--------------------------------------------------------------------------------
NOTE PURCHASE AGREEMENT
(VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES, SERIES 2000-1)
among
RENTAL CAR FINANCE CORP.,
as Seller,
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
as Master Servicer,
THE CONDUIT PURCHASERS FROM TIME TO TIME PARTY HERETO,
THE COMMITTED PURCHASERS FROM TIME TO TIME PARTY HERETO,
THE MANAGING AGENTS FROM TIME TO TIME PARTY HERETO,
and
BANK ONE, NA,
as Administrative Agent
dated as of December 15, 2000
--------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
ARTICLE I. DEFINITIONS.........................................................2
Section 1.01 Certain Defined Terms....................................2
Section 1.02 Other Definitional Provisions............................7
ARTICLE II. PURCHASES; PAYMENTS................................................7
Section 2.01 Advances.................................................7
Section 2.02 Advance Procedures.......................................8
Section 2.03 Extension of Expiration Date.............................9
Section 2.04 Reduction or Increase of Series 2000-1 Maximum Invested
Amount or Group Funding Limits; Decreases...............10
Section 2.05 Calculation of Series 2000-1 Interest Amount, Fees......11
Section 2.06 Notification as to Purchasers, Certificate Rates,
Liquidity Puts and CP Disruption Events.................12
ARTICLE III. CLOSING..........................................................12
Section 3.01 Closing.................................................13
Section 3.02 Transactions Effected at the Closing....................13
ARTICLE IV. CONDITIONS PRECEDENT..............................................13
Section 4.01 Conditions Precedent to the Initial Advance.............13
Section 4.02 Conditions Precedent to All Advances....................14
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF RCFC.............................15
Section 5.01 Base Indenture..........................................15
Section 5.02 Authority, etc..........................................15
Section 5.03 Series 2000-1 Notes.....................................16
Section 5.04 Litigation..............................................16
Section 5.05 The Collateral..........................................16
Section 5.06 Taxes, etc..............................................16
Section 5.07 Authorization...........................................17
Section 5.08 Financial Condition of RCFC.............................17
Section 5.09 Use of Proceeds.........................................17
Section 5.10 Securities Act..........................................17
Section 5.11 Investment Company Act..................................17
Section 5.12 Full Disclosure.........................................17
Section 5.13 Amortization Events.....................................17
Section 5.14 Related Documents.......................................17
ARTICLE VI. REPRESENTATIONS AND WARRANTIES OF DTAG............................17
Section 6.01 Master Lease............................................18
Section 6.02 Authority, etc..........................................18
i
Section 6.03 Litigation..............................................18
Section 6.04 Taxes, etc..............................................19
Section 6.05 Financial Condition of DTAG.............................19
Section 6.06 Full Disclosure.........................................19
ARTICLE VII. REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE ADMINISTRATIVE
AGENT, THE MANAGING AGENTS AND THE PURCHASERS.............19
Section 7.01 Organization............................................19
Section 7.02 Authority, etc..........................................20
Section 7.03 Securities Act..........................................20
Section 7.04 Investment Company Act..................................21
ARTICLE VIII. COVENANTS OF RCFC AND DTAG......................................21
Section 8.01 Access to Information...................................21
Section 8.02 Security Interests; Further Assurances..................21
Section 8.03 Covenants...............................................21
Section 8.04 Amendments..............................................21
Section 8.05 Information from DTAG...................................22
Section 8.06 Principal Office........................................22
Section 8.07 Additional Series of Notes..............................22
ARTICLE IX. ADDITIONAL COVENANTS..............................................22
Section 9.01 Legal Conditions to Closing.............................23
Section 9.02 Expenses................................................23
Section 9.03 Mutual Obligations......................................23
Section 9.04 Consents, etc...........................................23
ARTICLE X. INDEMNIFICATION....................................................23
Section 10.01Indemnification.........................................23
Section 10.02Procedure...............................................24
Section 10.03Defense of Claims.......................................24
Section 10.04Indemnity for Taxes, Reserves and Expense...............25
Section 10.05Costs, Expenses, Taxes, Breakage Payments and Increased
Costs under Agreement and Program Facility..............26
Section 10.06Carrying Charges........................................27
ARTICLE XI. THE ADMINISTRATIVE AGENT; THE MANAGING AGENTS.....................27
Section 11.01Authorization and Action................................27
Section 11.02Agent's Reliance, etc...................................28
Section 11.03Administrative Agent, Managing Agents and Affiliates....29
Section 11.04Indemnification.........................................29
Section 11.05Advance Decision........................................30
Section 11.06Successor Agents........................................30
ii
ARTICLE XII. MISCELLANEOUS....................................................30
Section 12.01Amendments..............................................30
Section 12.02Notices.................................................31
Section 12.03No Waiver; Remedies.....................................31
Section 12.04Binding Effect; Assignability...........................31
Section 12.05Provision of Documents and Information..................32
Section 12.06GOVERNING LAW...........................................32
Section 12.07No Proceedings..........................................32
Section 12.08Execution in Counterparts...............................33
Section 12.09No Recourse.............................................33
Section 12.10Limited Recourse........................................33
Section 12.11Survival................................................34
Section 12.12Tax Characterization....................................34
Section 12.13Severability; Series 2000-1 Note Rate Limitation........34
Section 12.14Headings................................................34
Section 12.15Submission to Jurisdiction..............................34
Section 12.16Characterization as Related Document; Entire Agreement..35
Section 12.17Confidentiality.........................................35
Section 12.18Additional Ownership Groups.............................36
EXHIBIT A Form of Borrowing Request
EXHIBIT B Form of Reduction Request
EXHIBIT C Addendum To Agreement
SCHEDULE I Addresses for Notice
SCHEDULE II Group Funding Limits
SCHEDULE III Purchaser Percentages
iii
NOTE PURCHASE AGREEMENT
THIS NOTE PURCHASE AGREEMENT, dated as of December 15, 2000
(as amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms hereof, this "Agreement"), is made among RENTAL CAR
FINANCE CORP., an Oklahoma corporation ("RCFC"), DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC., a Delaware corporation ("DTAG" or the "Master Servicer"), entities
from time to time party hereto as Conduit Purchasers, the entities from time to
time parties hereto as Committed Purchasers, the entities from time to time
parties hereto as Managing Agents, and the Administrative Agent named herein.
