As filed with the Securities and Exchange
Commission on August 29, 2003
Registration
No. 333-
UNITED STATES
FORM S-3
RYDER SYSTEM, INC.
3600 NW 82nd Avenue
Miami, Florida 33166
(305) 500-3726
59-0739250
(Address, including zip code, and telephone
number, including area code, of Registrant’s principal
executive offices)
(I.R.S. Employer Identification Number)
Flora R. Perez, Esq.
With a copy to:
John W. White, Esq.
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by market conditions.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. x
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If delivery of the prospectus is expected to be
made pursuant to Rule 434, please check the following
box.
o
CALCULATION OF REGISTRATION FEE
Pursuant to Rule 429 under the Securities
Act, this registration statement also relates to the remaining
unsold $157,000,000 of securities previously registered by the
registrant on registration statement number 333-63049 filed with
the Securities and Exchange Commission on September 8, 1998.
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 the
registration statement shall become effective on such date as
the Commission, acting pursuant to said Section 8(a), may
determine.
Subject to Completion dated
August 29, 2003
Prospectus
$800,000,000
(RYDER LOGO)
RYDER SYSTEM, INC.
Debt Securities
We, Ryder System, Inc., may offer from time to
time:
in one or more series, with an aggregate
principal amount (or net proceeds in the case of securities
issued at an original issue discount) of up to $800,000,000,
including the equivalent thereof in other currencies, or
composite currency units such as the euro, in amounts, at prices
and on terms to be determined at the time of offering.
When we offer securities pursuant to this
prospectus, we will deliver to you this prospectus as well as a
prospectus supplement setting forth the specific terms of the
securities being offered. We urge you to read carefully this
prospectus and the accompanying prospectus supplement before you
make your investment decision.
Our common stock is listed on the New York Stock
Exchange under the symbol “R.” Any common stock sold
pursuant to a prospectus supplement will be listed on such
exchange, subject to official notice of issuance.
Any debt securities issued under this prospectus
will rank equal in right of payment with all our other unsecured
and unsubordinated indebtedness.
We may sell the securities to or through
underwriters and also may sell the securities directly to other
purchasers or through agents or dealers.
This prospectus may not be used to consummate
sales of securities unless accompanied by a prospectus
supplement.
These securities have not been approved or
disapproved by the Securities and Exchange Commission or any
state securities commission nor has the Securities and Exchange
Commission or any state securities commission passed upon the
accuracy or adequacy of this prospectus. Any representation to
the contrary is a criminal offense.
The date of this prospectus
is ,
2003.
Proposed
Maximum
Title of Each Class of
Amount to be
Aggregate Offering
Amount of
Securities to be Registered
Registered (1) (2)
Price (1) (3)
Registration Fee (1) (4) (6)
$
800,000,000
$
800,000,000
$
18,405
(1)
Not specified as to each class of securities to
be registered pursuant to General Instruction II.D of
Form S-3.
(2)
Subject to Rule 462(b) under the Securities
Act of 1933, in no event will the aggregate initial offering
price of the securities issued under this registration statement
(which includes securities issued hereunder pursuant to
Rule 429 under the Securities Act) exceed $800,000,000, or
if any securities are issued in any foreign currency units, the
U.S. dollar equivalent of $800,000,000. For debt securities
issued with an original issue discount, the amount to be
registered is calculated as the initial accreted value of such
debt securities.
(3)
Estimated solely for purposes of calculating the
registration fee in accordance with Rule 457(o) under the
Securities Act of 1933 and exclusive of accrued interest and
dividends, if any.
(4)
Pursuant to Rule 457(p), the registrant is
offsetting the $64,720 registration fee with $46,315 of
registration fees which relate to the remaining unsold
$157,000,000 previously registered by the registrant on
registration statement number 333-63049 filed on
September 8, 1998.
(5)
In addition to any preferred stock, depositary
shares or common stock that may be issued directly under this
registration statement, there are being registered hereunder an
indeterminate number of shares of preferred stock, depositary
shares or common stock as may be issued upon conversion or
exchange of debt securities, preferred stock or depositary
shares, as the case may be. No separate consideration will be
received for any shares of preferred stock, depositary shares or
common stock so issued upon conversion or exchange.
(6)
Each share of common stock that may be issued
under this registration statement will have an attached
preferred share purchase right. The preferred share purchase
rights are only exercisable upon the occurrence of certain
prescribed events, none of which has occurred. Pursuant to
Rule 457(i) of the Securities Act, no registration fee is
required with respect to the preferred share purchase rights.
(7)
Each stock purchase contract of the registrant
obligates the registrant to sell, and its holder to purchase, a
number of shares of the registrant’s common stock.
(8)
Each stock purchase unit consists of a stock
purchase contract and debt securities or preferred securities
registered under this registration statement or debt obligations
of third parties.
The information in this
prospectus is not complete and may be changed. We may not sell
these securities until the registration statement filed with the
Securities and Exchange Commission relating to these securities
is effective. This prospectus is not an offer to sell these
securities and we are not soliciting offers to buy these
securities in any state or other jurisdiction where the offer or
sale of these securities is not permitted.
•
debt securities,
•
shares of preferred stock,
•
depositary shares,
•
shares of common stock and
•
stock purchase contracts and stock purchase units
TABLE OF CONTENTS
i
No dealer, salesman or other person has been
authorized to give any information or to make any
representations in connection with the offer made by this
prospectus or any prospectus supplement other than those
contained in, or incorporated by reference in, this prospectus
or any prospectus supplement, and if given or made, such
information or representations must not be relied upon as having
been authorized by us or any agent, underwriter or dealer. This
prospectus and any prospectus supplement do not constitute an
offer to sell or a solicitation of any offer to buy any
securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such
jurisdiction. The delivery of this prospectus or any prospectus
supplement at any time does not imply that the information
contained herein or therein is correct as of any time subsequent
to their respective dates.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement filed by us with the Securities and Exchange
Commission, or Commission, utilizing a “shelf”
registration process. Under this shelf process, we may, from
time to time, sell any combination of securities described in
this prospectus in one or more offerings. This prospectus
provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information
about the terms of that offering. The prospectus supplement may
also add, update or change information contained in this
prospectus. You should read both this prospectus and any
applicable prospectus supplement together with additional
information described below under the heading “Where You
Can Find More Information.”
As used in this prospectus, “company,”
“we,” “our” and “us” refer only to
Ryder System, Inc. and not any of its subsidiaries, except where
the context otherwise requires or as otherwise indicated.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports,
proxy statements and other information with the Commission. You
may read and copy any document previously filed by us at the
Commission’s Public Reference Room, 450 Fifth Street, N.W.,
Room 1024, Washington, D.C. 20549. You may obtain copies of
this information by mail from the Public Reference Section of
the Commission, 450 Fifth Street, N.W., Room 1024,
Washington, D.C. 20549, at prescribed rates. You may obtain
information on the operation of the public reference room by
calling the Commission at 1-800-SEC-0330. Our filings with the
Commission are also available to the public on the
Commission’s Internet website at http://www.sec.gov.
You can also inspect reports, proxy statements
and other information about us at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
We have filed with the Commission a registration
statement under the Securities Act that registers the
distribution of the securities offered hereby. The registration
statement, including the attached exhibits and schedules,
contain additional relevant information about us and the
securities being offered. This prospectus which forms part of
the registration statement omits certain of the information
contained in the registration statement in accordance with the
rules and regulations of the Commission. Reference is hereby
made to the registration statement and related exhibits for
further information with respect to us and the securities
offered hereby. Statements contained in this prospectus
concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of
such document filed as an exhibit to the registration statement
or otherwise filed with the Commission. Each such statement is
qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The Commission allows us to “incorporate by
reference” information into this prospectus. This means
that we can disclose important information to you by referring
you to another document filed separately with the Commission. We
incorporate by reference the documents listed below, which we
have already filed with the Commission, and any documents filed
by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the
1
The information incorporated by reference into
this prospectus is an important part of this prospectus. Any
statement contained in an incorporated document shall be deemed
to be modified or superseded for purposes of the registration
statement or this prospectus to the extent that a statement
contained herein or in any other subsequently filed incorporated
documents or in an accompanying prospectus supplement modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as modified or
superseded, to constitute a part of this prospectus.
You may request copies of any and all information
that is incorporated by reference into this prospectus, at no
cost, by writing to us at the following address or telephoning
us at (305) 500-3726.
Investor Relations
Exhibits to an incorporated document will not be
provided unless the exhibit is specifically incorporated by
reference into this prospectus.
In addition, we make available free of charge
through our website at http://www.ryder.com our annual reports
on Form 10-K, quarterly reports on Form 10-Q, current
reports on Form 8-K and all amendments to those reports as
soon as reasonably practicable after such material is
electronically filed with or furnished to the Commission. Other
than the information expressly incorporated by reference into
this prospectus, information on, or accessible through, our
website is not a part of this prospectus, any prospectus
supplement or the registration statement of which this
prospectus is a part.
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•
Our Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 filed with the
Commission on March 3, 2003;
•
Our Quarterly Reports on Form 10-Q for the
three- and six-month periods ended March 31, 2003 and
June 30, 2003 filed with the Commission on May 8, 2003
and August 8, 2003, respectively;
•
Our Current Report on Form 8-K filed with
the Commission on August 29, 2003;
•
Description of our common stock contained in our
registration statement on Form S-3 (Registration
No. 333-33600) filed with the Commission on
February 27, 1990; and
•
Description of our preferred share purchase
rights contained in our registration statement on Form 8-A
(Registration No. 001-04364) filed with the Commission on
April 3, 1996.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
Some of the statements contained in, or
incorporated by reference into, this prospectus are
“forward-looking statements” within the meaning of the
Private Securities Litigation Reform Act of 1995. These
statements are based on our current plans and expectations and
involve risks and uncertainties that may cause actual results to
differ materially from the forward-looking statements.
Generally, the words “believe,” “expect,”
“intend,” “plan,” “estimate,”
“predict,” “anticipate,” “will,”
“may,” “should” and similar expressions
identify forward-looking statements.
Important factors that could cause such
differences include, among others: general economic conditions
in the U.S. and worldwide; the market for our used equipment;
the highly competitive environment applicable to our operations
(including competition in supply chain solutions and dedicated
contract carriage from other logistics companies as well as from
air cargo, shippers, railroads and motor carriers and
competition in full service leasing and commercial rental from
companies providing similar services as well as truck and
trailer manufacturers that provide leasing, extended warranty
maintenance, rental and other transportation services); greater
than expected expenses associated with our activities (including
increased cost of fuel, freight and transportation) or personnel
needs; availability of equipment; adverse changes in debt
ratings; changes in accounting assumptions; changes in
customers’ business environments (or the loss of a
significant customer) or changes in government regulations.
For a more in-depth discussion of these and other
factors that could cause actual results to differ from those
contained in forward-looking statements, see the discussion
under “Certain Factors That May Affect the Company’s
Business” in our Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 which is incorporated by
reference into this prospectus. In addition, you should
carefully consider the specific risks set forth under the
caption “Rick Factors” in the applicable prospectus
supplement before making your investment decision.
The risk factors set forth in our Annual Report
on Form 10-K for the fiscal year ended December 31,
2002 and in the applicable prospectus supplement are not the
only ones facing us. New risk factors emerge from time to time
and it is not possible for management to predict all such risk
factors or to assess the impact of such risk factors on our
business. Accordingly, we undertake no obligation to publicly
update or revise any forward-looking statements, whether as a
result of new information, future events or otherwise.
RYDER SYSTEM, INC.
We operate in three reportable business segments:
(1) Fleet Management Solutions (FMS), which provides full
service leasing, commercial rental and programmed maintenance of
trucks, tractors and trailers to customers principally in the
U.S., Canada and the U.K.; (2) Supply Chain Solutions
(SCS), which provides comprehensive supply chain consulting and
lead logistics management solutions that support customers’
entire supply chains, from inbound raw materials through
distribution of finished goods throughout North America and in
Latin America, Europe and Asia; and (3) Dedicated Contract
Carriage (DCC), which provides vehicles and drivers as part of a
dedicated transportation solution, principally in North America.
As of December 31, 2002, we and our subsidiaries had a
fleet of approximately 161,400 vehicles and 27,800 employees.
We were incorporated in Florida in 1955. Our
principal executive offices are located at 3600 N.W. 82nd
Avenue, Miami, Florida 33166. Our telephone number is
(305) 500-3726. Our website is http://www.ryder.com.
USE OF PROCEEDS
Unless otherwise specified in the prospectus
supplement, we intend to use the net proceeds from the sale of
the securities offered by this prospectus and any accompanying
prospectus supplement for general corporate purposes, which
might include the repayment of indebtedness, working capital,
capital expenditures, acquisitions and the repurchase of shares
of our equity securities. Pending use for these purposes, we may
invest proceeds from the sale of the securities in short-term
marketable securities. The precise amount and
3
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of
earnings to fixed charges for us and our subsidiaries, whether
or not consolidated, for each of the six-month periods ended
June 30, 2003 and 2002, and for each of the years in the
five-year period ended December 31, 2002. For purposes of
computing the ratio of earnings to fixed charges, fixed charges
consist of interest expense and other financial charges plus
interest capitalized and that portion (one third) of rental
expense considered to be interest. Earnings are computed by
adding fixed charges, except interest capitalized, to earnings
from continuing operations before income taxes and cumulative
effect of changes in accounting principles. Prior period ratios
have been restated to exclude discontinued operations. Because
we had no shares of preferred stock outstanding during any of
the periods presented or as of the date of this prospectus, we
do not separately present the ratio of earnings to combined
fixed charges and preferred stock dividends.
4
Six Months Ended
June 30
Years Ended December 31
2003
2002
2002
2001
2000
1999
1998
1.93
1.62
1.80
1.10
1.44
1.37
1.71
DESCRIPTION OF THE DEBT SECURITIES
The following is a description of the general
terms and provisions that may apply to the debt securities. The
particular terms of any debt securities offered hereby will be
described in the prospectus supplement relating to those debt
securities which may add, update or change the terms described
in this prospectus. To review the terms of any debt securities
offered by this prospectus, you must review both this prospectus
and the relevant prospectus supplement.
The debt securities will be unsecured and
unsubordinated obligations of our company and will be issued
from time to time under an indenture to be entered into between
us and J.P. Morgan Trust Company, National Association, as
trustee. The indenture will be subject to and governed by the
Trust Indenture Act of 1939.
Following is a brief description of certain
provisions of the indenture. This description is not complete
and is subject to the detailed provisions of the indenture. A
form of the indenture is filed as an exhibit to the registration
statement of which this prospectus is a part. Section references
appearing below are to the indenture. Whenever particular
provisions of the indenture are referenced, such provisions are
incorporated by reference as part of the statement made, and the
statement is qualified in its entirety by such reference. Any
capitalized term used in this description and not defined shall
have the meaning given to such term in the indenture. We urge
you to read the indenture (and any amendments thereto) in its
entirety because it, and not the following description, defines
your rights as a holder of debt securities.
General
The indenture does not limit the amount of debt
securities that we may issue. Debt securities may be issued up
to the principal amount authorized by our board of directors
from time to time. The aggregate principal amount of the debt
securities to be offered by this prospectus will not exceed
$800,000,000 (or its foreign exchange rate equivalent if any
debt securities are offered in currencies other than U.S.
dollars).
Unless otherwise provided in the prospectus
supplement accompanying this prospectus, the debt securities
will be issued in fully registered form without coupons
(“registered securities”). In addition, debt
securities may be issued in the form of one or more global
securities (each a “global security”). Registered
securities which are book-entry securities (“book-entry
securities”) will be issued as registered global securities.
Debt securities of a single series may be issued
at various times with different maturity dates and different
principal repayment provisions, may bear interest at different
rates, may be issued at or above par or with an original issue
discount, and may otherwise vary, all as provided in the
indenture.
The debt securities will be unsecured and
unsubordinated general obligations of our company and will rank
equal in right of payment with all our other unsecured and
unsubordinated indebtedness.
Reference is made to the prospectus supplement
relating to the particular series of debt securities for the
following terms of such debt securities:
5
A debt security will not be valid until
authenticated by the manual signature of the trustee or an
authenticating agent. Such signature will be conclusive evidence
that the debt security has been authenticated under the
indenture. (Section 2.03.)
Some of the debt securities may be issued as
original issue discount debt securities. Original issue discount
securities bear no interest or bear interest at below-market
rates. These are sold at a discount below their stated principal
amount. If we issue these securities, the prospectus supplement
will describe any special tax, accounting, or other
considerations relevant to these securities.
Transfer and Exchange
We will maintain an office or agency in The City
of New York where registered debt securities may be presented
for registration of transfer or exchange
(“registrar”). Unless otherwise provided in the
prospectus supplement, a registered holder of debt securities
will be able to transfer registered debt securities at the
office of the registrar we name in the prospectus supplement.
The registered holder may also exchange registered debt
securities at the office of the registrar for an equal aggregate
principal amount of registered debt securities of the series
having the same maturity date, interest rate and other terms as
long as the debt securities are issued in authorized
denominations. (Sections 2.05, 2.08 and 4.04.)
Neither we nor the trustee will impose a service
charge for any transfer or exchange of a debt security; however,
a holder may be required to pay any tax or governmental charge
in connection with a transfer or exchange of a debt security.
For a discussion of certain restrictions on the
registration, transfer and exchange of global securities, see
“— Global Securities.” If we fail to
maintain a registrar the trustee will act as such. We or any of
our subsidiaries may act as registrar.
Certain Definitions
A summary of the definitions of certain terms
used in the indenture follows (reference should be made to
Article I of the indenture for complete definitions of the
following and other terms):
6
“Additional Amounts” means any
additional amounts which are required by a debt security or by
or pursuant to a board resolution, under circumstances specified
therein, to be paid by us in respect of certain taxes,
assessments or other governmental charges imposed on certain
holders of debt securities.
“After-Acquired Indebtedness” means
(a) pre-existing indebtedness assumed by us or a Restricted
Subsidiary as a result of the acquisition of the assets or stock
of an entity other than a Subsidiary of ours, (b) liens on
property existing at the time of acquisition of said property
and (c) indebtedness of an Unrestricted Subsidiary which is
outstanding at the time such Unrestricted Subsidiary becomes a
Restricted Subsidiary subsequent to the date of the indenture.
“Consolidated” when used with respect
to any other term, means such term as reflected in a
consolidation of our and our Restricted Subsidiaries’
accounts in accordance with generally accepted accounting
principles.
“Foreign Financing Subsidiary” means
any subsidiary not organized under the laws of the United States
of America, engaged in the business of lending to, or borrowing
on behalf of, us or our Restricted Subsidiaries.
“Indebtedness” means indebtedness other
than Subordinated Indebtedness of ours or any of our Restricted
Subsidiaries for borrowed money or leasing obligations as
reflected on the Consolidated balance sheet of our company and
our Restricted Subsidiaries, and indebtedness of other parties
guaranteed by us or our Restricted Subsidiaries.
“Intercompany Indebtedness” means any
Indebtedness owed directly between us and/or our Restricted
Subsidiaries.
“Leasing Indebtedness” means the
capitalized Indebtedness of any leasing obligations on personal
property.
“Net Tangible Assets” means total
assets as reflected on the Consolidated balance sheet of our
company and our Restricted Subsidiaries, after deduction for
minority interests, less: (a) goodwill and other
intangibles, (b) amounts invested in, advanced to, or
equity in Unrestricted Subsidiaries and (c) unamortized debt
discount.
“Original Issue Discount Debt Security”
means a debt security which provides that an amount less than
the principal amount thereof shall become due and payable upon
acceleration of the maturity or redemption thereof, or any debt
security which for United States Federal income tax purposes
would be considered an original issue discount debt security.
“Real Property Indebtedness” means
Indebtedness secured by real property acquired by us or any of
our Restricted Subsidiaries after the date of the indenture,
including both mortgage and lease financing.
“Restricted Subsidiary” means any
Subsidiary other than an Unrestricted Subsidiary.
“Secured Indebtedness” means
Indebtedness, other than Intercompany Indebtedness, secured by a
lien on any property and any unsecured Indebtedness of any
Restricted Subsidiary other than a Foreign Financing Subsidiary.
“Unrestricted Subsidiary” means
(a) any Subsidiary (other than a Foreign Financing
Subsidiary) substantially all of the property of which is
located or substantially all of the business of which is
conducted outside of the United States of America or its
possessions and (b) any other Subsidiary (including, if so
designated, a Foreign Financing Subsidiary) so designated by our
board of directors or our chief executive officer.
Certain Covenants
Limitation
on Secured Indebtedness.
Unless otherwise provided in the prospectus
supplement, we and our Restricted Subsidiaries will not incur
any Secured Indebtedness unless debt securities then outstanding
are equally and ratably secured, with the following exceptions:
7
Limitation
on Consolidations and Mergers.
We shall not consolidate with or merge into, or
transfer all or substantially all of our assets to, another
entity unless such entity assumes all the obligations under the
debt securities and the indenture and certain other conditions
are met (whereupon all our obligations under the indenture shall
terminate). (Section 5.01.)
Events of Default and Remedies
Unless otherwise provided in the prospectus
supplement, the events of default with respect to the debt
securities of any series are:
If an event of default is continuing with respect
to the debt securities of any series, the trustee or the holders
of 25% in aggregate principal amount of the debt securities of
that series then outstanding, by notice in writing to us and the
trustee, may accelerate the principal of such debt securities,
but the holders of a majority in aggregate principal amount of
such debt securities then outstanding may rescind such
acceleration if all existing events of default have been cured.
(Section 6.02.)
Holders of debt securities may not enforce the
indenture except in the case of the failure of the trustee, for
60 days, to act after notice of an event of default and a
request to enforce the indenture by the holders of 25% in
aggregate principal amount of the series of debt securities
affected thereby and an offer of indemnity satisfactory to the
trustee. (Section 6.06.) This provision will not prevent
any holder of a debt security from enforcing payment of the
principal of and interest on such debt security at the
respective due dates thereof. (Section 6.07.) The holders
of a majority in aggregate principal amount of the debt
securities of any series then outstanding may direct the manner
of conducting any proceedings for any remedy or trust power
available to the trustee. The trustee, however, may refuse to
follow any direction that conflicts with law or the indenture,
is unduly prejudicial to holders of other debt securities or
would involve the trustee in personal liability.
(Section 6.05.)
Holders of a majority in aggregate principal
amount of any series of debt securities then outstanding may
waive on behalf of all holders of debt securities of that series
any default with respect to that series except a default in the
payment of the principal or interest on such debt securities.
(Section 6.04.)
The indenture provides that the trustee may
withhold notice to the holders of any series of debt securities
issued of any default if the trustee considers it in the
interest of such holder to do so, provided the trustee may
8
We will furnish an annual officers’
certificate to the trustee as to our compliance with all
conditions and covenants set forth in the indenture.
(Section 4.03.)
Satisfaction and Discharge
Unless otherwise provided in the prospectus
supplement, we may terminate certain of our obligations under
the indenture, including our obligation to comply with the
covenants described above, with respect to any series of debt
securities which does not provide for the payment of any
Additional Amounts, on the terms and subject to the conditions
contained in the indenture, by irrevocably depositing in trust
with the trustee money or U.S. government obligations sufficient
to pay principal and interest on such debt securities to
maturity. Such deposit and termination is conditioned upon our
delivery of an opinion of independent tax counsel that the
holders of such debt securities will have no Federal income tax
consequences as a result of such deposit and termination.
(Section 8.01.)
Modification and Waiver
We and the trustee, with the consent of the
holders of a majority in aggregate principal amount of the then
outstanding debt securities affected, may execute supplemental
indentures amending the indenture or such debt securities,
except that no such amendment may, without the consent of the
holders of the affected debt securities, among other things,
change the maturity or reduce the principal amount thereof,
change the rate or the time of payment of interest thereon,
change any obligation on our part to pay Additional Amounts
relating to a particular debt security or reduce the amount of
principal of an Original Issue Discount Debt Security that would
be due and payable upon a declaration of acceleration of the
maturity thereof. (Sections 9.02 and 9.03.)
We and the trustee may also, without the consent
of any holders of debt securities, enter into supplemental
indentures for the purposes of, among other things, curing
ambiguities and inconsistencies, addressing changes in generally
accepted accounting principles and making changes that do not
adversely affect the rights of any holders of debt securities.
(Section 9.01.)
Payment and Paying Agents
We will maintain an office or agency where the
debt securities may be presented for payment (“paying
agent”). Unless otherwise provided in the prospectus
supplement, payment of principal of, premium, if any, and
interest, if any, on registered securities will be made in U.S.
dollars at the office of such paying agent or paying agents as
we may designate from time to time, except that at our option
payment of any interest may be made by check mailed to the
address of the person entitled thereto as such address shall
appear in the security register maintained by the registrar.
Unless otherwise provided in the prospectus supplement, payment
of any installment of interest on registered securities will be
made to the person in whose name such registered security is
registered at the close of business on the regular record date
for such interest. (Section 4.01.)
Unless otherwise provided in the prospectus
supplement, the corporate trust office of the trustee in The
City of New York will be designated as our sole paying agent for
payments with respect to offered debt securities that are
issuable solely as registered securities. Any paying agents
outside the United States and any other paying agents in the
United States initially designated by us for the offered debt
securities will be named in the prospectus supplement. We may at
any time designate additional paying agents or rescind the
designation of any paying agent or approve a change in the
office through which any paying agent acts, except that, if debt
securities of a series are issuable solely as registered
securities, we will be required to maintain a paying agent in
each place of payment for such series. (Section 4.04.) If
we fail to maintain a paying agent the trustee will act as such.
We or any of our subsidiaries may act as paying agent.
9
Global Securities
The debt securities of a series may be issued in
whole or in part in the form of one or more global securities
that will be deposited with, or on behalf of, a depositary (a
“depositary”) identified in the prospectus supplement
relating to such series. Global securities may be issued in
registered, and in either temporary or definitive form. Unless
and until it is exchanged in whole for debt securities in
definitive form, a global security may not be transferred except
as a whole by the depositary for such global security to a
nominee of such depositary or by a nominee of such depositary to
such depositary or another nominee of such depositary or by such
depositary or any such nominee to a successor of such depositary
or a nominee of such successor. (Section 2.16.)
The specific terms of any depositary arrangement
with respect to the offered debt securities will be described in
the prospectus supplement relating thereto. Unless otherwise
specified in the prospectus supplement, we anticipate that the
following provision will apply to all depositary arrangements.
Unless otherwise specified in the prospectus
supplement, registered securities that are to be represented by
a global security to be deposited with or on behalf of a
depositary will be represented by a global security registered
in the name of such depositary or its nominee.
(Section 2.16.) Upon the issuance of a global security in
registered form, the depositary for such global security will
credit, on its book-entry registration and transfer system, the
respective principal amounts of the debt securities represented
by such global security to the accounts of institutions that
have accounts with such depositary or its nominee
(“participants”). The accounts to be credited shall be
designated by the underwriters or selling agents for such debt
securities, or by us if such debt securities are offered and
sold directly by us. Ownership of beneficial interests in such
global securities will be limited to participants or persons
that may hold interests through participants. Ownership of
beneficial interests in such global securities will be shown on,
and the transfer of that ownership will be effected only
through, records maintained by the depositary or its nominee for
such global security or by participants or persons that hold
through participants. The laws of some jurisdictions require
that certain purchasers of securities take physical delivery of
such securities in definitive form. Such limits and such laws
may impair the ability to transfer beneficial interests in a
global security.
So long as the depositary for a global security
in registered form, or its nominee, is the registered owner of
such global security, such depositary or such nominee, as the
case may be, will be considered the sole owner or holder of the
debt securities represented by such global security for all
purposes under the indenture governing such debt securities.
Except as set forth below, owners of beneficial interests in
such global securities will not be entitled to have debt
securities of the series represented by such global security
registered in their names, will not receive or be entitled to
receive physical delivery of debt securities of such series in
definitive form and will not be considered the owners or holders
thereof under the indenture.
Payment of principal of, premium, if any, and
interest, if any, on debt securities registered in the name of
or held by a depositary or its nominee will be made to the
depositary or its nominee, as the case may be, as the registered
owner or the holder of the global security representing such
debt securities. None of us, the trustee, any paying agent or
the registrar for such debt securities will have any
responsibility or liability for any aspect of the records
relating to or payments made on account of beneficial ownership
interests in a global security for such debt securities or for
maintaining, supervising or reviewing any records relating to
such beneficial ownership interests. (Section 2.15.)
We expect that the depositary for debt securities
of a series, upon receipt of any payment of principal of,
premium, if any, or interest, if any, on permanent global
securities, will immediately credit participants’ accounts
with payments in amounts proportionate to their respective
beneficial interests in the principal amount of such global
securities as shown on the records of such depositary. We also
expect that payments by participants to owners of beneficial
interests in such global security held through such participants
will be governed by standing instructions and customary
practices.
If a depositary for registered securities is at
any time unwilling or unable to continue as depositary and a
successor depositary is not appointed by us within 90 days,
we will issue individual certificates for the registered
securities in definitive form in exchange for the global
security or securities representing such registered securities.
In addition, we may at any time and in our sole discretion
determine not to have any
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Absence of Certain Covenants
We are not restricted by the indenture from
paying dividends or from incurring, assuming or becoming liable
for any type of debt or other obligation or creating liens on
our property, except as set forth under
“— Certain Covenants-Limitation on Secured
Indebtedness.” The indenture does not require the
maintenance of any financial ratios or specified levels of net
worth or liquidity. The indenture contains no provisions which
afford holders of the debt securities protection in the event of
a highly leveraged transaction involving our company.
Regarding the Trustee
J.P. Morgan Trust Company, National Association
is the trustee under the indenture. J.P. Morgan Trust Company,
National Association and its affiliates also act as depositary
for funds of, makes loans to, acts as trustee and performs
certain other services for, us and certain of our subsidiaries
and affiliates in the normal course of our business.
Notices
Notices to holders of registered debt securities
will be mailed by first class mail to the address on the
register kept by the registrar. (Section 10.02.)
11
•
the title of such debt securities;
•
any limit upon the aggregate principal amount of
such debt securities;
•
the initial public offering price;
•
the currency or currency unit of payment;
•
the date or date on which the principal of such
debt securities is payable;
•
the rate or rates at which such debt securities
will bear interest or the method for calculating such rate, if
any, the date or dates from which such interest will accrue, the
dates on which such interest will be payable and the record date
for the interest payable on any interest payment date;
•
whether such debt securities will be issued as
registered securities or bearer securities or both;
•
the place where the principal of and interest on
such debt securities will be payable;
•
the period or periods, if any, within which the
price or prices at which and the terms and conditions upon which
such debt securities may be redeemed by us;
•
whether we are obligated to redeem or purchase
such debt securities pursuant to any sinking fund or at the
option of a holder thereof, and the terms and conditions upon
which such debt securities shall be redeemed or purchased
pursuant to such obligation;
•
any provisions for the remarketing of the debt
securities by and on behalf of us;
•
if other than denominations of $1,000 and
integral multiples thereof, the denominations in which such debt
securities shall be issuable;
•
if other than the principal amount thereof, the
portion of the principal amount of such debt securities which
shall be payable upon declaration of acceleration of the
maturity thereof;
•
whether the offered debt securities are to be
issued in whole or in part in the form of one or more global
securities and, if so, the identity of the depositary for such
global security or securities and the terms and conditions, if
any, upon which such global securities may be exchanged for
individual certificates;
•
whether and under what circumstances we will pay
Additional Amounts to any holder of offered debt securities who
is not a United States person in respect of any tax, assessment
or other governmental charge required to be withheld or deducted
and, if so, whether we will have the option to redeem rather
than pay any Additional Amounts;
•
any additions, deletions or modifications to the
covenants, events of default or our ability to discharge our
obligations set forth in the indenture, that will be applicable
with respect to the offered debt securities; and
•
any other terms not inconsistent with the
indenture. (Section 2.02.)
•
Secured Indebtedness existing at the date of the
indenture,
•
Indebtedness of a corporation in existence at the
time it becomes a Restricted Subsidiary,
•
After-Acquired Indebtedness,
•
Intercompany Indebtedness secured in favor of us
or any Restricted Subsidiary,
•
Indebtedness deemed Secured Indebtedness by
virtue of certain liens or charges not yet due or payable
without penalty or which are being contested and for which
reserves have been set aside,
•
industrial revenue bond Indebtedness,
•
Real Property Indebtedness,
•
Leasing Indebtedness not to exceed a total of 10%
of Consolidated Net Tangible Assets; and
•
all other Secured Indebtedness (in addition to
that otherwise permitted above) not to exceed a total of 20% of
Consolidated Net Tangible Assets. (Section 4.06.)
•
default for 30 days in the payment of
interest thereon,
•
default in the payment of principal thereof,
•
default in performance by us of any other
agreement with respect thereto which continues for 60 days
after written notice, and
•
certain events of bankruptcy, insolvency or
reorganization. (Section 6.01.)
DESCRIPTION OF THE PREFERRED STOCK
The following is a description of the general
terms and provisions that may apply to our preferred stock. The
particular terms of any series of preferred stock offered hereby
will be described in the prospectus supplement relating to that
series of preferred stock which may add, update or change the
terms described in this prospectus. To review the terms of any
preferred stock offered by this prospectus, you must review both
this prospectus and the relevant prospectus supplement.
All the terms of the preferred stock are, or will
be, contained in our restated articles of incorporation, the
articles of amendment relating to each series of the preferred
stock and our bylaws, which are, or will be, filed with the
Commission at the time we issue a series of the preferred stock.
The following summary is qualified in its entirety by reference
to our restated articles of incorporation, the relevant articles
of amendment and our bylaws. Reference is also made to the
Florida Business Corporation Act, or FBCA.
Our restated articles of incorporation authorize
us to issue up to 3,800,917 shares of preferred stock, no par
value per share. Subject to limitations prescribed by law, our
board of directors is authorized at any time, without
shareholder action, to:
Our board of directors has designated 900,000
shares of preferred stock as Series C Cumulative Preferred
Stock, and has reserved these shares for issuance in connection
with the preferred share purchase rights described under
“Description of Common Stock–Preferred Share Purchase
Rights”. As of the date of this prospectus, no shares of
preferred stock were issued and outstanding.
Our board of directors is authorized to
determine, for each series of preferred stock, and the
prospectus supplement relating to such series of preferred stock
will set forth, the following information:
The preferred stock, when issued, will be fully
paid and nonassessable.
Rank
The shares of preferred stock of any series will
have the rank set forth in the relevant articles of amendment
and described in the prospectus supplement relating to such
series of preferred stock.
Dividends
The articles of amendment setting forth the terms
of a series of preferred stock may provide that holders of that
series are entitled to receive dividends, when, as and if
authorized by our board of directors out of funds legally
available for dividends. The rates and dates of payment of
dividends and any other terms applicable to the dividends will
be set forth in the relevant articles of amendment and described
in the prospectus supplement relating to such series of
preferred stock.
12
Payment of dividends on any series of preferred
stock may be restricted by loan agreements, indentures and other
transactions we may enter into.
Convertibility
The articles of amendment setting forth the terms
of a series of preferred stock may provide that, and the
prospectus supplement relating to such series of preferred
stock, may describe the terms, if any, on which, shares of that
series are convertible into, or exchangeable for, shares of our
common stock or other securities or property.
Redemption
If so specified in the articles of amendment
setting forth the terms of a series of preferred stock, a series
of preferred stock may be redeemable at our or the holder’s
option and/or may be mandatorily redeemed partially or in whole.
Any redemption rights granted in the articles of amendment for a
series of preferred stock offered hereby will be described in
the relevant prospectus supplement.
Shares of preferred stock that we redeem or
otherwise reacquire will resume the status of authorized and
unissued shares of preferred stock undesignated as to series,
and will be available for subsequent issuance.
Liquidation
In the event our company voluntarily or
involuntarily liquidates, dissolves or winds up, the holders of
each series of preferred stock may be entitled to receive a
liquidation preference. The terms and conditions of any
liquidation preference granted to the holders of a series of
preferred stock will be set forth in the articles of amendment
relating to such series and will be described in the relevant
prospectus supplement.
Voting
The holders of preferred stock will not have any
voting rights, except as required by the FBCA or as provided in
the articles of amendment relating to a particular series of
preferred stock and the relevant prospectus supplement.
Other Rights
The articles of amendment setting forth the terms
of a series of preferred stock may provide that the holders of
that series of preferred stock are entitled to preemptive,
sinking fund or other rights. The prospectus supplement relating
to such series of preferred stock will contain a description of
any such rights. The rights, preferences and privileges of
holders of a series of preferred stock could be subject to, and
may be adversely affected by, the rights of the holders of
shares of any other series of preferred stock, if any, which may
be issued in the future.
Transfer Agent and Registrar
We will designate the transfer agent for each
series of preferred stock in the prospectus supplement.
13
•
issue one or more series of preferred stock;
•
determine the designation for any series by
number, letter or title that shall distinguish the series from
any other series of preferred stock; and
•
determine the number of shares in any series.
•
whether dividends on that series of preferred
stock will be cumulative and, if so, from which date;
•
the dividend rate;
•
the dividend payment date or dates;
•
the liquidation preference per share of that
series of preferred stock, if any;
•
any conversion provisions applicable to that
series of preferred stock;
•
any redemption or sinking fund provisions
applicable to that series of preferred stock;
•
the voting rights of that series of preferred
stock, if any; and
•
the terms of any other preferences or special
rights applicable to that series of preferred stock.
