the Dealer Agreement and
(vii) the Used Truck Sales Agreement, and (D) not be one of the parties set
forth in paragraph number 8 on Schedule 3 of the Trademark Agreement, (2) Ryder
may assign this Agreement upon 10 days' prior written notice to and without the
consent of TRS, to a party who purchases or acquires as a going concern, the
business of Ryder or all or substantially all of Ryder's assets, provided,
however, that any assignee of this Agreement must (A) agree with TRS, in
writing, to be bound by the terms and provisions hereof, and (B) have a
debt/equity ratio as good as, Ryder's at the time of execution hereof. TRS may
assign its rights hereunder to any lenders which provide financing to TRS for
the purpose of consummating the transactions contemplated under the Asset
Purchase Agreement, or refinancing any such financing, including any successors
thereto.
(i) Headings; Definitions. The headings contained in this Agreement
---------------------
are inserted for convenience of reference only and will not affect the meaning
or interpretation of this Agreement. All references to Sections or Articles
contained herein mean Sections or Articles of this Agreement unless otherwise
stated. All capitalized terms defined herein are equally applicable to both the
singular and plural forms of such terms.
(j) Amendments and Waivers. This Agreement may not be modified or
----------------------
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought.
Either party hereto may,
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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only by an instrument in writing, waive compliance by the other party hereto
with any term or provision hereof on the part of such other party hereto to be
performed or complied with. The waiver by any party hereto of a breach of any
term or provision hereof shall not be construed as a waiver of any subsequent
breach.
(k) Interpretation; Absence of Presumption. This Agreement shall be
--------------------------------------
construed without regard to any presumption or rule requiring construction or
interpretation against the party drafting or causing any instrument to be
drafted.
(l) Severability. Any provision hereof which is invalid or
------------
unenforceable shall be ineffective to the extent of such invalidity or
unenforceability, without affecting in any way the remaining provisions hereof.
(CONTINUED ON NEXT PAGE)
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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IN WITNESS WHEREOF, the parties have caused this MIS Support Agreement
to be executed by their duly authorized officers as of the date first written
above.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC. (F/K/A
"RYDER" RCTR HOLDINGS, INC.)
"TRS"
By: /s/ Dwight D. Denny By: /s/ Wallace L. Rueckel
-------------------- ------------------------
Dwight D. Denny Wallace L. Rueckel
Executive V.P.-Development Senior Vice President
& Treasurer
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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EXHIBIT 10.8
------------
SUBLEASE
Between
RYDER SYSTEM, INC.
as Sublessor
and
RYDER TRS, INC.,
as Sublessee
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
1. DEMISED PREMISES..................................... 1
2. TERM................................................. 2
3. RENT................................................. 3
4. USE.................................................. 4
5. MASTER LEASE......................................... 4
6. SERVICES............................................. 6
7. ALTERATIONS; SIGNAGE................................. 8
8. INSURANCE............................................ 8
9. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.............. 9
10. DEFAULT.............................................. 10
11. INDEMNIFICATION...................................... 10
12. HAZARDOUS MATERIALS.................................. 12
13. REMEDIES CUMULATIVE.................................. 12
14. QUIET ENJOYMENT...................................... 12
15. RENEWAL OPTION....................................... 12
16. SURRENDER OF DEMISED PREMISES........................ 13
17. NOTICES.............................................. 13
18. LANDLORD CONSENTS DURING TERM........................ 14
19. SUBLESSOR'S INABILITY TO PERFORM..................... 14
20. LIMITATIONS ON LIABILITY............................. 14
21. PRESERVATION OF SUBLESSEE'S INTEREST................. 15
22. DELIVERY OF NOTICE................................... 15
23. FURTHER ACTS......................................... 15
24. BROKER............................................... 15
25. RIGHT OF FIRST OFFER................................. 15
26. MISCELLANEOUS........................................ 16
</TABLE>
Schedule A - Description of Master Lease and the Property
Schedule B - Demised Premises
Schedule C - Rent
Exhibit A - Sublessor's Work
Exhibit B - Master Lease
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
SUBLEASE
SUBLEASE, dated as of October 17, 1996, between RYDER SYSTEM, INC., a
Florida corporation having an office at 3600 NW 82 Avenue, Miami, FL 33166
("Sublessor") and Ryder TRS, Inc., a Delaware corporation having an office at
-----------
8669 N.W. 36th Street, Miami, Florida 33166 ("Sublessee").
---------
W I T N E S S E T H :
-------------------
WHEREAS, the landlord under the Master Lease described on Schedule A
----------
hereto ("Landlord") is the owner of the real property (including improvements)
--------
described on such Schedule A (collectively, the "Property") and under the Master
---------- --------
Lease Landlord has leased the Property to Sublessor; and
WHEREAS, Sublessor desires to sublet to Sublessee, and Sublessee
desires to hire from Sublessor, a portion of the premises demised under the
Master Lease, as more particularly described in Schedule B hereto, (the "Demised
---------- -------
Premises") upon the terms and conditions hereinafter set forth;
- --------
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
provided, Sublessor and Sublessee hereby agree as follows:
1. DEMISED PREMISES.
1.1. Sublessor hereby sublets to Sublessee, and Sublessee hereby
sublets and hires from Sublessor, the Demised Premises, together with the non-
exclusive right to use the common areas of the Property and such other rights as
are necessary or desirable to provide Sublessee with substantially the same
rights and benefits as have been generally afforded to and enjoyed by Sublessor
prior to the date hereof (including, without limitation, rights of ingress and
egress, parking consistent with past practice, and access to public and private
utilities) for the sublease term hereinafter stated and for the Rent (as
hereinafter defined) set forth herein, upon and subject to all of the terms and
provisions hereinafter provided or incorporated in this Sublease by reference.
1.2. Sublessor shall deliver the Demised Premises on the
Commencement Date free of debris and broom clean and Sublessee agrees to accept
the Demised Premises on the Commencement Date (as hereinafter defined).
Notwithstanding the foregoing, Sublessor shall use its continuous and diligent
effort to complete the Sublessor's work as described on Exhibit A attached
hereto (the "Sublessor's Work"). Sublessor shall be responsible for curing any
----------------
violation that results from or arises out of Sublessor's Work within a
reasonable time of notice of such violation. Within 30 days after completion of
the
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Sublessor's Work and delivery of a certificate of occupancy to Sublessee,
Sublessor shall submit to Sublessee a detailed invoice and proof of payment
therefor for the cost of Sublessor's Work; provided, that Sublessor, Sublessee
and the architect (and/or contractor) shall meet on a periodic basis or at such
times as Sublessee may request to review the progress and the cost of
Sublessor's Work, with the intent to monitor and limit the cost of the
Sublessor's Work not to exceed $42,000. Thereafter, in addition to the monthly
installments of Rent due hereunder, Sublessee shall pay to Sublessor, in equal
monthly installments, at the same time and in the same manner that Rent is due
hereunder, an amount sufficient to fully amortize the cost of the Sublessor's
Work over a five year period together with interest at a rate of 7% per annum on
the outstanding balance of the cost of Sublessor's Work. Sublessee acknowledges
and agrees that upon the termination of this Sublease as a result of its default
hereunder or its election to terminate, Sublessee shall be obligated to pay in
full the then outstanding principal balance and accrued and unpaid interest for
the cost of the Sublessor's Work.