BACKGROUND
1. Contemporaneously with the execution and delivery of this
Agreement, RCFC is entering into (a) the Series 2000-1 Supplement, dated as of
even date herewith (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Series 2000-1 Supplement"), between RCFC, as Issuer, and Bankers Trust Company,
a New York banking corporation, as the Trustee (in such capacity, together with
its successors in trust in such capacity, the "Trustee"), to the Base Indenture,
dated as of December 13, 1995 (as amended by the Amendment to Base Indenture,
dated as of December 23, 1997, and as the same may be further amended,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, the "Base Indenture" and, together with the Series 2000-1
Supplement, the "Series 2000-1 Indenture"), between RCFC and the Trustee, (b) an
amendment, dated as of even date herewith, to the Master Motor Vehicle Lease and
Servicing Agreement, dated as of March 4, 1998, as such Master Lease may be
further amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof (the "Master Lease") among RCFC, as lessor,
the parties identified therein as the Lessees and Servicers, those additional
Subsidiaries of DTAG, from time to time becoming Lessees and Servicers
thereunder, and DTAG, as Guarantor and Master Servicer, and (c) the other
Related Documents (such term, as with the other capitalized terms used herein,
shall have the meaning assigned thereto in Section 1.01 hereof) to which RCFC is
a party. Pursuant to the Series 2000-1 Supplement, RCFC will issue the Rental
Car Asset Backed Variable Funding Notes, Series 2000-1 (the "Series 2000-1
Notes").
2. RCFC wishes to issue the Series 2000-1 Notes in favor of
each Managing Agent, for the benefit of the Purchasers in the related Ownership
Group, and obtain the agreement of the Purchasers to make loans from time to
time for the purchase of Series 2000-1 Invested Amounts, all of which Advances
(including the Initial Advance) will constitute Increases, and all of which
Advances (including the Initial Advance) will be evidenced by the Series 2000-1
Notes purchased in connection herewith and will constitute purchases of Series
2000-1 Invested Amounts corresponding to the amount of such Advances. Subject to
the terms and conditions of this Agreement, each Purchaser is willing to make
Advances from time to time to fund purchases of Series 2000-1 Invested Amounts
in an aggregate outstanding amount up to the amount set forth below its name on
the signature pages to this Agreement until the commencement of the Series
2000-1 Rapid Amortization Period. DTAG has joined in this Agreement to confirm
certain representations, warranties and covenants made by it as Master Servicer
for the benefit of the Purchasers and the Administrative Agent.
NOW THEREFORE, in consideration of the premises and of the
agreements herein contained, and for due and adequate consideration, which the
parties hereto hereby acknowledge, the parties hereto hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.01 Certain Defined Terms. As used in this
Agreement and unless the context requires a different meaning, capitalized terms
used but not defined herein (including the preamble and the recitals hereto)
shall have the meanings assigned to such terms in (i) the Series 2000-1
Supplement, as such may be amended, supplemented, restated or otherwise modified
from time to time in accordance with the terms thereof, and (ii) the Definitions
List attached as Schedule 1 to the Base Indenture as in effect as of the date
hereof, as such Definitions List may be further amended, supplemented, restated
or otherwise modified from time to time in accordance with the terms of the Base
Indenture, provided that to the extent, if any, that any capitalized term used
but not defined herein has a meaning assigned to such term in more than one of
the lists or agreements referred to in clauses (i) and (ii), then if a meaning
is assigned to such term in the Series 2000-1 Supplement, such meaning shall
apply herein. In addition, the following terms shall have the following meanings
and the definitions of such terms are applicable to the singular as well as the
plural form of such terms and to the masculine as well as the feminine and
neuter genders of such terms:
"Addendum" means an addendum to this Agreement, in
substantially the form of Exhibit C hereto, pursuant to which an Additional
Ownership Group becomes a party to this Agreement.
"Additional Amounts" means all amounts owed by RCFC, without
duplication, (i) pursuant to Article X hereof, (ii) pursuant to the Fee Letter
(other than the "Structuring Fee" and the "Facility Fee" referred to therein),
(iii) pursuant to the Administrative Agent's Fee Letter, and (iv) as Breakage
Amounts.
"Additional Ownership Group" has the meaning specified in the
definition of Ownership Group.
"Administrative Agent" means Bank One, in its capacity as
Administrative Agent for the Purchasers and any successor thereto appointed
pursuant to Section 11.06 hereof.