DESCRIPTION OF THE DEPOSITARY SHARES
If we elect to offer fractional shares of
preferred stock, rather than full shares of preferred stock, we
will issue receipts for depositary shares, and each of these
depositary shares will represent a fraction of a share of a
particular series of preferred stock. Each owner of a depositary
share will be entitled, in proportion to the applicable
fractional interest in shares of preferred stock underlying that
depositary share, to all rights and preferences of the preferred
stock underlying that depositary share. Those rights include
dividend, voting, redemption and liquidation rights.
The shares of preferred stock underlying the
depositary shares will be deposited with a depositary under a
deposit agreement between us, the depositary and the holders of
the depositary receipts evidencing the depositary shares. The
depositary will be a bank or trust company selected by us. The
depositary will also act as the transfer agent, registrar and
dividend disbursing agent for the depositary shares.
Holders of depositary receipts agree to be bound
by the deposit agreement, which requires holders to take certain
actions such as filing proof of residence and paying certain
charges.
The following is a summary of the most important
terms of the depositary shares. The particular terms of any
depositary shares offered hereby will be described in the
prospectus supplement relating to the depositary shares which
may add, update or change the terms described in this
prospectus. To review the terms of any depositary shares offered
by this prospectus, you must review both this prospectus and the
relevant prospectus supplement.
All the terms of the depositary shares are, or
will be, contained in the deposit agreement, our restated
articles of incorporation and the articles of amendment for the
applicable series of preferred stock that are, or will be, filed
with the Commission. The following summary is qualified in its
entirety by reference to the deposit agreement, our restated
articles of incorporation and the articles of amendment for the
applicable series of preferred stock.
Dividends
The depositary will distribute all cash dividends
or other cash distributions received relating to the series of
preferred stock underlying the depositary shares, to the record
holders of depositary receipts in proportion to the number of
depositary shares owned by those holders on the relevant record
date. The record date for the depositary shares will be the same
date as the record date for the preferred stock.
In the event of a distribution other than in
cash, the depositary will distribute property received by it to
the record holders of depositary receipts that are entitled to
receive the distribution. However, if the depositary determines
that it is not feasible to make the distribution, the depositary
may, with our approval, adopt another method for the
distribution. The method may include selling the property and
distributing the net proceeds to the holders.
Liquidation Preference
In the event of our voluntary or involuntary
liquidation, dissolution or winding up, the holders of each
depositary share will be entitled to receive the fraction of the
liquidation preference, if any, accorded each share of the
applicable series of preferred stock, as set forth in the
relevant prospectus supplement for the depositary shares.
Redemption
If a series of preferred stock underlying the
depositary shares is subject to redemption, the depositary
shares will be redeemed from the proceeds received by the
depositary resulting from the redemption, in whole or in part,
of preferred stock held by the depositary. Whenever we redeem
any preferred stock held by the depositary, the depositary will
redeem, as of the same redemption date, the number of depositary
shares representing the preferred stock so redeemed. The
redemption price per depositary share will be equal to the
applicable fraction of the redemption price payable per share
for the applicable series of preferred stock. If
14
Voting
Upon receipt of notice of any meeting at which
the holders of preferred stock are entitled to vote, the
depositary will mail the information contained in the notice of
meeting to the record holders of the depositary receipts
representing the preferred stock. Each record holder of those
depositary receipts on the record date will be entitled to
instruct the depositary as to the exercise of the voting rights
pertaining to the amount of preferred stock underlying that
holder’s depositary shares. The record date for the
depositary shares will be the same date as the record date for
the preferred stock. The depositary will try, as far as
practicable, to vote the preferred stock underlying the
depositary shares in a manner consistent with the instructions
of the holders of the depositary receipts. We will agree to take
all action which may be deemed necessary by the depositary in
order to enable the depositary to do so. The depositary will not
vote the preferred stock to the extent that it does not receive
specific instructions from the holders of depositary receipts.
Withdrawal of Preferred Stock
Owners of depositary shares are entitled, upon
surrender of depositary receipts at the principal office of the
depositary and payment of any unpaid amount due the depositary,
to receive the number of whole shares of preferred stock
underlying the depositary shares. Partial shares of preferred
stock will not be issued. These holders of preferred stock will
not be entitled to deposit the shares under the deposit
agreement or to receive depositary receipts evidencing
depositary shares for the preferred stock.
Amendment and Termination of Deposit
Agreement
The form of depositary receipt evidencing the
depositary shares and any provision of the deposit agreement may
be amended at any time and from time to time by agreement
between us and the depositary. However, any amendment which
materially and adversely alters the rights of the holders of
depositary shares, other than any change in fees, will not be
effective unless the amendment has been approved by at least a
majority of the depositary shares then outstanding. The deposit
agreement automatically terminates if:
Charges of Depositary
We will pay all transfer and other taxes and
governmental charges arising solely from the existence of the
depositary arrangements. We will also pay charges of the
depositary in connection with the initial deposit of the
preferred stock and the initial issuance of the depositary
shares, any redemption of the preferred stock and all
withdrawals of preferred stock by owners of depositary shares.
Holders of depositary receipts will pay transfer, income and
other taxes and governmental charges and certain other charges
as provided in the deposit agreement. In certain circumstances,
the depositary may refuse to transfer depositary shares,
withhold dividends and distributions, and sell the depositary
shares evidenced by the depositary receipt, if the charges are
not paid.
Reports to Holders
The depositary will forward to the holders of
depositary receipts all reports and communications we deliver to
the depositary that we are required to furnish to the holders of
the preferred stock. In addition, the depositary will make
available for inspection by holders of depositary receipts at
the principal office of the depositary, and at other places as
it thinks is advisable, any reports and communications we
deliver to the depositary as the holder of preferred stock.
15
Liability and Legal Proceedings
Neither we nor the depositary will be liable if
either we or the depositary is prevented or delayed by law or
any circumstance beyond our control in performing our
obligations under the deposit agreement. Our obligations and
those of the depositary will be limited to performance in good
faith of our and their duties under the deposit agreement.
Neither we nor the depositary will be obligated to prosecute or
defend any legal proceeding in respect of any depositary shares
or preferred stock unless satisfactory indemnity is furnished.
We and the depositary may rely on written advice of counsel or
accountants, on information provided by holders of depositary
receipts or other persons believed in good faith to be competent
to give such information and on documents believed to be genuine
and to have been signed or presented by the proper persons.
Resignation and Removal of
Depositary
The depositary may resign at any time by
delivering thirty (30) days prior written notice to us of
its election to do so. We may also remove the depositary at any
time. Any such resignation or removal will take effect upon the
appointment of a successor depositary and its acceptance of such
appointment. The provisions of the depositary agreement relating
to the appointment of a successor depositary will be described
in the prospectus supplement relating to the depositary shares.
Federal Income Tax Consequences
Owners of the depositary shares will be treated
for Federal income tax purposes as if they were owners of the
preferred stock underlying the depositary shares. Accordingly,
the owners will be entitled to take into account for Federal
income tax purposes income and deductions to which they would be
entitled if they were holders of the preferred stock. In
addition:
16
•
all outstanding depositary shares have been
redeemed; or
•
there has been a final distribution relating to
the preferred stock in connection with our dissolution, and that
distribution has been made to all the holders of depositary
shares.
•
no gain or loss will be recognized for Federal
income tax purposes upon the withdrawal of preferred stock in
exchange for depositary shares;
•
the tax basis of each share of preferred stock to
an exchanging owner of depositary shares will, upon the
exchange, be the same as the aggregate tax basis of the
depositary shares exchanged; and
•
the holding period for preferred stock in the
hands of an exchanging owner of depositary shares will include
the period during which the person owned the depositary shares.
DESCRIPTION OF THE COMMON STOCK
The following description of our common stock is
qualified in its entirety by reference to our restated articles
of incorporation and bylaws. Reference is also made to the FBCA.
As of the date of this prospectus, we were
authorized to issue up to 400,000,000 shares of common stock,
$0.50 par value per share. As of July 31, 2003, 63,440,757
shares of our common stock were issued and outstanding. Our
common stock is listed on the New York Stock Exchange, under the
symbol “R.”
Dividend Rights
Each share of common stock is entitled to
participate equally with respect to dividends declared on the
common stock out of funds legally available for the payment
thereof. Our restated articles of incorporation do not limit the
dividends that can be paid on the common stock.
Liquidation Rights
After satisfaction of creditors and payments due
to the holders of preferred stock, if any, the holders of common
stock are entitled to share ratably in the distribution of all
remaining assets.
Voting Rights
In general, the holders of our common stock are
entitled to one vote per share for the election of directors and
for other corporate purposes. Our restated articles of
incorporation and/or bylaws also:
These provisions may have a significant effect on
the ability of holders of our voting stock to change the
composition of an incumbent board of directors or to benefit
from some transactions that are opposed by an incumbent board of
directors.
The term “interested shareholder” is
defined in our restated articles of incorporation to include
(i) a shareholder who beneficially owns 20% or more of the
voting power of the outstanding shares of our voting stock,
(ii) an affiliate of our company who during the preceding
two years beneficially owned 20% or more of the voting power of
the outstanding shares of our common stock or (iii) a
successor to any person referred to in sections (i) and
(ii). The term “disinterested director” is defined in
our restated articles of incorporation to include any director
who is not an affiliate of an interested shareholder and who was
a director at the time the interested shareholder became an
interested shareholder. The above provisions dealing with
“business combinations” between us and an interested
shareholder may discriminate against a shareholder who becomes
an interested shareholder by reason of the beneficial ownership
of 20% or more in voting power of our of common or other voting
stock.
The term “business combination” is
defined in our restated articles of incorporation to include:
17
The holders of our common stock do not have
cumulative voting rights, and therefore the holders of more than
50% of a quorum of the outstanding shares of common stock can
elect all of our directors. Unless otherwise provided in our
restated articles of incorporation or bylaws or in accordance
with applicable law, the affirmative vote of a majority of the
total number of shares represented at a meeting and entitled to
vote is required for shareholder action on a matter. Voting
rights for the election of directors or otherwise, if any, for
any series of preferred stock, will be established by the board
of directors when such series is designated.
Board of Directors
Our bylaws provide that our board of directors
shall be divided into three classes each consisting of an equal,
or as nearly equal as possible, number of directors. Each class
will be elected for a three-year term, and the term of each
class will expire in succeeding years. It will, therefore,
require elections in three consecutive years to reelect or
replace our entire board of directors.
No Other Rights
Holders of our common stock are not entitled to
preemptive, redemption, subscription or conversion rights. The
rights, preferences and privileges of holders of common stock
could be subject to, and may be adversely affected by, the
rights of the holders of shares of any preferred stock, if any,
which may be issued in the future.
Anti-Takeover Effects of Florida Law
We are subject to certain anti-takeover
provisions that apply to public corporations under Florida law.
Pursuant to Section 607.0901 of the FBCA, a publicly held
Florida corporation may not engage in a broad range of business
combinations or other extraordinary corporate transactions with
an “interested shareholder” without the approval of
the holders of two-thirds of the voting shares of such
corporation (excluding shares held by the interested
shareholder) unless:
18
An “interested shareholder” is defined
as a person who together with affiliates and associates
beneficially owns more than 10% of a corporation’s
outstanding voting shares.
In addition, we are subject to
Section 607.0902 of the FBCA which prohibits the voting of
shares in a publicly held Florida corporation that are acquired
in a “control share acquisition” unless the holders of
a majority of the corporation’s voting shares, exclusive of
shares owned by officers of the corporation, employee directors
or the acquiring party, approve the granting of voting rights as
to the shares acquired in the “control share
acquisition.” A control share acquisition is defined as an
acquisition that immediately thereafter entitles the acquiring
party to 20% or more of the total voting power in an election of
directors.
These statutory provisions may prevent takeover
attempts that might result in a premium over the market price
for our common stock.
Limitation of Liability and
Indemnification
Under Section 607.0831 of the FBCA, a
director is not personally liable for monetary damages to the
corporation or any other person for any statement, vote,
decision or failure to act unless the director breached or
failed to perform his duties as a director and the
director’s breach of, or failure to perform, those duties
constitutes:
A corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer,
employee or agent of the corporation against any liability
asserted against him and incurred by him in his capacity or
arising out of his status as such, whether or not the
corporation would have the power to indemnify him against such
liability under the FBCA.
Our restated articles of incorporation and bylaws
provide that we shall, to the fullest extent permitted by
applicable law, indemnify any present or former director,
officer, employee or agent.
Shareholder Rights Plan
In March 1996, we implemented a rights agreement
and declared a dividend of one preferred share purchase right,
or right, for each share of our common stock outstanding. The
rights contain provisions to protect shareholders in the event
of an unsolicited attempt to acquire us that is not believed by
our board of directors to be in the best interest of our
shareholders. The rights, evidenced by common stock
certificates, are subject to anti-dilution provisions and are
not exercisable, transferable or exchangeable apart from the
common stock until the earlier of (i) ten days after a
person, or group of affiliated or associated persons, acquires
beneficial ownership of 10% or more of our outstanding common
stock or, (ii) ten business days after a person makes a
tender offer for 10% or more of our outstanding common stock.
The rights entitle the holder,
19
Our board of directors has adopted a policy that
requires the board’s Committee on Directors and Public
Responsibility, a committee comprised entirely of independent
directors, to review and evaluate the shareholder rights plan
every three years to ensure that the plan continues to serve our
best interests and those of our shareholders.
Transfer Agent and Registrar
The transfer agent and registrar for our common
stock is Equiserve Trust Company, N.A.
20
•
permit shareholders to remove a director with or
without cause only by the affirmative vote of 75% of the voting
power of the outstanding shares of voting, voting as a class;
•
provide that a vacancy on our board of directors
may be filled only by a majority of remaining directors;
•
permit shareholders to take action only at an
annual meeting, or a special meeting duly called by certain
officers, our board of directors or the holders of not less than
10% of the voting power of the outstanding shares of voting
stock entitled to vote on the matter;
•
require the affirmative vote of 75% of the voting
power of the outstanding shares of voting stock, voting as a
class, to approve business combinations with an interested
shareholder, as defined below, or its affiliates, unless
approved by a majority of the disinterested directors, as
defined below, or, in some cases, if specified minimum price and
procedural requirements are met; and
•
require the affirmative vote of 75% of the voting
power of the outstanding shares of voting stock to amend
specified provisions of our restated articles of incorporation
and bylaws, including the provisions discussed here.
•
any merger or consolidation of our company or any
direct or indirect majority owned subsidiary with an interested
shareholder or any other corporation which is, or after such
merger or consolidation would be, an affiliate of an interested
shareholder;
•
any sale, lease, exchange, mortgage, pledge,
transfer or other disposition in one transaction or a series of
transactions to or with any interested shareholder or any
affiliate of an interested shareholder of our assets or any
direct or indirect majority owned subsidiary having an aggregate
fair market value of $100,000,000 or more;
•
the issuance or transfer by us or any direct or
indirect majority owned subsidiary in one transaction or a
series of transactions of any of our securities or any
subsidiary to any interested shareholder or any affiliate of any
interested shareholder in exchange for cash, securities or other
property, or a combination thereof, having an aggregate fair
market value of $100,000,000 or more;
•
the adoption of any plan or proposal for our
liquidation or dissolution proposed by or on behalf of an
interested shareholder or an affiliate of an interested
shareholder; or
•
any reclassification of securities, including any
reverse stock split, or recapitalization, or any merger or
consolidation of us with any of our direct or indirect majority
owned subsidiaries or any other transaction which has the direct
or indirect effect of increasing the proportionate share of the
outstanding shares of any class of our equity or convertible
securities or any direct or indirect wholly owned subsidiary
which is directly or indirectly owned by any interested
shareholder or any affiliate of any interested shareholder.
•
the transaction is approved by a majority of
disinterested directors before the shareholder becomes an
interested shareholder;
•
the interested shareholder has owned at least 80%
of the corporation’s outstanding voting shares for at least
five years preceding the announcement date of any such business
combination;
•
the interested shareholder is the beneficial
owner of at least 90% of the outstanding voting shares of the
corporation, exclusive of shares acquired directly from the
corporation in a transaction not approved by a majority of the
disinterested directors; or
•
the consideration paid to the holders of the
corporation’s voting stock is at least equal to certain
fair price criteria.
•
a violation of the criminal law, unless the
director had reasonable cause to believe his conduct was lawful
or had no reasonable cause to believe his conduct was unlawful;
•
a transaction from which the director derived an
improper personal benefit, either directly or indirectly;
•
an unlawful distribution;
•
in a proceeding by or in the right of the
corporation to procure a judgment in its favor or by or in the
right of a shareholder, conscious disregard for the best
interest of the corporation or willful misconduct; or
•
in a proceeding by or in the right of someone
other than the corporation or a shareholder, recklessness or an
act or omission which was committed in bad faith or with
malicious purpose or in a manner exhibiting wanton and willful
disregard of human rights, safety or property.
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts obligating
holders to purchase from us, and us to sell to the holders, a
specified number of shares of our common stock at a future date
or dates. The stock purchase contracts may be issued separately
or as part of stock purchase units consisting of a stock
purchase contract and an underlying debt or preferred security
covered by this prospectus, U.S. Treasury security or other U.S.
government or agency obligation. The holder of the unit may be
required to pledge the debt, preferred security, U.S. Treasury
security or other U.S. government or agency obligation to secure
its obligations under the stock purchase contract.
The prospectus supplement will specify the
material terms of the stock purchase contracts, the stock
purchase units and any applicable pledge or depository
arrangements, including one or more of the following:
The prospectus supplement describing the terms of
any stock purchase contracts or stock purchase units offered by
this prospectus may add, update or change the terms described in
this prospectus. To review the terms of any stock purchase
contracts or stock purchase units offered by this prospectus,
you must review both this prospectus and the relevant prospectus
supplement.
The descriptions of the stock purchase contracts,
stock purchase units and any applicable pledge or depository
arrangements in this prospectus and in any prospectus supplement
are summaries of the material provisions of the applicable
agreements. These descriptions do not restate those agreements
in their entirety. We urge you to read the applicable agreements
because they, and not the summaries, define your rights as
holders of the stock purchase contracts or stock purchase units.
21
•
the stated amount that a holder will be obligated
to pay under the stock purchase contract in order to purchase
our common stock.
•
the settlement date or dates on which the holder
will be obligated to purchase shares of our common stock. The
prospectus supplement will specify whether the occurrence of any
events may cause the settlement date to occur on an earlier date
and the terms on which any early settlement would occur.
•
the events, if any, that will cause our
obligations and the obligations of the holder under the stock
purchase contract to terminate.
•
the settlement rate, which is a number that, when
multiplied by the stated amount of a stock purchase contract,
determines the number of shares of our common stock that we will
be obligated to sell and a holder will be obligated to purchase
under that stock purchase contract upon payment of the stated
amount of that stock purchase contract. The settlement rate may
be determined by the application of a formula specified in the
prospectus supplement. If a formula is specified, it may be
based on the market price of our common stock over a specified
period or it may be based on some other reference statistic.
•
whether the stock purchase contracts will be
issued separately or as part of stock purchase units consisting
of a stock purchase contract and an underlying debt or preferred
security with an aggregate principal amount or liquidation
amount equal to the stated amount.
•
the type of underlying security, if any, that is
pledged by the holder to secure its obligations under a stock
purchase contract. Underlying securities may be debt securities,
preferred securities, U.S. Treasury securities or other
securities.
•
the terms of the pledge arrangement relating to
any underlying securities, including the terms on which
distributions or payments of interest and principal on any
underlying securities will be retained by a collateral agent,
delivered to us or be distributed to the holder.
•
the amount of the contract fee, if any, that may
be payable by us to the holder or by the holder to us, the date
or dates on which the contract fee will be payable and the
extent to which we or the holder, as applicable, may defer
payment of the contract fee on those payment dates.
PLAN OF DISTRIBUTION
We may sell the securities:
We will describe in a prospectus supplement the
particular terms of the offering of the securities, including
the following:
If securities are sold through an underwritten
offering, we will execute an underwriting agreement with an
underwriter or underwriters. The underwriters will use this
prospectus and the prospectus supplement to sell the securities.
The underwriting agreement will provide that the obligations of
the underwriters are subject to specified conditions precedent
and that the underwriters will be obligated to purchase all the
securities if any are purchased.
In connection with the sale of securities,
underwriters may be considered to have received compensation
from us in the form of underwriting discounts or commissions.
They may also receive commissions from purchasers of securities
for whom they may act as agent. Underwriters may sell securities
to or through dealers. These dealers may receive compensation in
the form of discounts, concessions or commissions from the
underwriters, and they may also receive commissions from the
purchasers for whom they may act as agent.
Underwriters, dealers and agents participating in
the distribution of the securities may be deemed to be
underwriters under the Securities Act. Also any discounts and
commissions received by them and any profit realized by them on
resale of the securities may be deemed to be underwriting
discounts and commissions under the Securities Act.
Underwriters, dealers and agents may be entitled under
agreements with us to indemnification against and contribution
toward certain civil liabilities, including liabilities under
the Securities Act, and to reimbursement by us for various
expenses.
If we use a dealer in the sale of the securities,
we will sell the securities to the dealer, as principal. The
dealer may then resell these securities to the public at varying
prices to be determined by the dealer at the time of resale. The
prospectus supplement will name these dealers and the terms of
these arrangements. In addition, the dealers may sell the
securities to other dealers. The terms under which securities
may be sold by a dealer to another dealer will be described in
the applicable prospectus supplement.
We may offer and sell the securities directly to
institutional investors or others. These parties may be deemed
to be underwriters under the Securities Act with respect to
their resales. The prospectus supplement will include the terms
of these transactions.
Any common stock sold pursuant to this prospectus
will be listed on the NYSE, subject to official notice of
issuance. Any other securities sold pursuant to this prospectus
may or may not be listed on a national securities exchange or a
foreign securities exchange. The securities may not have an
established trading market. No assurances can be given that
there will be a market for any of the securities.
22
Agents, underwriters and dealers may be customers
of, engage in transactions with or perform services for, us and
our subsidiaries in the ordinary course of business.
EXPERTS
Our audited consolidated financial statements and
schedule of Ryder System, Inc. and subsidiaries as of
December 31, 2002 and 2001, and for each of the years in
the three-year period ended December 31, 2002, have been
incorporated by reference herein and in the registration
statement in reliance upon the report of KPMG LLP, independent
accountants which is incorporated by reference herein, and upon
the authority of said firm as experts in accounting and
auditing. To the extent that KPMG LLP audits and reports on the
consolidated financial statements of Ryder System, Inc. and
subsidiaries issued at future dates, and consents to the use of
its reports thereon, such financial statements will also be
incorporated by reference in the registration statement in
reliance upon its report and said authority. The audit report
covering the December 31, 2002 financial statements refers
to a change in method of accounting for goodwill and other
intangible assets in 2002.
LEGAL OPINIONS
Unless otherwise specified in the prospectus
supplement accompanying this prospectus, certain legal matters
relating to the securities to be offered hereby will be passed
upon for us by Richard H. Siegel, Esq., Associate General
Counsel of our company, and for the underwriters, if any, by
Cravath, Swaine & Moore LLP, Worldwide Plaza, 825 Eighth
Avenue, New York, New York 10019. Mr. Siegel s a full-time
employee of our company, and owns, and holds options to
purchase, shares of our common stock.
23
$800,000,000
(RYDER LOGO)
RYDER SYSTEM, INC.
Debt Securities
Preferred Stock
Depositary Shares
Common Stock
Stock Purchase Contracts
Stock Purchase Units
PROSPECTUS
,
2003
•
through underwriters or dealers;
•
through agents;
•
directly to purchasers; or
•
through a combination of any such methods of sale.
•
the names of any underwriters or dealers;
•
the purchase price and the proceeds we will
receive from the sale (which may be the market price prevailing
at the time of sale, a price related to the prevailing market
price or a negotiated price);
•
any underwriting discounts and other items
constituting underwriters’ compensation;
•
any initial public offering price and any
discounts or concessions allowed or reallowed or paid to dealers;
•
any over-allotment options granted to the
underwriters; and
•
any other information we think is important.
PART II
INFORMATION NOT REQUIRED IN
PROSPECTUS
Item 14.
Other Expenses of
Issuance and Distribution.*
Item 15.
Indemnification of
Directors and Officers.
Official Florida Statutes, as amended,
Chapter 607, Section 607.0850, authorizes the
indemnification of officers, directors, employees and agents
under certain circumstances.
Article VIII of the Company’s Restated
Articles of Incorporation provides that the Company has the
power to indemnify its directors, officers and other employees
to the full extent permitted by law. Article XII of the
Company’s by-laws provides that the Company shall indemnify
to the fullest extent permitted by current or future legislation
or current or future judicial or administrative decisions (to
the extent such future legislation or decisions permit the
Company to provide broader indemnification rights than permitted
prior to such legislation or decisions), each person who is a
party or witness to any proceeding (whether civil, criminal,
administrative or investigative) against any liability
(including any judgment, settlement, penalty or fine) or cost,
charge or expense (including reasonable expenses incurred in
defending such actions) by reason of the fact that such
indemnified person is or was a director, officer or employee of
the Company, or is or was an agent as to whom the Company has
agreed to grant such indemnification, or is or was serving at
the request of the Company as a director, officer or employee of
another corporation, trust or enterprise.
The Company maintains a directors and officers
liability insurance policy which, within the limits and subject
to the limitations of the policy, insures the directors and
officers of the Company against certain expenses in connection
with the defense of certain claims, actions, suits or
proceedings, and certain liabilities which might be imposed as a
result of such claims, actions, suits or proceedings, which may
be brought against them by reason of their being or having been
directors or officers of the Company. The coverage extends to
wrongful acts such as breach of duty and negligence, but does
not extend to acts proven to be dishonest. The Company pays the
premiums for this policy.
II-1
Item 16.
Exhibits.
The following exhibits are filed as part of this
registration statement:
Item 17.
Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which
offers or sales are being made, a post-effective amendment to
this registration statement:
II-2
provided, however, that paragraphs (i) and
(ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the registrant pursuant
to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in this registration
statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such
post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered
therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of
a post-effective amendment any of the securities being
registered which remain unsold at the termination of the
offering.
(4) That, for purposes of determining any
liability under the Securities Act of 1933, each filing of the
registrant’s annual report pursuant to section 13(a) or
section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan’s
annual report pursuant to section 15(d) of the Securities
Exchange Act of 1934) that is incorporated by reference in this
registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities
arising under the Securities Act of 1933 may be permitted to
directors, officers and controlling persons of the registrant
pursuant to the provisions described under Item 15 above,
or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant
will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
II-3
$
18,405
51,000
15,000
2,500
20,000
241,000
15,000
1,000
$
363,905
*
All amounts are estimates except for SEC
Registration Fees.
Number
Exhibit Description
1.
1
Form of Underwriting Agreement (Debt).
1.
2
Form of Underwriting Agreement (Equity).
1.
3
Form of Selling Agency Agreement for Domestic
Medium-Term Notes.
3.
1
The Ryder System, Inc. Restated Articles of
Incorporation, dated November 8, 1985, as amended through
May 18, 1990, (previously filed with the Commission as an
exhibit to the Company’s Annual Report on Form 10-K
for the year ended December 31, 1990).
3.
2
The Ryder System, Inc. By-Laws, as amended
through February 16, 2001, (previously filed with the
Commission as an exhibit to the Company’s Annual Report on
Form 10-K for the year ended December 31, 2000).
4.
1
Form of Indenture between Ryder System, Inc. and
J.P. Morgan Trust Company, National Association.
4.
2
Form of domestic Debt Securities.
4.
3
Form of domestic Medium-Term Notes.
4.
4
Rights Agreement between Ryder System, Inc. and
Boston Equiserve, L.P., dated as of March 8, 1996 (previously
filed as an exhibit to the Company’s Registration Statement
on Form 8-A on April 3, 1996).
4.
5*
Articles of Amendment to Restated Certificate of
Incorporation of Ryder System, Inc. setting forth the number,
designation, relative rights, preferences and limitations of
series of Preferred Stock.
4.
6*
Form of Preferred Stock Certificate.
4.
7*
Form of Depositary Agreement.
4.
8*
Form of Depositary Receipt.
4.
9*
Form of Stock Purchase Unit.
4.
10*
Form of Stock Purchase Contract.
5.
1
Opinion of Richard H. Siegel, Esq., Associate
General Counsel of Ryder System, Inc.
12.
1
Calculation of Ratio of Earnings to Fixed Charges.
15.
1
Letter re: interim unaudited financial
information.
23.
1
Consent of KPMG LLP, Independent Certified Public
Accountants.
23.
2
Consent of Richard H. Siegel, Esq., Associate
General Counsel of Ryder System, Inc. (included in Exhibit 5).
24.
1
Power of Attorney.
25.
1
Form T-1 Statement of Eligibility and
Qualification of Trustee under the Trust Indenture Act of 1939.
*
If required, this exhibit will be filed in an
amendment or as an exhibit to a document to be incorporated by
reference herein in connection with an offering of securities.
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of this registration
statement (or the most recent post-effective amendment hereof)
which, individually or in the aggregate, represent a fundamental
change in the information set forth in this registration
statement;
(iii) To include any material information
with respect to the plan of distribution not previously
disclosed in this registration statement or any material change
to such information in this registration statement;
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable
grounds to believe that it meets all of the requirements for
filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Miami, State of
Florida on August 29, 2003.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been signed by the
following persons in the capacities and as of the dates
indicated.
II-4
RYDER SYSTEM, INC.
By:
/s/ GREGORY T. SWIENTON
Gregory T. Swienton,
Chairman, President
and Chief Executive Officer
Signature
Title
Date
/s/ GREGORY T. SWIENTON
Gregory T. Swienton
Chairman, President, Chief Executive Officer and
Director
(Principal Executive Officer)
August 29, 2003
/s/ TRACY A. LEINBACH
Tracy A. Leinbach
Chief Financial Officer
(Principal Financial Officer)
August 29, 2003
/s/ ART A. GARCIA
Art A. Garcia
Vice President and Controller (Principal
Accounting Officer)
August 29, 2003
/s/ JOHN M. BERRA*
John M. Berra
Director
August 29, 2003
/s/ JOSEPH L. DIONNE*
Joseph L. Dionne
Director
August 29, 2003
/s/ EDWARD T. FOOTE II*
Edward T. Foote II
Director
August 29, 2003
/s/ DAVID I. FUENTE*
David I. Fuente
Director
August 29, 2003
/s/ LYNN M. MARTIN*
Lynn M. Martin
Director
August 29, 2003
/s/ DANIEL H. MUDD*
Daniel H. Mudd
Director
August 29, 2003
Signature
Title
Date
/s/ EUGENE A. RENNA*
Eugene A. Renna
Director
August 29, 2003
/s/ ABBIE J. SMITH*
Abbie J. Smith
Director
August 29, 2003
/s/ HANSEL E. TOOKES II*
Hansel E. Tookes II
Director
August 29, 2003
/s/ CHRISTINE A. VARNEY*
Christine A. Varney
Director
August 29, 2003
/s/ *RICHARD H. SIEGEL
Richard H. Siegel
Attorney-in-Fact
August 29, 2003
II-5
EXHIBIT 1.1
RYDER SYSTEM, INC.
FORM OF DEBT UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Ryder System, Inc., a Florida corporation (the "Company"), proposes to sell to the several underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), the principal amount of its securities identified in Schedule I hereto (the "Securities"), to be issued under an indenture (the "Indenture") dated as of [ ], between the Company and J.P. Morgan Trust Company, National Association, as trustee (the "Trustee"). If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form (the file number of which is set forth in Schedule I hereto),
including a basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final Prospectus, each
of which has previously been furnished to you or your counsel. Such
registration statement, as so amended, has become effective. The Company
will next file with the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering thereof.
As filed, the Final Prospectus shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date, the Final Prospectus (and any supplement thereto) will, comply in all material respects with the applicable requirements of the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; on the Effective Date and on the Closing Date, the Indenture did or will comply in all material respects with the requirements of the Trust Indenture Act of 1939 (the "Trust Indenture Act") and the rules thereunder; and, on the Effective Date, the Final Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date of any filing pursuant to Rule 424(b) and on the Closing Date, the Final Prospectus (together with any supplement thereto) will not include any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Final Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation of the Registration Statement or the Final Prospectus (or any supplement thereto).
(c) The following terms, when used in this Agreement, shall have the
meanings indicated. The term "Business Day" shall mean any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close
in New York City. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date. "Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement
as so amended. "Rule 415", "Rule 424" and "Rule 462" refer to such rules
under the Act. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. PURCHASE AND SALE. Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase price set forth in Schedule I hereto the principal amount of the Securities set forth opposite such Underwriter's name in Schedule II hereto.
3. DELIVERY AND PAYMENT. Delivery of and payment for the Securities shall be made at the office, on the date and at the time specified in Schedule I hereto (or such later date not later than five business days after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus or any Preliminary Final
Prospectus) to the Basic Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, the Company
will cause the Final Prospectus, properly completed, and any supplement
thereto to be filed with the Commission pursuant to the applicable
paragraph of Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to the Representatives of such timely filing. The
Company will promptly advise the Representatives (i) when the Final
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (ii) when, prior to the termination of
the offering of the Securities, any amendment to the Registration Statement
shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement. or any Rule
462(b) Registration Statement, or for any supplement to the Final
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding
for that purpose and (v) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Securities for
sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will use its best efforts to prevent the
issuance of any such stop order or the suspension of any such qualification
and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto
which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities, will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; PROVIDED that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(f) Until the Business Day following the Closing Date, the Company will not, without the consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Securities) or publicly announce an intention to effect any such transaction.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Securities shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of counsel to the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with full corporate power to own its properties and conduct its business and is not required to be qualified to do business in any other jurisdiction; each of the Company's significant subsidiaries (the "Significant Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the
failure to so qualify would not be materially adverse to the business or operations of the Company and its subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each of the Significant Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of each of the Significant Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on the New York Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the New York Stock Exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution;
(iv) the Indenture has been duly authorized, executed and delivered, has been duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium, fraudulent transfer or other laws affecting creditors' rights generally from time to time in effect); and the Securities have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to this Agreement, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters;
(vi) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement, or any amendment thereof, at the time it became effective and at the
date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as supplemented, includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries, except where any of the foregoing would not have a materially adverse effect upon the business or operations of the Company and its subsidiaries taken as a whole and would not materially adversely effect the offering of the Securities;
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(xi) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from [name of counsel], counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer and either the principal financial or principal accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth, incorporated by reference or contemplated in the Final Prospectus.
(e) At the Closing Date, [name of accountants] shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts included or incorporated in the Registration Statement and the Final Prospectus in response to Item 301 of Regulation S-K and of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants of unaudited interim financial information as indicated in their report incorporated in the Registration Statement and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes (or drafts thereof when approved minutes were not available) of the meetings of the stockholders, directors and executive committees of the Company and each of the Significant Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements incorporated in the Registration Statement and the Final Prospectus, nothing came to their attention which caused them to believe that:
(1) the amounts in the "Selected Financial Data", if any, included or incorporated in the Registration Statement and the Final Prospectus do not agree with the corresponding amounts in the audited financial statements from which such amounts were derived;
(2) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the
Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;
(3) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Final Prospectus, there were any changes, at a specified date not more than five Business Days prior to the date of the letter, in the aggregate long-term debt due within one year and long-term debt (exclusive of current portion) of the Company and its consolidated subsidiaries or common stock of the Company or decreases in the shareholders' equity of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, or for the period from the date of the most recent financial statements incorporated in the Registration Statement and the Final Prospectus to such specified date there were any decreases related to continuing operations, as compared with the corresponding period in the preceding year, in total revenue or earnings before income taxes or in the total or per share amounts of net earnings, of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or
(4) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's annual report on Form 10-K incorporated therein or in "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in any of the Company's quarterly reports on Form 10-Q incorporated therein, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included or incorporated in the Registration Statement and the Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.
References to the Registration Statement and the Final Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter.
In addition, except as provided in Schedule I hereto, at the time this
Agreement is executed, [name of accountants] shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect set
forth in the introductory clause to this paragraph (e), in subparagraphs
(i) and (ii)(2) above and, to the extent referring to information contained
in Exchange Act reports incorporated in the Registration Statement and the
Final Prospectus, in subparagraphs (ii)(1) and (iii) above.
(f) Subsequent to the Execution Time or, if earlier, the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development involving a prospective
change, in or affecting the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Securities
as contemplated by the Registration Statement and the Final Prospectus.
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by Moody's Investors Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no longer are providing such ratings, any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers and employees of each Underwriter, agents who assist in the offering of the Securities and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of any Underwriter (or any person Controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Final Prospectus (or the Final Prospectus as supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required by the Act and the untrue statement or alleged untrue statement or the omission or alleged omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and under the heading "Underwriting" or "Plan of Distribution" regarding (i) the list of Underwriters and their respective participation in the sale of the Securities, (ii) the sentences related to concessions and reallowances and (iii) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from
or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in connection with the
assertion of legal defenses in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel), approved by the Representatives in the case of paragraph (a) of
this Section 7, representing the indemnified parties under such paragraph (a)
who are parties to such action), (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of the
action or (iii) the indemnifying party has authorized the employment of counsel
for the indemnified party at the expense of the indemnifying party; and except
that, if clause (i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii). An indemnifying
party will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and the Company is responsible for the
balance; PROVIDED, HOWEVER, that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act, each director, officer and employee of an
Underwriter and agents who assist in the offering of the Securities shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (y) and (z) of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure
to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State authorities or (iii) there shall have occurred any outbreak or material escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market or deliver the Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancelation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 3600 N.W. 82 Avenue, Miami, Florida 33166, attention of General Counsel.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in one or more counterparts each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours,
Ryder System, Inc.