2. TERM.
2.1. (a) The term of this Sublease shall commence on the date
hereof (the "Commencement Date") and, unless earlier terminated or extended as
-----------------
herein provided, shall expire on the Expiration Date. As used in this Sublease,
(i) "Term" shall mean the term of this Sublease, and (ii) "Expiration Date"
shall mean, subject to Article 15 below, the second anniversary of the
Commencement Date; provided, that if the Commencement Date is not the first day
of a month, the Expiration Date shall be the last day of the month which
contains the Commencement Date.
(b) References in this Sublease to the "termination" of this Sublease
shall mean the stated expiration of the Term or any early termination of this
Sublease resulting from the termination of the Master Lease without the fault of
Sublessor. Except as otherwise expressly provided in this Sublease with respect
to those obligations of Sublessee which by their nature or under the
circumstances can only be, or under the provisions of this Sublease may be,
performed after the termination of this Sublease, the Term and estate granted
hereby shall end at 11:59 p.m. on the date of termination of this Sublease as if
such date were the Expiration Date, and neither party shall have any further
obligation or liability to the other after such termination. Notwithstanding
the foregoing, any liability of Sublessor or Sublessee to make any payment under
this Sublease, including, without limitation, amounts payable by Sublessee as
Rent hereunder, which shall have accrued prior to the termination of this
Sublease shall survive the termination of this Sublease.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
3. RENT.
3.1. The rent ("Rent") payable during the Term under this Sublease
----
shall be as set forth on Schedule C hereto.
----------
3.2. Upon the execution of this Sublease, Sublessee shall pay to
Sublessor the sum of $ * as Rent for the month of October. Thereafter all
------- -------
payments of Rent shall be in equal monthly installments and shall be made, in
advance on the twenty fifth (25th) day of each month during the Term (except for
the first and last month of the Term). The Rent and all other payments, if any,
due and payable hereunder by Sublessee shall be made by check payable to the
order of "Ryder System, Inc." and addressed to Ryder Truck Rental, Inc., 3600 NW
82 Avenue, Miami, FL 33166 , Attention: Ryder System Inc., Comptroller or to
such other person or at such other place as Sublessor may from time to time
designate in writing within thirty (30) days after receipt by Sublessee of
request therefor.
3.3. In the event that Sublessee shall dispute any calculation of
Rent charged to Sublessee by Sublessor, then Sublessee shall send to Sublessor a
written notice, within 30 days of receipt by Sublessee of such charge, setting
forth the basis for Sublessee's dispute. Sublessor and Sublessee shall
thereupon use reasonable and good faith efforts to resolve such dispute. If the
parties are unable to resolve such dispute within 30 days after submission by
Sublessee of its dispute notice, then the parties shall designate an independent
certified public accountant mutually acceptable to both parties (the
"Independent Accountant") to resolve such dispute, and the fees and charges of
----------------------
the Independent Accountant shall be shared equally by the parties. Both parties
shall provide the Independent Accountant with all information reasonably
requested by the Independent Accountant in connection with its review of such
dispute, and both parties shall request that the Independent Accountant complete
its work expeditiously and issue a written report to both parties setting forth
its determination. The written determination of the Independent Accountant
shall be final and shall be binding upon both Sublessor and Sublessee. All
disputes to be resolved pursuant to this Section 3.3 shall be so resolved in
accordance with the principles and standards set forth in Section 3.5 below.
3.4. Sublessor shall furnish to Sublessee copies of any material
statements and other material documents and information which are provided to
Sublessor by Landlord pursuant to the Master Lease. Without limiting any other
obligations of Sublessor hereunder, Sublessor agrees it will, upon reasonable
request from Sublessee, exercise on Sublessee's behalf, and at Sublessee's sole
cost, any rights of Sublessor under the Master Lease to review and inspect
records and otherwise obtain information from Landlord.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
3.5. All calculations by Sublessor of Rent and any other amounts
that are payable by Sublessee hereunder shall be made in accordance with
Landlord's past practices with respect to Sublessor, and all charges and
allocations relating to the Demised Premises and all accounting practices
utilized by Sublessor with respect to amounts charged to Sublessee under this
Sublease (including the capitalization, amortization and expensing of costs
incurred and funds expended) shall also be made in such manner.
4. USE.
4.1. Sublessee shall occupy and use the Demised Premises only for
the uses permitted under the Master Lease and in all respects only as permitted
under the terms and provisions of this Sublease and the Master Lease.
5. MASTER LEASE.
5.1. Subject to Section 5.3 below, this Sublease and all of
Sublessee's rights hereunder are and shall remain in all respects subject and
subordinate to all of the terms and provisions of the Master Lease, a true and
complete copy of which is attached hereto as Exhibit B. Sublessee shall in no
case have any rights under this Sublease greater than Sublessor's rights as
tenant under the Master Lease. The foregoing provisions shall be self-operative
and no further instrument of subordination shall be necessary to effectuate such
provisions unless required by Landlord or Sublessor, in which event Sublessee
shall, upon demand by Landlord or Sublessor at any time and from time to time,
execute, acknowledge and deliver to Sublessor and Landlord any and all
instruments that Sublessor or Landlord, in the reasonable discretion of either
of them, may deem necessary or proper to confirm such subordination of this
Sublease and the rights of Sublessee hereunder, subject to Section 5.3 hereof.
Notwithstanding the foregoing or anything contained herein to the contrary,
Sublessor shall use its best efforts to obtain Landlord's, and any future
mortgagee's agreement, not to disturb Sublessee's tenancy under this Sublease.
5.2. Sublessee agrees that it shall neither act, nor omit to act,
in such a manner as to result in a default under the Master Lease, provided that
in no event shall Sublessee be responsible for acts and omissions of Sublessor
or Sublessor's agents, employees or contractors. To the extent not otherwise
inconsistent with the agreements and understandings expressed in this Sublease
or applicable to the original parties to the Master Lease, all of the terms,
covenants and conditions of the Master Lease (excluding , however, Articles 1,
2, 3, 5, 6, 9, 11, 14, 26, 29, 31, 41, 42, 43, 49, 51, 50, 52, 53 and 54 and
Exhibits B, C, E and F) are hereby incorporated herein by reference on the
following understandings:
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
(a) The term "Landlord" as used therein shall refer to Sublessor, its
--------
successors and permitted assigns, the term "Tenant" as used therein shall refer
------
to Sublessee, its successors and permitted assigns, the term "Premises" as used
--------
therein shall refer to the Demised Premises and the term "Rent" as used therein
----
shall refer to Rent herein.
(b) In Article 13, the second sentence of paragraph (d) and the words
"or Additional Rent" in the first sentence of the last paragraph are hereby
deleted.
(c) In Article 16, the second sentence of the first paragraph and the
words "collectible as Additional Rent" in the last sentence of the first
paragraph are hereby deleted.