"Administrative Agent's Fee Letter" means that certain letter
dated December 15, 2000 between RCFC and the Administrative Agent setting forth
an annual administration fee payable by RCFC in connection with this Agreement.
"Advance" has the meaning specified in Section 2.01.
"Advance Date" means the date on which an Advance occurs.
2
"Applicable Indemnifying Party" has the meaning specified in
Section 10.02 hereof.
"Applicable Pro Rata Share" means, at any time of
determination with respect to any Ownership Group, a fraction, the numerator of
which is the unused Group Funding Limit of such Ownership Group at such time and
the denominator of which is the sum of the unused Group Funding Limits for all
Ownership Groups at such time.
"Assignment and Acceptance" means an assignment and acceptance
agreement entered into by a Purchaser and a permitted assignee pursuant to which
such assignee may become a party to this Agreement.
"Bank One" means Bank One, NA, a national banking association,
and its successors.
"Bank One Ownership Group" has the meaning specified in the
definition of Ownership Group.
"Benefit Plan" means an employee benefit plan, trust or
account, including an individual retirement account, that is subject to ERISA or
which is described in Section 4975(e)(1) of the Code or an entity whose
underlying assets included plan assets by reason of a plan's investment in such
entity.
"BNS" has the meaning specified in the definition of Ownership
Group.
"BNS Ownership Group" has the meaning specified in the
definition of Ownership Group.
"Borrowing Request" means a written request substantially in
the form of Exhibit A hereto.
"Breakage Amounts" means, for the portion of the Series 2000-1
Invested Amount funded at (or, in the case of a requested Advance not made by a
Purchaser for any reason other than its default, scheduled to be funded at) the
CP Rate or the Eurodollar Rate, the cost to each Purchaser of a reduction or
termination of such portion of the Series 2000-1 Invested Amount before the last
day of the related Series 2000-1 Tranche Period (the amount of such Series
2000-1 Invested Amount so reduced or terminated being referred to as the
"Prepaid Amount"), which cost equals the amount, if any, by which (a) the
additional Series 2000-1 Interest Amount which would have accrued during such
Series 2000-1 Tranche Period on such Prepaid Amount had such Prepaid Amount
remained or become such portion of the Series 2000-1 Invested Amount exceeds (b)
the income, if any, received by such Purchaser from reinvesting the Prepaid
Amount in Permitted Investments during such Series 2000-1 Tranche Period.
"Closing" has the meaning specified in Section 3.01 hereof.
"Commercial Paper" means, with respect to any Conduit
Purchaser, promissory notes of such Conduit Purchaser issued by such Conduit
Purchaser in the commercial paper market.
3
"Commission" has the meaning specified in Section 7.03 hereof.
"Committed Purchaser" means each entity identified as such on
the signature pages to this Agreement and each of its assigns (with respect to
its commitment to make Advances) that shall become a party to this Agreement
pursuant to Section 12.04 hereof, and such other purchasers as shall become
parties to this Agreement as Committed Purchasers by execution of an Addendum
pursuant to Section 12.18 hereof.
"Conduit Purchaser" means each entity identified as such on
the signature pages to this Agreement and each of its permitted assigns that
shall become a party to this Agreement pursuant to Section 12.04 hereof, and
such other purchasers as shall become parties this Agreement as Conduit
Purchasers by execution of an Addendum pursuant to Section 12.18 hereof.
"CP Disruption Event" means, with respect to a Conduit
Purchaser, that (a) such Conduit Purchaser is unable to raise funds through the
issuance of Commercial Paper or (b) the Managing Agent for such Conduit
Purchaser's Ownership Group reasonably believes that it is inadvisable or
impermissible for such Conduit Purchaser to raise funds through the issuance of
Commercial Paper. A CP Disruption Event with respect to a Conduit Purchaser
shall cease to exist, in the case of clause (a) of the immediately preceding
sentence, when such Conduit Purchaser becomes able to raise funds through the
issuance of Commercial Paper, and in the case of clause (b) of the immediately
preceding sentence, when such Managing Agent reasonably believes it is advisable
or permissible, as the case may be, for such Conduit Purchaser to raise funds
through the issuance of Commercial Paper.
"Expiration Date" means December 14, 2001, as such date may be
extended by agreement in writing of the parties hereto.
"Facility Fee" has the meaning specified in the Fee Letter.
"Federal Bankruptcy Code" means the bankruptcy code of the
United States of America codified in Title 11 of the United States Code, as
amended.
"Fee Letter" means that certain letter dated December 15, 2000
among RCFC, the Administrative Agent and the Managing Agents setting forth
certain fees payable by RCFC in connection with this Agreement.
"Governmental Actions" means any and all consents, approvals,
permits, orders, authorizations, waivers, exceptions, variances, exemptions or
licenses of, or registrations, declarations or filings with, any Governmental
Authority required under any Governmental Rules.
"Governmental Authority" means the United States of America,
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and having jurisdiction over the applicable Person.
4
"Governmental Rules" means any and all laws, statutes, codes,
rules, regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
"Group Funding Limit" means, with respect to each Ownership
Group, the amount identified as such in Schedule II, as reduced or increased
pursuant to Section 2.04, Section 12.01 or Section 12.18 hereof.
"Indemnified Party" means any Purchaser, any Managing Agent,
the Administrative Agent or any of their officers, directors, employees, agents,
representatives, assignees or Affiliates.