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[names of Representatives]
By: [ ]
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Principal amount:
Offering price:
Purchase price:
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, Time and Location:
Type of Offering: Non-Delayed
Modification of items to be covered by the letter from [name of accountants] delivered pursuant to Section 5(e) at the time this Agreement is executed:
SCHEDULE II
Principal Amount
of Securities to
UNDERWRITER be Purchased
----------- ----------------
[names of Underwriters]................................... $[ ]
Total................................................. $[ ]
----------
|
EXHIBIT 1.2
RYDER SYSTEM, INC.
FORM OF EQUITY UNDERWRITING AGREEMENT
New York, New York
[Date]
To the Representatives named in Schedule I hereto of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
Ryder System, Inc., a Florida corporation (the "Company"), proposes to sell to the several underwriters named in Schedule II hereto (the "Underwriters"), for whom you are acting as representatives (the "Representatives"), the number of shares of Common Stock, $0.50 par value ("Common Stock"), of the Company set forth in Schedule I hereto (the "Securities") (said shares to be issued and sold by the Company being hereinafter called the "Underwritten Securities"). The Company also proposes to grant to the Underwriters an option to purchase up to the number of additional shares of Common Stock set forth in Schedule II hereto to cover over-allotments (the "Option Securities"; the Option Securities, together with the Underwritten Securities, being hereinafter called the "Securities"). If the firm or firms listed in Schedule II hereto include only the firm or firms listed in Schedule I hereto, then the terms "Underwriters" and "Representatives", as used herein, shall each be deemed to refer to such firm or firms.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, each Underwriter as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for the use of Form S-3 under
the Securities Act of 1933 (the "Act") and has filed with the Securities
and Exchange Commission (the "Commission") a registration statement on such
Form (the file number of which is set forth in Schedule I hereto),
including a basic prospectus, for registration under the Act of the
offering and sale of the Securities. The Company may have filed one or more
amendments thereto, and may have used a Preliminary Final Prospectus, each
of which has previously been furnished to you or your counsel. Such
registration statement, as so amended, has become effective. The Company
will next file with the Commission pursuant to Rules 415 and 424(b)(2) or
(5) a final supplement to the form of prospectus included in such
registration statement relating to the Securities and the offering thereof.
As filed, the Final Prospectus shall include all required information with
respect to the Securities and the offering thereof and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Basic Prospectus and any Preliminary Final
Prospectus) as the Company has advised you, prior to the Execution Time,
will be included or made therein. The Registration Statement, at the
Execution Time, meets the requirements set forth in Rule 415(a)(1)(x).
(b) On the Effective Date, the Registration Statement did or will, and when the Final Prospectus is first filed (if required) in accordance with Rule 424(b) and on the Closing Date and on any date on
which Option Securities are purchased, if such date is not the Closing Date
(a "settlement date"), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements of
the Act and the Securities Exchange Act of 1934 (the "Exchange Act") and
the respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Final Prospectus, if not filed
pursuant to Rule 424(b), will not, and on the date of any filing pursuant
to Rule 424(b) and on the Closing Date and any settlement date, the Final
Prospectus (together with any supplement thereto) will not include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the Company makes no representations or warranties as to the
information contained in or omitted from the Registration Statement or the
Final Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in connection with the preparation of the Registration Statement or the
Final Prospectus (or any supplement thereto).
(c) The following terms, when used in this Agreement, shall have the
meanings indicated. The term "Business Day" shall mean any day other than a
Saturday, a Sunday or a legal holiday or a day on which banking
institutions or trust companies are authorized or obligated by law to close
in New York City. "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments
thereto became or become effective. "Execution Time" shall mean the date
and time that this Agreement is executed and delivered by the parties
hereto. "Basic Prospectus" shall mean the prospectus referred to in
paragraph (a) above contained in the Registration Statement at the
Effective Date. "Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Basic Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus. "Final Prospectus" shall mean the prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b)
after the Execution Time, together with the Basic Prospectus. "Registration
Statement" shall mean the registration statement referred to in paragraph
(a) above, including incorporated documents, exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date (as hereinafter defined), shall also mean such registration statement
as so amended. "Rule 415", "Rule 424" and "Rule 462" refer to such rules
under the Act. Any reference herein to the Registration Statement, the
Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus, as the case may be; and any reference
herein to the terms "amend", "amendment" or "supplement" with respect to
the Registration Statement, the Basic Prospectus, any Preliminary Final
Prospectus or the Final Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the Effective Date
of the Registration Statement or the issue date of the Basic Prospectus,
any Preliminary Final Prospectus or the Final Prospectus, as the case may
be, deemed to be incorporated therein by reference.
2. PURCHASE AND SALE. (a) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company agrees to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Company, at a purchase price of $ [ ] per share, the amount of the Underwritten Securities set forth opposite such Underwriter's name in Schedule II hereto.
(b) Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, up to [ ] Option Securities at the same purchase price per share as the Underwriters shall pay for the Underwritten Securities. Said option may be exercised only to cover over-allotments in the sale of the Underwritten Securities by the Underwriters. Said option may be exercised in whole or in part at any time on or before the 30th day after the date of the Prospectus upon written or telegraphic notice by the Representatives to the Company setting forth the number of shares of the Option Securities as to which the several Underwriters are exercising the option and the settlement date. The number of shares of the Option Securities to be purchased by each Underwriter shall be the same percentage of the total number of shares of the Option Securities to be purchased by the several Underwriters as such Underwriter is purchasing of the Underwritten Securities, subject to such adjustments as you in your absolute discretion shall make to eliminate any fractional shares
3. DELIVERY AND PAYMENT. (a) Delivery of and payment for the Underwritten Securities and the Option Securities (if the option provided for in Section 2(b) hereof shall have been exercised on or before the fifth Business Day prior to the Closing Date) shall be made at the office, on the date and at the time specified in Schedule I hereto (or such later date not later than five business days after such specified date as the Representatives shall designate), which date and time may be postponed by agreement between the Representatives and the Company or as provided in Section 8 hereof (such date and time of delivery and payment for the Securities being herein called the "Closing Date"). Delivery of the Securities shall be made to the Representatives for the respective accounts of the several Underwriters against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. Delivery of the Underwritten Securities and the Option Securities shall be made through the facilities of The Depository Trust Company unless the Representatives shall otherwise instruct.
(b) If the option provided for in Section 2(b) hereof is exercised after the fifth Business Day prior to the Closing Date, the Company will deliver the Option Securities (at the expense of the Company) to the Representatives, at [Representatives' address], on the date specified by the Representatives (which shall be within five Business Days after exercise of said option) for the respective accounts of the several Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer payable in same-day funds to an account specified by the Company. If settlement for the Option Securities occurs after the Closing Date, the Company will deliver to the Representatives on the settlement date for the Option Securities, and the obligation of the Underwriters to purchase the Option Securities shall be conditioned upon receipt of, supplemental opinions, certificates and letters confirming as of such date the opinions, certificates and letters delivered on the Closing Date pursuant to Section 5 hereof.
4. AGREEMENTS. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the Company will not file any amendment of the Registration Statement or supplement (including the Final Prospectus or any Preliminary Final Prospectus) to the Basic Prospectus or any Rule 462(b) Registration Statement unless the Company has furnished you a copy for your review prior to filing and will not file any such proposed amendment or supplement to which you reasonably object. Subject to the foregoing sentence, the Company will cause the Final Prospectus, properly completed, and any supplement thereto to be filed with the Commission pursuant to the applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to the Representatives of such timely filing. The Company will promptly advise the Representatives (i) when the Final Prospectus, and any supplement thereto, shall have been filed with the Commission pursuant to Rule 424(b),
(ii) when, prior to the termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (iii) of any request by the Commission for any amendment of the
Registration Statement. or any Rule 462(b) Registration Statement, or for
any supplement to the Final Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is required to be delivered under the Act, any event occurs as a result of which the Final Prospectus as then supplemented would include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein in the light of the circumstances under which they were made not misleading, or if it shall be necessary to amend the Registration Statement or supplement the Final Prospectus to comply with the Act or the Exchange Act or the respective rules thereunder, the Company promptly will prepare and file with the Commission, subject to the first sentence of paragraph (a) of this Section 4, an amendment or supplement which will correct such statement or omission or effect such compliance and supply any supplemented Final Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to its security holders and to the Representatives an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the Underwriters, without charge, copies of the Registration Statement (including exhibits thereto) and each amendment thereto which shall become effective on or prior to the Closing Date and, so long as delivery of a prospectus by an Underwriter or dealer may be required by the Act, as many copies of any Preliminary Final Prospectus and the Final Prospectus and any supplements thereto as the Representatives may reasonably request. The Company will pay the expenses of printing all documents relating to the offering.
(e) The Company will arrange for the qualification of the Securities for sale under the laws of such jurisdictions as the Representatives may designate, will maintain such qualifications in effect so long as required for the distribution of the Securities, will arrange for the determination of the legality of the Securities for purchase by institutional investors and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; PROVIDED that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Securities, in any jurisdiction where it is not now so subject.
(f) The Company will not, without the prior consent of the Representatives, offer, sell, contract to sell, pledge, or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition) directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any other shares of Common Stock or any securities convertible into, or exercisable, or exchangeable for, shares of Common Stock; or publicly announce
an intention to effect any such transaction, until the Business Day set forth on Schedule I hereto, PROVIDED, HOWEVER, that the Company may issue and sell Common Stock pursuant to any employee benefit plan, stock option plan, stock ownership plan or dividend reinvestment plan of the Company in effect at the Execution Time and the Company may issue Common Stock issuable upon the conversion of securities or the exercise of warrants outstanding at the Execution Time.
5. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the Underwriters to purchase the Underwritten Securities and the Option Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, as of the date of the effectiveness of any amendment to the Registration Statement filed prior to the Closing Date (including the filing of any document incorporated by reference therein) and as of the Closing Date and any settlement date pursuant to Section 3 hereof, to the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) The Final Prospectus, and any supplement thereto, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the opinion of counsel to the Company, dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with full corporate power to own its properties and conduct its business and is not required to be qualified to do business in any other jurisdiction; each of the Company's significant subsidiaries (the "Significant Subsidiaries"), has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction in which it is chartered or organized, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the Final Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, except where the failure to so qualify would not be materially adverse to the business or operations of the Company and its subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each of the Significant Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and all outstanding shares of capital stock of each of the Significant Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, after due inquiry, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as set forth in the Final Prospectus; the Securities conform to the description thereof contained in the Final Prospectus; and, if the Securities are to be listed on the New York Stock Exchange, authorization therefor has been given, subject to official notice of issuance and evidence of satisfactory distribution, or the Company has filed a preliminary listing application and all required supporting documents with respect to the Securities with the New York Stock Exchange and such counsel has no reason to believe that the Securities will not be authorized for listing, subject to official notice of issuance and evidence of satisfactory distribution; the certificates for the Securities are in valid and
sufficient form; and the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Securities; and, except as set forth in the Final Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company are outstanding;
(iv) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Final Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Final Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Final Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters;
(v) the Registration Statement and any amendments thereto have become effective under the Act; any required filing of the Basic Prospectus, any Preliminary Final Prospectus and the Final Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement, the Final Prospectus and each amendment thereof or supplement thereto as of their respective effective or issue dates (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) complied as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement, or any amendment thereof, at the time it became effective and at the date of this Agreement, contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Final Prospectus, as supplemented, includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading;
(vi) this Agreement has been duly authorized, executed and delivered by the Company;
(vii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Securities by the Underwriters and such other approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Securities, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of its subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries, except where any of the foregoing would not have a materially adverse
effect upon the business or operations of the Company and its subsidiaries taken as a whole and would not materially adversely effect the offering of the Securities;
(ix) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(x) the Company is not and, after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Final Prospectus, will not be an "investment company" as defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are satisfactory to counsel for the Underwriters and (B) as to matters of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials.
(c) The Representatives shall have received from [name of counsel], counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the issuance and sale of the Securities, the Indenture, the Registration Statement, the Final Prospectus and other related matters as the Representatives may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer and either the principal financial or principal accounting officer of the Company, dated the Closing Date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Final Prospectus, any supplement to the Final Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this Agreement are true and correct in all material respects on and as of the Closing Date with the same effect as if made on the Closing Date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration Statement, as amended, has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Final Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth, incorporated by reference or contemplated in the Final Prospectus.
(e) At the Closing Date, [name of accountants] shall have furnished to the Representatives a letter or letters (which may refer to letters previously delivered to one or more of the Representatives), dated as of the Closing Date, in form and substance satisfactory to the Representatives, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder, that the response to Item 10 of the Registration Statement is correct insofar as it relates to them and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Final Prospectus and reported on by them comply as to form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts included or incorporated in the Registration Statement and the Final Prospectus in response to Item 301 of Regulation S-K and of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants of unaudited interim financial information as indicated in their report incorporated in the Registration Statement and the Final Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes (or drafts thereof when approved minutes were not available) of the meetings of the stockholders, directors and executive committees of the Company and each of the Significant Subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements incorporated in the Registration Statement and the Final Prospectus, nothing came to their attention which caused them to believe that:
(1) the amounts in the "Selected Financial Data", if any, included or incorporated in the Registration Statement and the Final Prospectus do not agree with the corresponding amounts in the audited financial statements from which such amounts were derived;
(2) any unaudited financial statements included or incorporated in the Registration Statement and the Final Prospectus do not comply as to form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Final Prospectus;
(3) with respect to the period subsequent to the date of the most recent financial statements incorporated in the Registration Statement and the Final Prospectus, there were any changes, at a specified date not more than five Business Days prior to the date of the letter, in the aggregate long-term debt due within one year and long-term debt (exclusive of current portion) of the Company and its consolidated subsidiaries or common stock of the Company or decreases in the shareholders' equity of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Final Prospectus, or for the period from the date of the most recent financial statements incorporated in the Registration Statement and the Final Prospectus to such specified date there were any decreases related to continuing operations, as compared with the corresponding period in the preceding year, in total revenue or earnings before income taxes or in the total or per share amounts of net earnings, of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Representatives; or
(4) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Final Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company) set forth in the Registration Statement and the Final Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 6, 7 and 11 of the Company's annual report on Form 10-K incorporated therein or in "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in any of the Company's quarterly reports on Form 10-Q incorporated therein, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) if pro forma financial statements are included or incorporated in the Registration Statement and the Final Prospectus, on the basis of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.
References to the Registration Statement and the Final Prospectus in this paragraph (e) are to such documents as amended and supplemented at the date of the letter.
In addition, except as provided in Schedule I hereto, at the time this
Agreement is executed, [name of accountants] shall have furnished to the
Representatives a letter or letters, dated as of the Execution Time, in
form and substance satisfactory to the Representatives, to the effect set
forth in the introductory clause to this paragraph (e), in subparagraphs
(i) and (ii)(2) above and, to the extent referring to information contained
in Exchange Act reports incorporated in the Registration Statement and the
Final Prospectus, in subparagraphs (ii)(1) and (iii) above.
(f) Subsequent to the Execution Time or, if earlier, the respective
dates as of which information is given in the Registration Statement and
the Final Prospectus, there shall not have been (i) any change or decrease
specified in the letter or letters referred to in paragraph (e) of this
Section 5 or (ii) any change, or any development involving a prospective
change, in or affecting the financial condition, business or properties of
the Company and its subsidiaries, taken as a whole, the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the judgment of
the Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or the delivery of the Securities
as contemplated by the Registration Statement and the Final Prospectus.
(g) Subsequent to the Execution Time, there shall not have been any decrease in the rating of any of the Company's debt securities by Moody's Investors Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no longer are providing such ratings, any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have furnished to the Representatives such further information, certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled in all material respects when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Representatives and their counsel, this Agreement and all obligations of the Underwriters hereunder may be canceled at, or at any time prior to, the Closing Date by the Representatives. Notice of such cancelation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the Securities provided for herein is not consummated because any condition to the obligations of the Underwriters set forth in Section 5 hereof is not satisfied or because of any refusal, inability or failure on the part of the Company to perform any agreement herein or comply with any provision hereof other than by reason of a default by any of the Underwriters, the Company will reimburse the Underwriters severally upon demand for all out-of-pocket expenses (including reasonable fees and disbursements of counsel) that shall have been incurred by them in connection with the proposed purchase and sale of the Securities.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company agrees to indemnify and hold harmless each Underwriter, the directors, officers and employees of each Underwriter, agents who assist in the offering of the Securities and each person who controls any Underwriter within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the registration statement for the registration of the Securities as originally filed or in any amendment thereof, or in the Basic Prospectus, any Preliminary Final Prospectus or the Final Prospectus, or in any amendment thereof or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and agrees to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that (i) the Company will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representatives specifically for use in connection with the preparation thereof, and (ii) such indemnity with respect to the Basic Prospectus or any Preliminary Final Prospectus shall not inure to the benefit of any Underwriter (or any person Controlling such Underwriter) from whom the person asserting any such loss, claim, damage or liability purchased the Securities which are the subject thereof if such person did not receive a copy of the Final Prospectus (or the Final Prospectus as supplemented) excluding documents incorporated therein by reference at or prior to the confirmation of the sale of such Securities to such person in any case where such delivery is required by the Act and the untrue statement or alleged untrue statement or the omission or alleged omission of a material fact contained in the Basic Prospectus or any Preliminary Final Prospectus was corrected in the Final Prospectus (or the Final Prospectus as supplemented). This indemnity agreement will be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and hold harmless the Company, each of its directors, each of its officers who signs the Registration Statement, and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with reference to written information relating to such Underwriter furnished to the Company by or on behalf of such Underwriter through the Representatives specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which any Underwriter may otherwise have. The Company acknowledges that the statements set forth in the last paragraph of the cover page regarding delivery of the Securities and under the heading "Underwriting" or "Plan of Distribution" regarding (i) the list of Underwriters and their respective participation in the sale of the Securities, (ii) the sentences related to concessions and reallowances and (iii) the paragraph related to stabilization, syndicate covering transactions and penalty bids in any Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the documents referred to in the foregoing indemnity, and you, as the Representatives, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 7, notify the indemnifying party in writing of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 7. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
that it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof, with counsel satisfactory to such indemnified party; PROVIDED,
HOWEVER, that if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assert such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel), approved by the
Representatives in the case of paragraph (a) of this Section 7, representing the
indemnified parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party will not, without the prior written
consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 7 is due
in accordance with its terms but is for any reason held by a court to be
unavailable from the Company on grounds of policy or otherwise, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) to which the Company and one or more of
the Underwriters may be subject in such proportion so that the Underwriters are
responsible for that portion represented by the percentage that the underwriting
discount bears to the sum of such discount and the purchase price of the
Securities specified in Schedule I hereto and the Company is responsible for the
balance; PROVIDED, HOWEVER, that (y) in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Securities) be responsible for any amount in excess of the underwriting
discount applicable to the Securities purchased by such Underwriter hereunder
and (z) no person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
Section 7, each person who controls an Underwriter within the meaning of either
the Act or the Exchange Act, each director, officer and employee of an
Underwriter and agents who assist in the offering of the Securities shall have
the same rights to contribution as such Underwriter, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (y) and (z) of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission to so notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this paragraph
(d).
8. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall fail to purchase and pay for any of the Securities agreed to be purchased by such Underwriter or Underwriters hereunder and such failure to purchase shall constitute a default in the performance of its or their obligations under this Agreement, the remaining Underwriters shall be obligated severally to take up and pay for (in the respective proportions which the amount of Securities set forth opposite their names in Schedule II hereto bears to the aggregate amount of Securities set forth opposite the names of all the remaining Underwriters) the Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate amount of Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of the aggregate amount of Securities set forth in Schedule II hereto, the remaining Underwriters shall have the right to purchase all, but shall not be under any obligation to purchase any, of the Securities, and if such nondefaulting Underwriters do not purchase all the Securities, this Agreement will terminate without liability to any nondefaulting Underwriter or the Company. In the event of a default by any Underwriter as set forth in this Section 8, the Closing Date shall be postponed for such period, not exceeding seven days, as the Representatives shall determine in order that the required changes in the Registration Statement and the Final Prospectus or in any other documents or arrangements may be effected. Nothing contained in this Agreement shall relieve any defaulting Underwriter of its liability, if any, to the Company and any nondefaulting Underwriter for damages occasioned by its default hereunder.
9. TERMINATION. This Agreement shall be subject to termination in the absolute discretion of the Representatives, by notice given to the Company prior to delivery of and payment for the Securities, if prior to such time (i) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (ii) a banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or material escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis the effect of which on the financial markets of the United States is such as to make it, in the judgment of the Representatives, impracticable to market or deliver the Securities as contemplated by the Final Prospectus (exclusive of any supplement thereto).
10. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of the Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of the officers, directors or controlling persons referred to in Section 7 hereof, and will survive delivery of and payment for the Securities. The provisions of Sections 6 and 7 hereof shall survive the termination or cancelation of this Agreement.
11. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to the Representatives, will be mailed, delivered or telefaxed and confirmed to them, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 3600 N.W. 82 Avenue, Miami, Florida 33166, attention of General Counsel.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto and their respective successors and the officers, directors, employees, agents and controlling persons referred to in Section 7 hereof, and no other person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in one or more counterparts each of which shall be deemed to be an original but all of which together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters.
Very truly yours,
Ryder System, Inc.
The foregoing Agreement is hereby
confirmed and accepted as of the date
specified in Schedule I hereto.
[names of Representatives]
By: [ ]
For themselves and the other several
Underwriters, if any, named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated
Registration Statement No.
Representative(s):
Title, Purchase Price and Description of Securities:
Title:
Number of Shares to be sold by the Company:
Price to Public per Share (include accrued dividends, if any):
Price to Public -- total:
Underwriting Discount per Share:
Underwriting Discount -- total:
Proceeds to Company per Share:
Proceeds to Company -- total:
Other provisions:
Closing Date, Time and Location:
Type of Offering: Non-Delayed
Date referred to in Section 4(f) after which the Company may offer or sell securities issued or guaranteed by the Company without the consent of the Representative(s):
Modification of items to be covered by the letter from [name of accountants] delivered pursuant to Section 5(e) at the Execution Time:
SCHEDULE II
NUMBER OF [UNDERWRITTEN]
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
|
[names of Underwriters]
ANNEX A
[LETTERHEAD OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER OF RYDER SYSTEM, INC.]
RYDER SYSTEM, INC.
PUBLIC OFFERING OF COMMON STOCK
[Date]
[names of Representatives]
As Representative[s] of the several Underwriters,
[c/o ]
[Address]
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed Underwriting Agreement (the "Underwriting Agreement"), between Ryder System, Inc., a Florida corporation (the "Company"), and [each of] you as representative[s] of a group of Underwriters named therein, relating to an underwritten public offering of Common Stock, $0.50 par value (the "Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not, without the prior written consent of [the Representatives], offer, sell, contract to sell, pledge or otherwise dispose of, (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in privity with the undersigned or any affiliate of the undersigned), directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period of [ ] days after the date of the Underwriting Agreement, other than shares of Common Stock disposed of as bona fide gifts approved by [the Representatives].
If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated.
Yours very truly,
[SIGNATURE OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER]
[NAME AND ADDRESS OF OFFICER, DIRECTOR OR MAJOR STOCKHOLDER]
EXHIBIT 1.3
Ryder System, Inc.
Medium-Term Notes
Due Nine Months or More
From Date of Issue
Form of
Selling Agency Agreement
[Date]
New York, New York
[Agent]
[Address]
[Agent]
[Address]
[Agent]
[Address]
Ladies & Gentlemen:
Ryder System, Inc., a Florida corporation (the "Company"), confirms its agreement with each of you with respect to the issue and sale by the Company of up to the aggregate principal amount set forth in Schedule I hereto of its Medium-Term Notes, Due Nine Months or More from Date of Issue (the "Notes"). The Notes will be issued under an indenture (the "Indenture") dated as of [ ], between the Company and JPMorgan Chase Bank, as trustee (the "Trustee"). Unless otherwise specifically provided for and set forth in a supplement to the Prospectus referred to below, the Notes in minimum denominations of $1,000 and in denominations exceeding such amount by integral multiples of $1,000, will be issued only in fully registered form and will have the maturities, annual interest rates and, if appropriate, other terms set forth in such supplement to the Prospectus. The Notes will be issued, and the terms thereof established, in accordance with the Indenture and the Medium-Term Notes Administrative Procedures attached hereto as Exhibit A (the "Procedures"). The Procedures may only be amended by written agreement of the Company and you after notice to, and with the approval of, the Trustee. For the purposes of this Agreement, the term "Agent" shall refer to any of you acting solely in the capacity as agent for the Company pursuant to Section 2(a) and not as principal (collectively, the "Agents"), the term the "Purchaser" shall refer to one of you acting solely as principal pursuant to Section 2(b) and not as agent, and the term "you" shall refer to collectively whether at any time any of you is acting in both such capacities or in either such capacity. In acting under this Agreement, in whatever capacity, each of you is acting individually and not jointly.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants to, and agrees with, each of you as set forth below in this Section 1. Certain terms used in this Section 1 are defined in paragraph (c) hereof.
(a) The Company meets the requirements for use of Form S-3 under the Securities Act of 1933 (the "Act") and has filed with the Securities and Exchange Commission (the "Commission") a registration statement on such Form (File Number: [ ]), including a basic prospectus, which has become effective, for the registration under the Act of $[ ] aggregate principal amount of debt securities (the "Securities"), including the Notes. Such registration statement, as amended as of the Execution Time, meets the requirements set forth in Rule 415(a)(1)(ix) or (x) under the Act and complies in all other material respects with said Rule. The Company has included in such registration statement, or has filed or will file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act, a supplement to the form of prospectus included in such registration statement relating to the Notes and the plan of distribution thereof (the "Prospectus Supplement"). In connection with the sale of Notes the Company proposes to file with the Commission pursuant to the applicable paragraph of Rule 424(b) under the Act further supplements to the Prospectus Supplement (each a "Pricing Supplement"), specifying the interest rates, maturity dates and, if appropriate, other similar terms of the Notes sold pursuant hereto or the offering thereof.
(b) As of the Execution Time, on the Effective Date, when any supplement to the Prospectus is filed with the Commission, as of the date of a Terms Agreement and at the date of delivery by the Company of any Notes sold hereunder (a "Closing Date"), (i) the Registration Statement, as amended as of any such time, and the Prospectus, as supplemented as of any such time, and the Indenture will comply in all material respects with the applicable requirements of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture Act"), as amended and the Securities Exchange Act of 1934 (the "Exchange Act") and the respective rules thereunder; (ii) the Registration Statement, as amended as of any such time, did not or will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading; and (iii) the Prospectus, as supplemented as of any such time, will not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; PROVIDED, HOWEVER, that the Company makes no representations or warranties as to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) under the Trust Indenture Act of the Trustee or (ii) the information contained in or omitted from the Registration Statement or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any or all of you specifically for use in connection with the preparation of the Registration Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold hereunder, the Indenture will constitute a legal, valid and binding instrument enforceable against the Company in accordance with its terms and such Notes will have been duly authorized,
and, when issued to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture.
(d) No consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals as have been obtained.
(e) Neither the execution and delivery of the Indenture, the issue and sale of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument to which the Company or any of its subsidiaries is a party or bound, or any order or regulation applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries, except where such breach or conflict would not have a materially adverse effect upon the business or operations of the Company and its subsidiaries taken as a whole and would not materially adversely affect the offering of the Notes.
(f) The terms which follow, when used in this Agreement, shall have the meanings indicated. The term "Business Day" shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City. "Effective Date" shall mean each date that the Registration Statement and any post-effective amendment or amendments thereto became or become effective. "Execution Time" shall mean the date and time that this Agreement is executed and delivered by the parties hereto. "Basic Prospectus" shall mean the form of basic prospectus relating to the Securities contained in the Registration Statement at the Effective Date. "Prospectus" shall mean the Basic Prospectus as supplemented by the Prospectus Supplement. "Registration Statement" shall mean the registration statement referred to in paragraph (a) above, including incorporated documents, exhibits and financial statements, as amended at the Execution Time. "Rule 415" and "Rule 424" refer to such rules under the Act. Any reference herein to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 which were filed under the Exchange Act on or before the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be; and any reference herein to the terms "amend", "amendment" or "supplement" with respect to the Registration Statement, the Basic Prospectus, the Prospectus Supplement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act after the Effective Date of the Registration Statement or the issue date of the Basic Prospectus, the Prospectus Supplement or the Prospectus, as the case may be, deemed to be incorporated therein by reference.
2. APPOINTMENT OF AGENTS; SOLICITATION BY THE AGENTS OF OFFERS TO PURCHASE; SALES OF NOTES TO A PURCHASER. (a)Subject to the terms and conditions set forth herein, the Company hereby authorizes each of the Agents to act as its agent to solicit offers for the purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the Agents agrees,
as agent of the Company, to use its reasonable efforts to solicit offers to
purchase the Notes from the Company upon the terms and conditions set forth in
the Prospectus (and any supplement thereto) and in the Procedures. Each Agent
shall make reasonable efforts to assist the Company in obtaining performance by
each purchaser whose offer to purchase Notes has been solicited by such Agent
and accepted by the Company, but such Agent shall not, except as otherwise
provided in this Agreement, have any liability to the Company in the event any
such purchase is not consummated for any reason. Except as provided in Section
2(b), under no circumstances will any Agent be obligated to purchase any Notes
for its own account. It is understood and agreed, however, that any Agent may
purchase Notes as principal pursuant to Section 2(b).
The Company reserves the right, in its sole discretion, to instruct the Agents to suspend at any time, for any period of time or permanently, the solicitation of offers to purchase the Notes. Upon receipt of instructions from the Company, the Agents will forthwith suspend solicitation of offers to purchase Notes from the Company until such time as the Company has advised them that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, on the Closing Date with respect to each sale of Notes by the Company as a result of a solicitation made by such Agent, in an amount equal to that percentage specified in Schedule I hereto of the aggregate principal amount of the Notes sold by the Company. Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the Procedures, offers for the purchase of Notes may be solicited by an agent as agent for the Company at such time and in such amounts as such Agent deems advisable. The Company may from time to time offer Notes for sale otherwise than through an Agent and the Company may solicit or accept offers to purchase Notes through any agent other than an Agent.
(b) Subject to the terms and conditions set forth herein, whenever the Company and any of you determines that the Company shall sell Notes directly to any of you as principal, each such sale of Notes shall be made in accordance with the terms of this Agreement and, a supplemental agreement relating to such sale. Each such supplemental agreement (which may be either an oral agreement confirmed in writing or a written agreement) is herein referred to as a "Terms Agreement". Each Terms Agreement shall describe the Notes to be purchased by the Purchaser pursuant thereto and shall specify the principal amount of each such Note, the aggregate principal amount of all such Notes, the maturity date of such Notes, the rate at which interest will be paid on such Notes, the dates on which interest will be paid on such Notes and the record date with respect to each such payment of interest, the Closing Date for such Notes, the place
of delivery of the Notes and payment therefor, the method of payment and any requirements for the delivery of opinions of counsel, certificates from the Company or its officers or a letter from the Company's independent public accountants, as described in Section 6(b). Any such Terms Agreement may also specify the period of time referred to in Section 4(m). Any written Terms Agreement may be in the form attached hereto as Exhibit B. The Purchaser's commitment to purchase Notes shall be deemed to have been made on the basis of the representation and warranties of the Company herein contained and shall be subject to the terms and conditions herein set forth.
Delivery of the certificates for Notes sold to the Purchaser pursuant to a Terms Agreement shall be made not later than the Closing Date agreed to in such Terms Agreement, against payment of funds to the Company in the net amount due to the Company for such Notes by the method and in the form set forth in the Procedures unless otherwise agreed to between the Company and the Purchaser in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a Terms Agreement, any Note sold to a Purchaser (i) shall be purchased by such Purchaser at a price equal to 100% of the principal amount thereof less a percentage equal to the commission applicable to an agency sale of Note of identical maturity and (ii) may be resold by such Agent at varying prices from time to time or, if set forth in the applicable Terms Agreement and Pricing Supplement, at a fixed public offering price. In connection with any resale of Notes purchased, a Purchaser may use a selling or dealer group and may reallow any portion of the discount or commission payable pursuant hereto to dealers or purchasers.
3. OFFERING AND SALE OF NOTES. Each Agent shall communicate to the Company, orally or in writing, each offer (unless previously rejected by such Agent as provided below) to purchase Notes on terms previously communicated by the Company to such Agent, and the Company shall have the sole right to accept such offers to purchase Notes and may refuse any proposed purchase of Notes in whole or in part for any reason. Each Agent shall have the right, in its discretion reasonably exercised, to reject any such offer received by it in whole or in part. Each Agent and the Company agree to perform the respective duties and obligations specifically provided to be performed by them in the Procedures.