(d) In Article 19, paragraph (d) and the words "as Additional Rent"
in paragraph (f) are hereby deleted.
(e) In Article 20, the words "Base Rent and Additional Rent" in
paragraph (a) are hereby deleted and replaced with the word "Rent".
(f) In Article 28, the third, fourth, fifth, sixth, seventh, eighth,
ninth and tenth sentences are hereby deleted.
(g) In Article 30, the last sentence is hereby deleted and replaced
with the following: "Landlord, however, shall be responsible for curing any
violation that results from or arises out of (i) Landlord's construction of the
Building Improvements or Landlord's failure to construct Tenant's Improvements
in accordance with Tenant's Final Plans and (ii) Sublessor's Work".
(h) In Article 33, the words "Base Rent and Additional Rent" in the
last sentence of the paragraph are hereby deleted and replaced with the word
"Rent".
(i) In Article 55, the definitions "Landlord's Additional Access,"
"Parking," "Premises," "Rent," "Rentable Area," "Substantially Completed,"
"Supplemental Agreement," and "Tenant Allowance" are hereby deleted.
(j) In any case where Landlord reserves the right to enter the
Demised Premises such right shall inure to the benefit of Landlord as well as
Sublessor.
(k) With respect to any work, services or repairs, or the performance
of other obligations required of Landlord under the Master Lease, Sublessor's
sole obligation shall be to request the same from Landlord. Sublessee at its
option may, in its own name, conduct such proceedings as may be required to
obtain from Landlord any such work, services, repairs or other obligations, and
Sublessor shall cooperate with Sublessee in connection
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
therewith, including execution of such documents as may be required.
Notwithstanding the foregoing, the terms and conditions that, by their
terms, are inapplicable to, or inconsistent with this Sublease, shall not be
incorporated by reference herein and any inconsistencies between the terms of
the Master Lease incorporated by reference hereunder and the other terms of this
Sublease or any of the Transaction Documents (as hereinafter defined) shall be
resolved in favor of such other terms of this Sublease or the terms of the
Transaction Documents.
5.3. Sublessor agrees that it shall neither act, nor omit to act,
in such a manner as to result in a default under the Master Lease, provided that
in no event shall Sublessor be responsible for acts and omissions of Sublessee
or Sublessee's agents, employees or contractors. Provided that Sublessee is not
then in default under the terms of this Sublease beyond applicable grace
periods, Sublessor agrees that, during the Term hereof, without the prior
written consent of Sublessee, which consent shall not be unreasonably withheld
or delayed, Sublessor will not (a) consent to a termination of the Master Lease
with respect to the Demised Premises (to the extent that Sublessor's consent is
required pursuant to the Master Lease), exercise any early termination rights
with respect to the Demised Premises or amend or modify the Master Lease in any
way which would reduce, interfere with or otherwise impair any rights, powers or
remedies of Sublessee, decrease in any respect the obligations of Landlord or
Sublessor which, under the terms of this Sublease, run to the benefit of
Sublessee or increase the monetary obligations of Sublessee or increase in any
material respect any other obligations of Sublessor for which Sublessee is
responsible hereunder, or (b) consent (in the event that Sublessor's consent is
required pursuant to the Master Lease) to the subordination of the Master Lease
to any mortgage, underlying lease or similar instrument.
5.4. Notwithstanding anything to the contrary contained herein, in
the event of a conflict between the terms of this Sublease and the terms of the
Asset Purchase Agreement, the terms of the Asset Purchase Agreement shall
govern. As used herein, (a) the term "Asset Purchase Agreement" shall mean the
------------------------
Asset and Stock Purchase Agreement , dated as of September 19, 1996, between
Ryder Truck Rental, Inc. and Sublessee, as amended from time to time, and (b)
the term "Transaction Documents" shall mean all agreements between Ryder Truck
---------------------
Rental, Inc. and Sublessee executed pursuant to other than this Sublease or in
connection with, the Asset Purchase Agreement.
6. SERVICES.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
6.1. Except as otherwise specifically provided in this Sublease,
Sublessee shall be entitled during the Term to receive all services, utilities,
repairs and facilities which Landlord is required to provide pursuant to the
Master Lease, insofar as such services, utilities, repairs and facilities
pertain to the Demised Premises and the common areas.
6.2. If Landlord shall default in any of its obligations to
Sublessor with respect to the Demised Premises or shall breach any of its
representations or warranties affecting the Demised Premises, Sublessor, at
Sublessee's request and at Sublessee's cost and expense, shall use all
reasonable efforts to endeavor to cause Landlord to perform Landlord's
obligations under the Master Lease and, in addition, Sublessee shall be entitled
to participate, in a manner mutually agreed upon by the parties (each in the
exercise of its reasonable discretion) with Sublessor in the enforcement of
Sublessor's rights against Landlord. If, after Sublessee shall have made a
reasonable request in writing to Sublessor, Sublessor shall fail or refuse to
take appropriate action for the enforcement of Sublessor's rights against
Landlord in respect of the Demised Premises within a reasonable period of time
considering the nature of Landlord's default, Sublessee shall have the right to
take such action in its own name, and for that purpose and only to such extent,
all of the rights of Sublessor under the Master Lease are hereby conferred upon
and assigned to Sublessee and Sublessee is hereby subrogated to such rights to
the extent that the same shall apply to the Demised Premises and the common
areas. If any such action against Landlord in Sublessee's name shall be barred
by reason of lack of privity, nonassignability or otherwise, Sublessee may take
such action in Sublessor's name, provided Sublessee has notified Sublessor of
Sublessee's intent to take such action at least five (5) days prior to taking
such action and has given Sublessor a reasonable period of time to commence an
action against Landlord to enforce Sublessor's rights against Landlord.
Sublessor agrees to cooperate with Sublessee in any reasonable manner requested
by Sublessee in connection with an action or proceeding by Sublessee against
Landlord to enforce Sublessor's rights under the Master Lease in respect of the
Demised Premises and the common areas.
6.3. In the event that telephone switching equipment or other
telecommunications equipment utilized by Sublessor or Sublessee is located
within the premises occupied by the other party, then the party occupying such
premises shall grant the other party reasonable access to such telephone
switching equipment or other telecommunications equipment and other areas
reasonably required for such telecommunication use, subject in each case to the
reasonable requirements of the party granting such access.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
6.4. The provisions of this Section shall survive the expiration
or earlier termination of this Sublease.
7. ALTERATIONS; SIGNAGE.
7.1. Subject to the terms and conditions of the Master Lease,
Sublessee shall have the right to install reasonable and appropriate signage,
both at the entrance to the Demised Premises and in the common areas of the
Property, indicating Sublessee's occupancy of the Demised Premises, provided
that the location, size and design of any such signage shall be subject to the
prior written consent of Sublessor and Landlord, which consent shall not be
unreasonably withheld or delayed.
7.2. Sublessee shall indemnify and hold harmless Sublessor and
Landlord from all costs, expenses, liabilities and obligations arising out of
the filing of any mechanic's or materialman's lien against the Property or the
Demised Premises by reason of any act or omission of Sublessee in connection
with any Alteration.