"Initial Series 2000-1 Notes" means, collectively, (i) a
Series 2000-1 Note issued on the Series 2000-1 Closing Date in the name of Bank
One, as Managing Agent for the Bank One Ownership Group, and (ii) a Series
2000-1 Note issued on the Series 2000-1 Closing Date in the name of BNS, as
Managing Agent for the BNS Ownership Group.
"Liquidity Put" means, with respect to a Conduit Purchaser,
that such Conduit Purchaser, pursuant to its Program Support Agreement, has sold
to one or more Program Support Providers an interest in such Conduit Purchaser's
interest in the Series 2000-1 Note funded or maintained by such Conduit
Purchaser at the time of such sale.
"Managing Agent" means, with respect to any Ownership Group,
the entity identified as such on the signature pages to this Agreement and such
other Persons as shall become parties to this Agreement as Managing Agents by
execution of an Addendum pursuant to Section 12.18 hereof, and any successor
thereto appointed in accordance with Section 11.06 hereof.
"Ownership Group" means each of the following groups of
Purchasers:
(i) Bank One, Falcon Asset Securitization
Corporation, any other Conduit Purchaser administered by Bank
One or any of Bank One's Affiliates (the "Bank One Ownership
Group").
(ii) The Bank of Nova Scotia ("BNS"), Liberty
Street Funding Corp., and any other Conduit Purchaser
administered by BNS or any of BNS's Affiliates (the "BNS
Ownership Group").
(iii) Each Managing Agent and its related Conduit
Purchasers and Committed Purchasers as shall become parties to
this Agreement by execution of an Addendum pursuant to Section
12.18 hereof (each an "Additional Ownership Group").
By way of example and for avoidance of doubt, each of the Bank
One Ownership Group, the BNS Ownership Group and any Additional Ownership Group
is a separate Ownership Group. An assignee of a Committed Purchaser shall
belong, to the extent of such assignment, to the same Ownership Group as the
assigning Committed Purchaser. A Committed Purchaser may belong to more than one
Ownership Group at a time.
5
In the event more than one Conduit Purchaser in a particular
Ownership Group becomes a party to this Agreement, the parties hereto agree to
cooperate in good faith, at the request of the applicable Managing Agent, to
amend this Agreement to provide for separate Ownership Groups for each Conduit
Purchaser in such Ownership Group.
"Prepaid Amount" shall have the meaning set forth therefor in
the definition of Breakage Amount.
"Program Support Agreement" means any agreement entered into
by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of any Conduit Purchaser, the issuance of one
or more surety bonds for which any Conduit Purchaser is obligated to reimburse
the applicable Program Support Provider for any drawings thereunder, the sale by
any Conduit Purchaser to any Program Support Provider of an interest in any
Series 2000-1 Note and/or the making of loans and/or other extensions of credit
to any Conduit Purchaser in connection with such Conduit Purchaser's
securitization program (whether for liquidity or credit enhancement support),
together with any letter of credit, surety bond or other instrument issued
thereunder.
"Program Support Provider" means and includes any Person now
or hereafter extending credit, or having a commitment to extend credit to or for
the account of, or to make purchases from, any Conduit Purchaser or issuing a
letter of credit, surety bond or other instrument to support any obligations
arising under or in connection with such Conduit Purchaser's securitization
program.
"Purchaser Parties" means, collectively, the Purchasers, the
Managing Agents and the Administrative Agent.
"Purchaser Percentage" of any Committed Purchaser means (a)
with respect to a Committed Purchaser that is a party hereto on the date hereof,
the percentage set forth on Schedule III to this Agreement as such Committed
Purchaser's Purchaser Percentage, or such percentage as modified by any
Assignment and Acceptance entered into by such Committed Purchaser or as
modified pursuant to Section 12.01 or Section 12.18 hereof, or (b) with respect
to a Person that becomes a Committed Purchaser pursuant to an Assignment and
Acceptance or an Addendum, the percentage set forth therein as such Purchaser's
Purchaser Percentage, or such percentage as modified by any Assignment and
Acceptance entered into by such Committed Purchaser or as modified pursuant to
Section 12.01 or Section 12.18 hereof.
"Purchasers" means the Conduit Purchasers and the Committed
Purchasers and, to the extent applicable, the Program Support Providers.
"RIC" means a receivables investment company administered by a
Managing Agent or an Affiliate thereof which obtains funding from the issuance
of commercial paper or other notes.
6
"Series Documents" means the Administrative Agent's Fee
Letter, the Fee Letter, the Series 2000-1 Indenture, the Master Collateral
Agency Agreement, this Agreement, the Master Lease and the Related Documents.
"Third Party Claim" has the meaning specified in Section 10.02
hereof.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01, and accounting terms partially defined in Section 1.01 to the
extent not defined, shall have the respective meanings given to them under
generally accepted accounting principles. To the extent that the definitions of
accounting terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles, the definitions contained herein shall
control.
(c) The words "hereof," "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; and Section,
subsection, Schedule and Exhibit references contained in this Agreement are
references to Sections, subsections, the Schedules and Exhibits in or to this
Agreement unless otherwise specified.
ARTICLE II.
PURCHASES; PAYMENTS
Section 2.01 Advances.