4. AGREEMENTS. The Company agrees with each of you that:
(a) Prior to the termination of the offering of the Notes (including by way of resale by a Purchaser of Notes), the Company will not file any amendment of the Registration Statement or supplement to the Prospectus (except for (i) periodic or current report filed under the Exchange Act, (ii) a Supplement relating to any offering of, or a change in the maturity dates, interest rates, issuance prices or other similar terms of, any Notes or (iii) a supplement relating to an offering of Securities other than the Notes) unless the Company has furnished each of you a copy for your review prior to filing and given each of you a reasonable opportunity to comment on any such proposed amendment or supplement. Subject to the foregoing sentence, the Company will cause each supplement to the Prospectus to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and will provide evidence satisfactory to you of such filing. The Company will promptly advise each of you (i) when the Prospectus, and any supplement thereto (except for a supplement relating to an offering of Securities other than the Notes), shall have been filed with the Commission pursuant to Rule 424(b), (ii) when, prior to the termination of the offering of the Notes, any amendment of the Registration Statement shall have been filed or become effective, (iii) of any request by the Commission for any amendment of the Registration Statement or supplement to the Prospectus or for any additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution or threatening of any proceeding for that purpose and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Notes for sale in any jurisdiction or the initiation or threatening of any reasonable proceeding for such purpose. The Company will use its best efforts to prevent the issuance of any such stop order or the suspension of any such qualification and, if issued, to obtain as soon as possible the withdrawal thereof;
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary to amend the Registration
Statement or to supplement the Prospectus to comply with the Act or the Exchange
Act or the respective rules thereunder, the Company promptly will (i) notify
each of you to suspend solicitation of offers to purchase Notes (and, if so
notified by the Company, each of you shall forthwith suspend such solicitation
and ceasing using the Prospectus as then supplemented), (ii) prepare and file
with the Commission, subject to the first sentence of paragraph (a) of this
Section 4, an amendment or supplement which will correct such statement or
omission or effect such compliance and (iii) supply any supplemented Prospectus
to each of you in such quantities as you may reasonably request. If such
amendment or supplement, and any documents, certificates and opinions furnished
to each of you pursuant to paragraph (g) of this Section 4 in connection with
the preparation or filing of such amendment or supplement are reasonably
satisfactory in all respects to you, you will, upon the filing of such amendment
or supplement with the Commission and upon the effectiveness of an amendment to
the Registration Statement, if such an amendment is required, resume your
obligation to solicit offers to purchase Notes hereunder;
(c) The Company, during the period when a prospectus relating
to the Notes is required to be delivered under the Act, will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a),
13(c), 14 or 15(d) of the Exchange Act and, to the extent such documents are not
available pursuant to the EDGAR filing system, will furnish to each of you
copies of such documents upon reasonable request. In addition, if the Company is
engaged in discussions with any Agent concerning the possible offer of
Medium-Term Notes pursuant to this Agreement, on or prior to the date on which
the Company makes any announcement to the general public concerning earnings or
concerning any other event which is required to be described, or which the
Company proposes to describe, in a document filed pursuant to the Exchange
Act, the Company will furnish to each of you the information contained or to be contained in such announcement, provided that the provision of such information would not violate Regulation F-D under the Securities Exchange Act of 1934. The Company also will furnish to each of you copies of all material press releases or announcements furnished to news or wire services. The Company will promptly notify each of you by telephone or telecopy of (i) any decrease in the rating of the Notes or any other debt securities of the Company by Moody's Investors Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no longer are providing such ratings, any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or (ii) any written notice received from Moody's Investors Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no longer are providing the ratings referred to in (i), any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) of any intended or contemplated decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change;
(d) As soon as practicable, the Company will make generally available to its security holders and to each of you an earnings statement or statements of the Company and its subsidiaries which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act;
(e) The Company will furnish to each of you and your counsel, without charge, copies of the Registration Statement (including exhibits thereto) and, so long as delivery of a prospectus may be required by the Act, as many copies of the Prospectus and any supplement thereto as you may reasonably request;
(f) The Company will arrange for the qualification of the Notes for sale under the laws of such jurisdictions as any of you may reasonably designate, will maintain such qualifications in effect so long as required for the distribution of the Notes, will arrange for the determination of the legality of the Notes for purchase by institutional investors and will pay any fee of the National Association of Securities Dealers, Inc., in connection with its review of the offering; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action that would subject it to service of process in suits, other than those arising out of the offering or sale of the Notes, in any jurisdiction where it is not now so subject;
(g) The Company shall furnish to each of you such documents, certificates of officers of the Company and opinions of counsel for the Company relating to the business, operations and affairs of the Company, the Registration Statement, the Prospectus, and any amendments thereof or supplements thereto, the Indenture, the Notes, this Agreement, the Procedures and the performance by the Company and you of its and your respective obligations hereunder and thereunder as any of you may from time to time and at any time prior to the termination of this Agreement reasonably request;
(h) The Company shall, whether or not any sale of the Notes is consummated, (i) pay all expense incident to the performance of its obligations under this
Agreement, including the fees and disbursements of its accountants and counsel,
the cost of printing or other production and delivery of the Registration
Statement, the Prospectus, all amendments thereof and supplements thereto, the
Indenture, this Agreement and all other documents relating to the offering, the
cost of preparing, printing, packaging and delivering the Notes, the reasonable
fees and disbursements, including fees of counsel, incurred in compliance with
Section 4(f), the fees and disbursements of the Trustee and the fees of any
agency that rates the Notes, (ii) reimburse each of you, upon request, on a
monthly basis for all out-of-pocket expenses, if any, incurred by you and
approved by the Company in advance, in connection with this Agreement and (iii)
pay the reasonable fees and expenses of your counsel incurred in connection with
this Agreement and approved by the Company in advance (which approval may be
oral);
(i) Each acceptance by the Company of an offer to purchase Notes will be deemed to be an affirmation that its representations and warranties contained in Section 1 of this Agreement are true and correct at the time of such acceptance, as though made at and as of such time, and a covenant that such representations and warranties will be true and correct at the time of delivery to the purchaser of the Notes relating to such acceptance, as though made at and as of such time (it being understood that for purposes of the foregoing affirmation and covenant such representations and warranties shall relate to the Registration Statement and Prospectus as amended or supplemented at each such time). Each such acceptance by the Company of an offer for the purchase of Notes shall be deemed to constitute an additional representation, warranty and agreement by the Company that, as of the settlement date for the sale of such Notes, after giving effect to the issuance of such Notes, of any other Notes to be issued on or prior to such settlement date and of any other Securities to be issued and sold by the Company on or prior to such settlement date, the aggregate amount of Securities (including any Notes) which have been issued and sold by the Company will not exceed the amount of Securities registered pursuant to the Registration Statement. The Company will inform you promptly upon your inquiry of the aggregate amount of Securities registered under the Registration Statement which remain unsold;
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates (whether pursuant to a sinking
fund or otherwise) or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial statements or other
information, unless, in the case of clause (iii) above, in the reasonable
judgement of any of the Agents, such financial statements or other information
disclosed under the Exchange Act are of such a nature that a certificate of the
Company should be furnished), the Company will deliver or cause to be delivered
promptly to each of you a certificate of the Company, signed by the chairman of
the board, the president or any vice president (whether or not designated by a
number or word added before or after the title vice president) and the principal
financial or accounting officer of the Company, dated the date of the
effectiveness of such amendment or the date of the filing of such supplement, in
form reasonably satisfactory to you, of the same tenor as the certificate
referred to in Section 5(d) but modified to relate to the last day of the fiscal
quarter for which financial
statements of the Company were last filed with the Commission and to the Registration Statement and the Prospectus as amended and supplemented to the time of the effectiveness of such amendment or the filing of such supplement;
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates or other similar terms of any
Notes sold pursuant hereto or (iii) setting forth or incorporating by reference
financial statements or other information disclosed under the Exchange Act as of
and for a fiscal quarter, unless, in the case of clause (iii) above, in the
reasonable judgment of any of you, such financial statements or other
information are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be furnished promptly to each
of you a written opinion of counsel of the Company in form reasonably
satisfactory to each of you, dated the date of the effectiveness of such
amendment or the date of the filing of such supplement, of the same tenor as the
opinion referred to in Section 5(b) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such supplement or, in lieu of
such opinion, counsel last furnishing such an opinion to you may furnish each of
you with a letter to the effect that you may rely on such last opinion to the
same extent as though it were dated the date of such letter authorizing reliance
(except that statements in such last opinion will be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of the effectiveness of such amendment or the filing of such supplement);
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an amendment or supplement
(i) relating to any offering of Securities other than the Notes, (ii) providing
solely for the specification of or a change in the maturity dates, the interest
rates, the issuance prices, the redemption dates (whether pursuant to a sinking
fund or otherwise) or other similar terms of any Notes sold pursuant hereto or
(iii) setting forth or incorporating by reference financial statements or other
information, unless, in the case of clause (iii) above, in the reasonable
judgement of any of the Agents, such financial statements or other information
disclosed under the Exchange Act are of such a nature that a letter of [name of
accountants] should be furnished), the Company shall cause [name of
accountants], its independent public accountants, promptly to furnish each of
you a letter, dated the date of the effectiveness of such amendment or the date
of the filing of such supplement, in form reasonably satisfactory to each of
you, of the same tenor as the letter referred to in Section 5(e) with such
changes as may be necessary to reflect the amended and supplemental financial
information included or incorporated by reference in the Registration Statement
and the Prospectus, as amended or supplemented to the date of such letter;
PROVIDED, HOWEVER, that, if the Registration Statement or the Prospectus is
amended or supplemented solely to include or incorporate by reference financial
information as of and for a fiscal quarter, [name of accountants] may limit the
scope of such letter, which shall be reasonably satisfactory in form to each of
you, to the unaudited financial statements, the related "Management's Discussion
and Analysis of Financial Condition and Results of
Operations" and any other information of an accounting, financial or statistical nature included in such amendment or supplement, unless, in the reasonable judgment of any of you, such letter should cover other information; and
(m) During the period, if any, specified in any Terms Agreement, the Company shall not, without the prior consent of the Purchaser, issue or announce the proposed issuance of any of its debt securities, including Notes, with terms substantially similar to the Notes being purchased pursuant to such Terms Agreement, other than borrowings under its revolving credit agreements and lines of credit and issuances of its commercial paper.
5. CONDITIONS TO THE OBLIGATIONS OF THE AGENTS. The obligations of each Agent to solicit offers to purchase the Notes shall be subject to the accuracy in all material respects of the representations and warranties on the part of the company contained in Section 1 hereof as of the Execution Time, on the Effective Date, as of the date any supplement to the Prospectus is filed with the Commission and as of each Closing Date, to the accuracy in all material respects of the statements of the Company made in any certificates pursuant to the provisions of this Section 5, to the performance in all material respects by the Company of its obligations hereunder and to satisfaction of the following additional conditions in all material respects:
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened;
(b) The Company shall have furnished to each Agent the opinion of counsel for the Company, dated the Execution Time, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Florida, with full corporate power to own its properties and conduct its business and is not required to be qualified to do business in any other jurisdiction; each of the Company's significant subsidiaries, namely [list significant subsidiaries] (the "Subsidiaries"), are duly incorporated and validly existing as corporations in good standing under the laws of the [list jurisdictions of organization], respectively, each with full corporate power and authority to own or lease, as the case maybe, and to operate its properties and conduct business as described in the Prospectus, and are duly qualified to do business as foreign corporations and are in good standing under the laws of each jurisdiction which requires such qualification wherein each such Subsidiary owns or leases material properties or conducts material business except where the failure to so qualify would not be materially adverse to the operations of the Company and its subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of the Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and, all outstanding shares of capital stock of the Subsidiaries are owned by the Company either directly or through wholly owned subsidiaries free and clear of any perfected security interest and, to the knowledge of such counsel, any other security interests, claims, liens or encumbrances;
(iii) the Company's authorized equity capitalization is as incorporated in the Prospectus; and the Notes conform to the description thereof contained in the Prospectus (subject to the insertion in the Notes of the maturity dates, the interest rates and other similar terms thereof which will be described in supplements to the Prospectus as contemplated by the fourth sentence of Section 1(a) of this Agreement);
(iv) the Indenture has been duly authorized, executed and delivered, has duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding instrument enforceable against the Company in accordance with its terms (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors' rights generally from time to time in effect); and the Notes have been duly authorized and, when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the purchasers thereof, will constitute legal, valid and binding obligations of the Company entitled to the benefits of the Indenture;
(v) to the best knowledge of such counsel, there is no pending or threatened action, suit or proceeding before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or Prospectus, or to be filed as an exhibit, which is not described or filed as required; and the statements included or incorporated in the Prospectus describing any legal proceedings or material contracts or agreements relating to the Company fairly summarize such matters;
(vi) the Registration Statement has become effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein
as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act, the Exchange Act and the Trust Indenture Act and the respective rules thereunder; and such counsel has no reason to believe that the Registration Statement at the Effective Date or at the Execution Time contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus includes any untrue statement of a material fact or omits to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(vii) this Agreement has been duly authorized, executed and delivered by the Company;
(viii) no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated herein except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the sale of the Notes as contemplated by this Agreement and such other approvals (specified in such opinion) as have been obtained;
(ix) neither the execution and delivery of the Indenture, the issue and sale of the Notes, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach of, or constitute a default under the charter or by-laws of the Company or the terms of any indenture or other agreement or instrument known to such counsel and to which the Company or any of it subsidiaries is a party or bound, or any order or regulation known to such counsel to be applicable to the Company or any of its subsidiaries of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Company or any of its subsidiaries, except where any of the foregoing would not have a materially adverse effect upon the business or operations of the Company and its subsidiaries taken as a whole and would not materially adversely affect the offering of the Notes;
(x) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement; and
(xi) the Company is not and, after giving effect to the offering and sale of the Notes and the application of the proceeds thereof as described in the Prospectus (or any supplement thereto), will not be an "investment company" as defined in the Investment Company Act of 1940, as amended.
In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the United States, to the extent deemed proper and specified in such opinion, upon the opinion of other counsel of good standing believed to be reliable and who are reasonably satisfactory to counsel for the Agent and (B) as to matter of fact, to the extent deemed proper, on certificates of responsible officers of the Company and public officials;
(c) The Agents shall have received from [name of counsel], counsel for the Agents, such opinion or opinions, dated the Execution Time, with respect to the issuance and sale of the Notes, the Indenture, the Registration Statement, the Prospectus and other related matters as the Agents may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters;
(d) The Company shall have furnished to the Agents a certificate of the Company, signed by the chairman of the board, the president or any vice president (whether or not designated by a number or word added before or after the title vice president) and the principal financial or accounting officer of the Company, dated the Execution Time, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Prospectus and this Agreement and that:
(i) the representations and warranties in Section 1 hereof of the Company in this Agreement are true and correct in all material respects on and as of the date hereof with the same effect as if made on the date hereof and the Company has substantially complied with all the agreements and substantially satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or, to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse change in the condition (financial or other), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, expect as set forth in or contemplated in the Prospectus;
(e) At the Execution Time, [name of accountants] shall have furnished to the Agents a letter or letters (which may refer to letters previously delivered to the Agent), dated as of the Execution Time, in form and substance reasonably satisfactory to the Agents, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated in the Registration Statement and the Prospectus and reported on by them comply in form in all material respects with the applicable accounting requirements of the Act and the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the amounts included or incorporated in the Registration Statement and the Prospectus in response to Item 301 of Regulation S-K and of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review in accordance with standards established by the American Institute of Certified Public Accountants of the unaudited interim financial information as indicated in their reports incorporated in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and executive committees of the Company and the Subsidiary; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) the amounts in the "Selected Financial Data", if any, included or incorporated in the Registration Statement and the Prospectus do not agree with the corresponding amounts in the audited financial statements from which such amounts were derived;
(2) any unaudited financial statements included or incorporated in the Registration Statement and the Prospectus do not comply in form in all material respects with applicable accounting requirements and with the published rules and regulations of the Commission with respect to financial statements included or incorporated in quarterly reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(3) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, in or incorporated in the Registration Statement and the Prospectus, there were any changes,
at a specified date not more than five Business Days prior to the date of the letter, in the aggregate long-term debt due within one year and long-term debt (exclusive of current portion) of the Company and its consolidated subsidiaries or common stock of the Company or decreases in the shareholders' equity of the Company and its consolidated subsidiaries as compared with the amounts shown on the most recent consolidated balance sheet included or incorporated in the Registration Statement and the Prospectus, or for the period from the date of the most recent financial statements included or incorporated in the Registration Statement and the Prospectus to the date of the most recently available monthly unaudited financial information there were any decreases relating to continuing operations, as compared with the corresponding period in the preceding year in total revenue or earnings before income taxes or in the total or per share amounts of net earnings of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Agents; or
(4) the amounts included in any unaudited "capsule" information included or incorporated in the Registration Statement and the Prospectus do not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated in the Registration Statement and the Prospectus;
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, including the information included or incorporated in Items 1, 2, 5, 6, 7 and 11 of the Company's Annual Report on Form 10-K, incorporated in the Registration Statement and the Prospectus, and the information included in the "Management's Discussion and Analysis of Financial Condition and Results of Operations" included or incorporated in the Company's Quarterly Reports on Form 10-Q, incorporated in the Registration Statement and the Prospectus, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or incorporated in the Registration Statement and the Prospectus, on the basis
of a reading of the unaudited pro forma financial statements, carrying out certain specified procedures, inquiries of certain officials of the Company and the acquired company who have responsibility for financial and accounting matters, and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply in form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements; and
(f) Prior to the Execution Time, the Company shall have furnished to each Agent such further information, documents, certificates and opinions of counsel as the Agents may reasonably request.
If any of the conditions specified in this Section 5 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be in all material respects reasonably satisfactory in form and substance to the Agents and their counsel, this agreement and all obligations of any Agent hereunder may be canceled at any time by such Agent. Notice of such cancelation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
The documents required to be delivered by this Section 5 shall
be delivered at the office of [name of counsel], counsel for the Agents, at
[address], on the date hereof.
6. CONDITIONS TO THE OBLIGATIONS OF THE PURCHASER. The obligations of the Purchaser to purchase any Notes will be subject to the accuracy in all material respects of the representations and warranties on the part of the Company in Section 1 of this Agreement as of the date of the Terms Agreement and as of the Closing Date for such Notes, to the performance and observance in all material respects by the Company of all covenants and agreements herein contained on its part to be performed and observed and to satisfaction of the following additional conditions precedent in all material respects:
(a) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or threatened;
(b) To the extent agreed to between the Company and the Purchaser in a Terms Agreement and except to the extent modified by such Terms Agreement, the Purchaser shall have received, appropriately updated, (i) a certificate of the Company, dated as of the Closing Date, to the effect set forth in Section 5(d) (except that references to the Prospectus shall be to the Prospectus as supplemented at the time of execution of the Terms Agreement), (ii) the opinion
of counsel for the Company, dated as of the Closing Date, to
the effect set forth in Section 5(b), (iii) the opinion of
[name of counsel], counsel for the Purchaser, dated as of the
Closing Date, to the effect set forth in Section 5(c), and
(iv) letter of [name of accountants], dated as of the Closing
Date, to the effect set forth in Section 5(e); and
(c) Prior to the Closing Date, the Company shall have furnished to the Purchaser such further information, certificates and documents as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement and an applicable Terms Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement or such Terms Agreement and required to be delivered to the Purchaser pursuant to the terms hereof and thereof shall not be in all material respects reasonably satisfactory in form and substance to the Purchaser and its counsel, such Terms Agreement and all obligations of the Purchaser thereunder and with respect to the Notes subject thereto may be canceled at, or at any time prior to, the respective Closing Date by the Purchaser. Notice of such cancelation shall be given to the Company in writing or by telephone or telegraph confirmed in writing.
7. RIGHT OF PERSON WHO AGREED TO PURCHASE TO REFUSE TO PURCHASE. (a)The Company agrees that any person who has agreed to purchase and pay for any Note, including the Purchaser and any person who purchases pursuant to a solicitation by any of the Agents, shall have the right to refuse to purchase such Note if (a) at the Closing Date therefor, any condition set forth in Section 5 or 6, as applicable, shall not be satisfied.
(b) The Company agrees that any person who has agreed to
purchase and pay for any Note pursuant to a solicitation by any of the Agents
shall have the right to refuse to purchase such note if, subsequent to the
agreement to purchase such Note, any change, condition or development specified
in any of Sections 9(b)(i) through (vi) shall have occurred (with the judgment
of the Agent which presented the offer to purchase such Note being substituted
for any judgment of a Purchaser required therein), the effect of which is, in
the judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical to proceed with the sale and
delivery of such Note (it being understood that under no circumstance shall any
such Agent have any duty or obligation under this Agreement to the Company or to
any such person to exercise the judgment permitted to be exercised under this
Section 7(b) and Section 9(b)).
8. INDEMNIFICATION AND CONTRIBUTION. (a)The Company agrees to indemnify and hold harmless each of you, the directors, officers or employees of each of you and each person who controls each of you within the meaning of either the Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which you, they or any of you or them may become subject under the Act, the Exchange Act or other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in the Prospectus or any
preliminary Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, and agrees to reimburse as incurred each such
indemnified party for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that (i) the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any of you specifically for use in connection with the preparation thereof, and
(ii) such indemnity with respect to the Prospectus or any preliminary Prospectus
shall not inure to the benefit of any of you (or any person controlling any of
you) from whom the person asserting any such loss, claim, damage or liability
purchased the Notes which are the subject thereof if such person did not receive
a copy of the Prospectus (or the Prospectus as supplemented) excluding documents
incorporated therein by reference at or prior to the confirmation of the sale of
such Notes to such person in any case where such delivery is required by the Act
and the untrue statement or omission of a material fact contained in the
Prospectus or any preliminary Prospectus was corrected in the Prospectus (or the
Prospectus as supplemented). This indemnity agreement will be in addition to any
liability which the Company may otherwise have. If the Company shall default in
its obligations to deliver Notes to a purchaser whose offer it has accepted, the
Company shall indemnify and hold each of you harmless against any loss, claim or
damage arising from or as a result of such default by the Company.
(b) Each of you agrees severally and not jointly to indemnify and hold harmless the Company, each of its employees and directors, each of its officers who signs the Registration Statement and each person who controls the Company within the meaning of either the Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company to you, but only with reference to written information relating to such of you furnished to the Company by or on behalf of such of you specifically for use in the preparation of the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability which you may otherwise have. The Company acknowledges that the names of the Agents set forth in any Pricing Supplement constitute the only information furnished in writing by or on behalf of any of you for inclusion in the documents referred to in the foregoing indemnity, and you, as the Agents, confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party (i)
will not relieve it from liability which it may have to any
indemnified party otherwise than under this Section 8. In case any such action is brought against any indemnified party, and it notifies the indemnifying party of the commencement thereof, the indemnifying party will be entitled to participate therein, and to the extent that it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the defendants in any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of its election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel and an additional local counsel, if needed, approved by you in the case of paragraph (a) of this Section 8, representing the indemnified parties under such paragraph (a) who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action, (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party or (iv) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
(d) In order to provide for just and equitable contribution in circumstances in which the indemnification provided for in paragraph (a) or (b) of this Section 8 is due in accordance with its terms, but is held by a court to be unavailable or insufficient in whole or in part to hold harmless an indemnified party for any reason (other than an act or omission or such indemnified party), the Company and each of you agree to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending same) (collectively, "Losses") to which the Company and one or more of you may be subject in such proportion so that each of you is responsible for that portion as is
appropriate to reflect the relative benefits received by the Company and each of
you from the offering of the Notes from which such Losses arise; PROVIDED,
HOWEVER, that in no case shall any of you be responsible for any amount in
excess of the commissions received by such of you in connection with the Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
each of you shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company and of
each of you in connection with the statements or omissions which resulted in
such Losses as well as any other relevant equitable considerations. Benefits
received by the Company shall be deemed to be equal to the total net proceeds
from the offering (before deducting expenses) of the Notes from which such
Losses arise, and benefits received by each of you shall be deemed to be equal
to the total commissions received by such of you in connection with the Notes
from which such Losses arise (or, in the case of Notes sold pursuant to a Terms
Agreement, the aggregate commissions that would have been received by such of
you if such commissions had been payable). Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by the Company or any of you. The Company and each of you
agree that it would not be just and equitable if contribution were determined by
pro rata allocation or any other method of allocation which does not take
account of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person who controls any
of you within the meaning of the Act or the Exchange Act and each director,
officer and employee of any of you shall have the same rights to contribution as
you and each person who controls the Company within the meaning of either the
Act or the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director, officer and employee of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d). Any party entitled
to contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties under this paragraph
(d), notify such party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from other obligation it or they
may have hereunder or otherwise than under this paragraph (d).
9. TERMINATION. (a)This Agreement will continue in effect
until terminated as provided in this Section 9. This Agreement may be terminated
by either the Company as to any of you or any of you insofar as this Agreement
relates to such of you, giving written notice of such termination to such of you
or the Company, as the case may be. This Agreement shall so terminate at the
close of business on the first Business Day following the receipt of such notice
by the party to whom such notice is given. In the event of such termination, no
party shall have any liability to the other party hereto, except as provided in
Section 2(a), Section 4(h), Section 8 and Section 10.
(b) Each Terms Agreement shall be subject to termination in the absolute discretion of the Purchaser, by notice given to the Company prior to delivery of any payment for any Note to be purchased thereunder, if prior to such time (i) there shall have occurred, subsequent to the agreement to purchase such Note, any change, or any development involving a prospective change, in or affecting the business or properties of the Company and its subsidiaries, taken as a whole, the effect of which is, in the judgment of the Purchaser, so material and adverse as to make it impractical to proceed with the offering or delivery of such Note, (ii) there shall have been, subsequent to the agreement to purchase such Note, any decrease in the rating of any of the Company's debt securities by Moody's Investors Service, Inc., Standard & Poor's Corporation, Fitch Ratings Ltd. or if such entities no longer are providing such ratings, any "nationally recognized statistical rating organization" (as defined for purposes of Rule 436(g) under the Act) or any formal notice given of any intended or contemplated decrease in any such rating, (iii) trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in the Company's Common Stock shall have been suspended by the Commission or the New York Stock Exchange or trading in securities generally on the New York Stock Exchange shall have been suspended or limited or minimum prices shall have been established on such Exchange, (iv) a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States, (v) a banking moratorium shall have been declared either by Federal or New York State authorities or (vi) there shall have occurred any material outbreak or material escalation of hostilities, declaration by the United States of a national emergency or war or other calamity or crisis, the effect of which on financial markets is such as to make it, in the judgment of the Purchaser, impracticable to proceed with the offering or delivery of such Notes as contemplated by the Prospectus (exclusive of any supplement subsequent to such event).
10. SURVIVAL OF CERTAIN PROVISIONS. The respective agreements, representations, warranties, indemnities and other statements of the Company or its officers and of you set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of you or the Company or any of the directors, officers, employees or controlling persons referred to in Section 8 hereof, and will survive delivery of and payment for the Notes. The provisions of Sections 4(h) and 8 hereof shall survive the termination or cancelation of this Agreement. The provisions of this Agreement (including without limitation Section 7 hereof) applicable to any purchase of a Note for which an agreement to purchase exists prior to the termination hereof shall survive any termination of this Agreement. If at the time of termination of this Agreement any Purchaser shall own any Notes purchased pursuant to a Terms Agreement with the intention of selling them, the provisions of Section 4 shall remain in effect until such Notes are resold.
11. NOTICES. All communications hereunder will be in writing and effective only on receipt, and, if sent to any of you, will be mailed, delivered or telegraphed and confirmed to such of you, at the address specified in Schedule I hereto; or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to it at 3600 N.W. 82nd Avenue, Miami, Florida 33116, attention of the Treasurer.
12. SUCCESSORS. This Agreement will inure to the benefit of and be binding upon the parties hereto, their respective successors, the directors, officers, employees, and controlling persons referred to in Section 8 hereof and, to the extent provided in Section 7, any person will have any right or obligation hereunder.
13. APPLICABLE LAW. This Agreement will be governed by and construed in accordance with the laws of the State of New York.
14. COUNTERPARTS. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and you.
Very truly yours,
Ryder System, Inc.
The foregoing Agreement is hereby confirmed and accepted as of the date hereof.
[AGENT]
[AGENT]
[AGENT]
SCHEDULE I
Selling Agency Agreement dated
Registration Statement No.
Amount of the Securities registered:
Amount of Notes:
The Company agrees to pay each Agent a commission equal to the following percentage of the principal amount of each Note sold by such Agent:
Term Commission Rate
---- ---------------
From 9 months to less than 1 year.......................... [ ]%
From 1 year to less than 18 months......................... [ ]%
From 18 months to less than 2 years........................ [ ]%
From 2 years to less than 3 years.......................... [ ]%
From 3 years to less than 4 years.......................... [ ]%
From 4 years to less than 5 years.......................... [ ]%
From 5 years to less than 6 years.......................... [ ]%
From 6 years to less than 7 years.......................... [ ]%
From 7 years to less than 11 years......................... [ ]%
From 11 years to less than 15 years........................ [ ]%
From 15 years to less than 20 years ....................... [ ]%
20 years to 30 years....................................... [ ]%
Greater than 30 years ..................................... to be negotiated
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Address for notices:
Notices to [Agent] shall be directed to it at [Address], Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax number: [ ].
Notices to [Agent] shall be directed to it at [Address], Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax number: [ ].
Notices to [Agent] shall be directed to it at [Address], Attention: [Medium Term Notes Department], Telephone number: [ ], Telefax number: [ ].
Notices to Ryder System, Inc. shall be directed to it at 3600 N.W. 82nd Avenue, Miami, Florida 33166, Attention: Treasurer.
The Company may satisfy its obligation under subsection (c) of
Section 4 of the Selling Agency Agreement to furnish to each of the Agents
copies of all documents filed by the Company with the Commission pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act by promptly furnishing
such documents to [counsel for the Agents], Attention: [ ]
RYDER SYSTEM, INC
MEDIUM-TERM NOTE ADMINISTRATIVE PROCEDURES
[Date]
Medium-Term Notes, Series [ ], Due Nine Months or More from Date of Issue (the "Notes") are to be offered on a continuing basis by Ryder System, Inc. (the "Company"). [Agent], [Agent], and [Agent] as agents (individually an "Agent" and collectively the "Agents"), have agreed to solicit purchases of Notes issued in fully registered form. The Agents will not be obligated to purchase Notes for their own accounts. The Notes are being sold pursuant to a Selling Agreement among the Company and the Agents dated [ ] (the "Agency Agreement"). The Notes will rank equally with all other unsecured and unsubordinated debt of the Company and have been registered with the Securities and Exchange Commission (the "Commission"). JPMorgan Chase Bank (the "Trustee") is the trustee under the Indenture dated as of [ ] covering the Notes (the "Indenture").
The Agency Agreement provides that Notes may also be purchased by an Agent acting solely as principal and not as agent. In the event of any such purchase, the functions of both the Agent and the beneficial owner under the administrative procedures set forth below shall be performed by such Agent acting solely as principal, unless otherwise agreed to between the Company and such Agent acting as principal.
Each Note will be represented by a Global Security (as defined hereinafter) delivered to [name of agent for DTC] ("[name of agent for DTC]"), as agent for The Depository Trust Company ("DTC"), and recorded in the book-entry system maintained by DTC (a "Book-Entry Note"), a certificate delivered to the Holder thereof or a Person designated by such Holder (a "Certificated Note") or such other form as agreed to by the Company and [name of agent for DTC]. Only Notes denominated and payable in U.S. dollars may be issued as Book-Entry Notes. An owner of a Book-Entry Note will not be entitled to receive a certificate representing such Note, except in the event that use of the book-entry system for the Notes is discontinued.
The procedures to be followed during, and the specific terms of, the solicitation of offers by the Agents and the sale as a result thereof by the Company are explained below. Administrative and record-keeping responsibilities will be handled for the Company by its Treasury Department. The Company will advise the Agents and the Trustee in writing of those persons handling administrative responsibilities with whom the agents and the Trustee are to communicate regarding offers to purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the offering are explained below. Book-Entry Notes will be issued in accordance with the administrative procedures set forth in Part I hereof, as adjusted in accordance with changes in DTC's operating requirements, and Certificated Notes will be issued in accordance with the administrative procedures set forth in Part II hereof. Unless otherwise defined herein,
terms defined in the Indenture and the Notes shall be used herein as therein defined. Notes for which interest is calculated on the basis of a fixed interest rate, which may be zero, are referred to herein as "Fixed Rate Notes". Notes for which interest is calculated on the basis of a floating interest rate are referred to herein as "Floating Rate Notes". To the extent the procedures set forth below conflict with the provisions of the Notes, the Indenture, DTC's operating requirements or the Agency Agreement, the relevant provisions of the Notes, the Indenture, DTC's operating requirements and the Agency Agreement shall control.
PART I
ADMINISTRATIVE PROCEDURES FOR
BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for eligibility in the book-entry system maintained by DTC, [name of agent for DTC] will perform the custodial, document control and administrative functions described below, in accordance with its respective obligations under a Letter of Representations from the Company and [name of agent for DTC] to DTC dated as of the date hereof and a Medium-Term Note Certificate Agreement between [name of agent for DTC] and DTC and its obligations as a participant in DTC, including DTC's Same-Day Funds Settlement System ("SDFS").
ISSUANCE: On any date of settlement (as defined under
"Settlement" below) for one or more Book-Entry Notes,
the Company will issue one global security in fully
registered form without coupons (a "Global Security")
representing up to $[ ] principal amount of all such
Book-Entry Notes that have the same original issue
date, original issue discount provisions, if any,
Interest Payment Dates, Record Dates, reset,
extension, repayment, sinking fund and redemption
provisions, if any, Maturity Date and, in the case of
Fixed Rate Notes, interest rate, or, in the case of
Floating Rate Notes, initial interest rate, Base
Rate, Index Maturity, Interest Reset Period, Interest
Reset Dates, Spread or Spread Multiplier, if any,
minimum interest rate, if any, and maximum interest
rate, if any (all of the foregoing are collectively
referred to as the "Terms"). Each Global Security
will be dated and issued as of the date of Settlement
and authenticated by the Trustee. Each Global
Security will bear an original issue date, which will
be (i) with respect to an original Global Security
(or any portion thereof), the original issue date
specified in such Global Security and (ii) following
a consolidation of Global Securities, with respect to
the Global Security resulting from such
consolidation, the most recent Interest Payment Date
to which interest has been paid or duly provided for
on the predecessor Global Securities, regardless of
the date of authentication of such resulting Global
Security. No Global Security will
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represent (i) both Fixed Rate and Floating Rate
Book-Entry Notes or (ii) any Certificated Note.
IDENTIFICATION NUMBERS: The Company has arranged with the CUSIP Service
Bureau of Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a series of
CUSIP numbers, which series consists of approximately
900 CUSIP numbers and relates to Global Securities
representing Book-Entry Notes and book-entry
medium-term notes issued by the Company with other
series designations. [Name of agent for DTC], the
Company and DTC have obtained from the CUSIP Service
Bureau a written list of such reserved CUSIP numbers.
The Company will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that the
Company has assigned to Global Securities. [Name of
agent for DTC] will notify the Company at any time
when fewer than 100 of the reserved CUSIP numbers
remain unassigned to Global Securities, and, if it
deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities.
Upon obtaining such additional CUSIP numbers, the
Company shall deliver a list of such additional CUSIP
numbers to [name of agent for DTC] and DTC.
REGISTRATION: Global Securities will be issued only in fully
registered form without coupons. Each Global Security
will be registered in the name of Cede & Co., as
nominee for DTC, on the securities register for the
Notes maintained under the Indenture. The beneficial
owner of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with
respect to such Book-Entry Note, the "Participants")
to act as agent or agents for such owner in
connection with the Book-Entry system maintained by
DTC, and DTC will record in book-entry form, in
accordance with instructions provided by such
Participants, a credit balance with respect to such
beneficial owner of such Book-Entry Note in the
account of such Participants. The ownership interest
of such beneficial owner (or such participant) in
such Book-Entry Note will be recorded through the
records of such Participants or through the separate
records of such Participants and one or more indirect
participants in DTC.
TRANSFERS: Transfers of a Book-Entry Note will be accomplished
by book entries made by DTC and, in turn, by
Participants (and in certain cases, one or more
indirect participants in DTC) acting
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on behalf of beneficial transferors and transferees
of such Note.
EXCHANGES: [Name of agent for DTC] may deliver to DTC and the
CUSIP Service Bureau at any time a written notice of
consolidation (a copy of which shall be attached to
the resulting Global Security described below)
specifying (i) the CUSIP numbers of two or more
Outstanding Global Securities that represent (A)
Fixed-Rate Book-Entry Notes having the same Terms and
for which interest has been paid to the same date, or
(B) Floating Rate Book-Entry Notes having the same
terms and for which interest has been paid to the
same date, (ii) a date, occurring at least thirty
days after such written notice is delivered and at
least thirty days before the next Interest Payment
Date for such Book-Entry Notes, on which such Global
Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP
number, obtained from the Company, to be assigned to
such replacement Global Security. Upon receipt of
such a notice, DTC will send to its participants
(including [name of agent for DTC]) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to the
specified exchange date, [name of agent for DTC] will
deliver to the CUSIP Service Bureau a written notice
setting forth such exchange date and such new CUSIP
number and stating that, as of such exchange date,
the CUSIP numbers of the Global Securities to be
exchanged will no longer be valid. On the specified
exchange date, [name of agent for DTC] will exchange
such Global Securities for a single Global Security
bearing the new CUSIP number and the CUSIP numbers of
the exchanged Global Securities will, in accordance
with CUSIP Service Bureau procedures, be canceled and
not immediately reassigned. Notwithstanding the
foregoing, if the Global Securities to be exchanged
exceed $[ ] in aggregate principal amount, one Global
Security will be authenticated and issued to
represent each $[ ] of principal amount of the
exchanged Global Securities and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Global Securities (see "Denominations" below).
MATURITIES: Each Book-Entry Note will mature on a date (the
"Maturity Date") not less than 9 months after the
Original Issue Date for such Note.
PRICE TO PUBLIC: Each Book-Entry Note will be issued at the percentage
of principal amount specified in the Prospectus
Supplement (as
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defined in Section l(c) of the Agency Agreement) or
in a Pricing Supplement as defined in the Prospectus
Supplement relating to such Note.
DENOMINATIONS: The denomination of any Book-Entry Note will be a
minimum of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000. Global
Securities will be denominated in principal amounts
not in excess of $[ ]. If one or more Book-Entry
Notes having an aggregate principal amount in excess
of $[ ] would, but for the preceding sentence, be
represented by a single Global Security, then one
Global Security will be authenticated and issued to
represent each $[ ] principal amount of such
Book-Entry Note or Notes and an additional Global
Security will be authenticated and issued to
represent any remaining principal amount of such
Book-Entry Note or Notes. In such a case, each of the
Global Securities representing such Book-Entry Note
or Notes shall be assigned the same CUSIP number.
INTEREST: GENERAL. Except as set forth in the Book-Entry Note,
interest, if any, on each Book-Entry Note will accrue
from the original issue date for the first interest
period or the last date to which interest has been
paid, if any, for each subsequent interest period, on
the Global Security representing such Book-Entry
Note, and will be calculated and paid in the manner
described in such Book-Entry Note and in the
Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Book-Entry Note will include
interest accrued to but excluding the Interest
Payment Date or to but excluding the maturity of any
payment of principal (hereinafter referred to as
"Maturity"), other than a Maturity of a Fixed Rate
Book-Entry Note occurring on the 31st day of a month,
in which case such payment of interest will include
interest accrued to but excluding the 30th day of
such month, or to but excluding the date of
redemption or repayment in full of such Book-Entry
Note (hereinafter referred to as "Redemption").
Interest payable at the Maturity or upon Redemption
of a Book-Entry Note will be payable to the person to
whom the principal of such Note is payable. Standard
& Poor's Corporation will use the information
received in the pending deposit message described
under Settlement Procedure "C" below in order to
include the amount of any interest payable and
certain other information regarding the related
Global Security in the appropriate (daily or weekly)
bond report published by Standard & Poor's
Corporation.
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6
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date 15 calendar
days immediately preceding such Interest Payment Date
(whether or not a Business Day).
INTEREST PAYMENT DATES ON FIXED RATE BOOK-ENTRY
NOTES. Unless otherwise specified pursuant to
Settlement Procedure "A" below, interest payments on
Fixed Rate Book-Entry Notes will be made semiannually
on April 1 and October 1 of each year and at Maturity
or upon Redemption; PROVIDED, HOWEVER, that in the
case of a Fixed Rate Book-Entry Note issued between a
Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment
Date following the next succeeding Record Date. If
any Interest Payment Date for a Fixed Rate Book-Entry
Note is not a Business Day, the payment due on such
day shall be made on the next succeeding Business Day
and no interest shall accrue on such payment for the
period from and after such Interest Payment Date.
INTEREST PAYMENT DATES ON FLOATING RATE BOOK-ENTRY
NOTES. Interest Payments will be made on Floating
Rate Book-Entry Notes monthly, quarterly,
semi-annually or annually, or as specified in the
applicable Pricing Supplement. Unless otherwise set
forth in the Note, interest will be payable, in the
case of Floating Rate Book-Entry Notes with a monthly
Interest Payment Period, on the third Wednesday of
each month; with a quarterly Interest Payment Period,
on the third Wednesday of March, June, September and
December of each year; with a semi-annual Interest
Payment Period, on the third Wednesday of the two
months specified pursuant to Settlement Procedure "A"
below; and with an annual Interest Payment Period, on
the third Wednesday of the month specified pursuant
to Settlement Procedure "A" below; PROVIDED, HOWEVER,
that if an Interest Payment Date for a Floating Rate
Book-Entry Note would otherwise be a day that is not
a Business Day with respect to such Floating Rate
Book-Entry Notes, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Book-Entry Note, except in the case of
a Floating Book-Entry Note for which the Base Rate is
LIBOR, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date will be
the immediately preceding Business Day; and PROVIDED
FURTHER that in the case of a Floating Rate
Book-Entry Note issued between a Record Date and an
interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date.
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NOTICE OF INTEREST PAYMENT AND RECORD DATES. At the
written request of the Company, [name of agent for
DTC] will deliver to the Company and DTC a written
list of Record Dates and Interest Payment Dates that
will occur with respect to Book-Entry Notes. Promptly
after each Interest Determination Date for Floating
Rate Book-Entry Notes, [name of agent for DTC], as
Calculation Agent, will notify Standard & Poor's
Corporation of the interest rates determined on such
Interest Determination Date.