8. INSURANCE.
8.1. Sublessee, at Sublessee's sole expense, shall maintain for
the benefit of Sublessor and Landlord such policies of insurance (and in such
form) as are required by the Master Lease with respect to the Demised Premises
which shall be reasonably satisfactory to Sublessor as to coverage and insurer
(who shall be licensed to do business in the State in which the Demised Premises
are located) provided that such insurance shall at a minimum include
comprehensive general liability insurance protecting and indemnifying Sublessor,
Landlord and Sublessee against any and all claims and liabilities for injury or
damage to persons or property occurring upon, in or about the Demised Premises,
and the public portions of the Property, caused by or resulting from or in
connection with any act or omission of Sublessee or Sublessee's employees,
agents or invitees. Sublessor and Landlord shall each be named as an additional
insured under any such policies of insurance obtained by Sublessee, and no such
policy shall be subject to termination or modification unless at least thirty
(30) days, prior written notice (or ten (10) days' prior written notice, if such
termination results from Sublessee's failure to pay the premiums for such
insurance) shall have been given by the applicable insurance company to
Sublessor and Landlord. Nothing contained herein shall limit, or prohibit
Sublessee from providing such coverage through "blanket" policies of insurance
and/or selfinsuring therefor in a manner that is consistent with the general
corporate practices of Sublessee.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-8-
<PAGE>
8.2. Nothing contained in this Sublease shall relieve Sublessee
from any liability as a result of damage from fire or other casualty, but each
party shall look first to any insurance in its favor before making any claim
against the other party for recovery for loss or damage resulting from fire or
other casualty. To the extent that such insurance is in force and collectible
and to the extent permitted by law, Sublessor and Sublessee each hereby releases
and waives all right to recovery against the other or anyone claiming through or
under the other by way of subrogation or otherwise. The foregoing release and
waiver shall be in force only if the insurance policies of Sublessor and
Sublessee provide that such release or waiver does not invalidate the insurance;
each party agrees to use reasonable efforts to include such a provision in its
applicable insurance policies. If the inclusion of said provision would involve
an additional expense, either party, at its sole expense, may require such
provision to be inserted in the other's policy.
9. ASSIGNMENT, SUBLETTING AND ENCUMBRANCES.
9.1. Sublessee shall not sublease or mortgage, pledge or otherwise
encumber all or any part of the Demised Premises, assign or mortgage this
Sublease (by operation of law or otherwise) or permit the Demised Premises to be
used or occupied by anyone other than Sublessee, Sublessee's divisions and other
Affiliates and Sublessee's licensees, invitees, customers and vendors without
the prior written consent of Sublessor and Landlord in each instance, which
consent shall not be unreasonably withheld, conditioned or delayed; provided,
however, that Sublessee upon at least 30 days prior written notice to Sublessor
and upon Sublessee's obtaining any required consent of Landlord under the Master
Lease, may assign this Sublease or sublet all or part of the Demised Premises to
(a) an Affiliate of Sublessee, (b) an entity into which Sublessee is merged or
consolidated or (c) an entity which acquires all or substantially all of any
division of the business or operations of Sublessee. Sublessor hereby consents
to that certain Sub-sublease dated as of even date herewith between Sublessee
and RCTR, Inc. Any consent by Sublessor and/or Landlord as hereinabove required
shall not excuse Sublessee from its obligation to obtain the express written
consent of Sublessor and/or Landlord to any further action or matter with
respect to which the consent of Sublessor and Landlord is hereinabove required.
The term "Affiliate", as used in this Section 9.1, shall have the same meaning
as is set forth in the Asset Purchase Agreement. Sublessee expressly
acknowledges and agrees that Sublessor's refusal to consent to an assignment or
sublease to a competitor of Sublessor shall be deemed a reasonable withholding
of consent.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
10. DEFAULT.
10.1. (a) Each of the following shall constitute an Event of
Default hereunder:
(i) if Sublessee shall fail to pay when due any Rent and Sublessee
shall fail to remedy such default within five (5) business days after written
notice thereof has been given to Sublessee by Sublessor or if Sublessee shall
fail to pay when due any other amount Sublessee may be required to pay hereunder
and Sublessee shall fail to remedy such default within thirty (30) days after
written notice thereof has been given to Sublessee by Sublessor; or
(ii) if Sublessee shall default in the observance or performance of
any term, covenant or condition of this Sublease on Sublessee's part to be
observed, performed or complied with (other than the payment of Rent and other
amounts payable hereunder) and Sublessee shall fail to remedy such default
within thirty (30) days after written notice to cure, or, if such default is of
such a nature that for reasons beyond Sublessee's control it cannot be
completely remedied within said period of thirty (30) days, then if Sublessee
(A) shall not promptly institute and thereafter diligently prosecute to
completion all steps necessary to remedy the same and (B) shall not remedy the
same within a reasonable time after the date of default.
(b) Upon the occurrence of any such Event of Default, Sublessor
may, in addition to exercising any other available rights or remedies, give to
Sublessee notice of its intention to end the Term at the expiration of three (3)
days from the date of the giving of such notice, and, in the event such notice
is given, this Sublease and the Term and estate hereby granted shall terminate
upon the expiration of said three (3) days with the same force and effect as if
that day were the Expiration Date, provided, however, that Sublessor and
Sublessee shall remain liable for the performance of their respective
obligations hereunder which survive the termination of this Sublease and for
damages as provided in this Sublease.
10.2. In no event shall Sublessor or Sublessee be entitled to
special or consequential damages with respect to any matter arising hereunder or
relating hereto.
11. INDEMNIFICATION.
11.1. Sublessee shall indemnify and hold harmless Sublessor and its
officers, directors, shareholders and employees from and against any and all
loss, cost, liability, claims, damage and expenses, including, without limiting
the generality of the foregoing, reasonable attorneys, fees and expenses and
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
court costs, penalties and fines, whether or not due to third party claims,
suits or proceedings, incurred in connection with or arising from (a) any
default by Sublessee in the observance or performance of, or compliance with,
any of the terms, covenants or conditions of this Sublease or the terms of the
Master Lease incorporated herein on Sublessee's part to be observed, performed
or complied with, or (b) the negligence or willful misconduct of Sublessee or
any of its agents, employees or contractors, in or about the Demised Premises or
the Property either prior to, during, or after the termination of this Sublease.
If any action or proceeding shall be brought against Sublessor by reason of any
such claim, Sublessee shall be given prompt notice thereof and, upon notice from
Sublessor, shall resist and defend such action or proceeding at Sublessee's sole
expense and employ counsel therefor reasonably satisfactory to Sublessor.
Sublessee shall pay to Sublessor on demand all sums which may be owing to
Sublessor by reason of the provisions of this subsection. Sublessee's
obligations under this subsection shall survive the Expiration Date or earlier
termination of this Sublease.