(a) On the terms and subject to the conditions set forth in
this Agreement and the Series 2000-1 Supplement, and in reliance on the
covenants, representations, warranties and agreements herein set forth, during
the Series 2000-1 Revolving Period (i) RCFC from time to time may request that
the Purchasers advance funds to purchase or refinance the purchase of the Series
2000-1 Invested Amount (each, an "Advance"), provided, that RCFC may not request
more than four Advances in any calendar month; and (ii) (A) the Conduit
Purchasers may elect to fund some or all such Advances of such Ownership Group,
and (b) the Committed Purchasers of an Ownership Group shall fund such Advances
to the extent that the Conduit Purchaser of such Ownership Group (or a Person
acting with respect to an Ownership Group on behalf of a Conduit Purchaser) does
not fund such Advances.
(b) Unless the parties hereto otherwise agree, all Advances
with respect to an Ownership Group shall be evidenced by a Series 2000-1 Note in
the name of the applicable Managing Agent having a principal balance that varies
from time to time reflecting the Advances made by and payments to (or on behalf
of) the Purchasers with respect thereto.
7
(c) All Advances on any date shall be allocated (i) with
respect to the initial Advance, to the Series 2000-1 Initial Invested Amount and
to each of the Series 2000-1 Notes in accordance with the Applicable Pro Rata
Share of each Ownership Group; and (ii) thereafter, according to the provisions
in Section 4A.2 of the Series 2000-1 Supplement for allocating Increases, to the
Series 2000-1 Invested Amount and to each of the Series 2000-1 Notes in
accordance with the Applicable Pro Rata Share of each Ownership Group. Each of
the Advances to be made on any date shall be made singly as part of a single
borrowing (each such single borrowing being a "Borrowing"). Subject to the terms
of this Agreement and the Series 2000-1 Supplement, the aggregate principal
amount of the Advances and corresponding Series 2000-1 Invested Amount
represented by the Series 2000-1 Notes may be increased or decreased from time
to time.
Section 2.02 Advance Procedures.
(a) Notice. RCFC may request an Advance by sending each
Managing Agent (by facsimile) a Borrowing Request at least three Business Days
prior to the proposed Advance Date (or, in the case of the initial Advance under
this Agreement, at least one Business Day before the related Advance Date). Each
Borrowing Request shall state (i) the applicable Advance Date; and (ii) the
amount of the requested Advance. Each Managing Agent shall promptly advise RCFC
as to whether its Ownership Group desires to make any changes in the information
set forth in such Borrowing Request pertaining to such Ownership Group. Each
Advance shall be requested in a minimum principal amount of one million dollars
($1,000,000) and integral multiples of one hundred thousand dollars ($100,000)
in excess thereof; provided, that an Advance may be requested in the entire
remaining Series 2000-1 Maximum Invested Amount.
(b) Advances. On each Advance Date identified in a Borrowing
Request: (i) the Conduit Purchasers (unless the Conduit Purchasers decline to
participate in the applicable Borrowing), shall fund an Increase in the Series
2000-1 Invested Amount of a Series 2000-1 Note in an amount equal to the Advance
specified in such Borrowing Request; and (ii) to the extent necessary to fund
such Borrowing, the Committed Purchasers shall fund such Increase on such
Advance Date. Each Managing Agent agrees to use reasonable efforts to notify
RCFC prior to an Advance Date if the related Conduit Purchaser shall not
participate in the Borrowing to be funded on such Advance Date; provided, that
the failure of a Managing Agent to so notify RCFC shall not obligate such
related Conduit Purchaser to participate in such Borrowing. Subject to the other
provisions of this Agreement, Advances shall be allocated among the Ownership
Groups based on their respective Applicable Pro Rata Shares. For avoidance of
doubt, (x) the decision of a particular Conduit Purchaser to decline to
participate in a Borrowing shall not require that other Conduit Purchasers
decline to participate in a Borrowing, and (y) the decision of a particular
Conduit Purchaser to participate in a Borrowing shall not require that other
Conduit Purchasers participate in a Borrowing.
(c) Payment of Advances. Each Managing Agent severally agrees,
on behalf of its Ownership Group, in each case pro rata based on the respective
Applicable Pro Rata Share of its related Ownership Group, to remit the
applicable Advance to RCFC on the related Advance Date not later than 5:00 p.m.
New York City time on such Advance Date by wire transfer of immediately
available funds in U.S. Dollars to RCFC's account no. ▇▇▇▇▇▇▇▇, ABA# ▇▇▇▇▇▇▇▇▇,
maintained at Bankers Trust Company (ref: Rental Car Finance Corp. Series
2000-1) (or such other account as may from time to time be specified by RCFC in
a notice to each Managing Agent).
8
(d) Conditions Precedent. The initial Advance under this
Agreement shall be subject to the conditions precedent set forth in Article IV.
Each subsequent Advance shall be subject to the conditions precedent that:
(i) each of the representations and warranties of
RCFC, the Master Servicer, Dollar and Thrifty made in the
Series Documents shall be true and correct in all material
respects as of the applicable Advance Date (except to the
extent they expressly relate to an earlier or later time);
(ii) with respect to a particular Ownership Group,
the Series 2000-1 Revolving Period for such Ownership Group
shall not have ended; and no Amortization Event (or event
which, with the giving of notice or passage of time, or both,
would constitute an Amortization Event) shall have occurred
and be continuing;
(iii) with respect to a particular Ownership
Group, the Series 2000-1 Invested Amount of such Ownership
Group shall not exceed the Group Funding Limit of such
Ownership Group (after giving effect to such Advance);
(iv) no action, suit, proceeding or investigation
by or before any Governmental Authority shall have been
instituted to restrain or prohibit the consummation of, or
to invalidate, the transactions contemplated by the Series
Documents and the documents related thereto in any material
respect;
(v) after giving effect to such Advance, neither
(A) a Series 2000-1 Enhancement Deficiency nor (B) an Asset
Amount Deficiency shall exist, as determined by the Master
Servicer; and
(vi) the Series 2000-1 Invested Amount shall not
exceed the Series 2000-1 Maximum Invested Amount.