CALCULATION OF INTEREST: FIXED RATE BOOK-ENTRY NOTES. Interest on Fixed Rate
Book-Entry Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year of twelve 30-day months.
FLOATING RATE BOOK-ENTRY NOTES. Interest rates on
Floating Rate Book-Entry Notes will be determined as
set forth in the form of Notes. Interest on Floating
Rate Book- Entry Notes, except as otherwise set forth
therein, will be calculated on the basis of actual
days elapsed and a year of 360 days, except that in
the case of a Floating Rate Book-Entry Note for which
the Base Rate is the Treasury Rate, interest will be
calculated on the basis of the actual number of days
in the year.
PAYMENT OF PRINCIPAL PAYMENT OF INTEREST ONLY. Promptly after each Record
AND INTEREST: Date, [name of agent for DTC] will deliver to the
Company and DTC a written notice setting forth, by
CUSIP number, the amount of interest to be paid on
each Global Security on the following Interest
Payment Date (other than an Interest Payment Date
coinciding with Maturity or Redemption) and the total
of such amounts. DTC will confirm the amount payable
on each Global Security on such Interest Payment Date
by reference to the appropriate bond reports
published by Standard & Poor's Corporation. The
Company will pay to [name of agent for DTC], as
paying agent, the total amount of interest due on
such Interest Payment Date (other than at Maturity or
upon Redemption), and [name of agent for DTC] will
pay such amount to DTC, at the times and in the
manner set forth below under "Manner of Payment".
PAYMENTS AT MATURITY OR UPON REDEMPTION. On or about
the first Business Day of each month, [name of agent
for DTC] will deliver to the Company, DTC and the
Trustee a written list of principal and interest to
be paid on each Global Security maturing (at Maturity
or upon Redemption or otherwise) in such month. [Name
of agent for DTC], the
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Company and DTC will confirm the amounts of such principal and interest payments with respect to each such Global Security on or about the fifth Business Day preceding the Maturity Date or Redemption Date, as the case may be, of such Global Security. On or before the Maturity Date or Redemption Date, as the case may be, the Company will pay to [name of agent for DTC], as paying agent, the principal amount of such Global Security, together with interest due at such Maturity Date or Redemption Date, as the case may be. [Name of agent for DTC] will pay such amount to DTC at the times and in the manner set forth below under "Manner of Payment". If any Maturity Date or Redemption Date of a Global Security representing Book-Entry Notes is not a Business Day, the payment due on such day shall be made on the next succeeding Business Day and no interest shall accrue on such payment for the period from and after such Maturity Date or Redemption Date. Promptly after payment to DTC of the principal and interest due at Maturity or upon Redemption of such Global Security, the Trustee will cancel such Global Security in accordance with the Indenture and so advise the Company. On the first Business Day of each month, if [name of agent for DTC] is not the Trustee, then [name of agent for DTC] will deliver to the Trustee a written statement indicating the total principal amount of Outstanding Global Securities as of the immediately preceding Business Day.
MANNER OF PAYMENT. The total amount of any principal
and interest due on Global Securities on any Interest
Payment Date or at Maturity or upon Redemption shall
be paid by the Company to [name of agent for DTC] in
immediately available funds no later than 9:30 A.M.
(New York City time) on such date, or as soon as
possible thereafter. The Company will make such
payment on such Global Securities by instructing
[name of agent for DTC] to withdraw funds from an
account maintained by the Company at [name of agent
for DTC] or by wire transfer to [name of agent for
DTC]. The Company will confirm any such instructions
in writing to [name of agent for DTC]. Prior to 10
A.M. (New York City time) on the Maturity Date or
Redemption Date or as soon as possible thereafter,
[name of agent for DTC] will pay by separate wire
transfer (using Fedwire message entry instructions in
a form previously specified by DTC) to an account at
the Federal Reserve Bank of New York previously
specified by DTC, in funds available for immediate
use by DTC, each payment of principal (together with
interest thereon) due on a Global Security on such
date. On each Interest Payment Date (other than at
Maturity or upon
Redemption), interest payments shall be made to DTC,
in funds available for immediate use by DTC, in
accordance with existing arrangements between [name
of agent for DTC] and DTC. On each such date, DTC
will pay, in accordance with its SDFS operating
procedures then in effect, such amounts in funds
available for immediate use to the respective
Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in
the book-entry system maintained by DTC. None of the
Company (as issuer or as paying agent), the Trustee
or [name of agent for DTC] shall have any direct
responsibility or liability for the payment by DTC to
such Participants of the principal of and interest on
the Book-Entry Notes.
WITHHOLDING TAXES. The amount of any taxes required
under applicable law to be withheld from any interest
payment on a Book-Entry Note will be determined and
withheld by the Participant, indirect participant in
DTC or other Person responsible for forwarding
payments and materials directly to the beneficial
owner of such Note.
PROCEDURE FOR RATE The Company and the Agents will discuss from time to
SETTING AND POSTING: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne by,
Book-Entry Notes that may be sold as a result of the
solicitation of orders by the Agents. If the Company
decides to set prices of, and rates borne by, any
Book-Entry Notes in respect of which the Agents are
to solicit orders (the setting of such prices and
rates to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company by
REJECTION OF OFFERS: telephone of any offers to purchase Book-Entry Notes
received by such Agent. The Company will have the
sole right to accept any such offer to purchase
Book-Entry Notes. The Company may reject any such
orders in whole or in part.
Each Agent may, in its discretion reasonably
exercised, reject an offer to purchase Book-Entry
Notes received by it in whole or in part.
PREPARATION OF PRICING If an offer to purchase a Book- Entry Note is
SUPPLEMENT: accepted by or on behalf of the Company, the Company,
with the approval of the Agent that presented such
offer (the "Presenting Agent"), will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Book-Entry Note
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and will arrange to have 10 copies thereof filed with
the Commission in accordance with the applicable
paragraph of Rule 424(b) under the Act and will
supply at least 10 copies thereof (and additional
copies if requested) to the Presenting Agent and one
copy to the Trustee. The Presenting Agent will cause
a Pricing Supplement to be delivered to the purchaser
of the Book-Entry Note.
The copies of the Pricing Supplement to be sent to
the Presenting Agent shall be sent by telecopy or
overnight courier to arrive no later than 11:00 a.m.,
New York City time, on the second Business Day
following the sale date and shall be sent:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
or to such other address as the
Presenting Agent may specify.
Receipt of all telecopy
transmissions shall be confirmed by
telephone.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Out-dated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole
SOLICITATION: discretion, to instruct the Agents to suspendp at any
time, for any period of time permanently, the
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solicitation of orders to purchase Book-Entry Notes.
Upon receipt of such instructions, the Agents will
forthwith suspend solicitation until such time as the
Company has advised them that such solicitation may
be resumed.
AMENDMENT OR If the Company decides to amend or supplement the
SUPPLEMENT: Registration Statement (as defined in Section l(c) of
the Agency Agreement) or the Prospectus (except for a
supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and furnish the Agents with the proposed
amendment or supplement and with such certificates
and opinions as are required, all to the extent
required by and in accordance with the terms of the
Agency Agreement. Subject to the provisions of the
Agency Agreement the Company may file with the
Commission any supplement to the Prospectus relating
to the Notes. The Company will provide the Agents,
the Trustee and [name of agent for DTC] with copies
of any supplement and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Book-Entry Notes
there shall be any outstanding offers to purchase
Book-Entry Notes that have been accepted by the
Company but for which settlement has not yet
occurred, the Company will promptly advise the
relevant Agent, the Trustee and [name of agent for
DTC] whether such orders may be settled and whether
copies of the Prospectus as supplemented to the time
of the suspension may be delivered in connection with
the settlement of such sales. The Company will have
the sole responsibility for such decision and for any
arrangements that may be made in the event that the
Company determines that such orders may not be
settled or that copies of such Prospectus may not be
so delivered.
PROCEDURE FOR RATE When the Company has determined to change the
CHANGES: interest rates of Book- Entry Notes being offered, it
will promptly advise the Agents and the Agents will
forthwith suspend solicitation of orders. The Agents
will telephone the Company with recommendations as to
the changed interest rates. At such time as the
Company has advised the Agents of the new interest
rates, the Agents may resume solicitation of orders.
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Until such time, only "indications of interest" may
be recorded.
DELIVERY OF PROSPECTUS: A copy of the Prospectus and a Pricing Supplement
relating to a Book-Entry Note must accompany or
precede the earliest of any written offer of such
Book-Entry Note, confirmation of the purchase of such
Book-Entry Note and payment for such Book-Entry Note
by its purchaser. If notice of a change in the terms
of the Book-Entry Notes is received by the Agents
between the time an order for a Book-Entry Note is
placed and the time written confirmation thereof is
sent by the Presenting Agent to a customer or his
agent, such confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting forth the
terms in effect when the order was placed. Subject to
"Suspension of Solicitation; Amendment or Supplement"
above, the Presenting Agent will deliver a Prospectus
and Pricing Supplement as herein described with
respect to each Book-Entry Note sold by it. The
Company will make such delivery if such Book-Entry
Note is sold directly by the Company to a purchaser
(other than an Agent).
CONFIRMATION: For each offer to purchase a Book-Entry Note
solicited by an Agent and accepted by the Company,
the Presenting Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
the details set forth below and delivery and payment
instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in payment for a Book-Entry Note and the
authentication and issuance of the Global Security
representing such Book-Entry Note shall constitute
"settlement" with respect to such Book-Entry Note.
All orders accepted by the Company will be settled on
the third Business Day following the date of sale of
such Book-Entry Note pursuant to the timetable for
settlement set forth below unless the Company and the
purchaser agree to settlement on another day which
shall be no earlier than the next Business Day
following the date of sale.
DETAILS FOR SETTLEMENT: Settlement Procedures with regard to each Book-Entry
Note sold by the Company through any Agent, as agent,
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shall be as follows:
A. The Presenting Agent will advise the Company by telephone of the following settlement information:
1. Principal amount of the Book-Entry Note.
2. In the case of a Fixed Rate Book-Entry Note, the interest rate or, in the case of a Floating Rate Book-Entry Note, the Base Rate, initial interest rate (if known at such time), Index Maturity, Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any), minimum interest rate (if any).
3. Issuance price of the Book-Entry Note.
4. Trade and Settlement dates.
5. Maturity Date and, if applicable, the Extension Period and Final Maturity Date.
6. Record Dates, Interest Payment Dates and the Interest Payment Period.
7. Optional Reset Dates, if any.
8. Redemption provisions, if any.
9. Repayment or sinking fund provisions, if any.
10. Presenting Agent's DTC participant account number and commission, to be paid in the form of a discount upon settlement.
11. Whether such Book-Entry Note is issued at an original issue discount and, if so, the total amount of OID, the yield to maturity and the initial accrual period OID.
12. Taxpayer identification number of the purchaser.
13. Net proceeds to the Company.
14. Any other applicable terms.
B. The Company will assign a CUSIP number to the Global Security representing such Book-Entry Note, assign an order number to such Book-Entry Note and then advise [name of agent for DTC] by telephone (confirmed in writing at any time on the same date) or electronic transmission of the information set forth in Settlement Procedure "A" above, such CUSIP number, such order number, the name of the Presenting Agent and any other applicable information. The Company will also notify the Presenting Agent by telephone or electronic transmission of such CUSIP number as soon as practicable. The Company will provide [name of agent for DTC] with registration instructions and Taxpayer Identification Number (if the Note is not to be registered to DTC or its nominee).
C. [Name of agent for DTC] will enter a pending deposit message through DTC's Participant Terminal System providing the following settlement information to DTC (which shall route such information to Standard & Poor's Corporation and Interactive Data Corporation), the Presenting Agent and, upon request, the Trustee:
1. The information set forth in Settlement Procedure "A".
2. Identification as a Fixed Rate Book-Entry Note or a Floating Rate Book-Entry Note.
3. Initial Interest Payment Date for such Book-Entry Note, number of days by which such date succeeds the related Record Date (which, in the case of Floating Rate Book-Entry Notes that reset daily or weekly, shall be the DTC Record Date, which is the date five calendar days immediately preceding the applicable Interest Payment Date and, in the case of all other Book-Entry Notes, shall be the Record Date as defined in such Notes)
and amount of interest payable on
such Interest Payment Date.
4. The Interest Payment Period.
5. CUSIP number of the Global Security representing such Book-Entry Note.
6. Whether such Global Security will represent any other Book-Entry Note (to the extent known at such time).
7. Account numbers of participant accounts maintained by DTC on behalf of the Presenting Agent and the Trustee.
D. To the extent the Company has not already done so, the Company will deliver to the Trustee a Global Security in a form that has been approved by the Company, the Agents and the Trustee.
E. The Trustee will complete such Book-Entry Note, stamp the appropriate legend, as instructed by DTC, if not already set forth thereon, and authenticate the Global Security representing such Book-Entry Note in accordance with the terms of the written order of the Company then in effect.
F. DTC will credit such Book-Entry Note to
[name of agent for DTC]'s participant
account at DTC.
G. [Name of agent for DTC] will enter an SDFS deliver order through DTC's Participant Terminal System instructing DTC to (i) debit such Book-Entry Note to [name of agent for DTC]'s participant account and credit such Book-Entry Note to the Presenting Agent's participant account and (ii) debit the Presenting Agent's settlement account and credit [name of agent for DTC]'s settlement account for an amount equal to the price of such Book-Entry Note less the Presenting Agent's commission. The entry of such a deliver order shall constitute a representation and warranty by [name of agent for DTC] to DTC that (i) the Global Security representing such Book-Entry Note has been
issued and authenticated and (ii)[name of
agent for DTC] is holding such Global
Security pursuant to the Medium-Term Note
Certificate Agreement between [name of agent
for DTC] and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to debit
such Book-Entry Note to the Presenting
Agent's participant account and credit such
Book-Entry Note to the participant accounts
of the Participants with respect to such
Book-Entry Note and (ii) to debit the
settlement accounts of such Participants and
credit the settlement account of the
Presenting Agent for an amount equal to the
price of such Book-Entry Note.
I. Transfers of funds in accordance with SDFS
deliver orders described in Settlement
Procedures "G" and "H" will be settled in
accordance with SDFS operating procedures in
effect on the settlement date.
J. [Name of agent for DTC] will, upon receipt
of funds from the Presenting Agent in
accordance with Settlement Procedure "G",
credit or wire transfer to an account
specified by the Company funds available for
immediate use in the amount transferred to
[name of agent for DTC] in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such Book-Entry
Note a confirmation order or orders through
DTC's institutional delivery system or by
mailing a written confirmation to such
purchaser.
SETTLEMENT PROCEDURES For orders of Book-Entry Notes solicited by an Agent
TIMETABLE: and accepted by the Company for settlement on the
first Business Day after the sale date, Settlement
Procedures "A" through "K" set forth above shall be
completed as soon as possible but not later than the
respective times (New York City time) set forth
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below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one Business Day
after the sale date, Settlement Procedures "A", "B"
and "C" shall be completed as soon as practicable but
no later than 11:00 A.M. and 12:00 Noon on the first
Business Day after the sale date and no later than
2:00 P.M. on the Business Day before the settlement
date, respectively. If the initial interest rate for
a Floating Rate Book-Entry Note has not been
determined at the time that Settlement Procedure "A"
is completed, Settlement Procedures "B" and "C" shall
be completed as soon as such rate has been determined
but no later than 12:00 Noon and 2:00 P.M.,
respectively, on the Business Day before the
settlement date. Settlement Procedure "I" is subject
to extension in accordance with any extension of
Fedwire closing deadlines and in the other events
specified in SDFS operating procedures in effect on
the settlement date.
If settlement of a Book-Entry Note is rescheduled or
canceled, [name of agent for DTC] will deliver to
DTC, through DTC's Participant Terminal System, a
cancelation message to such effect by no later than
2:00 P.M. on the Business Day immediately preceding
the scheduled settlement date.
FAILURE TO SETTLE: If [name of agent for DTC] fails to enter an SDFS
deliver order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", then, upon
written request of the Company (which may be by
telecopy) [name of agent for DTC] shall deliver to
DTC, through DTC's Participant Terminal System, as
soon as practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to [name of agent
for DTC]'s participant account. DTC will process the
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withdrawal message, provided that [name of agent for
DTC]'s participant account contains a principal
amount of the Global Security representing such
Book-Entry Note that is at least equal to the
principal amount to be debited. If a withdrawal
message is processed with respect to all the
Book-Entry Notes represented by a Global Security,
the Trustee will cancel such Global Security in
accordance with the Indenture and so advise the
Company and [name of agent for DTC], and [name of
agent for DTC] will make appropriate entries in its
records. The CUSIP number assigned to such Global
Security shall, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned. If a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security,
[name of agent for DTC] will exchange such Book-Entry
Note for two Global Securities, one of which shall
represent such Book-Entry Notes and shall be canceled
immediately after issuance and the other of which
shall represent the other Book-Entry Notes previously
represented by the surrendered Global Security and
shall bear the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note is not timely paid to the Participants with respect to such Note by the beneficial purchaser thereof (or a Person, including an indirect participant in DTC, acting on behalf of such purchaser), such Participants and, in turn, the Presenting Agent may enter SDFS deliver orders through DTC's Participant Terminal System reversing the orders entered pursuant to Settlement Procedures "H" and "G" respectively. Thereafter [name of agent for DTC] will deliver the withdrawal message and take the related actions described in the preceding paragraph. If such failure shall have occurred for any reason other than a default by the Presenting Agent in the performance of its obligations hereunder and under the Agency Agreement, then the Company will reimburse the Presenting Agent or [name of agent for DTC], as applicable, on an equitable basis for the loss of the use of funds during the period when they were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a Book-Entry Note, DTC may take any actions in accordance with its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of
the Book-Entry Notes to have been represented by a
Global Security, [name of agent for DTC] will
provide, in accordance with Settlement Procedure "E",
for the authentication and issuance of a Global
Security representing the other Book-Entry Notes to
have been represented by such Global Security and
will make appropriate entries in its records.
TRUSTEE AND [NAME OF Nothing herein shall be deemed to require the Trustee
AGENT FOR DTC] or [name of agent for DTC] to risk or expend its own
NOT TO RISK FUNDS: funds in connection with any payment to the Company,
DTC, the Agents or the purchaser, it being understood
by all parties that payments made by the Trustee or
[name of agent for DTC] to the Company, DTC, the
Agents or the purchaser shall be made only to the
extent that funds are provided to the Trustee or
[name of agent for DTC] for such purpose.
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Book-Entry Notes, but neither [name of
agent for DTC] nor any Agent will have any obligation
or liability to the Company or the Trustee in respect
of the authenticity of the signature of any officer,
employee or agent of the Company or the Trustee on
any Book-Entry Note.
PAYMENT OF EXPENSES: Each Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by such Agent during that month that are
reimbursable to it pursuant to the terms of the
Agency Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
PERIODIC STATEMENTS Upon the request of the Company, [name of agent for
FROM [NAME OF DTC] will send to the Company a statement setting
AGENT FOR DTC]: forth the principal amount of Book-Entry Notes
Outstanding as of that date and setting forth a brief
description of any sales of Book- Entry Notes of
which the Company has advised [name of agent for DTC]
but which have not yet been settled.
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PART II
ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
The Trustee will serve as registrar and transfer agent and authenticating and paying agent in connection with the Certificated Notes.
ISSUANCE: Each Certificated Note will be dated and issued as of
the date of Settlement and authenticated by the
Trustee. Each Certificated Note will bear an Original
Issue Date, on which will be (i) with respect to an
original Certificated Note (or any portion thereof),
its original issuance date (which will be the
settlement date) and (ii) with respect to any
Certificated Note (or portion thereof) issued
subsequently upon transfer or exchange of a
Certificated Note or in lieu of a destroyed, lost or
stolen Certificated Note, the Original Issue Date of
the predecessor Certificated Note, regardless of the
date of authentication of such subsequently issued
Certificated Note.
REGISTRATION: Certificated Notes will be issued only in fully
registered form without coupons.
TRANSFER AND EXCHANGES: A Certificated Note may be presented for transfer or
exchange at the office of the Trustee at Attn:
J.P. Morgan Trust Company, National Association
4 New York Plaza
New York, NY 10004
Attn: Institutional Trust Services.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but
different authorized denominations without service
charge. Certificated Notes will not be exchangeable
for Book-Entry Notes.
MATURITIES: Each Certificated Note will mature on a date not less
than 9 months after the date of delivery by the
Company of such Certificated Note (the "Closing
Date").
DENOMINATIONS: The denomination of any Certificated Note denominated
in U.S. dollars will be a minimum of $1,000 or any
amount in excess thereof that is an integral multiple
of $1,000.
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INTEREST: GENERAL. Interest, if any, on each Certificated Note
will accrue from the original issue date for the
first interest period or the last date to which
interest has been paid, if any, for each subsequent
interest period, and will be calculated and paid in
the manner described in such Note and in the
Prospectus, as supplemented by the applicable Pricing
Supplement. Unless otherwise specified therein, each
payment of interest on a Certificated Note will
include interest accrued to but excluding the
Interest Payment Date or to but excluding Maturity or
to but excluding the date of Redemption.
RECORD DATES. The Record Date with respect to any
Interest Payment Date shall be the date 15 calendar
days immediately preceding such Interest Payment Date
whether or not such date shall be a Business Day.
FIXED RATE CERTIFICATED NOTES. Unless otherwise
specified pursuant to Settlement Procedure "A" below,
interest payments on Fixed Rate Certificated Notes
will be made semiannually on May 1 and November 1 of
each year and at Maturity or upon Redemption;
PROVIDED, HOWEVER, that in the case of a Fixed Rate
Certificated Note issued between a Record Date and an
Interest Payment Date, the first interest payment
will be made on the Interest Payment Date following
the next succeeding Record Date. If any Interest
Payment Date for or the date of Maturity or
Redemption of a Fixed Rate Certificated Note is not a
Business Day, the payment due on such day shall be
made on the next succeeding Business Day and no
interest shall accrue on such payment for the period
from and after such Interest Payment Date or Maturity
or Redemption, as the case may be.
FLOATING RATE CERTIFICATED NOTES. Interest payments
will be made on Floating Rate Certificated Notes
monthly, quarterly, semi-annually or annually or as
specified in the applicable Pricing Supplement.
Interest will be payable, in the case of Floating
Rate Certificated Notes with a monthly Interest
Payment Period, on the third Wednesday of each month;
with a quarterly interest Payment Period, on the
third
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Wednesday of March, June, September and December of
each year; with a semiannual Interest Payment Period,
on the third Wednesday of the two months specified
pursuant to Settlement Procedure "A" below; and with
an annual Interest Payment Period, on the third
Wednesday of the month specified pursuant to
Settlement Procedure "A" below; PROVIDED, HOWEVER,
that if any Interest Payment Date for a Floating Rate
Certificated Note would otherwise be a day that is
not a Business Day with respect to such Floating Rate
Certificated Note, such Interest Payment Date will be
the next succeeding Business Day with respect to such
Floating Rate Certificated Note, except in the case
of a Floating Rate Certificated Note for which the
Base Rate is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest Payment
Date will be the immediately preceding Business Day;
and PROVIDED FURTHER, that in the case of a Floating
Rate Certificated Note issued between a Record Date
and an Interest Payment Date, the first interest
payment will be made on the Interest Payment Date
following the next succeeding Record Date.
CALCULATION OF INTEREST: FIXED RATE CERTIFICATED NOTES. Interest on Fixed Rate
Certificated Notes (including interest for partial
periods) will be calculated on the basis of a 360-day
year or twelve 30-day months.
FLOATING RATE CERTIFICATED NOTES. Interest rates on
Floating Rate Certificated Notes will be determined
as set forth in the form of Notes. Interest on
Floating Rate Certificated Notes, except as otherwise
set forth therein, will be calculated on the basis of
actual days elapsed and a year of 360 days, except
that in the case of a Floating Rate Certificated Note
for which the Base Rate is the Treasury Rate,
interest will be calculated on the basis of the
actual number of days in the year.
PAYMENTS OF PRINCIPAL The Trustee or Paying Agent, as the case may be, will
AND INTEREST: pay the principal amount of each Certificated Note at
Maturity upon presentation of such Certificated Note
to the Trustee or Paying Agent, as the case may be.
Such payment, together with payment of interest due
at Maturity of such
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Certificated Note, will be made in funds available
for immediate use by the Trustee and in turn by the
Holder of such Certificated Note. Certificated Notes
presented to the Trustee at Maturity for payment will
be canceled by the Trustee in accordance with the
Indenture. All interest payments on a Certificated
Note (other than interest due at Maturity) will be
made by check drawn on the Trustee, the Paying Agent,
as the case may be, or another Person appointed by
the Trustee, mailed by the Trustee to the Person
entitled thereto as provided in such Note and the
Indenture; PROVIDED, HOWEVER, that the holder of
$10,000,000 or more of the Certificated Notes with
similar tenor and terms will be entitled to receive
payment by wire transfer in U.S. dollars, but only if
the Trustee, or the Paying Agent, as the case may be,
shall have received appropriate payment instructions
in writing fifteen calendar days prior to any
Interest Payment Date or payment of principal due at
Maturity. Within 10 days after each Record Date, the
Trustee will furnish the Company with a list of
interest payments to be made on the following
Interest Payment Date for each Certificated Note and
in total for all Certificated Notes. The Trustee will
provide monthly to the Company lists of principal and
interest, to the extent ascertainable, to be paid on
Certificated Notes maturing in the next month. The
Company will provide to the Trustee not later than
any payment date sufficient moneys to pay in full all
principal and interest payments due on the payment
date. The Trustee shall make all such payments in
accordance with the terms of the Notes.
The Trustee will be responsible for withholding taxes
on interest paid on Certificated Notes as required by
applicable law.
If the Maturity or Redemption of a Certificated Note
is not a Business Day, the payment due on such day
shall be made on the next succeeding Business Day and
no interest shall accrue on such payment date for the
period from and after such Maturity or date of
Redemption, as the case may be.
PROCEDURE FOR RATE The Company and the Agents will discuss from time to
SETTING AND POSTING: time the aggregate principal amount of, the issuance
price of, and the interest rates to be borne
|
by Certificated Notes that may be sold as a result of
the Solicitation of offers by the Agents. If the
Company decides to set prices of, and rates borne by,
any Notes in respect of which the Agents are to
solicit orders (the setting of such prices and rates
to be referred to herein as "posting") or if the
Company decides to change prices or rates previously
posted by it, it will promptly advise the Agents of
the prices and rates to be posted.
ACCEPTANCE AND Each Agent will promptly advise the Company of any
REJECTION OF OFFERS: offers to purchase Certificated Notes received by
such Agent. The Company will have the sole right to
accept any such offer to purchase Certificated Notes.
The Company may reject any such offer in whole or in
part.
Each Agent may, in its discretion reasonably
exercised, reject any offer to purchase Certificated
Notes received by it in whole or in part.
PREPARATION OF If any offer to purchase a Certificated Note is
PRICING SUPPLEMENT: accepted by the Company, the Company, with the
approval of the Presenting Agent, will prepare a
Pricing Supplement reflecting the terms of such
Certificated Note and will arrange to have 10 copies
thereof filed with the Commission in accordance with
the applicable paragraph of Rule 424(b) under the Act
and will supply at least 10 copies thereof (or
additional copies if requested) to the Presenting
Agent and one copy to the Trustee. The Presenting
Agent will cause a Pricing Supplement to be delivered
to the purchaser of the Certificated Note.
The copies of the Pricing Supplement to be sent to
the Presenting Agent shall be sent by telecopy or
overnight courier to arrive no later than 11:00 a.m.,
New York City time, on the Business Day following the
sale date and shall be sent:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
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6
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
if to [Agent], to it at:
[Address]
Attn:
Telephone:
Telecopy:
or to such other address as the Presenting Agent may
specify. Receipt of all telecopy transmissions shall
be confirmed by telephone.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the Pricing
Supplement to Prospectuses prior to their use.
Outdated Pricing Supplements and the Prospectuses to
which they are attached (other than those retained
for files) will be destroyed.
SUSPENSION OF The Company reserves the right, in its sole
SOLICITATION; AMENDMENT discretion, to instruct the Agents to suspend at any
OR SUPPLEMENT OF time, for any period of time or permanently, the
PROSPECTUS: solicitation of offers to purchase Certificated
Notes. Upon receipt of such instructions from the
Company, the Agents will forthwith suspend
solicitation of offers to purchase Certificated Notes
from the Company until such time as the Company has
advised them that such solicitation may be resumed.
If the Company decides to amend or supplement the
Registration Statement or the Prospectus (except for
a supplement relating to an offering of securities
other than the Notes), it will promptly advise the
Agents and the Trustee and will furnish the Agents
and the Trustee with the proposed amendment or
supplement and with such certificates and opinions as
are required, all to the extent required by and in
accordance with the terms of the Agency
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Agreement. Subject to the provisions of the Agency
Agreement, the Company will mail to the Commission
for filing therewith any supplement to the Prospectus
relating to the Notes, provide the Agents and the
Trustee with copies of any such supplement and
confirm to the Agents that such supplement has been
filed with the Commission pursuant to the applicable
paragraph of Rule 424(b).
In the event that at the time the Company suspends
solicitation of offers to purchase Certificated Notes
there shall be any outstanding offers to purchase
Certificated Notes that have been accepted by the
Company but for which settlement has not yet
occurred, the Company will promptly advise the
relevant Agent and the Trustee whether such sales may
be settled and whether copies of the Prospectus as
supplemented to the time of the suspension may be
delivered in connection with the settlement of such
sales. The Company will have the sole responsibility
for such decision and for any arrangements which may
be made in the event that the Company determines that
such sales may not be settled or that copies of such
Prospectus may not be so delivered.
PROCEDURE FOR When the Company has determined to change the
RATE CHANGES: interest rates of Certificated Notes being offered,
it will promptly advise the Agents and the Agents
will forthwith suspend solicitation of orders. The
Agents will telephone the Company with
recommendations as to the changed interest rates. At
such time as the Company has advised the Agents of
the new interest rates, the Agents may resume
solicitation of orders. Until such time, only
"indication of interest" may be recorded.
DELIVERY OF PROSPECTUS: A copy of the Prospectus and Pricing Supplement
relating to a Certificated Note must accompany or
precede the earliest of any written offer of such
Certificated Note, confirmation of the purchase of
such Certificated Note and payment for such
Certificated Note by its purchaser. If notice of a
change in the terms of the Certificated Notes is
received by the Agents between the time an order for
a Certificated Note is placed and the time written
confirmation thereof is sent by the Presenting Agent
|
to a customer or his agent, such confirmation shall
be accompanied by a Prospectus and Pricing Supplement
setting forth the terms in effect when the order was
placed. Subject to "Suspension of Solicitation;
Amendment or Supplement" above, the Presenting Agent
will deliver a Prospectus and Pricing Supplement as
herein described with respect to each Certificated
Note sold by it. The Company will make such delivery
of such Certificated Note if sold directly by the
Company to a purchaser (other than any Agent).
CONFIRMATION: For each offer to purchase a Certificated Note
solicited by an Agent and accepted by the Company,
the Presenting Agent will issue a confirmation to the
purchaser, with a copy to the Company, setting forth
the details set forth below and delivery and payment
instructions.
SETTLEMENT: The receipt by the Company of immediately available
funds in exchange for an authenticated Certificated
Note delivered to the Presenting Agent and the
Presenting Agent's delivery of such Certificated Note
against receipt of immediately available funds shall,
with respect to such Certificated Note, constitute
"settlement". The Closing Date with respect to any
offer to purchase Certificated Notes accepted by the
Company will be a date on or before the third
Business Day next succeeding the date of acceptance
unless otherwise agreed by the purchaser and the
Company and shall be specified upon acceptance of
such offer (but shall be no earlier than the next
Business Day following the date of acceptance). The
Company will instruct the Trustee to effect delivery
of each Certificated Note no later than 1:00 P.M.,
New York City time, on the Closing Date to the
Presenting Agent for delivery to the purchaser.
DETAILS FOR SETTLEMENT: For each offer to purchase a Certificated Note that
is accepted by the Company, the Presenting Agent will
provide (unless provided by the purchaser directly to
the Company) by telephone the following information
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to the Company:
1. Exact name of registered owner.
2. Exact address of registered owner and address for payment of principal and interest.
3. Taxpayer identification number of registered owner.
4. Principal amount of the Certificated Note.
5. In the case of a Fixed Rate Certificated Note, the interest rate or, in the case of a Floating Rate Certificated Note, the initial interest rate (if known at such time), Base Rate, Index Maturity, Interest Reset Period, Interest Reset Dates, Spread or Spread Multiplier (if any), minimum interest rate (if any) and maximum interest rate (if any).
6. Issuance price (including currency) of the Certificated Note.
7. Trade or Settlement dates.
8. Maturity Date and, if applicable, the Extension Period and Final Maturity Date.
9. Interest Payment Dates and the Interest Payment Period.
10. Whether such Certificated Note is issued at an original issue discount and, if so, the total amount of OID, the yield to maturity and the initial accrual period OID.
11. Optional Reset Dates, if any.
12. Redemption provisions, if any.
13. Repayment of sinking fund provisions, if any.
14. Presenting Agent's commission, determined as provided in Section 2 of the Agency Agreement, to be paid in the form of a discount upon settlement.
15. Any other applicable terms.
The Presenting Agent will advise the Company by telephone, confirmed in writing of the foregoing information (unless provided by the purchaser directly to the Company) for each offer to purchase a Certificated Note solicited by such Agent and accepted by the Company in time for the Trustee to prepare and authenticate the required Certificated
Note. Before accepting any offer to purchase a
Certificated Note to be settled in less than three
Business Days, the Company shall verify that the
Trustee will have adequate time to prepare and
authenticate such Certificated Note.
After receiving from the Presenting Agent the detail
for each offer to purchase a Certificated Note that
has been accepted by the Company, the Company will,
after recording the details and any necessary
calculations, provide appropriate documentation to
the Trustee, including the information provided by
the Presenting Agent necessary for the preparation
and authentication of such Certificated Note. Prior
to preparing the Certificated Note for delivery (but
in any case no later than 10:00 A.M. on the Business
Day next preceding the Closing Date therefor), the
Trustee will confirm the details of such issue with
the Presenting Agent by telephone.
NOTE DELIVERIES AND Upon receipt of appropriate documentation and
CASH PAYMENT: instructions, the Company will cause the Trustee to
prepare and authenticate the pre printed 4-ply
Certificated Note packet containing the following
documents in forms approved by the Company, the
|
Presenting Agent and the Trustee:
1. Certificated Note with customer receipt.
2. Stub 1 - For the Presenting Agent.
3. Stub 2 - For the Company.
4. Stub 3 - For the Trustee.
Each Certificated Note shall be authenticated on the Closing Date therefor. The Trustee will authenticate each Certificated Note and deliver it to the Presenting Agent (and deliver the stubs as indicated above), all in accordance with written instructions (or oral instructions confirmed in writing (which may be given by telex or telecopy) on the next Business Day) from the Company. Delivery by the Trustee of each Certificated Note will be made upon confirmation from the Company that it has received payment therefor (provided that the Company shall have previously notified the Presenting Agent that delivery will not occur until such confirmation).
Upon verification ("Verification") by the Presenting
Agent that a Note has been prepared and properly
authenticated by the Trustee and registered in the
name of the purchaser in the proper principal amount
and other terms in accordance with the aforementioned
written instructions or confirmation, payment will be
made to the Company by the Presenting Agent the same
day as the Presenting Agent's receipt of the
Certificated Note in immediately available funds.
Such payment shall be made by the Presenting Agent
(i) only upon prior receipt by the Presenting Agent
of immediately available funds from or on behalf of
the purchaser unless the Presenting Agent decides, at
its option, to advance its own funds for such payment
against subsequent receipt of funds from the
purchaser and (ii) only after the Trustee has made
the Certificated Note available for inspection by the
Presenting Agent.
Upon delivery of a Certificated Note to the
Presenting Agent, Verification by the Presenting
Agent and the giving of instructions for payment, the
Presenting Agent shall promptly deliver such Note to
the purchaser.
In the event any Certificated Note is incorrectly
prepared, the Trustee shall promptly issue a
replacement Certificated Note in exchange for the
incorrectly prepared Certificated Note.
FAILURE TO SETTLE: If the Presenting Agent, at its own option, has
advanced its own funds for payment against subsequent
receipt of funds from the purchaser, and if the
purchaser shall fail to make payment for the
Certificated Note on the Closing Date therefor, the
Presenting Agent will promptly notify the Trustee and
the Company by telephone, promptly confirmed in
writing (but no later than the next Business Day). In
such event, the Company shall promptly provide the
Trustee with appropriate documentation and
instructions consistent with these procedures for the
return of the Certificated Note to the Trustee and
the Presenting Agent will promptly return such Note
to the Trustee. Upon (i) confirmation from the
Trustee in writing (which may be given by telex or
telecopy) that the Trustee has received such Note and
|
(ii) confirmation from the Presenting Agent in
writing (which may be given by telex or telecopy)
that the Presenting Agent has not received payment
from the purchaser (the matters referred to in
clauses (i) and (ii) are referred to hereinafter as
the "Confirmations"), the Company will promptly pay
to the Presenting Agent an amount in immediately
available funds equal to the amount previously paid
by the Presenting Agent in respect of such
Certificated Note. Assuming receipt of the
Certificated Note by the Trustee and of the
Confirmations by the Company, such payment will be
made on the Closing Date, if reasonably practical,
and in any event not later than the Business Day
following the date of receipt of the Certificated
Note and Confirmations. If a purchaser shall fail to
make payment for the Certificated Note for any reason
other than the failure of the Presenting Agent to
provide the necessary information to the Company as
described above for settlement or to provide a
confirmation to the purchaser within a reasonable
period of time as described above or otherwise to
satisfy its obligation hereunder or in the Agency
Agreement, and if the Presenting Agent shall have
otherwise complied with its obligations hereunder and
in the Agency Agreement, the Company will reimburse
the Presenting Agent on an equitable basis for its
loss of the use of funds during the period when they
were credited to the account of the Company.