11.2. Sublessor shall indemnify and hold harmless Sublessee and
Sublessee's officers, directors, shareholders and employees from and against any
and all loss, cost, liability, claims, damage and expenses, including, without
limiting the generality of the foregoing, reasonable attorneys, fees and
expenses and court costs, penalty and fines, whether or not due to third party
claims, suits or proceedings, incurred in connection with or arising from (a)
any default by Sublessor in the observance or performance of, or compliance
with, any of the terms, covenants or conditions of this Sublease or the Master
Lease on Sublessor's part to be observed, performed or complied with, or (b) the
negligence or willful misconduct of Sublessor (in its capacity as sublessor
hereunder) or any of its agents, employees or contractors (retained by Sublessor
in its capacity as sublessor hereunder), in or about the Demised Premises or the
Property either prior to, during, or after the termination of this Sublease. If
any action or proceeding shall be brought against Sublessee by reason of any
such claim, Sublessor shall be given prompt notice thereof and, upon notice from
Sublessee, shall resist and defend such action or proceeding at Sublessor's sole
expense and employ counsel therefor reasonably satisfactory to Sublessee.
Sublessor shall pay to Sublessee on demand all sums which may be owed to
Sublessee by reason of the provisions of this subsection. Sublessor's
obligations under this subsection shall survive the Expiration Date or earlier
termination of this Sublease.
11.3. Notwithstanding anything in this Section 11 to the contrary,
neither party shall be required to indemnify the other party (an "indemnitee")
----------
against the indemnitee's own negligence or willful misconduct.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
12. HAZARDOUS MATERIALS.
12.1. Sublessor and Sublessee acknowledge and agree that the Asset
Purchase Agreement shall govern all matters relating to the presence of
Hazardous Materials in, on, under and about the Demised Premises prior to the
execution and delivery hereof.
13. REMEDIES CUMULATIVE.
13.1. Each right and remedy of Sublessor under this Sublease shall
be cumulative and be in addition to every other right and remedy of Sublessor
under this Sublease and now or hereafter existing at law or in equity, by
statute or otherwise.
14. QUIET ENJOYMENT.
14.1. Sublessor covenants that, as long as Sublessee shall pay the
Rent and all other amounts Sublessee shall be required to pay hereunder and
shall duly observe, perform and comply with all of the terms, covenants and
conditions of this Sublease on its part to be observed, performed or complied
with, Sublessee shall, subject to all of the terms of the Master Lease and this
Sublease, peaceably have, hold and enjoy the Demised Premises during the Term
without molestation or hindrance by Sublessor.
15. RENEWAL OPTION.
15.1. Sublessee shall have the option to renew this Sublease,
provided that Sublessee is not in default at the time of such exercise of the
option, i) for three successive one (1) year terms, if Sublessee desires to
renew this Sublease for the entire Demised Premises or ii) for one two (2) year
term and thereafter for an additional one (1) year term, if Sublessee desires to
renew this Sublease for only one floor of the Demised Premises. Each renewal
term shall commence immediately following the previous term, provided that
Sublessor is given at least sixty (60) days prior written notice before the
expiration of the term of this Sublease.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
16. SURRENDER OF DEMISED PREMISES.
16.1. Sublessee shall, no later than the termination of this
Sublease and in accordance with all of the terms of this Sublease and the Master
Lease, vacate and surrender to Sublessor the Demised Premises, together with all
Alterations, in similar order, condition and repair as the same were in as of
the Commencement Date, and broom clean, reasonable wear and tear, damages
resulting from a casualty for which Sublessee is not responsible and other items
the repair or remediation of which is the responsibility of Sublessor or
Landlord excepted. Tenant's obligation to observe or perform this covenant
shall survive the termination of this Sublease.
16.2. In the event that Sublessee remains beyond the Expiration
Date, it is the intention of the parties and it is hereby agreed that a tenancy
at sufferance shall arise at a monthly rent equal to 150% of the monthly Rent in
effect at the expiration of the Term.
17. NOTICES.
17.1. All notices, consents, approvals or other communications
(collectively, a "Notice") required to be given under this Sublease or pursuant
------
to law shall be in writing and, unless otherwise required by law, shall be
delivered personally or by overnight courier service or given by registered or
certified mail, return receipt requested, postage prepaid, to the parties at the
following addresses (unless such address shall be changed by Notice from one
party to the other):
To Sublessor:
------------
RYDER SYSTEM, INC.
P.O. Box 020816
Miami, Florida 33102-0816
Attention: Properties and Construction
or, for air or courier purposes 3600 NW 82 Avenue Miami, FL 33166
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
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<PAGE>
To Sublessee:
------------
Ryder TRS, Inc.
8669 N.W. 36th Street
Miami, Florida 33166
Attention: President
with a copy to:
Ryder TRS, Inc.
c/o Questor Management Company
4000 Town Center
Suite 530
Southfield, MI 48075
Attention: President
Any Notice given pursuant hereto shall be deemed to have been given and shall be
effective when received, or when delivered and refused.
18. LANDLORD CONSENTS DURING TERM.
18.1. Wherever in this Sublease the consent or approval of
Sublessor is required for any act or thing, Sublessor agrees that it shall not
unreasonably withhold, condition or delay such consent or approval. If the
consent or approval of Landlord is required under the Master Lease for the same
act or thing, if Sublessor is required or willing to give its consent or
approval to Sublessee when such consent or approval is required hereunder,
Sublessor agrees that it will promptly forward Sublessee's request for such a
consent or approval to Landlord. If Sublessor is required or has determined to
give its consent or approval, Sublessor shall cooperate reasonably with
Sublessee in endeavoring to obtain Landlord's consent or approval. Whenever
either party to this Sublease expressly agrees not to unreasonably withhold its
consent, such consent shall also not be unreasonably delayed or conditioned.
19. SUBLESSOR'S INABILITY TO PERFORM.
19.1. Notwithstanding anything contained herein to the contrary, in
the event Services are interrupted by no fault of Sublessor, Sublessor shall use
its best efforts to cure or cause Landlord to cure any such interruption. If
such interruption remains uncured for 10 days, Sublessee shall have the right to
terminate this Sublease.
20. LIMITATIONS ON LIABILITY.
20.1. Nothing in this Sublease is intended to limit or affect any
obligations of Sublessor or any affiliate of Sublessor which are contained in
any separate agreement.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-14-
<PAGE>
21. PRESERVATION OF SUBLESSEE'S INTEREST.
Sublessee shall have the right, but not the obligation, if it deems
necessary to preserve its interest in the Demised Premises, to cure any default
under the Master Lease on behalf of any of the parties thereto and to deduct the
cost thereof from the next installment of rent due under this Sublease.
22. DELIVERY OF NOTICE.
Sublessor shall deliver to Sublessee copies of any notice or invoice
(including, without limitation, any notice of default) given by or to any party
under the Master Lease immediately upon delivery or receipt of such notice or
invoice, as the case may be, and failure to so deliver such notices or invoices
shall release Sublessee from any obligation to reimburse Sublessor for any sums
expended by Sublessor as a result of the contents of such notice or invoice.
23. FURTHER ACTS.
Sublessor promptly shall give such notices and consents and exercise
such rights under the Master Lease as Sublessee may reasonably request from time
to time.