No Committed Purchaser shall be required to make a portion of any Advance to the
extent that, after giving effect thereto, (A) the portion of the Series 2000-1
Invested Amount funded or maintained by such Committed Purchaser (in each case
pursuant to this Agreement) would exceed (B) the result of (I) its Purchaser
Percentage multiplied by (II) the excess, if any, of (x) the Series 2000-1
Maximum Invested Amount over (y) the portion of the Series 2000-1 Invested
Amount then funded or maintained by the Conduit Purchasers.
Section 2.03 Extension of Expiration Date. The parties
hereto may mutually agree in writing to the extension of the Expiration Date to
a date no later than 364 days following the date of such extension. Each
Managing Agent agrees to use reasonable efforts to notify RCFC and DTAG thirty
(30) days prior to the then current Expiration Date if the related Conduit
Purchaser will not extend such Expiration Date; provided, however, that the
failure of such Managing Agent to give such notice to RCFC and DTAG shall not
affect such Conduit Purchaser's right to not extend such Expiration Date. If
fewer than all of the Ownership Groups have consented to an extension of the
Expiration Date, then RCFC may
9
(i) request the reallocation of the Group Funding
Limit of each non-extending Ownership Group to the extending
Ownership Groups in pro rata shares equal to a fraction,
expressed as a percentage, the numerator of which is the Group
Funding Limit of such extending Ownership Group at such time
and the denominator of which is the sum of the Group Funding
Limits of all extending Ownership Groups at such time;
provided, however, that RCFC shall not be permitted to request
such reallocation after the occurrence and during the
continuance of an Amortization Event; provided, further, that
such reallocation shall be effected by the assignment by
the non-extending Ownership Groups of their respective
outstanding Series 2000-1 Invested Amount and rights and
obligations under this Agreement in accordance with Section
12.04 hereof;
(ii) obtain a financial institution or
institution(s) to whom the non-extending Ownership Groups
shall assign their respective outstanding Series 2000-1
Invested Amount and rights and obligations under this
Agreement in accordance with Section 12.04 hereof; or
(iii) terminate this Agreement and the obligations
of the Purchasers to make Advances.
If a financial institution or institutions accept an assignment or assignments
from the non-extending Ownership Groups as provided in subparagraph (ii) above
on or before the then current Expiration Date, such Expiration Date shall be
extended to a date no later than 364 days following such Expiration Date. No
extending Ownership Group shall be required to assume any commitment of any
non-extending Ownership Group unless such extending Ownership Group agrees in
writing to assume such commitment. If the extending Ownership Groups do not
accept the reallocation of the Group Funding Limit of the non-extending
Ownership Groups or the non-extending Ownership Groups fail to assign their
respective outstanding Series 2000-1 Invested Amount and rights and obligations
under this Agreement, as provided in subparagraphs (i) and (ii) above,
respectively, on or prior to the then current Expiration Date, such Expiration
Date shall not be extended.
Section 2.04 Reduction or Increase of Series 2000-1
Maximum Invested Amount or Group Funding Limits; Decreases.
(a) RCFC may reduce in whole or in part the Series 2000-1
Maximum Invested Amount or the unused Group Funding Limits of the Ownership
Groups (but not below the Series 2000-1 Invested Amount) by giving the
Administrative Agent and each Managing Agent written notice, substantially in
the form of Exhibit B hereto, at least three Business Days before such reduction
is to take place; provided, however, that any partial reduction shall be in an
aggregate amount of one million dollars ($1,000,000) or any integral multiples
of one hundred thousand dollars ($100,000) in excess thereof. Any such reduction
in the Series 2000-1 Maximum Invested Amount or Group Funding Limits shall be
permanent unless a subsequent increase in the Series 2000-1 Maximum Invested
Amount or Group Funding Limits is made in accordance with Section 2.04(b) or
Section 12.01(b). RCFC shall pay the applicable Committed Purchasers any accrued
and unpaid Facility Fee on the date of such reduction with respect to the
reduction amount. Reductions of the respective Group Funding Limits shall be
made on a pro rata basis.
10
(b) RCFC may request an increase in the Series 2000-1 Maximum
Invested Amount and the Group Funding Limits by written notice to the
Administrative Agent and each Managing Agent at least thirty (30) days before
the date on which such increase is requested to become effective. No such
increase shall take effect with respect to an Ownership Group unless the
Managing Agent for such Ownership Group consents in writing thereto.
(c) Whenever the Enhancement Amount is less than the Minimum
Enhancement Amount or an Asset Amount Deficiency exists, then, on the Payment
Date immediately following discovery of such deficiency, RCFC shall decrease the
Series 2000-1 Invested Amount of the Series 2000-1 Notes as required under
Section 4A.3(a) of the Series 2000-1 Supplement and any such payment shall be
applied pro rata, based on the outstanding Series 2000-1 Invested Amount
represented by each of the Series 2000-1 Notes. If there occurs a Prepaid Amount
prior to the last day of any CP Tranche Period or Eurodollar Tranche Period,
RCFC shall pay Breakage Amounts, if any, to each Purchaser in the applicable
Ownership Group with respect to which a Prepaid Amount has occurred. Any such
Breakage Amounts shall be calculated by the Managing Agent with respect to any
Purchaser experiencing such Breakage Amounts, and promptly reported to the
Master Servicer and RCFC in writing.