Immediately upon receipt of the Certificated Note in
respect of which the failure occurred, the Trustee
will void such Certificated Note, make appropriate
entries in its records and destroy the Certificated
Note; and upon such action, the Certificated Note
will be deemed not to have been issued, authenticated
and delivered.
TRUSTEE NOT TO RISK Nothing herein shall be deemed to require the Trustee
FUNDS: to risk or expend its own funds in connection with
any payment to the Company, the Agents or the
purchaser, it being understood by all parties that
payments made by the Trustee to either the Company or
the Agents shall be made only to the extent that
funds are provided to the Trustee for such purpose.
|
AUTHENTICITY OF The Company will cause the Trustee to furnish the
SIGNATURES: Agents from time to time with the specimen signatures
of each of the Trustee's officers, employees or
agents who has been authorized by the Trustee to
authenticate Certificated Notes but the Agents will
have no obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent of the
Company or the Trustee on any Certificated Note.
PAYMENT OF EXPENSES: Each Agent shall forward to the Company, on a monthly
basis, a statement of the out-of-pocket expenses
incurred by such Agent during that month which are
reimbursable to it pursuant to the terms of the
Agency Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
PERIODIC STATEMENTS Upon the request of the Company, [name of agent for
FROM [NAME OF AGENT DTC] will send to the Company a statement setting
FOR DTC]: forth the principal amount of Certificated Notes
Outstanding as of that date and setting forth a brief
description of any sales of Certificated Notes of
which the Company has advised [name of agent for DTC]
but which have not yet been settled.
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EXHIBIT B
Ryder System, Inc.
Medium-Term Notes
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
[ Date ]
Ryder System, Inc.
3600 N.W. 82nd Avenue,
Miami, Florida 33166
Attention: Treasurer
Subject in all respects to the terms and conditions of the
Selling Agency Agreement (the "Agreement") dated [ ], between [Agent], [Agent],
[Agent] and you, the undersigned agrees to purchase the following Notes of Ryder
System, Inc.:
Aggregate Principal Note:
Interest Rate:
Date of Maturity:
Interest Payment Dates:
Record Dates:
Other Terms of Notes:
Discount: % of Principal Amount
Purchase Price: % of Principal Amount [plus accrued interest, if
any, from , ]
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Purchase Date and Time:
Place for Delivery of Notes and Payment Therefor:
Method of Payment:
Modification, if any, in the
requirements to deliver the
documents specified in Sections 2(b)
or 6(b) or other Sections of the
Agreement:
Period during which additional Notes
may not be sold pursuant to
Section 4(m) of the Agreement:
[Agent]
[Agent]
[Agent]
Accepted:
Ryder System, Inc,
EXHIBIT 4.1
RYDER SYSTEM, INC.
and
J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION,
as Trustee
INDENTURE
Dated as of [ ], 2003
CROSS-REFERENCE TABLE
Reconciliation and tie between Indenture dated as of [ ], 2003, and the Trust Indenture Act of 1939. This reconciliation section does not constitute a part of the Indenture.
Trusted Indenture Act of 1939
Section Indenture Section
------------------------------- -----------------
310 (a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(b)........................................................ 7.08;7.10;
10.02
(c)........................................................ N.A.
311 (a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312 (a)........................................................ 2.06
(b)........................................................ 10.03
(c)........................................................ 10.03
313 (a)........................................................ 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 10.02
(d)........................................................ 7.06
314 (a)........................................................ 4.02; 10.02
(b)........................................................ N.A.
(c)(1)..................................................... 10.04
(c)(2)..................................................... 10.04
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 10.05
(f)........................................................ N.A.
315 (a)........................................................ 7.01(b)
(b)........................................................ 7.05; 10.02
(c)........................................................ 7.01(a)
(d)........................................................ 7.01(c)
(e)........................................................ 6.11
316 (a) (last sentence)........................................ 2.10
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
317 (a)(1)..................................................... 6.08
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Trusted Indenture Act of 1939
Section Indenture Section
------------------------------- -----------------
(a)(2)..................................................... 6.09
(b)........................................................ 2.05
318 (a)........................................................ 10.01
----------------------
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N.A. means Not Applicable.
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions and Incorporation by Reference
SECTION 1.01. Definitions...............................................................................1
SECTION 1.02. Incorporation by Reference of Trust Indenture Act.........................................6
SECTION 1.03. Trust Indenture Act.......................................................................7
SECTION 1.04. Rules of Construction.....................................................................7
SECTION 1.05. Accounting Terms..........................................................................8
ARTICLE II
The Debt Securities
SECTION 2.01. Issuable in Series........................................................................8
SECTION 2.02. Establishment of Terms of Series of Debt Securities.......................................8
SECTION 2.03. Execution and Authentication.............................................................10
SECTION 2.04. CUSIP Numbers............................................................................11
SECTION 2.05. Registrar and Paying Agent...............................................................12
SECTION 2.06. Paying Agent to Hold Money in Trust......................................................12
SECTION 2.07. Debt Securityholder Lists................................................................12
SECTION 2.08. Transfer and Exchange....................................................................13
SECTION 2.09. Replacement Debt Securities..............................................................13
SECTION 2.10. Outstanding Debt Securities..............................................................13
SECTION 2.11. Treasury Debt Securities for Certain Purposes............................................14
SECTION 2.12. Temporary Debt Securities................................................................14
SECTION 2.13. Cancelation..............................................................................14
SECTION 2.14. Defaulted Interest.......................................................................15
SECTION 2.15. Persons Deemed Owners....................................................................15
SECTION 2.16. Certain Provisions Relating to Global Registered Securities..............................15
ARTICLE III
Redemption
SECTION 3.01. Notice to Trustee........................................................................18
SECTION 3.02. Selection of Debt Securities to be Redeemed..............................................18
SECTION 3.03. Notice of Redemption.....................................................................19
SECTION 3.04. Effect of Notice of Redemption...........................................................19
SECTION 3.05. Deposit of Redemption Price..............................................................19
SECTION 3.06. Debt Securities Redeemed in Part.........................................................19
SECTION 3.07. Remarketing of Remarketable Securities...................................................20
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ARTICLE IV
Covenants
SECTION 4.01. Payment of Debt Securities...............................................................20
SECTION 4.02. SEC Reports..............................................................................20
SECTION 4.03. Compliance Certificate; Notice of Default and Event of Default...........................21
SECTION 4.04. Maintenance of Office or Agency..........................................................21
SECTION 4.05. Additional Amounts.......................................................................21
SECTION 4.06. Limitation on Secured Indebtedness.......................................................22
SECTION 4.07. Limitation on Investments in Unrestricted Subsidiaries...................................23
SECTION 4.08. Limitation on Permitting Restricted Subsidiaries to Become Unrestricted Subsidiaries and
Unrestricted Subsidiaries to Become Restricted Subsidiaries........................23
SECTION 4.09. Waiver of Certain Covenants..............................................................23
ARTICLE V
Successor Corporation
SECTION 5.01. When Company May Merge, Etc..............................................................24
SECTION 5.02. Successor Corporation Substituted........................................................24
ARTICLE VI
Default and Remedies
SECTION 6.01. Events of Default........................................................................25
SECTION 6.02. Acceleration.............................................................................26
SECTION 6.03. Other Remedies...........................................................................26
SECTION 6.04. Waiver of Past Defaults..................................................................26
SECTION 6.05. Control by Majority......................................................................26
SECTION 6.06. Limitation on Suits......................................................................27
SECTION 6.07. Rights of Holders to Receive Payment.....................................................27
SECTION 6.08. Collection Suits by Trustee..............................................................27
SECTION 6.09. Trustee May File Proofs of Claim.........................................................27
SECTION 6.10. Priorities...............................................................................28
SECTION 6.11. Undertaking for Costs....................................................................28
ARTICLE VII
Trustee
SECTION 7.01. Duties of Trustee........................................................................28
SECTION 7.02. Rights of Trustee........................................................................29
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SECTION 7.03. Individual Rights of Trustee.............................................................30
SECTION 7.04. Trustee's Disclaimer.....................................................................30
SECTION 7.05. Notice of Defaults.......................................................................30
SECTION 7.06. Reports by Trustee to Holders............................................................30
SECTION 7.07. Compensation and Indemnity...............................................................31
SECTION 7.08. Replacement of Trustee...................................................................32
SECTION 7.09. Successor Trustee by Merger, etc.........................................................33
SECTION 7.10. Eligibility; Disqualification............................................................33
SECTION 7.11. Preferential Collection of Claims Against Company........................................33
ARTICLE VIII
Discharge of Indenture
SECTION 8.01. Termination of Company's Obligations.....................................................33
SECTION 8.02. Application of Trust Money...............................................................34
SECTION 8.03. Reinstatement............................................................................34
SECTION 8.04. Repayment to Company.....................................................................35
SECTION 8.05. Indemnity for Government Obligations.....................................................35
ARTICLE IX
Amendments; Supplements and Waivers
SECTION 9.01. Without Consent of Holders...............................................................35
SECTION 9.02. With Consent of Holders..................................................................35
SECTION 9.03. Limitations..............................................................................36
SECTION 9.04. Compliance with Trust Indenture Act......................................................36
SECTION 9.05. Revocation and Effect of Consents........................................................36
SECTION 9.06. Notation on or Exchange of Debt Securities...............................................37
SECTION 9.07. Trustee Protected........................................................................37
ARTICLE X
Miscellaneous
SECTION 10.01. Trust Indenture Act Controls............................................................37
SECTION 10.02. Notices.................................................................................37
SECTION 10.03. Communication by Holders with Other Holders.............................................38
SECTION 10.04. Certificate and Opinion as to Conditions Precedent......................................38
SECTION 10.05. Statements Required in Certificate or Opinion...........................................38
SECTION 10.06. Rules by Trustee and Agents.............................................................38
SECTION 10.07. Legal Holidays..........................................................................39
SECTION 10.08. Governing Law...........................................................................39
SECTION 10.09. No Adverse Interpretation of Other Agreements...........................................39
SECTION 10.10. No Recourse Against Others..............................................................39
SECTION 10.11. Duplicate Originals.....................................................................39
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Page
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SECTION 10.12. Severability............................................................................39
SIGNATURES..............................................................................................39
ACKNOWLEDGMENTS.........................................................................................40
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INDENTURE, dated as of [ ], 2003, between RYDER SYSTEM, INC., a Florida corporation (the "Company"), and J.P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America (the "Trustee").
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Debt Securities issued under this Indenture:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Additional Amounts" means any additional amounts which are required by a Debt Security or by or pursuant to a Board Resolution under circumstances specified therein to be paid by the Company in respect of certain taxes, assessments or other governmental charges imposed on certain Holders of Debt Securities.
"Affiliate" means any Person directly or indirectly controlling or controlled by or under direct or indirect common control with the Company.
"After-Acquired Indebtedness" means:
(1) Pre-existing indebtedness assumed by the Company or a Restricted Subsidiary as a result of the purchase, takeover or other acquisition of the assets or stock of an entity other than a Subsidiary of the Company;
(2) mortgages or liens on property existing at the time of acquisition of said property; or
(3) Indebtedness of an Unrestricted Subsidiary which is outstanding at the time such Unrestricted Subsidiary becomes a Restricted Subsidiary subsequent to the date of this Indenture.
"Agent" means any Paying Agent, Registrar or co-registrar.
"Applicable Procedures" means, with respect to any transfer, redemption or exchange of beneficial interests in any Global Registered Security, the rules and procedures of the Depositary, Euroclear and Clearstream that apply to such transfer, redemption or exchange.
"Bankruptcy Law" means Title 11, U.S. Code or any similar Federal or State law for the relief of debtors.
"Board of Directors" means the Board of Directors of the Company or any duly authorized committee of the Board.
"Board Resolution" means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of the certification and delivered to the Trustee.
"Business Day", when used with respect to any place, means any day, other than a Saturday or Sunday, and other than a day on which banking institutions in such place are authorized or required by law, regulation or executive order to close.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg (formerly Cedel Bank, societe anonyme), or any successor to the operations thereof.
"Company" means the party named as such above until a successor replaces it and thereafter means the successor.
"Company Order" means an order signed by two Officers or by any Officer and either an Assistant Treasurer or an Assistant Secretary of the Company.
"Corporate Trust Office" means the office of the Trustee in
the City of Birmingham, Alabama at which at any particular time its corporate
trust business shall principally be administered, which office at the date of
the execution and delivery of this instrument as originally executed is located
at 3800 Colonnade Parkway, Suite 490, Birmingham, Alabama 35243, Attention:
Corporate Trust Administration, except that with respect to presentation or
surrender of Debt Securities for payment or for registration of transfer or
exchange, such term shall mean the office or agency of the Trustee in The City
of New York at which at any particular time its corporate agency business shall
principally be administered in that city, which office at the date of the
execution and delivery of this instrument as originally executed is located at 4
New York Plaza, New York, New York 10004, Attention: Institutional Trust
Services; and, in either case, such other office or offices as the Trustee may
designate from time to time by notice to the Company and to the Holders.
"Consolidated" when used with respect to any of the terms herein shall refer to such terms as reflected in a consolidation of the accounts of the Company and its Restricted Subsidiaries in accordance with generally accepted accounting principles.
"Custodian" means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
"Debt Securities" means the debentures, notes, bonds or other evidences of indebtedness of the Company of any Series established in a supplemental indenture or by or pursuant to a Board Resolution and authenticated and delivered under this Indenture.
"Default" means any event which is, or after notice or passage of time or both would be, an Event of Default.
"Depositary" means, unless otherwise specified by the Company pursuant to either Section 2.02 or 2.16, with respect to the Debt Securities of any Series issuable or issued in whole or in part as one or more Global Registered Security or Securities, The Depository Trust Company, New York, New York, or any successor thereto registered as a clearing agency under the Securities Exchange Act of 1934, as amended, and any other applicable statute or regulation and appointed as Depositary hereunder pursuant to the applicable provisions of this Indenture.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear System, or any successor securities clearing agency.
"Event of Default" has the meaning specified in Section 6.01.
"Foreign Financing Subsidiary" means any Subsidiary, not organized under the laws of the United States of America or any state thereof, engaged in the business of Lending to the Company or its Restricted Subsidiaries and borrowing on behalf of the Company or its Restricted Subsidiaries.
"Global Registered Security" means, unless otherwise specified by the Company pursuant to either Section 2.02 or 2.16, with respect to any Series of Debt Securities issued hereunder, a Registered Debt Security which is executed by the Company and authenticated and delivered by the Trustee to the Depositary or a custodian therefor, or pursuant to the Depositary's instruction, all in accordance with this Indenture and an indenture supplemental hereto, or a Board Resolution, which shall be registered in the name of the Depositary or its nominee and which shall represent, and shall be denominated in an amount equal to the aggregate Principal amount of all the outstanding Debt Securities of such Series or any portion thereof, in either case having the same terms, including, without limitation, the same original issue date, date or dates on which Principal and interest, if any, are due, and, if interest shall be payable thereon, interest rate or method of determining such interest. The term "global form" or "definitive global registered form" when used in this Indenture shall include Global Registered Securities.
"Holder" or "Debt Securityholder" with respect to a Registered Debt Security, means a Person in whose name a Debt Security is registered on the registration books kept for that purpose in accordance with the terms hereof.
"Indebtedness" means all indebtedness other than Subordinated Indebtedness of the Company or its Restricted Subsidiaries for borrowed money or leasing obligations which have been created, incurred or assumed as reflected on the Consolidated balance sheet of the Company and its Restricted Subsidiaries, and any indebtedness of other parties guaranteed by the Company or its Restricted Subsidiaries, without duplication.
"Indenture" means this Indenture as supplemented and amended from time to time.
"Intercompany Indebtedness" means any Indebtedness owed directly between the Company and/or its Restricted Subsidiaries.
"Net Tangible Assets" means the total amount of assets as reflected on the Consolidated balance sheet of the Company and its Restricted Subsidiaries, after appropriate deduction for minority interests, less:
(1) all goodwill, operating rights, patents, trade-names, unamortized debt expense and other intangibles;
(2) amounts invested in, advanced to or equity in Unrestricted Subsidiaries; and
(3) unamortized debt discount.
"Net Worth" means, with regard to each Series of Debt
Securities, the sum of the following as reflected on the Consolidated balance
sheet of the Company and its Restricted Subsidiaries (1) shareholders' equity,
(2) Subordinated Indebtedness and (3) 50% of the reserve for deferred income
taxes, less (A) all goodwill, operating rights, patents, trade-names and other
intangibles in excess of the balance at December 31 of the year prior to
issuance of that Series, (B) any increase in the value of a fixed asset arising
from a revaluation thereof after December 31 of the year prior to issuance of
that Series, and (C) any equity interest in an Unrestricted Subsidiary.
"Officer" means the Chairman of the Board, the President, any Vice President (whether or not designated by a number or word added before or after the title vice president), the Treasurer, the Secretary or the Controller of the Company.
"Officers' Certificate" means a certificate signed by two Officers or by any Officer and either an Assistant Treasurer or Assistant Secretary of the Company.
"Opinion of Counsel" means a written opinion of legal counsel who may be an employee of or counsel to the Company. Such counsel shall be reasonably acceptable to the Trustee.
"Original Issue Discount Debt Security" means any Debt Security which provides for an amount less than the stated Principal amount thereof to be due and payable upon redemption or declaration of acceleration of the maturity thereof pursuant to Section 6.02 or any Debt Security which for United States Federal income tax purposes would be considered an original issue discount debt security.
"Paying Agent" has the meaning specified in Section 2.05.
"Person" means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability company or government or other entity.
"Place of Payment", when used with respect to the Debt Securities of any Series, means the place or places where, subject to the provisions of Section 4.04, the Principal of and any interest on the Debt Securities of such Series are payable as specified in Section 2.02.
"Leasing Indebtedness" means the capitalized Indebtedness of any leasing obligations on personal property.
"Principal" of a Debt Security means the principal of the Debt Security plus, when appropriate, the premium, if any, on the Debt Security except that (i) in the case of an Original Issue Discount Debt Security, the term shall mean the amount as specified in such Debt Security that would then be due and payable upon redemption or acceleration of the maturity thereof and (ii) in the case of a Debt Security denominated in a foreign currency or composite currency, for purposes of determining the aggregate principal amount of Debt Securities which shall have voted or given consent with respect to any matter, the term shall mean the U.S. dollar equivalent, determined as of the issue date, of the principal amount (determined, in the case of an Original Issue Discount Debt Security, pursuant to (i) above) of such Debt Security.
"Real Property Indebtedness" means Indebtedness secured by real property acquired by the Company or its Restricted Subsidiaries after the date of this Indenture, including both mortgage and lease financing.
"Registered Debt Security" means any Debt Security established pursuant to Section 2.02 which is payable to the registered holder thereof.
"Registrar" has the meaning specified in Section 2.05.
"Remarketable Securities" has the meaning specified in
Section 3.07.
"Responsible Officer", when used with respect to the Trustee, shall mean any officer or assistant officer of the Trustee within the Corporate Trust Administration unit of the Trustee who has responsibility for the administration of this Indenture and, for the purposes of Sections 7.01(3) (B) and 7.05, also means any other officer or officers of the Trustee to whom any corporate trust matter is referred because of such person's knowledge of and familiarity with a particular subject.
"Restricted Subsidiary" means any Subsidiary other than Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Secured Indebtedness" means Indebtedness secured by pledge of, or mortgage, lien or security interest on, or title to any property, as well as any unsecured Indebtedness of any Restricted Subsidiary other than a Foreign Financing Subsidiary.
"Series" or "Series of Debt Securities" means the series of debentures, notes, bond or other evidences of Indebtedness of the Company established in a supplemental indenture or by or pursuant to a Board Resolution and authenticated and delivered under this Indenture.
"Subordinated Indebtedness" means Indebtedness which is expressly made subordinate and junior in rank and right of payment to the Debt Securities and other
such indebtedness as may be specified or characterized in the instruments evidencing the Subordinated Indebtedness or the indenture of other such similar instrument under which it is issued.
"Subsidiary" means any corporation of which the Company, directly or through one or more Subsidiaries, owns more than 50% of the shares of Voting Stock.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
ss.ss. 77aaa-77bbbb) as in effect on the date shown above, except as provided in
Section 9.04.
"Trustee" means the party named as Trustee above until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture and thereafter means the successor.
"United States" means the United States of America (including the States and the District of Columbia), its territories, its possessions and any other areas subject its jurisdiction.
"U.S. Government Obligations" means:
(1) direct obligations of the United States of America for the payment of which the full faith and credit of the United States of America is pledged; or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America.
"U.S. Person" means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States or any political subdivision thereof, or any estate or trust the income of which is subject to United States Federal income taxation regardless of its source.
"Unrestricted Subsidiary" means (1) any Subsidiary (other than a Foreign Financing Subsidiary) substantially all of the property of which is located or substantially all of the business of which is conducted outside of the United States of America or its possessions, Canada or the United Kingdom, and (2) any other Subsidiary (including, if so designated, a Foreign Financing Subsidiary) so designated by the Board of Directors or the Chief Executive Officer of the Company.
"Voting Stock" means stock of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors or other governing body of a corporation (other than stock having such power by reason of the happening of any contingency).
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT. Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by
reference in and made a part of this Indenture. The following terms used in this Indenture have the following TIA meanings:
the "Company" means obligor on the indenture securities.
this "Indenture" means indenture to be qualified.
"SEC" means the Commission.
"Debt Securities" means the indenture securities.
"Debt Securityholder" means an indenture security holder.
the "Trustee" means indenture trustee or institutional trustee.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA have the meanings so assigned to them.
SECTION 1.03. TRUST INDENTURE ACT. The provisions of TIA Sections 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture upon and so long as the Indenture and Debt Securities are subject to the TIA. If any provision of this Indenture limits, qualifies or conflicts with any duties required by the TIA, the imposed duties shall control. If a provision of the TIA permits a provision of this Indenture and the TIA provision is amended, then the Indenture provision shall be automatically amended to like effect.
Any reference to a requirement under the TIA shall only apply upon and so long as the Indenture is qualified under and subject to the TIA.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) "or" is not exclusive;
(3) words in the singular include the plural; and in the plural include the singular;
(4) all references in this table to designated "Articles," "Sections," and other subdivisions are to designated Articles, Sections and other subdivisions of this Indenture as originally executed; and
(5) "herein," "hereof," and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms not specifically defined herein shall be construed in accordance with generally accepted accounting principles ("GAAP") as in effect on June 30, 2003. If any changes in GAAP are hereafter required or permitted and are adopted by the Company or any of its Subsidiaries, or the Company or any of its Subsidiaries shall change its application of GAAP with respect to any off-balance sheet liabilities or otherwise, in each case with the agreement of its independent certified public accountants and such changes, if applicable, could result in a change in the methods of calculation of any of the financial covenants, tests, restrictions or standards herein or in the related definitions or terms used therein ("Accounting Changes"), then the Company, may, in its sole discretion, give effect to such changes in the calculation of such financial covenants, tests, restrictions or standards.
ARTICLE II
THE DEBT SECURITIES
SECTION 2.01. ISSUABLE IN SERIES. The aggregate Principal amount of Debt Securities which may be authenticated and delivered under this Indenture is unlimited. The Debt Securities may be issued in one or more Series. The form of Debt Securities of each Series shall be established by or pursuant to a Board Resolution or in one or more indenture supplements hereto at or prior to the issuance of such Debt Securities. Debt Securities of any one Series shall be substantially identical in all respects except as to denomination, maturity date, interest rate, if any, and except as may otherwise be provided in or pursuant to any Board Resolution or in any indenture supplements hereto. Debt Securities may differ between Series, in respect of any matter. All Series of Debt Securities shall be equally and ratably entitled to the benefits of this Indenture. Each Debt Security shall be dated the date of its authentication.
SECTION 2.02. ESTABLISHMENT OF TERMS OF SERIES OF DEBT SECURITIES. At or prior to the issuance of any Series of Debt Securities, the following shall be established by or pursuant to a Board Resolution and set forth in an Officers' Certificate or established in one or more indenture supplements hereto:
(1) the title of the Debt Securities of the Series (which shall distinguish the Debt Securities of the Series from the Debt Securities of any other Series);
(2) any limit upon the aggregate Principal amount of the Debt Securities of the Series which may be authenticated and delivered under this Indenture (except for Debt Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Debt Securities of the Series pursuant to Section 2.08, 2.09, 2.12 or 2.16);
(3) the Person to whom any interest on any Registered Debt Securities of the Series shall be payable if other than the Person in whose name that Debt Security is registered at the close of business on the record date for such interest;
(4) the date or dates on which the Principal of the Debt Securities of the Series is payable;
(5) the rate or rates at which the Debt Securities of the Series shall bear interest or the method for calculating such rate or rates, the date or dates from which such interest shall accrue, the dates on which such interest shall be payable and the record date for the interest payable on any Registered Debt Securities on any interest payment date, if other than in the manner provided in Section 4.01;
(6) the place or places where, subject to the provisions of
Section 4.01, the Principal of and interest on Debt Securities of the
Series shall be payable and, if different, the places where, subject to
the provisions of Section 2.08, any Registered Debt Securities of the
Series may be surrendered for registration of transfer, where Debt
Securities of the Series may be surrendered for exchange and where
notices and demands to or upon the Company in respect of the Debt
Securities of the Series and this Indenture may be served;
(7) the period or periods within which, the price or prices at which and the terms and conditions upon which Debt Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase Debt Securities of the Series pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof, the period or periods within which, the price or prices at which and the terms and conditions upon which Debt Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation and provisions, if any, for the remarketing of such Securities;
(9) if other than denominations of 1,000 United States dollars and any integral multiple thereof, the denominations in which Debt Securities of the Series shall be issuable;
(10) the currency or currencies, including composite currencies, in which payment of the Principal of and any interest on the Debt Securities of the Series shall be payable if other than United States dollars;
(11) in the case of Original Issue Discount Debt Securities, the portion of the Principal amount of Debt Securities of the Series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(12) the obligation, if any, of the Company to pay Additional Amounts pursuant to Section 4.05;
(13) whether the Debt Securities of the Series shall be issued in whole or in part in the form of a Global Registered Security or Securities, the terms and conditions, if any, upon which such Global Registered Security or Securities may be exchanged in whole or in part for individual certificates evidencing Debt Securities, and the Depositary for such Global Registered Security or Securities;
(14) any deletions from or modifications of or additions to the (i) Events of Default set forth in Section 6.01, (ii) covenants of the Company set forth in Article 4 or (iii) provisions set forth in Article 8, which in any such case shall be applicable to the Debt Securities of the Series;
(15) any other terms of the Debt Securities of the Series (which terms shall not be inconsistent with the provisions of this Indenture); and
(16) the form of the Debt Securities of the Series.
SECTION 2.03. EXECUTION AND AUTHENTICATION. Debt Securities shall be executed by an Officer for the Company and attested by the Secretary or an Assistant Secretary. Signatures shall be manual or facsimile.
If an Officer whose signature is on a Debt Security no longer holds that office at the time the Debt Security is authenticated, the Debt Security shall be valid nevertheless.
A Debt Security shall not be valid until authenticated by the manual signature of the trustee or an authenticating agent. The signature shall be conclusive evidence that the Debt Security has been authenticated under this Indenture.
The Trustee shall at any time, and from time to time, authenticate Debt Securities for original issue in an unlimited aggregate Principal amount, upon receipt by the Trustee of a Company Order for the authentication and delivery of such Debt Securities.
In authenticating such Debt Securities, and accepting the additional responsibilities under this Indenture in relation to such Debt Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon:
(1) a copy of the Board Resolution and, if applicable, the Officers' Certificate delivered pursuant to such Board Resolution relating to the establishment of the forms and terms of such Debt Securities and, if applicable, an appropriate record of any action taken pursuant to such Board Resolution;
(2) an executed supplemental indenture or an Officers' Certificate setting forth the form and terms of the Debt Securities as required by Section 2.02; and
(3) an Opinion of Counsel which shall state in effect:
(A) that the form or forms and terms of such Debt Securities have been duly authorized by the Company and have been established in conformity with the provisions of this Indenture;
(B) that such Debt Securities have been duly authorized and, when duly executed and delivered by the Company and authenticated and
delivered by the Trustee in the manner and subject to any conditions specified in such Opinion of Counsel, will have been duly issued under this Indenture and will constitute valid and legally binding obligations of the Company, entitled to the benefits provided by this Indenture, enforceable in accordance with their terms, subject to bankruptcy, insolvency, reorganization and other laws of general applicability relating to or affecting the enforcement of creditors' rights and to general equity principles; and
(C) that all laws and requirements (including the obtaining of all necessary authorizations, approvals and consents, if any, of governmental bodies) in respect of the execution and delivery by the Company of such Debt Securities have been complied with and that authentication and delivery of such Debt Securities by the Trustee will not violate the terms of the Indenture.
The Trustee shall have the right to decline to authenticate and deliver any Debt Securities under Section 2.03 if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith by its board of directors or trustees, executive committee, or a trust committee of directors or trustees and/or vice presidents shall determine that such action would adversely affect the Trustee's own rights, duties or immunities under this Indenture or would otherwise expose the Trustee to personal liability to existing Debt Securityholders.
Notwithstanding the provisions of Section 2.02 and of this
Section 2.03, if all the Debt Securities of a Series are not to be originally
issued at one time, it shall not be necessary to deliver the Officers'
Certificate or supplemental indenture otherwise required pursuant to Section
2.02 or the other documents deliverable pursuant to Section 2.03(1), (2) and (3)
at or prior to the time of authentication of each Debt Security of such Series
if such documents are delivered at or prior to the time of authentication upon
original issuance of the first Debt Security of such Series to be issued.
The aggregate Principal amount of Debt Securities of any
Series outstanding at any time may not exceed any limit upon the maximum
Principal amount for such Series set forth in the Board Resolution or the
Officers' Certificate delivered pursuant to a Board Resolution or supplemental
indenture delivered pursuant to Section 2.02, subject to the provisions of
Section 2.09.
The Trustee may appoint an authenticating agent to authenticate Debt Securities. An authenticating agent may authenticate Debt Securities whenever the Trustee may do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate with respect to the authentication of Debt Securities.
SECTION 2.04. CUSIP NUMBERS. The Company in issuing Debt Securities of any Series may use "CUSIP," "ISIN" or other similar numbers (if then
generally in use), and, if so, the Trustee shall use CUSIP, ISIN or such other numbers in notices of redemption as a convenience to Holders of such Series; PROVIDED that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Debt Securities of such Series or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Debt Securities of such Series, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the CUSIP, ISIN or such other numbers.
SECTION 2.05. REGISTRAR AND PAYING AGENT. Subject to the provisions of Section 4.04, the Company shall maintain an office or agency in The City of New York where Registered Debt Securities may be presented for registration of transfer or for exchange ("Registrar") and an office or agency in the Place of Payment where any Series of Debt Securities having such Place of Payment may be presented for payment ("Paying Agent"). The Registrar shall keep a register in accordance with the provisions of Section 4.04 with respect to each Series of Registered Debt Securities and of their transfer and exchange. The Company may appoint one or more co-registrars and one or more additional paying agents for each Series of Registered Debt Securities. The term "Registrar" includes any co-registrar. The term "Paying Agent" includes any additional paying agent. The Company may change any Paying Agent or Registrar without notice to any Holder. The Company shall notify the Trustee of the name and address of any Agent not a party to this Indenture. If the Company fails to maintain a Registrar or Paying Agent, the Trustee shall act as such. The Company or any Subsidiary may act as Paying Agent or Registrar.
The Company initially appoints the Trustee as Registrar and Paying Agent.
SECTION 2.06. PAYING AGENT TO HOLD MONEY IN TRUST. The Company shall require each Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Holders of any Series of Debt Securities, or the Trustee, all money held by the Paying Agent for the payment of Principal or interest on such Series of Debt Securities, and will notify the Trustee of any default by the Company in making any such payment. If the Company or a Subsidiary acts as a Paying Agent, it shall segregate the money and hold it as a separate trust fund. The Company at any time may require a Paying Agent to pay all money held by it to the Trustee. Upon doing so, the Paying Agent shall have no further liability for the money.
SECTION 2.07. DEBT SECURITYHOLDER LISTS. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Registered Debt Securityholders of each Series that includes Registered Debt Securities. If the Trustee is not the Registrar, the Company shall furnish to the Trustee on or before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Registered Debt Securityholders of each Series that includes Registered Debt Securities.
SECTION 2.08. TRANSFER AND EXCHANGE. Where Registered Debt Securities of a Series are presented to the Registrar or a co-registrar with a request to register, transfer or to exchange them for an equal Principal amount of Registered Debt Securities of the same Series and date of maturity of other denominations, the Registrar shall register the transfer or make the exchange if its requirements for such transactions are met. To permit registration of transfer and exchanges the Trustee shall authenticate Registered Debt Securities at the Registrar's request. The Company will not make any charge for any registration of transfer or exchange but may require the payment of an amount sufficient to cover any tax or other governmental charge payable in connection therewith.
The Company shall not be required (1) to register the transfer or exchange of any Debt Security during a period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of Debt Securities of that Series selected for redemption under Section 3.03 and ending at the close of business on the day of such mailing or (2) to register the transfer or exchange of any Debt Security so selected for redemption in whole or in part.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture, the Debt Securities or applicable law with respect to any transfer or any interest in any Debt Security (including any transfers between or among Depositary participants or owners or holders of beneficial interests in any Global Registered Security) other than to require delivery of such certificates and other documentation or evidence, if any, as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 2.09. REPLACEMENT DEBT SECURITIES. If the Holder of a Debt Security claims that the Debt Security has been lost, destroyed or wrongfully taken, then, in the absence of notice to the Company that the Debt Security has been acquired by a protected purchaser, the Company shall issue and the Trustee shall authenticate a replacement Debt Security of the same Series and date of maturity, if the Trustee's and the Company's requirements are met. If required, an indemnity bond must be sufficient, in the judgment of the Company and the Trustee, to protect the Company, the Trustee, any Agent or any authenticating agent from any loss which any of them may suffer if a Debt Security is replaced. The Company may charge for its expenses in replacing a Debt Security.
Every replacement Debt Security is an obligation of the Company.
SECTION 2.10. OUTSTANDING DEBT SECURITIES. Debt Securities outstanding at any time are all Debt Securities authenticated by the Trustee pursuant to this Indenture except for those canceled by it, reductions in the interest in a Global Registered Security effected by the Trustee in accordance with the provisions hereof, those delivered to it for cancellation, and those described in this Section as not outstanding.
If a Debt Security is replaced pursuant to Section 2.09, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Debt Security is held by a protected purchaser.
If the Paying Agent holds, on a redemption date or a maturity date, money sufficient to pay Debt Securities of a Series payable on that date, then on and after that date such Debt Securities cease to be outstanding and interest then ceases to accrue.
A Debt Security does not cease to be outstanding because the Company or an Affiliate holds the Debt Security.
SECTION 2.11. TREASURY DEBT SECURITIES FOR CERTAIN PURPOSES. In determining whether the Holders of the required Principal amount of Debt Securities of a Series have concurred in any direction, waiver or consent, Debt Securities of such Series owned by the Company or an Affiliate shall be disregarded and deemed not to be outstanding, except that, for the purposes of determining whether the Trustee shall be protected in relying on any such direction, waiver or consent, only Debt Securities of such Series which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith shall not be disregarded if the pledgee establishes to the satisfaction of the Trustee the pledgee's right to deliver any such direction, waiver or consent with respect to the Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
SECTION 2.12. TEMPORARY DEBT SECURITIES. Pending the preparation of definitive Debt Securities, the Company may execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver, temporary Debt Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denominations, substantially of the tenor of the definitive Debt Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Debt Securities may determine as evidenced by their execution of such Debt Securities.
If temporary Debt Securities are issued, the Company will cause definitive Debt Securities to be prepared without unreasonable delay. After the preparation of definitive Debt Securities, the temporary Debt Securities shall be exchangeable for definitive Debt Securities upon surrender of the temporary Debt Securities at the office or agency of the Company maintained for that purpose, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Debt Securities, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Debt Securities, of any authorized denominations and of like series, tenor and aggregate Principal amount. Until so exchanged, the temporary Debt Securities shall in all respects be entitled to the same benefits under this Indenture as definitive Debt Securities.
SECTION 2.13. CANCELATION. The Company at any time may deliver Debt Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Debt Securities surrendered to them for transfer, exchange or payment. The Trustee shall cancel all Debt Securities surrendered for transfer, exchange, payment (except payment as provided in Section 3.07) or cancellation and shall dispose of canceled Debt Securities in accordance with its then customary procedures therefor or as the Company otherwise directs. The Company may not issue new Debt Securities to replace Debt Securities that it has paid (except Debt Securities paid pursuant to Section 3.07) or delivered to the Trustee for cancellation.
SECTION 2.14. DEFAULTED INTEREST. If the Company defaults in a payment of interest on a Series of Debt Securities, it shall, in the case of Registered Debt Securities, pay the defaulted interest, plus, to the extent lawful, any interest payable on the defaulted interest, to the Persons who are Registered Debt Securityholders of such Series on a subsequent special record date. The Company shall fix the special record date and payment date. At least 15 days before the special record date, the Company shall mail to the Trustee and to each Holder of the Series a notice that states the special record date, the payment date and the amount of defaulted interest to be paid. The Company may pay defaulted interest in any other lawful manner.