24. BROKER.
Each party hereby represents that it has not dealt with any broker in
connection with this Sublease and each party shall indemnify the other from and
against any claims for any commission, fee or other compensation by any third
party claiming to have dealt with the other party in connection with this
Sublease.
25. RIGHT OF FIRST OFFER
In the event that Sublessor shall desire to assign its interest in or
surrender the Master Lease, then before Sublessor shall offer such assignment or
surrender of the Master Lease to a third party or shall accept an offer for the
same, Sublessor shall give to Sublessee written notice of the terms of such
offer ("Sublessor's Offer"). Sublessee may, within twenty (20) days of receipt
-----------------
of Sublessor's Offer, accept the same and succeed to Sublessor's position as
tenant under the Master Lease. If Sublessee does not accept Sublessor's Offer
within said twenty (20) day period, Sublessor shall be free to assign or
surrender its interest in the Master Lease, subject to the terms and conditions
of this Sublease, on substantially the same terms as set forth in Sublessor's
Offer. In the event Sublessor shall not consummate the transaction described in
Sublessor's Offer within ninety (90) days of the date thereof, Sublessor shall
again
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-15-
<PAGE>
comply with the terms of this Section before assigning its rights as tenant
under the Master Lease.
26. MISCELLANEOUS.
26.1. This Sublease shall be governed by and construed in
accordance with the internal laws of the State in which the Demised Premises are
located, without regard to the conflicts of law principles thereof.
26.2. The section headings in this Sublease and the table of
contents are inserted only as a matter of convenience for reference and are not
to be given any effect in construing this Sublease.
26.3. If any of the provisions of this Sublease or the application
thereof to any person or circumstance shall, to any extent, be invalid or
unenforceable, the remainder of this Sublease, or the application of such
provision or provisions to persons or circumstances other than those as to whom
or which it is held invalid or unenforceable, shall not be affected thereby, and
every provision of this Sublease shall be valid and enforceable to the fullest
extent permitted by law.
26.4. All of the terms and provisions of this Sublease shall be
binding upon and inure to the benefit of the parties hereto and, subject to the
provisions of Section 9 hereof, their respective successors and assigns.
26.5. Sublessor has made no representations, warranties or
covenants to or with Sublessee with respect to the subject matter of this
Sublease except as expressly provided herein or in the Transaction Documents and
all prior negotiations and agreements relating thereto are merged into this
Sublease. This Sublease may not be amended or terminated, in whole or in part,
nor may any of the provisions be waived, except by a written instrument executed
by the party against whom enforcement of such amendment, termination or waiver
is sought and unless the same is permitted under the terms and provisions of the
Master Lease.
26.6. If either party named herein brings an action to enforce the
terms hereof or to declare rights hereunder, the prevailing party in such
action, at trial and on appeal, shall be entitled to receive its reasonable
attorneys' fees from the non-prevailing party.
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-16-
<PAGE>
IN WITNESS WHEREOF, Sublessor and Sublessee have executed this
Sublease as of the day and year first above written.
RYDER SYSTEM, INC.
as Sublessor
By: /s/ Dwight D. Denny
--------------------------------
Title: Executive Vice President
Development
RYDER TRS, INC.
as Sublessee
By: /s/ Dean Anderson
---------------------------------
Title: Vice President and
Assistant Secretary
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-17-
<PAGE>
EXHIBIT 10.9
------------
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Macon, Georgia (the
"Premises") which is currently being occupied by H. McMaster.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-2-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Rochester, New York (the
"Premises") which is currently being occupied by Deborah Radley.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-3-
<PAGE>
Licensee in the event of a breach of any covenant or agreement of Licensee
contained in this Agreement which is not cured within such thirty (30) day
period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-4-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Portland, Maine (the
"Premises") which is currently being occupied by Tony Dragoni.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-5-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-6-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at King of Prussia,
Pennsylvania (the "Premises") which is currently being occupied by M. Palmer and
M. Cannarozzo.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-7-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-8-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Richmond, Virginia (the
"Premises") which is currently being occupied by T. Crockett and J. Kish.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-9-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-10-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Hartford, Connecticut (the
"Premises") which is currently being occupied by Kathy McLeod.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-11-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-12-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Charleston, South Carolina
(the "Premises") which is currently being occupied by D. Johnson.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-13-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-14-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Harrisburg, Pennsylvania
(the "Premises") which is currently being occupied by M. Burke.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-15-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-16-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's Great Lakes facility (the "Premises") which is
currently being occupied by Toby Burns.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-17-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-18-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Dunmore, Pennsylvania (the
"Premises") which is currently being occupied by J. Seechok.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-19-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-20-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Burr Ridge, Illinois (the
"Premises") which is currently being occupied by Jim Dreesen and Judy Bennett.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-21-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-22-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Des Moines, Iowa (the
"Premises") which is currently being occupied by Joe Flynn.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-23-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-24-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Davenport, Iowa (the
"Premises") which is currently being occupied by Marty Irmen.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-25-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-26-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Irving, Texas (the
"Premises") which is currently being occupied by Gary Snyder.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-27-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-28-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Tulsa, Oklahoma (the
"Premises") which is currently being occupied by Sheri Owens.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-29-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-30-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Houston, Texas (the
"Premises") which is currently being occupied by Don Hook and Johnny Casillas.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-31-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-32-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at San Diego, California (the
"Premises") which is currently being occupied by Pete Sherman.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-33-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-34-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at 250 Prairie Center Drive,
Eden Prairie, Minnesota 55344 (the "Premises") which is currently being occupied
by Boojie Bryson.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-35-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-36-
<PAGE>
OFFICE LICENSE AGREEMENT
------------------------
THIS AGREEMENT is entered into as of the 17th day of October, 1996, by and
between RYDER TRUCK RENTAL, INC., c/o Properties and Construction, 3600 NW 82nd
Avenue, Miami, Florida 33166 ("Ryder") and Ryder TRS, Inc., whose address is
8669 NW 36th Street, Miami, Florida ("Licensee").
IN CONSIDERATION of the covenants and conditions contained herein, Ryder and
Licensee agree as follows:
1. Ryder hereby grants to Licensee a license to access and utilize that
portion of Ryder Truck Rental's facility located at Knoxville, Tennessee (the
"Premises") which is currently being occupied by B. Wilkins.
2. Licensee agrees to pay to Ryder, monthly in advance, on the first day of
each month during the term of this Agreement, a license fee in the amount of
* , prorated for portions of a month.
3. Licensee shall use the Premises for office purposes only. Licensee shall
not bring or permit any hazardous or toxic materials, substances or wastes upon
the Premises. Licensee's use of the Premises shall be in compliance with all
applicable laws, ordinances and governmental rules and regulations and any
reasonable rules and regulations which Ryder may establish from time to time
after reasonable advance written notice to Licensee. Licensee shall not alter
the Premises in any manner. Licensee has inspected the Premises, is satisfied
with the condition thereof, and accepts the Premises in their present "AS IS"
condition.
4. The term of this Agreement and the license granted hereby shall commence
upon the execution of this Agreement by both parties and shall continue from
month to month until terminated by either party upon sixty (60) days prior
written notice to the other party.