(d) Upon at least three (3) Business Days' prior irrevocable
notice to the Administrative Agent and each Managing Agent in writing, RCFC may
voluntarily reduce the Series 2000-1 Invested Amount of the Series 2000-1 Notes
in accordance with the procedures set forth in Section 4A.3(b) of the Series
2000-1 Supplement. If there occurs (i) a Prepaid Amount prior to the last day of
any Eurodollar Tranche Period selected by RCFC or (ii) a Prepaid Amount equal
to or greater than $50,000,000 in the aggregate prior to the last day of any CP
Tranche Period or any Eurodollar Tranche Period not selected by RCFC, RCFC
shall pay Breakage Amounts, if any, to each Purchaser in the applicable
Ownership Group with respect to which a Prepaid Amount has occurred. Any such
Breakage Amounts shall be calculated by the Managing Agent with respect to any
Purchaser experiencing such Breakage Amounts, and promptly reported to the
Master Servicer and RCFC in writing.
Section 2.05 Calculation of Series 2000-1 Interest Amount,
Fees.
(a) On each Determination Date, each Managing Agent (i) shall
calculate the portion of the Series 2000-1 Interest Amount accrued with respect
to its Series 2000-1 Note for the next Payment Date and (ii) shall notify the
Master Servicer and RCFC of the same in writing.
(b) RCFC agrees to pay and to instruct the Trustee to pay on
each Payment Date in accordance with the terms and provisions of the Series
2000-1 Supplement, the portion of the Series 2000-1 Interest Amount due and
payable in respect of the Series 2000-1 Note held by the Managing Agent for each
Ownership Group, all amounts payable by RCFC pursuant to the Fee Letter
(including the Facility Fee) or the Administrative Agent's Fee Letter.
11
Section 2.06 Notification as to Purchasers, Certificate
Rates, Liquidity Puts and CP Disruption Events.
(a) On each Advance Date, each Managing Agent shall notify
the Master Servicer, the Administrative Agent and RCFC as to the Purchasers in
the related Ownership Group who made Advances on such Advance Date.
(b) Not later than 11:00 a.m., Chicago time, on each
Determination Date, each Managing Agent shall notify the Master Servicer and
RCFC as to the Series 2000-1 Note Rate for all Series 2000-1 Tranche Periods
funded by such Managing Agent's Ownership Group, applicable on each day during
the period beginning on the Determination Date immediately preceding such
Determination Date and ending on the day immediately preceding such
Determination Date to each Purchaser in its Ownership Group, and all amounts
payable to such Managing Agent and its Ownership Group on the next Payment Date;
provided, that if, after the occurrence of a CP Disruption Event, the Committed
Purchasers in any Ownership Group are funding or maintaining all or any portion
of the Series 2000-1 Invested Amount of such Ownership Group, RCFC may, upon at
least three (3) Business Days' prior written notice to the related Managing
Agent, request that the Series 2000-1 Note Rate applicable to such Series 2000-1
Invested Amount (or portion thereof) be the Eurodollar Rate. If the Managing
Agents do not receive such notice from RCFC as aforesaid, the Series 2000-1 Note
Rate applicable to such Series 2000-1 Invested Amount (or portion thereof) shall
be the Base Rate. If any portion of the Series 2000-1 Invested Amount is funded
or maintained at the Eurodollar Rate, RCFC may select the Eurodollar Tranche
Period that applies with respect to such Series 2000-1 Invested Amount. If RCFC
shall fail to select such Eurodollar Tranche Period at least three (3) Business
Days' prior to the last day of the then applicable Tranche Period, each Managing
Agent shall select the Eurodollar Tranche Period that applies with respect to
such Series 2000-1 Invested Amount. The Managing Agent for the Ownership Group
for each Conduit Purchaser shall allocate the Series 2000-1 Invested Amount of
such Conduit Purchaser to CP Tranche Periods in its sole discretion.
(c) In the event any Managing Agent believes in its reasonable
business judgment that it may need to exercise a Liquidity Put with respect to
any request for Advance or any existing Advance funded by a Conduit Purchaser,
such Managing Agent shall use reasonable efforts to notify the Master Servicer
and RCFC of such possibility. A Managing Agent's failure to so notify shall not
in any way prevent the exercise of a Liquidity Put. In any event, promptly
(but in no event more than one Business Day) after the occurrence of a
Liquidity Put or a CP Disruption Event, each applicable Managing Agent shall
notify the Master Servicer and RCFC as to the occurrence of such Liquidity Put
or CP Disruption Event. If the Series 2000-1 Invested Amount of any Conduit
Purchaser is subject to a Liquidity Put before the last day of the CP Tranche
Period as a result of the occurrence of an Amortization Event (or event which,
with the giving of notice or passage of time, or both, would constitute an
Amortization Event), RCFC shall pay Breakage Amounts, if any, as calculated and
reported in writing by the Managing Agent with respect to such Conduit
Purchaser, to such Conduit Purchaser with respect to such Liquidity Put.
ARTICLE III.