SECTION 2.15. PERSONS DEEMED OWNERS. Prior to due presentment
of a Registered Debt Security for transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Registered Debt Security is registered as the owner of such Registered Debt
Security for the purpose of receiving payment of Principal of and (subject to
Section 2.14) interest on such Debt Security and for all other purposes
whatsoever, whether or not such Debt Security is overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Except to the extent otherwise provided in or pursuant to the Board Resolution establishing a Series of Debt Securities, Persons (other than the Holders thereof) holding beneficial interests in Global Registered Securities shall not be deemed the Holders of any Debt Securities represented by such Global Registered Securities.
None of the Company, the Trustee, any Paying Agent, any authenticating agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of any beneficial ownership interest in a Global Registered Security or any other security issued in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interest.
SECTION 2.16. CERTAIN PROVISIONS RELATING TO GLOBAL REGISTERED SECURITIES. If the Company shall establish pursuant to paragraph (13) of Section 2.02 that the Registered Debt Securities of a particular Series are to be issued in whole or in part in the form of one or more Global Registered Securities, then the Company shall execute and the Trustee shall, in accordance with Section 2.03 and the Company Order delivered to the Trustee thereunder with respect to such Series, authenticate and deliver such Global Registered Security or securities, which (i) shall represent and shall be denominated in an aggregate amount equal to the aggregate Principal amount of the Debt Securities of such Series to be represented by such Global Registered Security or
Securities, (ii) shall be registered in the name of the Depositary for such
Global Registered Security or Securities or its nominee, (iii) shall be
delivered by the Trustee to such Depositary or pursuant to such Depositary's
instruction and (iv) unless otherwise specified by the Company pursuant to
Section 2.02, shall bear a legend substantially in the following form: "Unless
and until it is exchanged in whole or in part for individual certificates
evidencing the Debt Securities represented hereby, this Global Registered
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Indenture, but subject to the provisions of the following paragraph, unless otherwise specified by the Company pursuant to Section 2.02(13) or unless the terms of a Global Registered Security expressly permit such Global Registered Security to be exchanged in whole or in part for individual certificates evidencing Registered Debt Securities, a Global Registered Security may be transferred, in whole but not in part in the manner provided in Section 2.08, only to a nominee of the Depositary for such Global Registered Security, or to the Depositary, or to a successor Depositary for such Global Registered Security selected or approved by the Company, or to a nominee of such successor Depositary.
If at any time the Depositary for the Global Registered Securities of a Series notifies the Company that it is unwilling or unable to continue as Depositary for the Global Registered Securities of such Series or if at any time the Depositary for the Global Registered Securities of such Series shall no longer be eligible or in good standing under the Securities Exchange Act of 1934, as amended, or any other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to such Global Registered Security. If a successor Depositary for the Global Registered Securities of such Series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such ineligibility, the Company's election pursuant to Section 2.02(13) shall no longer be effective with respect to the Global Registered Securities of such Series and the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual certificates evidencing Registered Debt Securities of such Series in exchange for the Global Registered Securities of such Series, will authenticate and deliver such certificates of like tenor and terms in definitive form in an aggregate Principal amount equal to the Principal amount of the Global Registered Security or Global Registered Securities of such Series in exchange for such Global Registered Security or Global Registered Securities.
The Company may at any time and in its sole discretion determine that the Debt Securities of any Series issued or issuable in the form of one or more Global Registered Securities shall no longer be represented by such Global Registered Security or Securities. In such event the Company will execute, and the Trustee, upon receipt of a Company Order for the authentication and delivery of individual certificates evidencing Registered Debt Securities of such Series in exchange in whole or in part for such Global Registered Security, will authenticate and deliver such certificates of like tenor and terms in definitive form in an aggregate Principal amount equal to the Principal amount of such
Global Registered Security or Securities of such Series in exchange for such Global Registered Security or Securities.
If specified by the Company pursuant to Section 2.02(13) with respect to a Series of Debt Securities issued or issuable in the form of one or more Global Registered Securities, the Depositary for any such Global Registered Security may at its option surrender such Global Registered Security in exchange in whole or in part for individual certificates evidencing Registered Debt Securities of such Series of like tenor and terms in definitive form on such terms as are acceptable to the Company and such Depositary. Thereupon the Company shall execute, and the Trustee shall authenticate and deliver, without service charge, (A) to each Person specified by such Depositary a new certificate or certificates evidencing Registered Debt Securities of the same Series of like tenor and terms and of any authorized denomination as requested by such Person in aggregate Principal amount equal to and in exchange for such Person's beneficial interest in the Global Registered Security; and (B) to such Depositary a new Global Registered Security of like tenor and terms and in an authorized denomination equal to the difference, if any, between the Principal amount of the surrendered Global Registered Security and the aggregate Principal amount of certificates evidencing Registered Debt Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs, the Company will execute and the Trustee will authenticate and deliver individual certificates evidencing Registered Debt Securities in authorized denominations upon the exchange of the entire Principal amount of a Global Registered Security for individual Registered Debt Securities, such Global Registered Security shall be cancelled by the Trustee. Certificates issued in exchange for a Global Registered Security pursuant to this Section shall be registered in such names and in such authorized denominations as the Depositary for such Global Registered Security, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee or the Registrar. Provided that the Company and the Trustee or the Registrar have so agreed, the Trustee shall deliver such certificates to the Persons in whose names the newly issued Registered Debt Securities are registered.
Until such time as the Depositary notifies the Company that it is willing and able to make any election on behalf of the Persons having a beneficial interest in a Global Registered Security entitled to be made by the Holder of such Debt Security relating to the payment of Principal of and interest on such Debt Securities, Debt Securities denominated in a foreign currency will not be issued in the form of a Global Registered Security.
The transfer and exchange of beneficial interests in a Global Registered Security shall be effected in accordance with the provisions of this Indenture and the Applicable Procedures.
The Company, the Trustee and the Agents shall not be responsible for any acts or omissions of a Depositary, or for any Depositary records of beneficial ownership interests or for any transactions between the Depositary and beneficial owners.
With respect to any Global Registered Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a Depositary or impair, as between a Depositary and holders of beneficial interests in any Global Registered Security, the operation of customary practices governing the exercise of the rights of the Depositary as Holder of such Global Registered Security.
ARTICLE III
REDEMPTION
SECTION 3.01. NOTICE TO TRUSTEE. The Company may, with respect to any Series of Debt Securities, reserve the right to redeem and pay the Series of Debt Securities, or any part thereof, or may covenant to redeem and pay the Series of Debt Securities or any part thereof before maturity at such time and on such terms as provided for in the supplemental indenture or the Board Resolution or an Officers' Certificate pursuant thereto under which the Series of Debt Securities was issued. If a Series of Debt Securities is redeemable and the Company wants or is obligated to redeem all or part of the Series of Debt Securities pursuant to the terms of the supplemental indenture or the Board Resolution or an Officers' Certificate pursuant thereto under which the Series of Debt Securities was issued, it shall notify the Trustee of the redemption date and the Principal amount of the Series of Debt Securities to be redeemed. The Company shall give the notice at least 60 days before the redemption date (or such shorter notice as may be acceptable to the Trustee).
SECTION 3.02. SELECTION OF DEBT SECURITIES TO BE REDEEMED. If less than all the Debt Securities of a Series are to be redeemed, the Trustee shall select the Debt Securities of the Series to be redeemed by a method that complies with the requirements, if any, of any stock exchange on which the Debt Securities are listed and that the Trustee considers fair and appropriate, which may include selection pro rata or by lot. The Trustee shall make the selection and notify the Company in writing of the Debt Securities selected for redemption within ten days after receipt of notice from the Company. The Trustee may select for redemption portions of the Principal of Debt Securities of the Series that have denominations larger than $1,000. Debt Securities of the Series and portions of them it selects shall be in amounts of $1,000 or integral multiples of $1,000 or, with respect to Debt Securities of any Series issuable in other denominations pursuant to Section 2.02(9), the minimum Principal denomination for each Series and integral multiples thereof. Provisions of this Indenture that apply to Debt Securities of a Series called for redemption also apply to portions of Debt Securities of that Series called for redemption. Any redemption affecting a Global Registered Security shall be made in accordance with the provisions of this Indenture and the Applicable Procedures.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not more than 60 days before a redemption date, the Company shall give notice in the manner provided in Section 10.02 to each Holder whose Debt Securities are to be redeemed.
Except as otherwise provided in Section 2.02, the notice shall identify the Debt Securities of the Series to be redeemed and shall state:
(1) The redemption date;
(2) the redemption price (or, if not known, the manner of calculation thereof);
(3) the name and address of the Paying Agent;
(4) that Debt Securities called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making such redemption payment, interest on Debt Securities (or portion thereof) called for redemption ceases to accrue on and after the redemption date; and
(6) list the CUSIP, ISIN or other similar numbers referred to in Section 2.04.
At the Company's request, the Trustee shall give the notice of redemption in the Company's name and at its expense.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder shall have received such notice. In any case, failure to give notice by mail or any defect in notices to the Holder of a Series of Debt Securities designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Debt Security of such Series.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice is mailed pursuant to Section 3.03, Debt Securities called for redemption become due and payable on the redemption date and at the redemption price stated in the notice. Upon surrender to the Paying Agent, such Debt Securities shall be paid at the redemption price stated in the notice plus accrued interest to the redemption date.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. On or before the redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest on all Debt Securities to be redeemed on that date.
SECTION 3.06. DEBT SECURITIES REDEEMED IN PART. Upon surrender of a Debt Security that is redeemed in part, the Trustee shall authenticate for the Holder a new
Debt Security of the same Series and the same maturity equal in Principal amount to the unredeemed portion of the Debt Security surrendered.
SECTION 3.07. REMARKETING OF REMARKETABLE SECURITIES. Securities of any Series which are payable at the option of the Holders thereof before their stated maturity (other than upon acceleration pursuant to Section 6.02) ("Remarketable Securities"), shall be paid in accordance with the terms of the Board Resolution or supplemental indenture authorizing such Series. The payment of any Principal amount of Remarketable Securities pursuant to such option for purposes of Section 2.13, shall not operate as a payment of the indebtedness represented by such Remarketable Securities unless and until the Company, at its option, shall deliver or surrender the same to the Trustee with a directive that such Remarketable Securities be cancelled. In connection with any such payment of Remarketable Securities, the Company may, in lieu of purchasing such Remarketable Securities, arrange for the purchase of any such Remarketable Securities by an agreement with one or more investment bankers or other purchasers to purchase Remarketable Securities by paying to the Holders of such Remarketable Securities on or before the close of business on the payment date upon which such option may be exercised, an amount not less than the aggregate amount (including accrued interest, if any) payable by the Company, upon exercise of such option and the obligation of the Company to pay such amount in respect of such Remarketable Securities shall be satisfied and discharged to the extent such amount is so paid by such purchasers.
ARTICLE IV
COVENANTS
SECTION 4.01. PAYMENT OF DEBT SECURITIES. The Company shall pay the Principal of and interest on the Debt Securities on the dates and in the manner provided in the Debt Securities. An installment of Principal or interest shall be considered paid on the date it is due if the Trustee or Paying Agent holds on that date money designated for and sufficient to pay the installment.
Interest on any Registered Debt Security which is payable, and is punctually paid or duly provided for, on any interest payment date shall be paid to the Person in whose name that Debt Security is registered at the close of business on the regular record date for such interest.
Interest on overdue Principal shall be paid at the rate borne by the Debt Securities of that Series; interest on overdue installments of interest shall be paid at the same rate to the extent lawful.
SECTION 4.02. SEC REPORTS. The Company shall file with the
Trustee, within 30 days after it files them with the SEC, copies of the annual
reports and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange
Act of 1934. The Company also shall comply with the other provisions of TIA ss.
314(a). Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute notice or constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on the Officers' Certificates).
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a certificate from the principal executive officer, principal financial officer or principal accounting officer as to his or her knowledge of such obligor's compliance with all conditions and covenants under this Indenture. If they do, the certificate shall describe the Default. The certificate need not comply with Section 10.05.
SECTION 4.04. MAINTENANCE OF OFFICE OR AGENCY. If Debt Securities of a Series are issuable only as Registered Debt Securities, the Company will maintain in each Place of Payment for such Series an office or agency where Debt Securities of that Series may be presented or surrendered for payment, transfer or exchange, as the case may be and where notices and demands to or upon the Company in respect of the Debt Securities of that Series and this Indenture may be served. If at any time the Company shall fail to maintain any such office or agency in respect of any Series of Debt Securities or shall fail to furnish the Trustee with the address thereof, such presentations, and surrenders of Debt Securities of that Series may be made and notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive such respective presentations, surrenders, notices and demands.
SECTION 4.05. ADDITIONAL AMOUNTS. If the Debt Securities of a Series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Debt Security of such Series Additional Amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the Principal of or interest on, or in respect of, any Debt Security of any Series, such mention shall be deemed to include mention of the payment of any Additional Amounts provided for pursuant to this Section.
If the Debt Securities of a Series provide for the payment of Additional Amounts, at least 10 days prior to the first interest payment date (or if the Debt Securities of that Series will not bear interest prior to maturity, the first day on which a payment of Principal is made) on which withholding for or on account of any tax, assessment or other governmental charge described in the Debt Securities of that Series would be imposed and at least 10 days prior to each such date of payment of Principal or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers' Certificate, the Company will furnish the Trustee and the Company's Paying Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate specifying by country the amount, if any, required to be withheld on such payments to such Holders of Debt Securities and the Company will pay to the Trustee or such Paying Agent the Additional Amounts required by such Debt Security and this Section. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out or in connection with actions taken or omitted by any of them in reliance on any Officers' Certificate furnished pursuant to this Section.
SECTION 4.06. LIMITATION ON SECURED INDEBTEDNESS. The Company will not, and will not permit any Restricted Subsidiary to create, incur or assume any Secured Indebtedness unless the Debt Securities then outstanding are equally and ratably secured, with the following exceptions:
(1) any Secured Indebtedness existing at the date of this Indenture,
(2) any Indebtedness of a corporation in existence at the time such corporation becomes a Restricted Subsidiary,
(3) any After-Acquired Indebtedness,
(4) any Intercompany Indebtedness secured in favor of the Company or any Restricted Subsidiary,
(5) any Indebtedness deemed to be Secured Indebtedness by virtue of any of the following liens or charges which are not yet due or are payable without penalty or of which the amount, applicability or validity is being contested in good faith by appropriate proceedings and for which the Company or Restricted subsidiary shall have set aside on its books reserves which it deems to be adequate with respect thereto:
(A) liens for taxes, assessments or other governmental charges,
(B) security given in the ordinary course of business to any governmental agency or other body approved by law or governmental regulation in order to allow the Company or Restricted Subsidiary to maintain self-insurance, or to participate in any fund or participate in any benefits in connection with workmen's compensation, unemployment insurance, old age pensions or other social security, or for any other purpose at any time required by law or governmental regulation as a condition to the transaction of business or the exercise of any privilege or license,
(C) any encumbrances consisting of zoning restrictions, exceptions, easements, leases or other like restrictions on the use of real property which do not materially impair the use or such property,
(D) mechanic's, carrier's workmen's, warehouseman's landlord's or other like liens arising in the ordinary course of business, including liens incident to construction, and the normal extension of trade credit by equipment manufacturers and dealers,
(E) any inchoate liens arising under the Employee Retirement Income Security Act of 1974, as amended, to secure any contingent liability of the Company or a Restricted Subsidiary, and
(F) other liens incidental to the conduct of business or ownership of property and assets which were not incurred in connection with the borrowing of money and which do not in the aggregate materially detract from the value of the property or assets, taken as a whole, of the Company or any of its Restricted Subsidiaries, or materially impair the use thereof,
(6) any industrial revenue bond Indebtedness,
(7) any Real Property Indebtedness,
(8) any Leasing Indebtedness not to exceed a total of 10% of Consolidated Net Tangible Assets, and
(9) all other Secured Indebtedness (in addition to that otherwise permitted in paragraphs (1) to (8) above) plus additional Leasing Indebtedness (in addition to that in (8) above) not to exceed a total of 20% of Consolidated Net Tangible Assets.
SECTION 4.07. LIMITATION ON INVESTMENTS IN UNRESTRICTED SUBSIDIARIES. The Company will not, and will not permit any Restricted Subsidiary to, make any investment in, or transfer any assets to, an Unrestricted Subsidiary if immediately thereafter the Company would be in breach or in default in the performance of any covenant or warranty of the Company contained in this Indenture.
SECTION 4.08. LIMITATION ON PERMITTING RESTRICTED SUBSIDIARIES TO BECOME UNRESTRICTED SUBSIDIARIES AND UNRESTRICTED SUBSIDIARIES TO BECOME RESTRICTED SUBSIDIARIES.
(1) The Company will not permit any Restricted Subsidiary to become an Unrestricted Subsidiary unless immediately thereafter such Subsidiary will not own, directly or indirectly, any capital stock of any Restricted Subsidiary.
(2) The Company will not permit any Unrestricted Subsidiary to become a Restricted Subsidiary unless immediately thereafter:
(A) no shares of the capital stock of such Subsidiary shall be owned or held by any Unrestricted Subsidiary; and
(B) the Company would not be prohibited from issuing
any additional Secured Indebtedness by the provisions of
Section 4.06.
SECTION 4.09. WAIVER OF CERTAIN COVENANTS. The Company may omit in any particular instance to comply with any covenant or condition set forth in Section 4.06 through 4.08 if, before, or after the time for such compliance, the Holders of at least a majority in Principal amount of all the Debt Securities of each Series affected
thereby at the time outstanding shall, by notice to the Trustee, either waive such compliance in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company shall not consolidate with or merge into, or transfer all or substantially all of its assets to, any Person unless:
(1) either the Company shall be the resulting or surviving entity, or if another Person is the resulting or surviving entity, such Person assumes by supplemental indenture all the obligations of the Company under the Debt Securities and this Indenture;
(2) immediately after giving effect to such transaction no Event of Default and no circumstances which, after notice or lapse of time or both, would become an Event of Default shall have happened and be continuing; and
(3) the Company shall deliver to the Trustee an Officers' Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture comply with this Article V and that all conditions precedent herein provided for relating to such transaction have been complied with.
If, upon any such consolidation, merger, or transfer, any assets of the Company or any Restricted Subsidiary, or any shares of stock or Indebtedness of any Restricted Subsidiary, would thereupon become subject to any lien, security interest or other charge or encumbrance, or any other type of preferential arrangement (any such lien, security interest, charge, encumbrance or other type of preferential arrangement being herein called a "Mortgage"), unless, after giving effect to such consolidation, merger or transfer, such corporation could issue at least $1 of Secured Indebtedness pursuant to Section 4.06(9), the Company prior to such consolidation, merger or transfer, will secure the outstanding Debt Securities of each Series hereunder, equally and ratably with (or prior to) the indebtedness secured by such Mortgage.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED. Upon any consolidation or merger, or any transfer of all or substantially all of the assets of the Company in accordance with Section 5.01, the successor corporation formed by such consolidation or into which the Company is merged or to which such transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture and the Debt Securities with the same effect as if such successor corporation had been named as the Company herein and in the Debt Securities.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs (unless the occurrence of such an event is specifically deleted or modified with respect to Debt Securities of a particular Series in or pursuant to the supplemental indenture or Board Resolution establishing such Series or in the form of Debt Security for such Series) with respect to the Debt Securities of any Series if:
(1) the Company defaults in the payment of interest on any Debt Security of that Series when the same becomes due and payable and the default continues for a period of 30 days;
(2) the Company defaults in the payment of the Principal of any Debt Security of that Series when the same becomes due and payable at maturity, upon redemption or otherwise;
(3) the Company fails to comply with any of its other agreements or conditions in the Debt Securities of that Series, this Indenture or any supplemental indenture under which the Debt Securities may have been issued and the default continues for the period and after the notice specified below;
(4) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors; or
(5) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian for the Company or for all or substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 30 days.
A Default under Section 6.01(3) is not an Event of Default until the Trustee or the Holders of at least 25% in aggregate Principal amount of all of the Debt Securities of that Series then outstanding notify the Company of the Default, and the Company does not cure the Default within 60 days after receipt of the notice. The notice must specify the Default, demand that it be remedied and state that the notice is a "Notice of Default".
SECTION 6.02. ACCELERATION. If an Event of Default occurs with respect to the Debt Securities of any Series and is continuing, the Trustee by notice to the Company, or the Holders of at least 25% in aggregate Principal amount of all of the Debt Securities of that Series then outstanding by notice to the Company and the Trustee, may declare the Principal (or, if the Debt Securities of that Series are Original Issue Discount Debt Securities, such portion of the Principal amount as may be specified in the terms of that Series) and accrued interest on all the Debt Securities of that Series to be due and payable. Upon such declaration, such Principal (or specified amount) and interest on the Debt Securities of that Series shall be due and payable immediately. The Holders of a majority in aggregate Principal amount of all of the Debt Securities of that Series then outstanding by notice to the Trustee may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of Principal or interest that has become due solely because of the acceleration.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and is continuing, the Trustee may pursue any available remedy by proceeding at law or in equity to collect the payment of Principal or interest on the Debt Securities of the Series that is in default or to enforce the performance of any provision of such Debt Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any of the Debt Securities or does not produce any of them in the proceeding. A delay or omission by the Trustee or any Debt Securityholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. No remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority in aggregate Principal amount of any Series of Debt Securities then outstanding by notice to the Trustee may waive on behalf of Holders of all Debt Securities of that Series, an existing Default or Event of Default with respect to that Series and its consequences except a continuing Default or Event of Default in the payment of the Principal of or interest on any Debt Security.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in aggregate Principal amount of any Series of Debt Securities then outstanding may direct the time, method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on it with respect to such Series of Debt Securities. However, the Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Debt Securityholders, or would involve the Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS. A Debt Securityholder may pursue a remedy with respect to this Indenture or the Debt Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing Event of Default;
(2) the Holders of at least 25% in aggregate Principal amount of the Series of Debt Securities affected thereby make a written request to the Trustee to pursue the remedy;
(3) such Holders offer to the Trustee indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after receipt of the request and the offer of indemnity; and
(5) during such 60 day period, the Holders of a majority in Principal amount of the Series of Debt Securities affected thereby do not give the Trustee a direction inconsistent with the request.
A Debt Securityholder may not use this Indenture to prejudice the rights of another Debt Securityholder or to obtain a preference or priority over another Debt Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT. Notwithstanding any other provision of this Indenture, the right of any Holder to receive payment of Principal and interest on a Debt Security, on or after the respective due dates expressed in the Debt Security, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.
Nothing in this Indenture limits or defers the right or ability of Holders to petition for commencement of a case under applicable Bankruptcy Law to the extent consistent with such Bankruptcy Law.
SECTION 6.08. COLLECTION SUITS BY TRUSTEE. If an Event of
Default specified in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount of Principal and interest remaining
unpaid and reasonable expenses of collection and any other amounts due under
Section 7.07 hereof.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee may file such proofs of claim and other papers or documents and take any other action as may be necessary or advisable in order to have the claims of the Trustee and the Debt
Securityholders allowed in any judicial proceedings relative to the Company, its creditors or its property.
SECTION 6.10. PRIORITIES. Any money collected by the Trustee pursuant to this Article VI with respect to any Series, and any other money or property distributable in respect of the Company's obligations under this Indenture after an Event of Default shall be applied in the following order:
First: to the Trustee (including any predecessor Trustee) for amounts due under Section 7.07 with respect to such Series;
Second: to Debt Securityholders for amounts due and unpaid on the Debt Securities of such Series for Principal and interest, ratably, without preference or priority of any kind, according to the amounts due and payable on the Debt Securities of such Series for Principal and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any such payment to Registered Debt Securityholders.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted by it as Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys' fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07, or a suit by Holders of more than 10% in aggregate Principal amount of the Debt Securities of any Series then outstanding.
ARTICLE VII
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (1) If an Event of Default has occurred and is continuing with respect to any Series of Debt Securities, the Trustee shall exercise its rights and powers vested in it by this Indenture and use the same degree of care and skill in their exercise as to that Series as a prudent Person would exercise or use under circumstances in the conduct of its own affairs.
(2) Except during the continuance of an Event of Default with respect to any Series:
(A) the Trustee need perform only those duties with respect to such Series that are specifically set forth in this Indenture and no others.
(B) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture.
(3) The Trustee may not be relieved from liability for its own negligent actions, its own negligent failure to act or its own willful misconduct, except that:
(A) This paragraph does not limit the effect of paragraphs (2) and (5) of this Section.
(B) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts.
(C) The Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 6.05.
(4) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (1), (2), (3) and (5) of this Section.
(5) The Trustee may refuse to perform any duty or exercise any right or power which would require it to expend its own funds or risk any liability if it shall reasonably believe that repayment of such funds or adequate indemnity against such risk is not reasonably assured to it.
(6) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (1) The Trustee may rely on any document believed by it to be genuine and have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting, it may consult with counsel or require an Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the Officers' Certificate or Opinion of Counsel. The Trustee may also consult with counsel on any matter relating to this Indenture or the Debt Securities and the Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on the advice of counsel.
(3) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(5) The Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity reasonably satisfactory to the Trustee against the reasonable costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(6) The Trustee shall not be deemed to have notice of any Default or Event of Default with respect to the Debt Securities of any Series unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is such a Default or Event of Default is received at the Corporate Trust Office of the Trustee from the Company, any other obligor on such Debt Securities or any Holder. Any such notice shall reference this Indenture and the Debt Securities.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its individual or any other capacity may become the owner or pledgee of Debt Securities and may otherwise deal with the Company or an Affiliate with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no representation as to and shall have no responsibility for the validity or adequacy of this Indenture or the Debt Securities. It shall not be accountable for the Company's use of the proceeds from the Debt Securities or for monies paid over to the Company pursuant to the Indenture, and it shall not be responsible for any statement in the Debt Securities other than its authentication.
SECTION 7.05. NOTICE OF DEFAULTS. If a Default or Event of
Default occurs with respect to any Series and is continuing and if it is known
to the Trustee, the Trustee shall give to each Debt Securityholder of such
Series notice of the Default or Event of Default in the manner provided for in
Section 10.02 within 90 days after it occurs. Except in the case of a Default or
Event of Default in payment on any Debt Security, the Trustee may withhold the
notice if and so long as its corporate trust committee or a committee of its
Responsible Officers in good faith determines that withholding the notice is in
the interests of Debt Securityholders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. If required pursuant to TIA ss. 313(a), within 60 days after the yearly anniversary of the date of this instrument as originally executed, the Trustee shall mail to each Debt Securityholder a brief report dated as of such date that complies with TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)(2).
A copy of each report at the time of its mailing to Debt Securityholders shall be filed with the SEC and each stock exchange on which the Debt Securities are listed. The Company agrees to notify the Trustee whenever the Debt Securities become listed on any stock exchange.
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall pay to the Trustee from time to time reasonable compensation for its services, including for any Agency capacity in which it acts. The Trustee's compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all reasonable out-of-pocket expenses incurred by it in connection with the performance of its obligations under this Indenture or any Debt Securities. Such expenses shall include the reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify the Trustee (and any predecessor Trustee) against any loss, liability or expense (including reasonable fees and expenses of counsel) incurred by it, including for any Agency capacity in which it acts, in connection with acceptance and administration of this trust and its duties hereunder including the reasonable costs and expenses (including reasonable fees and expenses of counsel) of defending itself against or investigating any claim (whether asserted by the Company, any Holder or other Person) or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section 7.07. The Trustee shall notify the Company promptly of any claim which it may seek indemnity; PROVIDED, HOWEVER, that any failure of the Trustee to so notify the Company shall not relieve the Company of any of its obligations hereunder.
The Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee through negligence, willful misconduct or bad faith.
To secure the Company's payment obligations in this Section, the Trustee shall have a lien prior to the Debt Securities on all money or property held or collected by the Trustee, except that held in trust to pay Principal and interest on particular Debt Securities.
Without prejudice to its rights hereunder, when the Trustee
incurs expenses or renders services after an Event of Default specified in
Section 6.01(4) or (5) occurs, the expenses (including the reasonable fees and
expenses of its counsel) and the compensation for the services are intended to
constitute expenses of administration under any Bankruptcy Law.
The obligations of the Company and the lien provided for in this Section 7.07 shall survive the satisfaction and discharge of this Indenture, the resignation or removal of the Trustee and termination of this Indenture for any reason.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or removal of the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee's acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Debt Securities of one or more Series in writing at any time upon 30 days' prior written notice to the Company. The Holders of a majority in Principal amount of the Debt Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Debt Securities of one or more Series if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent, or an order of relief is entered with respect to the Trustee under any Bankruptcy Law;
(3) a receiver or public officer takes charge of the Trustee or its property; or
(4) the Trustee becomes incapable of acting.
With respect to any Series, if the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. There shall at all times be a Trustee with respect to each Series.
If a successor Trustee is not appointed within 30 days after the retiring Trustee resigns or if a successor Trustee does not take office within 45 days after the retiring Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of a majority in aggregate Principal amount of the Debt Securities of the affected Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, after written request by any Debt Securityholder of a Series affected thereby who has been a Debt Securityholder of that Series for at least six (6) months, such Debt Securityholder may petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company. Thereupon the resignation or removal of the retiring Trustee shall become effective, and the successor Trustee shall have, and be bound by, all the rights, powers, duties and agreements of the Trustee under this Indenture with respect to such Series. A successor Trustee shall mail notice of its succession to each Registered Debt Securityholder of a Series as to which it acts as Trustee. The retiring Trustee shall promptly transfer all property held by it as Trustee with respect to that or those Series as to which the retiring Trustee is retiring to the successor Trustee, subject to the lien provided for in Section 7.07.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the Trustee consolidates with, mergers or converts into, or transfers all or substantially all of its corporate trust business assets to, another Person, the successor Person without any further act shall be the successor Trustee. As soon as practicable, the successor Trustee shall mail a notice of its succession to the Company. Any such successor shall nevertheless be eligible and qualified under the provisions of Section 7.10.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. This Indenture shall always have a Trustee who satisfies the requirements of TIA ss. 310(a)(1). The Trustee shall always have a combined capital and surplus of at least $50,000,000, as set forth in its most recent published annual report of condition. The Trustee is subject to TIA ss. 310(b), including the optional provision permitted by the second sentence of TIA ss. 310(b)(9) provided, however, that (a) there shall be excluded from the operation of TIA ss. 310(b)(1) any indenture or indentures under which other securities of the Company ranking equally in right of payment with the Debt Securities of any Series, or certificates of interest or participation in other such securities are outstanding if the requirements for such exclusion set forth in TIA ss. 310(b)(1) are met, and (b) the Trustee, in its capacity as trustee in respect of the Debt Securities of any Series, shall not be deemed to have a conflicting interest arising from its capacity as trustee in respect of the Debt Securities of any other Series.
Nothing herein shall prevent the Trustee from filing with the Commission the application referred to in the second to last paragraph of TIA ss. 310(b).
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY. The Trustee is subject to TIA ss. 311(a), excluding any creditor relationship listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be subject to TIA ss. 311(a) to the extent indicated.
ARTICLE VIII
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS. By
irrevocably depositing in trust with the Trustee money or U.S. Government
Obligations sufficient to pay Principal and interest when due on the Debt
Securities of one or more Series until maturity, the Company may, on the 91st
day after such deposit, terminate all its obligations under this Indenture with
respect to any Series of Debt Securities which does not provide for the payment
of any Additional Amounts; PROVIDED, HOWEVER, that no Event of Default under
Sections 6.01.(4) and (5) or event with which notice or lapse of time or both
would constitute such an Event of Default shall have occurred and be continuing
on such date. Notwithstanding the termination of any obligations of the Company
with respect to Debt Securities of one or more Series in accordance with this
Section 8.01, the Company's obligations in Sections 2.05, 2.06, 2.07, 2.08,
2.09, 4.01, 7.07, 7.08, 8.03 and 8.04, and such other obligations of the Company
(whether under this Indenture or in or pursuant to the supplemental indenture or
Board Resolution establishing the terms of the Debt Securities of such Series or
in the form of Debt security
for such Series) as may be expressly stated, in the supplemental indenture or Board Resolution establishing the terms of the Debt Securities of such Series or in the form of Debt Security for such Series, to survive compliance by the Company with this Section 8.01, with respect to such Debt Securities shall survive until such Debt Securities are no longer outstanding. Thereafter the Company's obligations in Sections 7.07, 8.03 and 8.04 with respect to such Debt Securities shall survive. In order to have money available on a payment date to pay Principal or interest upon such Debt Securities, the U.S. Government Obligations shall be payable as to Principal or interest on or before such payment date in such amounts as will provide the necessary money.
It shall be a condition to the deposit of cash and/or U.S. Government Obligations and the termination of the Company's obligations with respect to Debt Securities of one or more Series under this Section that the Company deliver to the Trustee (1) an opinion of nationally recognized independent tax counsel to the effect that: (A) Holders of such Debt Securities will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit and termination and (B) such Holders (and future Holders of such Debt Securities) will be subject to tax in the same amount, manner and timing as if such deposit and termination had not occurred; and (2) an Officers' Certificate to the effect that under the laws in effect on the date such money and/or U.S. Government Obligations are deposited with the Trustee, the amount thereof will be sufficient, after payment of all Federal, state and local taxes in respect thereof payable by the Trustee, to pay Principal and interest when due on such Debt Securities.
After a deposit as provided herein, the Trustee shall, upon request, acknowledge in writing the discharge of the Company's obligations with respect to any Series of Debt Securities under this Indenture except for those surviving obligations specified above.
SECTION 8.02. APPLICATION OF TRUST MONEY. The Trustee or Paying Agent shall hold in trust, for the benefit of the Debt Securityholders, all money and U.S. Government Obligations deposited with it (or into which such money and U.S. Government Obligations are reinvested) pursuant to Section 8.01. The Trustee or Paying Agent shall apply the deposited money and money from U.S. Government Obligations in accordance with this Indenture to the timely payment of Principal and interest on the Debt Securities of the Series with respect to which the deposit was made. Any remaining amounts held in trust after payment of Principal and interest on the Debt Securities shall be returned to the Company, subject to the Trustee's rights to receive any payments under Section 7.07.
SECTION 8.03. REINSTATEMENT. If the Trustee or Paying Agent is
unable to apply any money or U.S. Government Obligations in accordance with
Section 8.01 by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
the Company's obligations under this Indenture and the Debt Securities shall be
revived and reinstated as though no deposit had occurred pursuant to this
Article 8, until such time as the Trustee or Paying Agent is permitted to apply
all such money or U.S. Government Obligations in accordance with Section 8.01;
provided, however, that if the Company makes any
payment of Principal of or interest on any Debt Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Debt Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent after payment in full to the Holders.
SECTION 8.04. REPAYMENT TO COMPANY. The Trustee and the Paying Agent shall promptly pay to the Company upon request any excess money or U.S. Government Obligations held by them at any time.
Subject to applicable law governing abandoned property, the Trustee and the Paying Agent shall pay to the Company any money held by them for the payment of Principal or interest that remains unclaimed for two years unless an abandoned property law designates otherwise. After that, Debt Securityholders entitled to the money must look to the Company or such other Person for payment as general creditors.
SECTION 8.05. INDEMNITY FOR GOVERNMENT OBLIGATIONS. The Company shall pay and shall indemnify the Trustee and each Debt Securityholder against any tax, fee or other charge imposed on or assessed against deposited U.S. Government Obligations or the Principal and interest received on such obligations.
ARTICLE IX
AMENDMENTS; SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. Notwithstanding
Section 9.02, the Company and the Trustee may enter into supplemental indentures
to amend this Indenture or the Debt Securities without consent of any Debt
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5;
(3) to provide for uncertificated Debt Securities in addition to or in place of certificated Debt Securities;
(4) to make any change that does not adversely affect in any material respect the rights of any Debt Securityholder under this Indenture; or
(5) to provide for the issuance of and establish the form and terms and conditions of Debt Securities of any Series or to add any additional provisions to the Indenture to facilitate the issuance of Debt Securities in currencies other than U.S. Dollars.
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Section 9.03, the Company and the Trustee may enter into supplemental indentures to amend this Indenture or the Debt Securities with the written consent of the Holders of at least a
majority in aggregate Principal amount of the Debt Securities then outstanding affected thereby. The Holders of a majority in Principal amount of the Debt Securities of any Series by notice to the Trustee may waive, in respect of such Series, compliance by the Company with any provision of this Indenture or the Debt Securities except as specified in Section 9.03(4).
SECTION 9.03. LIMITATIONS. Without the consent of each Debt Securityholder affected, an amendment or waiver may not:
(1) reduce the amount of Debt Securities whose Holders must consent to an amendment or waiver;
(2) change the rate of or change the time for payment of interest on any Debt Security or change the method of calculation if the change would reduce the rate of interest thereon;
(3) change the Principal of or change the fixed maturity of any Debt Security, or change any obligation of the Company to pay Additional Amounts pursuant to Section 4.05, or reduce the amount of Principal of an Original Issue Discount Debt Security that would be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.02;
(4) waive a Default in the payment of the Principal or interest on any Debt Security;
(5) make any Debt Security or any interest thereon payable at any Place of Payment or in currency or currencies other than as stated in the Debt Security; or
(6) make any change in Section 6.04, 6.07 or 9.03.
After an amendment or waiver under this Article 9 becomes effective, the Company shall give a notice in the manner provided in Section 10.02 to the Debt Securityholders briefly describing the amendment or waiver.
SECTION 9.04. COMPLIANCE WITH TRUST INDENTURE ACT. Every amendment to this Indenture or the Debt Securities shall be set forth in a supplemental indenture that complies with the TIA as then in effect. The Trustee is entitled to, and the Company shall provide, an Opinion of Counsel and an Officers' Certificate stating that the Trustee's execution of any amendment or supplemental indenture is permitted under this Article 9.