5. Licensee agrees to maintain during the term of this Agreement a policy of
general liability insurance for claims and liabilities arising out of Licensee's
use or occupancy of the Premises. Such policies shall have limits of not less
than $1,000,000. Prior to Licensee's use or occupancy of the Premises, Licensee
shall provide Ryder with a certificate evidencing the coverage required by this
paragraph and naming Ryder as an additional insured.
6. Ryder shall have the right to terminate this Agreement and the license
granted hereby upon thirty (30) days prior notice to Licensee in the event of a
breach of any covenant or agreement of
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-37-
<PAGE>
Licensee contained in this Agreement which is not cured within such thirty (30)
day period.
7. Ryder shall incur no liability to Licensee for failure or inability of
Licensee to use the Premises due to any cause beyond Ryder's control, whether
existing now or hereafter, however Ryder will use reasonable efforts to minimize
any interruption in Licensee's use of the Premises.
8. Notices given hereunder shall be in writing, shall be given at the
addresses set forth below each parties' signature hereon and shall be deemed
effective when actually received by the addressee by personal delivery,
certified mail or recognized overnight delivery service.
9. This Agreement and the license granted hereby are personal to Licensee and
are not assignable by Licensee. No waivers, alterations or modifications of
this Agreement shall be valid unless in writing and duly executed by both
parties. This Agreement, including the Exhibit, and that certain Asset and
Stock Purchase Agreement dated as of September 19, 1996 between Ryder and
Licensee constitute the entire agreement of the parties regarding the Premises
and supersede all previous negotiations and commitments, whether written or
oral.
IN WITNESS WHEREOF, this Agreement has been executed on behalf of the parties by
their duly authorized representatives.
RYDER TRUCK RENTAL, INC. RYDER TRS, INC.
By: /s/ Dwight D. Denny By: /s/ Dean Anderson
------------------- -----------------
Executive Vice President Vice President &
- Development Asst. Secretary
October 17, 1996 October 17, 1996
Address for notice: Address for notice:
3600 NW 82nd Avenue 8669 NW 36th Street
Miami, Florida 33166 Miami, Florida 33166
Attn: Properties & Construction (4B) Attention: President
* CONFIDENTIAL PORTIONS OMITTED AND FILED SEPARATELY WITH THE COMMISSION
PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
-38-
<PAGE>
EXHIBIT 10.15
-------------
[Letterhead of Jay Alix & Associates, Inc.]
October 15, 1996
Mr. Wallace L. Rueckel
Ryder TRS, Inc.
4000 Town Center, Suite 530
Southfield, Michigan 48075
Re: Advisory, Restructuring and Turnaround Services
Dear Mr. Rueckel:
This letter outlines the understanding between Jay Alix & Associates, a Michigan
corporation ("JA&A") and Ryder TRS, Inc. (the "Company") of the objective,
tasks, work product and fees for the engagement of JA&A to provide advisory,
restructuring and turnaround services to the Company.
OBJECTIVE
Assist the Company and its management and new owners to achieve the business
plan and objectives that have been set out in the deal syndication book prepared
by Questor Management Company. Such plan reflects realization of financial
benefits from initiatives that will be focused on improving the Company's income
statement, balance sheet, organization structure and corporate processes.
TASKS
Conduct a comprehensive review of the Company through meetings with key
employees, on-site operations review and analysis of financial and other
information to gain a working knowledge of the Company and identify areas of
opportunity.
. Assess and develop a plan to realign the Company's organization structure
appropriate to meeting the Company's objective.
. Develop the goals, measurements, structure and composition of Profit
Improvement Teams that will be made up of Company employees.
. Assist in selecting members for the Steering Committee and Profit
Improvement Teams, and assist in structuring their organization.
<PAGE>
. Develop and provide training for Profit Improvement Team leaders.
. Organize and lead the Profit Improvement Team kick-off meeting.
. Assist the Company in developing a communications program for Profit
Improvement Teams, including key messages and communications vehicles
targeted at employees, shareholders, customers, vendors and others.
. Actively participate as facilitators to Profit Improvement Teams and assist
in monitoring and reporting on their progress.
. Provide oversight assistance during the implementation process for
initiatives that are identified by Profit Improvement Teams and approved by
the Steering Committee.
. Assist in measuring financial and other benefits derived from the Profit
Improvement Team process.
. Assist in developing a cash flow forecasting model.
. Assist in challenging capital spending plans to help assure that such
expenditures are necessary, appropriately timed and effective as proposed.
. Assist in evaluating proposed contracts to make recommendation to the Board
of Directors as to the terms proposed and necessity of the contract.
. Assist in other matters as may be mutually agreed upon.
WORK PRODUCT
. Our work product will be in the form of:
. Information to be discussed with you and others, as you may direct.
. Written reports and analysis worksheets to support our suggestions as we
deem necessary or as you may request.
STAFFING
<PAGE>
Lawrence J. Ramaekers will be the principal responsible for the overall
engagement. He will be assisted by a staff of consultants at various levels,
all of whom have a wide range of skills and abilities related to this type of
assignment.
PROFESSIONAL FEES
We charge a combination of hourly and success fees, as follows:
ESTIMATED HOURLY FEES
Based on our current understanding of the situation, we estimate the total
hourly fees will be $2.6 million; however, the actual hourly fees may be
higher or lower depending on a number of factors that cannot be precisely
estimated. This estimate includes out of pocket cash expenses, such as
travel and lodging that we estimate will approximate 10% of hourly fees.
We will require a retainer of $250,000. Invoices for hourly fees and out
of pocket cash expenses will be rendered semi-monthly and are due upon
receipt.
Hourly rates are based upon the following schedule:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
Staff Classification Rate Range
<S> <C>
- -----------------------------------------------------------------
Principals $430 TO $460
- -----------------------------------------------------------------
Senior Associates $175 TO $305
- -----------------------------------------------------------------
Associates and Consultants $160 TO $200
- -----------------------------------------------------------------
</TABLE>
For purposes of planning, we estimate that hourly fees will be incurred as
follows:
<TABLE>
<CAPTION>
- -----------------------------------------------------------------
Time Period Per Month Cumulative
<S> <C> <C>
- -----------------------------------------------------------------
Months 1 to 6 $300,000 $1,800,000
- -----------------------------------------------------------------
Months 7 and 8 $200,000 $2,200,000
- -----------------------------------------------------------------
Months 9 through 12 $100,000 $2,600,000
- -----------------------------------------------------------------
</TABLE>
CONTINGENT SUCCESS FEES
In addition to hourly fees, the Company has agreed to pay a contingent
success fee based upon achieving the Company's business plan of EBITDA
equal to $163 million for 1997 and $171 million for 1998 (unless
<PAGE>
such business plan is reduced in negotiation between management and Questor
in which case the lower amount shall be the threshold). Further, in
determining the EBITDA results achieved, there shall not be deducted as an
expense, restructuring charges or other start-up costs. This formula will
also be adjusted up or down for changes, errors or omissions in plan
activities and unusual or unplanned items not related to turnaround
activities, such as an acquisition or similar event.
<TABLE>
<CAPTION>
- ------------------------------------------------------------------
Success Fee Level 1997 Plan 1998 Plan
<S> <C> <C>
- ------------------------------------------------------------------
Achieve Plan NONE NONE
- ------------------------------------------------------------------
First $10 Million Over Plan 7% 6%
- ------------------------------------------------------------------
Next $10 Million Over Plan 9% 7%
- ------------------------------------------------------------------
Next $10 Million Over Plan 12% 8%
- ------------------------------------------------------------------
Next $10 Million Over Plan 15% 10%
- ------------------------------------------------------------------
More Than $40 Million Over Plan 15% OF EXCESS 15% OF EXCESS
- ------------------------------------------------------------------
</TABLE>
PAYMENT OF CONTINGENT SUCCESS FEE
The amount of contingent success fee earned will be payable in cash.
SEMI-MONTHLY BILLINGS
As noted, we will require a retainer of $250,000 to be applied against the time
charges, excluding expenses, specific to the engagement. We will submit semi-
monthly invoices for services rendered and expenses incurred as described above,
and we will offset such invoices against the retainer. Payment will be due upon
receipt of the invoices to replenish the retainer to the agreed upon amount.
Any unearned portion of the retainer will be returned to you at the termination
of the engagement.
<PAGE>
RELATIONSHIP OF THE PARTIES
The parties intend that an independent contractor relationship will be created
by this agreement. JA&A is not to be considered an employee or agent of the
Company and the employees of JA&A are not entitled to any of the benefits that
the Company provides for the Company's employees.
The Company also agrees not to solicit or recruit any employees or agents of
JA&A for a period of two years subsequent to the completion and/or termination
of this agreement.
CONFIDENTIALITY
JA&A agrees to keep confidential all information obtained from the Company.
JA&A agrees that neither it nor its directors, officers, principals, employees,
agents or attorneys will disclose to any other person or entity, or use for any
purpose other than specified herein, any information pertaining to the Company
or any affiliate thereof which is either non-public, confidential or proprietary
in nature ("Information") which it obtains or is given access to during the
performance of the services provided hereunder. JA&A also agrees that only
those of its directors, officers, principals, employees, agents and attorneys
who have a need-to-know to perform the services contracted herein and are under
an obligation to maintain the confidentiality of the Information will be given
access to the Information. JA&A may make reasonable disclosures of Information
to third parties in connection with their performance of their obligations and
assignments hereunder. In addition, JA&A will have the right to disclose to
others in the normal course of business its involvement with the Company.
Information includes data, plans, reports, schedules, drawings, accounts,
records, calculations, specifications, flow sheets, computer programs, source or
object codes, results, models, or any work product relating to the business of
the Company, its subsidiaries, distributors, affiliates, vendors, customers,
employees, contractors and consultants.
The Company acknowledges that all advice (written or oral) given by JA&A to the
Company in connection with JA&A's engagement is intended solely for the benefit
and use of the Company (limited to its management, shareholders and others, such
as lenders, who have a need for access to it) in considering the transactions to
which it relates. The Company agrees that no such advice shall be used for any
other purpose or reproduced, disseminated, quoted or referred to at any time in
any manner or for any purpose other than accomplishing the tasks and programs
referred to herein or in
<PAGE>
discussions with the Company's lenders or debt holders, without JA&A's prior
approval (which shall not be unreasonably withheld) except as required by law.
This agreement will survive the termination of the engagement.
FRAMEWORK OF THE ENGAGEMENT
The Company acknowledges that it is not hiring JA&A because of its CPA
credentials, but purely to assist and advise the Company in business planning
and restructuring. JA&A's engagement shall not constitute an audit, review or
compilation, or any other type of financial statement reporting engagement that
is subject to the rules of the AICPA or other such state and national
professional bodies.
INDEMNIFICATION
In engagements of this nature, it is our practice to receive indemnification.
Accordingly, in consideration of our agreement to act on your behalf in
connection with this engagement, you agree to indemnify, hold harmless, and
defend us (including our principals, employees and agents) from and against all
claims, liabilities, losses, damages and reasonable expenses as they are
incurred, including reasonable legal fees and disbursements of counsel, and the
costs of our professional time (our professional time will be reimbursed at our
rates in effect when such future time is required), relating to or arising out
of the engagement, including any legal proceeding in which we may be required or
agree to participate but in which we are not a party. We, our principals,
employees and agents may, but are not required to, engage a single firm of
separate counsel of our choice in connection with any of the matters to which
this indemnification agreement relates. This indemnification agreement does not
apply to actions taken or omitted to be taken by us in bad faith or from our
gross negligence. This agreement will survive the termination of the
engagement.
TERMINATION AND SURVIVAL
The agreement may be terminated at any time by written notice by one party to
the other; provided, however, that notwithstanding such termination JA&A will be
entitled to any fees and expenses due under the provisions of the agreement.
Such payment obligation shall inure to the benefit of any successor or assignee
of JA&A.
The obligations of the parties under the Indemnification and Confidentiality
sections of this agreement shall survive the termination of the agreement as
well as the other sections
<PAGE>
of this agreement which expressly provide that they shall survive termination of
this agreement.
GOVERNING LAW
This letter agreement is governed by and construed in accordance with the laws
of the State of Michigan with respect to contracts made and to be performed
entirely therein and without regard to choice of law or principles thereof.
CONFLICTS
We know of no fact or situation which would represent a conflict of interest for
us with regard to the Company. We do wish to disclose the following
information:
. All of the Principals of JA&A, including Jay Alix, the Managing General
Partner of Questor Partners Fund, L.P. own general and/or limited
partnership interests in Questor Partners Fund, L.P. or Questor Side-by-
Side Partners, L.P., a related entity.
. Chase Bank, a lender to the Company and one of the equity investors in the
new entity, is also a limited partner of Questor.
. Ryder System, Inc., the seller of the Company's assets, is presently a
client of JA&A. Work on that engagement is currently on-going.
SEVERABILITY
If any portion of the letter agreement shall be determined to be invalid or
unenforceable, we each agree that the remainder shall be valid and enforceable
to the maximum extent possible.
ENTIRE AGREEMENT
All of the above contains the entire understanding of the parties relating to
the services to be rendered by JA&A and may not be amended or modified in any
respect except in writing signed by the parties.
NOTICES
All notices required or permitted to be delivered under this letter agreement
shall be sent, if to us, to the address set forth at the head of this letter, to
the attention of Mr.
<PAGE>
Melvin R. Christiansen, and if to you, to the address for you set forth above,
to the attention of your General Counsel, or to such other name or address as
may be given in writing to the other party. All notices under the agreement
shall be sufficient if delivered by facsimile or overnight mail. Any notice
shall be deemed to be given only upon actual receipt.
If these terms meet with your approval, please sign and return the enclosed copy
of this proposal and return it with the amount required to establish the
retainer.
We look forward to working with you.
Sincerely yours,
JAY ALIX & ASSOCIATES
Lawrence J. Ramaekers
Principal
Acknowledged and Agreed to:
By: /s/ Wallace L. Rueckel
Its: Chairman
Dated: October 15, 1996