SECTION 9.05. REVOCATION AND EFFECT OF CONSENTS. Until an amendment or waiver becomes effective, a consent to it by a Holder of a Debt Security is a continuing consent by the Holder and every subsequent Holder of a Debt Security or portion of a Debt Security that evidences the same debt as the consenting Holder's Debt Security, even if notation of the consent is not made on any Debt Security. However, any such Holder or subsequent Holder may revoke the consent as to his Debt Security or
portion of his Debt Security if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
An amendment or waiver becomes effective in accordance with its terms and thereafter binds every Debt Securityholder.
SECTION 9.06. NOTATION ON OR EXCHANGE OF DEBT SECURITIES. The Trustee may place an appropriate notation about an amendment or waiver on any Debt Security thereafter authenticated. The Company in exchange for Debt Securities may issue and the Trustee shall authenticate new Debt Securities that reflect the amendment or waiver.
SECTION 9.07. TRUSTEE PROTECTED. The Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS. If any provision of this Indenture limits, qualifies or conflicts with another provision which is required to be included in this Indenture by the TIA, the required provision shall control.
SECTION 10.02. NOTICES. Any notice or communication by the Company or the Trustee to the other is duly given if in writing and delivered in Person or mailed by first-class mail:
If to the Company:
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Attention: Office of the Treasurer
If to the Trustee:
J.P. Morgan Trust Company, National Association
3800 Colonnade Parkway, Suite 490
Birmingham, Alabama 35243
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication to a Registered Debt Securityholder shall be mailed by first-class mail to the address shown on the register kept by the Registrar. Failure to mail a notice or communication to a Registered Debt Securityholder or any
defect in it shall not affect its sufficiency with respect to other Registered Debt Security-holders.
If a notice or communication is mailed in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
If the Company mails a notice or communication to Registered Debt Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS. Debt Securityholders may communicate pursuant to TIA ss. 312(b) with other Debt Securityholders with respect to their rights under this Indenture or the Debt Securities. The Company, the Trustee, the Registrar and anyone else shall have the protection of TIA ss. 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION. Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the Person making such certificate or opinion has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS. The Trustee may make reasonable rules for action by or a meeting of Debt Securityholders. The Paying Agent or Registrar may make reasonable rules and set reasonable requirements for its functions.
SECTION 10.07. LEGAL HOLIDAYS. If a payment date is not a Business Day at a Place of Payment, payment may be made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period. If a regular record date is not a Business Day at a Place of Payment, then the record date shall be the next preceding day that is a Business Day.
SECTION 10.08. GOVERNING LAW. The laws of the State of New York (including, without limitation, Section 5-1401 of the New York General Obligations Law or any successor to such statute) shall govern this Indenture and the Debt Securities.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS. This Indenture may not be used to interpret another indenture, loan or debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
SECTION 10.10. NO RECOURSE AGAINST OTHERS. All liability described in the Debt Securities of any director, officer, employee or stockholder, as such, of the Company is waived and released.
SECTION 10.11. DUPLICATE ORIGINALS. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Indenture.
SECTION 10.12. SEVERABILITY. In case any one or more of the provisions in this Indenture or in the Debt Securities shall be held invalid, illegal or unenforceable, in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions shall not in any way be affected or impaired thereby, it being intended that all of the provisions hereof shall be enforceable to the full extent permitted by law.
SIGNATURES
RYDER SYSTEM, INC.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared [Name], to me known and known to
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me to be the individuals described in and who executed the foregoing instrument as the [Title] of the above named RYDER SYSTEM, INC., a Florida corporation, and acknowledged to and before me that he executed such instrument as such [Title] of said corporation, and that he signed his name thereto by authority of the Board of Directors of said corporation.
WITNESS my hand and official seal this day of , 2003.
Notary Public
My Commission Expires:
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
Before me personally appeared [Name], to me known and known to
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me to be the individual described in and who executed the foregoing instrument as the [Title] of J.P. MORGAN CHASE BANK, NATIONAL ASSOCIATION, a national banking association organized and existing under the laws of the United States of America, and acknowledged to and before me that he executed such instrument as such [Title] of said association and that he signed his name thereto by authority of the Board of Directors of said association.
WITNESS my hand and official seal this day of , 2003.
My Commission Expires:
EXHIBIT 4.2
FORM OF DOMESTIC NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Registered $
See Reverse For Certain Definitions
[Form of Note]
Registered
No. RYDER SYSTEM, INC.
% NOTE DUE CUSIP
RYDER SYSTEM, INC., a corporation organized and existing under the laws of the State of Florida (herein called the "Corporation", which term shall include any successor corporation to the extent provided in the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of DOLLARS on , and to pay interest on said principal sum, semi-annually on and of each year, commencing , at the rate of % per annum from or as the case may be, next preceding the date of this Note to which interest has been paid or duly provided for, unless the date hereof is a date to which interest has been paid or duly provided for, in which case from the date of this Note, or unless no interest has been paid or duly provided for on the Notes, in which case from , until the principal hereof becomes due and payable, and or any overdue principal and (to the extent that the payment of such interest shall be legally enforceable) on any overdue installment of interest at the rate of % per annum. Notwithstanding the foregoing, when there is no existing default in the payment of interest on the Notes, if the date hereof is after the or , as the case may be, next preceding such or and before the next succeeding or this Note shall bear interest from the next succeeding or ; provided, however that if the Corporation shall default in the payment of interest due on such or then this Note shall bear interest from the next preceding or to which interest has been paid or duly provided for, or if no interest has been paid or duly provided for on the Notes, from . The interest so payable, and punctually paid or duly provided for, on any or will be paid to the person in whose name this Note is registered on the close of business on the or next preceding such or . The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, at the office or agency of the Corporation in the Borough of Manhattan, The City of New York, New York; provided, however, that payment of interest may be made at the option of the Corporation by check mailed to the address of the person
entitled thereto as such address shall appeal in the Note Register. Any interest not punctually paid or duly provided for shall be payable as provided in the Indenture.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth at this place.
This Note shall not be valid or obligatory for any purpose until the certificate of authentication hereon shall have been manually signed by the Trustee.
IN WITNESS WHEREOF, Ryder System, Inc. has caused this instrument to be signed in its name by its President, Vice President or Treasurer and by its Secretary or an Assistant Secretary, or by facsimiles of any of their signatures to be hereto affixed.
RYDER SYSTEM, INC.
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the Series designated herein referred to in the within-mentioned Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
[Form of Reverse]
RYDER SYSTEM, INC.
% NOTE DUE
This Note is one of a duly authorized issue of debentures, notes, bonds or other evidences of indebtedness of the Corporation (the "Debt Securities") of the Series hereinafter specified, all issued or to be issued under and pursuant to an indenture dated as of , 2003, between the Corporation and J.P. Morgan Trust Company, National Association, as Trustee (the "Trustee"), to which indenture and all indentures supplemental hereto (the "Indenture") reference is hereby made for a description of the rights, limitations of rights, obligations, duties and immunities hereunder of the Trustee, the Corporation and the Holders of the Debt Securities. The Debt Securities may be issued in one or more Series, which different Series may be issued in various aggregate principal amounts, may be issued in various currencies, including composite currencies, may mature at different times, may bear interest (if any) at different rates, may be issued in registered or bearer form, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as in the Indenture provided. This Note is one of a Series designated as the % Notes Due , of the Corporation (hereinafter called the "Notes"), limited in aggregate principal amount to $ ________.
In case an Event of Default with respect to the Notes shall have occurred and be continuing, the principal hereof may be declared due and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exception as therein provided, the amendment thereof and of the Debt Securities of any Series at any time by the Corporation with the consent of the Holders of at least a majority in aggregate Principal amount of the Debt Securities affected by such amendment. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the Debt Securities of any Series, on behalf of the Holders of all Debt Securities of such Series, to waive compliance by the Corporation with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Note (unless revoked as provided in the Indenture) shall be conclusive and binding upon such Holder and upon all future Holders and owners of this Note and any Notes which may be issued in exchange or substitution herefor, irrespective of whether or not any notation thereof is made upon this Note or such other Notes.
The Notes are issued in registered form without coupons in denominations of $_____ principal amount and any multiple of $_____ principal amount. Notes may be exchanged for a like aggregate principal amount of Notes of other authorized denominations in the manner and subject to the limitations provided in the Indenture, but without the payment of any service charge.
The Notes may be redeemed at the option of the Corporation as a whole, or from time to time in part, upon mailing a notice of such redemption not less than 30 days prior to the date fixed for redemption to the Holders of Notes at their last registered addresses, all as further provided in the Indenture, on or after at the following redemption prices (expressed as percentages of principal amount) and on or after at 100% of the principal amount hereof together in each case with accrued interest to the date fixed for redemption:
If Redeemed during the Percentage of
12 months beginning Principal Amount
------------------- ----------------
%
%
%
%
%
%
%
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5
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The Notes are also subject to redemption, through the operation of the sinking fund as herein provided on and on each thereafter to and including on notice as set forth above and at 100% of the principal amount thereof (the "sinking fund redemption price"), together with accrued interest to the date fixed for redemption.
As and for a sinking fund for the retirement of the Notes and so long as any of the Bonds remain outstanding and unpaid, the Corporation will pay to the Trustee in cash, on or before and on or before in each year thereafter to and including (each such date being hereinafter called a "sinking fund date") an amount sufficient to redeem $ principal amount of the Notes (or such lesser amount equal to the principal amount then outstanding) at the sinking fund redemption price.
The Corporation may increase its sinking fund payment in any year by an additional amount up to % of the mandatory sinking fund payment for that year and no such optional sinking fund payment shall operate to reduce the amount of any mandatory sinking fund payment.
The Corporation may, at its option, credit against any sinking fund payment on any sinking fund date, the principal amount of Notes acquired through purchase or otherwise and surrendered to the Trustee for cancellation and Notes redeemed otherwise than through the operation of the sinking fund upon delivery to the Trustee of an Officers' Certificate at least 60 days before such sinking fund date, specifying the principal amount of Notes so to be credited together with the Notes so to be credited if not theretofore surrendered to the Trustee for cancellation.
This Note is a global security. Accordingly, unless and until it is exchanged in whole or in part for individual certificates evidencing the Notes represented hereby, this Note may not be transferred except as a whole by The Depository Trust Company (the "Depository") to a nominee of such Depository or by a nominee of such Depository or by the Depository or any nominee to a successor Depository or any nominee of such successor or such nominee. Ownership of beneficial interests in this Note will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depository or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of persons other than participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in this Note. Except as provided below, owners of beneficial interests in this Note will not be entitled to have any individual certificates and will not be considered the owners or Holders thereof under the Indenture.
Neither the Company, any Paying Agent or any Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in this Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
If the Depository is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Company within 90 days, the Company will issue individual certificates evidencing the Notes represented hereby in definitive form in
exchange for this Note. In addition, the Company may at any time and in its sole discretion determine not to have any Notes represented by one or more global securities and, in such event, will issue individual certificates evidencing Notes in definitive form in exchange for this Note.
Upon due presentment for registration of transfer of this Note at the office or agency of the Corporation in the Borough of Manhattan, City of New York, New York, a new Note or Notes of authorized denominations of an equal aggregate principal amount will be issued to the transferee in exchange therefore, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
The Corporation, the Trustee, any Paying Agent and any Registrar may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and not withstanding any notation of ownership or other writing hereon), for the purpose of receiving payment hereof, or on account hereof, and for all other purposes, and neither the Corporation nor the Trustee nor any Paying Agent nor any Registrar shall be affected by any notice to the contrary.
No recourse for the payment of the principal of or interest on this Note, for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation or agreement of the corporation in the Indenture or in any Note shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Corporation, either directly or through the Corporation or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance thereof and as part of the consideration for the issue hereof, expressly waived and released.
Terms used herein which are defined in the Indenture shall have the respective meanings assigned thereto in the Indenture.
This Note shall be governed by and construed in accordance with the laws of the State of New York.
The following abbreviations, when used in the inscription on the face of this note, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM -- as tenants in common UNIF GIFT MIN ACT-- ________Custodian________ TEN ENT -- as tenants by the entireties (CUST) (MINOR)
JT TEN -- as joint tenants with under Uniform Gifts to Minors
right of survivorship and not as tenants in
common
Act ________________
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Note in every particular, without alteration or enlargement or any change what-ever, and be guaranteed by the endorser's bank or broker.
EXHIBIT 4.3
FORM OF MEDIUM-TERM NOTE
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
REGISTERED NO. RYDER SYSTEM, INC. REGISTERED CUSIP
-------------- MEDIUM-TERM NOTE ----------------
(Fixed Rate Note)
Issue Date: Total Amount of OID:
Principal Amount: Yield to Maturity:
Issue Price: Initial Accrual Period OID:
Maturity Date:
Interest Rate:
Interest Payment Dates:
Redemption Redemption
Date(s) Price(s)
------- --------
Repayment Repayment
Date(s) Price(s)
------- --------
|
If applicable, the "Total Amount of OID", "Yield to Maturity" and "Initial Accrual Period OID" (computed under the appropriate method) below will be completed solely for the purposes of applying the United States Federal income tax original issue discount ("OID") rules.
This Note is a registered Note of RYDER SYSTEM, INC., a Florida corporation (the "Company"). This Note is one of a series of Securities (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as Medium-Term Notes (the "Notes"). Subject to the provisions hereof, the Company, for value received, hereby promises to pay to , or registered assigns, the principal sum of on the Maturity Date shown above and to pay the premium, if any, and interest, if any, thereon, as described on the reverse hereof.
The principal of (and premium, if any) and interest, if any, on this Note are payable by the Company in such coin or currency specified on the face hereof as at the time of payment shall be legal tender for the payment of public and private debts.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture, this Note shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, RYDER SYSTEM, INC. has caused this Note to be signed in its name by its President, a Vice President or Treasurer and by its Secretary or an Assistant Secretary, or by facsimile of any of their signatures to be hereto affixed.
Dated: RYDER SYSTEM, INC.
-----------------------------
By:
-------------------------------------
[Title]
|
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the Series designated herein referred to in the within-mentioned Indenture.
J.P. MORGAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
RYDER SYSTEM, INC.
Medium-Term Note
1. This Note is one of the duly authorized issue of debentures, notes, bonds or other evidences of indebtedness (hereinafter called the "Securities") of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of , 2003 between the Company and J.P. Morgan Trust Company, National Association (the "Indenture"), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee, any Paying Agent for this Note, the Company and the Holders of the Securities and the terms upon which the Securities are issued and are to be authenticated and delivered.
The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any), may be subject to different covenants and Events of Default and may otherwise vary as provided or permitted in the Indenture. This Note is one of the series of Securities of the Company issued pursuant to the Indenture designated as the Medium-Term Notes (herein called the "Notes"), limited in aggregate principal amount to $ . The Notes of this series may be issued at various times with different maturity dates and different principal repayment provisions, may bear interest at different rates, and may otherwise vary, all as provided in the Indenture.
2. (A) The regular record date ("Regular Record Date") with respect to any Interest Payment Date (as defined below) shall be the 15th calendar day next preceding such Interest Payment Date, whether or not such date shall be a Business Day (as defined below). Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name a Note is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date; PROVIDED, HOWEVER, that interest payable on the Maturity Date (as set forth on the face hereof) will be paid to the Person to whom principal shall be payable; PROVIDED FURTHER that the first payment of interest on any Note with an Issue Date (as set forth on the face hereof) between a Regular Record Date and an Interest Payment Date or on an Interest Payment Date will be made on the Interest Payment Date following the next succeeding Regular Record Date to the registered owner of said Note on such next succeeding Regular Record Date. "Business Day" means any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking institutions are authorized or obligated by law or regulation to be closed in The City of New York.
In connection with any calculations of the rate of interest hereon, all percentages will be rounded, if necessary, to the nearest one millionth of a percentage point (with five ten-millionths of a percentage point being rounded upwards) and all dollar amounts used in or resulting from such calculation will be rounded to the nearest cent (with one-half cent being rounded upward).
(B) The Company promises to pay interest on the principal amount at the rate per annum shown on the face hereof until the principal amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually on and (each such date an "Interest Payment Date"), commencing with the first Interest Payment Date following the Issue Date shown on the face hereof and on the Maturity Date; PROVIDED, HOWEVER, that the first payment of interest on any Note originally issued between a Regular Record Date and an Interest Payment Date or on an Interest Payment Date will be made on the Interest Payment Date following the next succeeding Regular Record Date to the registered owner on such next Regular Record Date. Interest shall accrue from and including the most recent Interest Payment Date or, if no interest has been paid or duly provided for, from and including the Original Issue Date shown on the face hereof, to but excluding the Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year or twelve 30-day months. Notwithstanding the foregoing, periodic payments of interest will not be made in respect of a Note for which the interest rate is zero (a
"Zero-Coupon Note"). If any Interest Payment Date or the Maturity Date (or date of redemption or repayment) of this Note falls on a day that is not a Business Day, the payment will be made on the next Business Day as if it were made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or the Maturity Date (or the date of redemption or repayment), as the case may be.
3. (A) Payments of interest (other than interest payable on the Maturity Date) on Notes will be made in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, initially at the office of the Trustee; PROVIDED that payment of interest may be made, at the option of the Company, by mailing a check to the Holder at the address of the Holder appearing on the register on the applicable Regular Record Date. Notwithstanding the foregoing, a Holder of U.S. $10,000,000 or more in aggregate principal amount of Notes of like tenor and terms shall be entitled to receive such payments in U.S. Dollars by wire transfer of immediately available funds, but only if appropriate payment instructions have been received in writing by the Paying Agent in The City of New York, 15 calendar days prior to the applicable Interest Payment Date. Principal and any premium and interest payable on the Maturity Date will be paid in immediately available funds upon surrender of such Note at the office of the Paying Agent in The City of New York or at such other office or agency as the Company may designate in time for the Paying Agent make such payments in such funds in accordance with its normal procedures.
(B) Initially, J.P. Morgan Trust Company, National Association will be the Paying Agent and the Registrar with respect to the Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and additional or other Registrars and to approve any change in the office through which any Paying Agent or Registrar acts; PROVIDED that there will at all times be a Paying Agent and Registrar in The City of New York.
4. If specified on the face hereof, this Note may be redeemed, as a whole or from time to time in part, at the option of the Company, on not less than 30 nor more than 60 days' notice given as provided in the Indenture, on any redemption date(s) and at the related redemption price(s) set forth on the face hereof, together with any accrued interest to the date of redemption. The redemption price(s) are expressed as a percentage of the principal amount of this Note. If no such redemption date is set forth on the face hereof, this Note may not be so redeemed pursuant to this Section 4. If less than all the Notes of like tenor and terms are to be redeemed, the particular Notes to be redeemed shall be selected by the Trustee not more than 45 days prior to the redemption date from the Notes of like tenor and terms not previously called for redemption. Such selection shall be of principal amounts equal to the minimum authorized denomination for such Notes or any integral multiple thereof. Subject to the immediately preceding sentence, such selection shall be made by any method as the Trustee deems fair and appropriate.
5. If specified on the face hereof, this Note will be subject to repayment at the option of the Holder hereof on the repayment date(s) and at the related repayment price(s) set forth on the face hereof. The repayment price(s) are expressed as a percentage of the principal amount of this Note. If no such repayment date is set forth on the face hereof, this Note may not be so repaid. On each repayment date, if any, this Note shall be repayable in whole or in part at the option of the Holder hereof at the applicable repayment price set forth on the face hereof, together with interest thereon to the date of repayment. For this Note to be repaid in whole or in part at the option of the Holder hereof, the Paying Agent must receive not less than 30 nor more than 45 days prior to the repayment date (i) the Note with the form entitled "Option to Elect Repayment" below duly completed or (ii) a facsimile transmission or a letter from a member of a national securities exchange or the National Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United States of America setting forth the name of the Holder of the Note, the principal amount of the Note, the principal amount of the Note to be repaid, the certificate number of the Note or a description of the tenor and terms of the Note to be repaid, a statement that the option to elect repayment is being exercised thereby and a guarantee that the Note to be repaid with the form entitled "Option to Elect Repayment" on the reverse of the Note duly completed will be received by the Paying Agent not later than five Business Days after the date of such facsimile transmission or letter and such Note and form duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option shall be irrevocable. Such option may be exercised by the Holder for less than the entire principal amount; PROVIDED that the principal amount remaining outstanding after repayment is an authorized denomination.
6. If an Event of Default with respect to the Notes shall
occur and be continuing, the principal of all of the Notes may be declared due
and payable in the manner and with the effect provided in the Indenture. If the
principal of any Original Issue Discount Note is declared to be due and payable
or if such a Note is to be redeemed pursuant to Section 4 above, the amount of
principal due and payable with respect to such Note shall be the amount equal to
(a) the Issue Price of such Note plus (b) the portion of the difference between
the Issue Price and the principal amount of such Note that has accrued at the
yield to maturity set forth on the face hereof (computed in accordance with
generally accepted United States bond yield computation principles) at the date
as of which such amount is declared due and payable in the manner and with the
effect provided in the Indenture, but in no event shall such amount exceed the
stated principal amount.
7. The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to amend the Indenture or the Securities with the written consent of the Holders of at least a majority in aggregate Principal amount of the Securities then outstanding affected thereby. The Indenture also permits the Holders of a majority in principal amount of the Securities at the time outstanding of each series on behalf of the Holders of all Securities of such series, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note or such other Notes.
8. No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Note at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.
9. The authorized denominations of Notes are $1,000 and any larger amount that is an integral multiple of $1,000.
10. As provided in the Indenture and subject to certain limitations therein set forth, the transfer of a Note is registerable in the register, upon surrender of such Note for registration of transfer at the office of the Registrar for this series or at the offices of any transfer agent designated by the Company for such purpose. Every Note presented for registration of transfer shall (if so required by the Company or the Trustee) be duly endorsed, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Registrar duly executed by the Holder or its attorney duly authorized in writing, and one or more new Notes of like tenor and terms in registered form, of authorized denominations and for the same aggregate principal amount, will be issued in the name or names of the designated transferee or transferees and delivered at the office of the Registrar in The City of New York, or mailed, at the request, risk and expense of the transferee or transferees, to the address or addresses shown in the register for such transferee or transferees.
Any transfers of Notes or interest in Notes in different denominations shall in each case be for Notes in interests of like tenor and terms and equal aggregate principal amounts.
The Company, the Trustee, the Registrar and any agent of the Company, the Trustee or the Registrar may treat the Person in whose name a Note is registered as the owner hereof for all purposes, whether or not such Note is overdue, and neither the Company, the Trustee, the Registrar nor any such agent shall be affected by notice to the contrary.
No service charge shall be made for any registration of transfer of any Note, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
11. This Note is a global security. Accordingly, unless and until it is exchanged in whole or in part for individual certificates evidencing the Notes represented hereby, this Note may not be transferred except as a whole by The Depository Trust Company (the "Depository") to a nominee of such Depository or by a nominee of such Depository or by the Depository or any nominee to a successor Depository or any nominee of such successor or such nominee. Ownership of beneficial interests in this Note will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depository or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of persons other than participants). The laws of some states require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in this Note. Except as provided below, owners of beneficial interests in this Note will not be entitled to have any individual certificates and will not be considered the owners or Holders thereof under the Indenture.
Neither the Company, any Paying Agent or any Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in this Note or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
If the Depository is at any time unwilling, unable or ineligible to continue as depository and a successor depository is not appointed by the Company within 90 days, the Company will issue individual certificates evidencing the Notes represented hereby in definitive form in exchange for this Note. In addition, the Company may at any time and in its sole discretion determine not to have any Notes represented by one or more global securities and, in such event, will issue individual certificates evidencing Notes in definitive form in exchange for this Note.
12. Unless otherwise defined herein, all terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
13. The Indenture and the Notes shall be construed in accordance with and governed by the laws of the State of New York.
14. No recourse for the payment of the principal of or interest on this Note, for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any obligation or agreement of the Company in the Indenture or in any Note shall be had against any incorporator, stockholder, officer or director as such, past, present or future, of the Company either directly or through the Company or any successor corporation, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issue hereof, expressly waived and released.
REGISTRAR AND PAYING AGENT
(subject to change)
J.P. Morgan Trust Company, National Association 4 New York Plaza New York, New York 10004 Attention: Institutional Trust Services
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company to repay the within Note (or portion hereof specified below) pursuant to its terms at a price equal to the applicable Repayment Price thereof together with interest to the Repayment Date specified below, to the undersigned
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be repaid, specify the portion thereof which the Holder elects to have repaid __________; and specify the denomination or denominations (which shall be in authorized denominations) of the Notes to be issued to the Holder for the portion of the within Note not being repaid (in the absence of any such specification, one such Note will be issued for the portion not being repaid):
Repayment Date: ______________________
Date: _______________________________
Signature: ___________________________
Exhibit 5.1
August 29, 2003
Ryder System, Inc.
3600 N.W. 82nd Avenue
Miami, Florida 33166
Ladies and Gentlemen:
This opinion is being provided to you by the undersigned, as Associate General Counsel of Ryder System, Inc., a Florida corporation (the "Company"). I have acted as counsel to the Company in connection with the preparation and filing with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), of a Registration Statement on Form S-3 (the "Registration Statement"), and the prospectus included therein (the "Prospectus"), relating to the registration by the Company of $800,000,000 in the aggregate, to be issued from time to time in one or more primary offerings, of (i) debt securities representing unsecured obligations of the Company (the "Debt Securities") to be issued pursuant to an Indenture (the "Indenture") to be entered into between the Company and J.P. Morgan Trust Company, National Association (the "Trustee"); (ii) shares of common stock of the Company, par value $0.50 per share ("Common Stock"), together with the preferred share purchase rights attached to such shares (the "Rights"); (iii) contracts to purchase Common Stock ("Stock Purchase Contracts"); (iv) units ("Stock Purchase Units") consisting of a Stock Purchase Contract and Debt Securities, Preferred Securities (as defined below) or debt obligations of third parties; (v) shares of preferred stock of the Company ("Preferred Securities") and (vi) fractional interests in the Preferred Securities represented by depositary shares ("Depositary Shares," together with the Debt Securities, Common Stock, Rights, Stock Purchase Contracts; Stock Purchase Units and Preferred Securities the "Securities").
In so acting, I have examined and relied upon the originals, or copies certified or otherwise identified to my satisfaction, of such records, documents, certificates and other instruments as in my judgment are necessary or appropriate to enable me to render the opinion expressed below. My opinion assumes that the definitive Indenture will be in substantially the form filed as an exhibit to the Registration Statement.
In rendering the opinions expressed below, I have assumed that, at or prior to the time of the delivery of any Securities: (i) the terms and conditions of such Securities and the issuance and sale of such Securities will have been duly established and authorized by the Board of Directors or by a committee duly appointed by the Board of Directors and such authorization will not have been rescinded; (ii) the Registration Statement and all amendments thereto will have become effective; (iii) such Securities will be issued and sold in compliance with all applicable Federal and state securities laws and in the manner stated in the Registration Statement and the applicable prospectus supplement; (iv) the Indenture will have been validly executed and delivered by the Company and the Trustee; and (iv) a definitive purchase, underwriting, depositary and/or other agreement with respect to the sale of such Securities will have been duly authorized and validly executed and delivered by the Company and the other party or parties thereto.
Based on the foregoing, I am of the opinion that:
1. The Indenture will constitute a valid and binding instrument of the Company.
2. When, as and if a series of Debt Securities has been duly authorized by appropriate corporate action, executed, authenticated, and delivered against payment to the Company of the purchase price of such series of Debt Securities, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and the applicable terms of such series of Debt Securities have been duly authorized and established in accordance with the Indenture and the applicable underwriting, purchase or other agreement, then, subject to the final terms of the Debt Securities being in compliance with then applicable law, such series of Debt Securities will constitute valid and binding obligations of the Company in accordance with its terms and entitled to the benefits of the Indenture.
3. When, as, and if shares of Common Stock have been duly authorized by appropriate corporate action, issued and delivered against payment to the Company of the purchase price of such shares of Common Stock, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and in accordance with the applicable underwriting agreement, purchase or other agreement, or upon the purchase thereof pursuant to the terms of a Stock Purchase Contract, such shares of Common Stock together with the related Rights will be duly authorized, validly issued, fully paid and non-assessable.
4. When, as, and if Stock Purchase Contracts have been duly authorized by appropriate corporate action, and the applicable stock purchase contract agreement and related agreements have been duly executed and delivered by the Company against payment to the Company of the purchase price of such Stock Purchase Contracts, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and in accordance with the applicable underwriting, purchase or other agreement, such Stock Purchase Contracts will constitute valid and binding obligations of the Company.
5. When, as and if Stock Purchase Units have been duly authorized by appropriate corporate action and duly executed and delivered by the Company against payment to the Company of the purchase price of such Stock Purchase Units, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and in accordance with the applicable underwriting, purchase or other agreement, such Stock Purchase Units will constitute valid and binding obligations of the Company.
6. When, as and if further action by the Board of Directors of the Company, or a duly authorized committee thereof, establishing the designation of, and certain other particular terms of, the Preferred Securities of any series and approving the Articles of Amendment relating to such series, has been taken, such Articles of Amendment have been duly filed with the Secretary of the State of Florida, and the Preferred Securities have been duly authorized, issued and delivered against payment to the Company of the purchase price of such shares of Preferred Securities, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and in accordance with the applicable underwriting agreement, purchase or other agreement or upon the issuance thereof in connection with the issuance of Depository Shares, such shares will be duly authorized, validly issued, fully paid and non-assessable.
7. When, as, and if Depositary Shares have been duly authorized by appropriate corporate action, and the applicable depositary and related agreements have been duly executed and delivered by the Company against payment to the Company of the purchase price of such Depositary Shares, all as contemplated by the Registration Statement and the prospectus supplement relating thereto and in accordance with the applicable underwriting, purchase or other agreement, such Depositary Shares will constitute valid and binding obligations of the Company.
This opinion is subject to applicable bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium or other similar laws of general applicability, affecting or limiting the rights of creditors, and general principles of equity.
I hereby consent to the use of this opinion as an exhibit to the
Registration Statement. In addition, I consent to the reference to me under the
caption "Legal Opinions" in the prospectus. In giving this consent, I do not
admit that I am within the category of persons whose consent is required under
Section 7 of the Act or the Rules and Regulations of the Commission issued
thereunder.
Sincerely,
by /s/ Richard H. Siegel -------------------------------------- Richard H. Siegel Associate General Counsel |
EXHIBIT 12.1
Ryder System, Inc. and Subsidiaries
Ratio of Earnings to Fixed Charges
Continuing Operations
(Dollars in thousands)
Six Months Years Ended
------------------- ----------------------------------------------------
2003 2002 2002 2001 2000 1999 1998
-------- -------- -------- -------- -------- -------- --------
EARNINGS:
Earnings before income taxes $ 87,182 72,810 175,883 30,706 141,321 110,450 204,564
Fixed charges 93,093 116,772 220,293 287,472 319,831 297,071 286,015
Less: Interest capitalized 197 113 544 985 1,816 1,086 581
-------- -------- -------- -------- -------- -------- --------
Earnings available for
fixed charges (A) 180,078 189,469 395,632 317,193 459,336 406,435 489,998
-------- -------- -------- -------- -------- -------- --------
FIXED CHARGES:
Interest and other financial charges 41,752 48,108 91,718 118,549 154,009 183,675 187,785
Costs associated with sale of receivables 204 1,763 2,119 8,906 16,892 10,664 8,860
Portion of rents representing interest expense 51,137 66,901 126,456 160,017 148,930 102,732 89,370
-------- -------- -------- -------- -------- -------- --------
Total fixed charges (B) $ 93,093 116,772 220,293 287,472 319,831 297,071 286,015
-------- -------- -------- -------- -------- -------- --------
RATIO OF EARNINGS TO FIXED CHARGES (A) / (B) 1.93 1.62 1.80 1.10 1.44 1.37 1.71
======== ======== ======== ======== ======== ======== ========
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EXHIBIT 15.1
KPMG LLP Telephone: 305-358-2300
One Biscayne Tower Fax: 305-913-2692
2 South Biscayne Boulevard
Suite 2800
Miami, Florida 33131
Re: Registration Statement on Form S-3 filed by Ryder System, Inc. under the Securities Act of 1933 on August 29, 2003
The Board of Directors and Shareholders
Ryder System, Inc.:
With respect to the subject registration statement, we acknowledge our awareness of the use therein of our report dated April 23, 2003 and our report dated July 23, 2003, except as to Note N which is as of July 25, 2003, related to our review of interim financial information.
Pursuant to Rule 436(c) under the Securities Act of 1933, such report is not considered a part of a registration statement prepared or certified by an accountant or a report prepared or certified by an accountant within the meaning of Sections 7 and 11 of the Act.
/s/ KPMG LLP Miami, Florida August 29, 2003 |
EXHIBIT 23.1
INDEPENDENT AUDITOR'S CONSENT
The Board of Directors
Ryder System, Inc.:
We consent to the use of our audit report dated February 6, 2003 on the consolidated financial statements of Ryder System, Inc. as of December 31, 2002 and 2001, and for each of the years in the three-year period ended December 31, 2002, and the related consolidated financial statement schedule, incorporated by reference into this Registration Statement on Form S-3 and to the reference to our firm under the heading "Experts" in the prospectus. Our report refers to a change in method of accounting for goodwill and other intangible assets in 2002.
/s/ KPMG LLP Miami, Florida August 29, 2003 |
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, being directors of Ryder System, Inc., a Florida corporation (the "Corporation"), hereby constitutes and appoints Vicki A. O'Meara, Richard H. Siegel and David M. Beilin, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him or her and in his or her name, place and stead in any and all capacities, to execute in the name of each such person and to file (i) a Registration Statement of the Corporation on Form S-3 under the Securities Act of 1933 with respect to $800,000,000 aggregate amount of the Corporation's debt securities, preferred stock, common stock, depositary shares, stock purchase contracts and stock purchase units and (ii) any and all amendments and post-effective amendments to such Registration Statement as such person or persons executing the same pursuant to this Power of Attorney may approve.
This Power of Attorney may be signed in any number of counterparts, each of which shall constitute an original and all of which, taken together, shall constitute one Power of Attorney.
IN WITNESS WHEREOF, each of the undersigned has hereunto set his or her hand on this 24th day of July, 2003.
/s/ John M. Berra /s/ Joseph L. Dionne ------------------------------------- ----------------------------------- John M. Berra Joseph L. Dionne /s/ Edward T. Foote II /s/ David I. Fuente ------------------------------------- ----------------------------------- Edward T. Foote II David I. Fuente /s/ Lynn M. Martin /s/ Daniel H. Mudd ------------------------------------- ----------------------------------- Lynn M. Martin Daniel H. Mudd /s/ Eugene A. Renna /s/ Abbie J. Smith ------------------------------------- ----------------------------------- Eugene A. Renna Abbie J. Smith /s/ Hansel E. Tookes II /s/ Christine A. Varney ------------------------------------- ----------------------------------- Hansel E. Tookes II Christine A. Varney |
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
J. P. MORGAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
95-4655078
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
101 CALIFORNIA STREET, FLOOR 38
SAN FRANCISCO, CALIFORNIA 94111
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
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RYDER SYSTEM, INC.
(Exact name of obligor as specified in its charter)
Florida 59-0739250
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
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3600 NW 82ND AVENUE
MIAMI, FLORIDA 33166
(Address of principal executive offices) (Zip Code)
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which it is subject.
Comptroller of the Currency, Washington, D.C. Board of Governors of the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the Obligor is an affiliate of the trustee, describe each such affiliation.
None.
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as part of this statement of eligibility.
Exhibit 1. Articles of Association of the Trustee as Now in Effect
(see Exhibit 1 to Form T-1 filed in connection with Form 8K
of the Southern California Water Company filing, dated
December 7, 2001, which is incorporated by reference).
Exhibit 2. Certificate of Authority of the Trustee to Commence Business
(see Exhibit 2 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated
by reference).
Exhibit 3. Authorization of the Trustee to Exercise Corporate Trust
Powers (contained in Exhibit 2).
Exhibit 4. Existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Form 8K of the Southern
California Water Company filing, dated December 7, 2001,
which is incorporated by reference).
Exhibit 5. Not Applicable
Exhibit 6. The consent of the Trustee required by Section 321 (b) of
the Act (see Exhibit 6 to Form T-1 filed in connection with
Registration Statement No. 333-41329, which is incorporated
by reference).
Exhibit 7. A copy of the latest report of condition of the Trustee,
published pursuant to law or the requirements of its
supervising or examining authority.
Exhibit 8. Not Applicable
Exhibit 9. Not Applicable
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SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee, J. P. Morgan Trust Company, National Association, has duly caused this statement of eligibility and qualification to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Birmingham, and State of Alabama, on the 29th day of August, 2003.
J. P. Morgan Trust Company, National Association
By /s/ DAVID E. WHITE
---------------------------------------
Vice President
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EXHIBIT 7. Report of Condition of the Trustee.
ASSETS DOLLAR AMOUNTS IN THOUSANDS
Cash and Due From Banks $ 30,669
Securities 106,073
Loans and Leases 41,488
Premises and Fixed Assets 9,168
Intangible Assets 162,542
Other Assets 17,245
------------
Total Assets $ 367,185
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LIABILITIES
Deposits $ 97,653
Other Liabilities 47,491
------------
Total Liabilities $ 145,144
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EQUITY CAPITAL
Common Stock 600
Surplus 181,587
Retained Earnings 39,854
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Total Equity Capital 222,041
------------
Total Liabilities and Equity Capital $ 367,185
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