CLOSING
12
Section 3.01 Closing. The closing (the "Closing") of the
purchase and sale of the Initial Series 2000-1 Notes shall take place at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ in New York, New York on the Series 2000-1 Closing
Date, or if the conditions to closing set forth in Article IV of this Agreement
shall not have been satisfied or waived by such date, as soon as practicable
after such conditions shall have been satisfied or waived, or at such other
time, date and place as the parties shall agree upon.
Section 3.02 Transactions Effected at the Closing. At the
Closing (a) upon satisfying the conditions precedent set forth in Sections 4.01
and 4.02, the Managing Agents shall deliver to RCFC funds in an amount equal to
the sum of the Advances requested, if any, pursuant to Section 2.02 (by wire
transfer of immediately available funds in U.S. Dollars to the bank account
designated in Section 2.02(c)), net of any fees payable at the time of Closing
pursuant to the Administrative Agent's Fee Letter and the Fee Letter; (b) in
consideration of such Advances, RCFC shall be deemed to have sold the applicable
Initial Series 2000-1 Notes to the Managing Agents, for the benefit of the
Purchasers in the related Ownership Group, and each Managing Agent shall be
deemed to have purchased its Initial Series 2000-1 Note from RCFC; and (c) RCFC
shall instruct the Trustee to authenticate and deliver the Initial Series 2000-1
Notes to the Managing Agents.
ARTICLE IV.
CONDITIONS PRECEDENT
Section 4.01 Conditions Precedent to the Initial Advance.
The initial Advance by each Ownership Group is subject to the satisfaction at
the time of funding the initial Advance the following conditions (any or all of
which may be waived with respect to an Ownership Group by the related
Managing Agent in its sole discretion):
(a) Corporate Documents. The Managing Agents shall have
received copies of (a) the Certificate of Incorporation and By-Laws of RCFC,
DTAG, Dollar and Thrifty, (ii) board of directors resolutions of RCFC, DTAG,
Dollar and Thrifty with respect to the transactions contemplated by the series
Documents, and (iii) incumbency certificate of RCFC, DTAG, Dollar and Thrifty
each certified by appropriate corporate authorities.
(b) Opinions of Counsel to RCFC, DTAG, Dollar and Thrifty.
Counsel to RCFC, DTAG, Dollar and Thrifty shall have delivered to the Managing
Agents favorable opinions, dated the date of such Advance and reasonably
satisfactory in form and substance to the Managing Agents and their counsel,
covering due authorization, enforceability, true sale and non-consolidation,
perfection and priority matters and such other matters as any Managing Agent
shall reasonably request.
(c) Opinion of Counsel to the Trustee. Counsel to the Trustee
shall have delivered to the Managing Agents a favorable opinion, dated the date
of such Advance and reasonably satisfactory in form and substance to the
Managing Agents and their counsel.
(d) Opinion of Counsel to the Letter of Credit Provider.
Counsel to the Letter of Credit Provider shall have delivered to the Managing
Agents favorable opinions as to the validity and enforceability of the Series
2000-1 Letter of Credit.
13
(e) Uniform Commercial Code Filings. The Managing Agents shall
have received evidence satisfactory to them of the completion of all Uniform
Commercial Code filings as may be necessary to perfect or evidence the
assignment by RCFC to the Trustee of its interests in the Collateral, the
proceeds thereof and the security interests granted pursuant to the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ and the Master Collateral Agency Agreement.
(f) Documents. The Administrative Agent shall have received
the duly executed Administrative Agent's Fee Letter. Each Managing Agent shall
have received a duly executed counterpart of a Series 2000-1 Note in its name,
the Fee Letter, and each of the Series Documents and each and every document or
certification delivered by any party in connection with the Series 2000-1
Supplement or this Agreement, and each such document shall be in full force and
effect.
(g) Approvals and Consents. All Governmental Actions of all
Governmental Authorities required with respect to the transactions contemplated
by the Series Documents and the other documents related thereto shall have been
obtained or made.
(h) Fees. The Administrative Agent and the Managing Agents
shall have received payment of the fees payable pursuant to the Administrative
Agent's Fee Letter and the Fee Letter.
(i) Rating Confirmation. RCFC shall have received written
confirmation that the Rating Agencies Condition shall have been satisfied.
Section 4.02 Conditions Precedent to All Advances. Each
Advance by each Ownership Group is subject to the satisfaction at the time of
such Advance of the following conditions (any or all of which may be waived with
respect to an Ownership Group by the related Managing Agent in its sole
discretion):
(a) Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇. The conditions precedent set
forth in Section 4A.2 of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ shall have been satisfied
in all material respects.
(b) Performance by RCFC, Master Servicer, Dollar and Thrifty.
All the terms, covenants, agreements and conditions of the Series Documents
to be complied with and performed by RCFC, the Master Servicer, Dollar and
Thrifty at or before the time of such Advance shall have been complied with and
performed in all material respects.
(c) Representations and Warranties. Each of the
representations and warranties of RCFC, the Master Servicer, Dollar and Thrifty
made in the Series Documents shall be true and correct in all material respects
as of the time of such Advance (except to the extent they expressly relate to
an earlier or later time).
(d) No Actions or Proceedings. No action, suit, proceeding or
investigation by or before any Governmental Authority shall have been instituted
to restrain or prohibit the consummation of, or to invalidate, the transactions
contemplated by the Series Documents and the documents related thereto in any
material respect.
14
(e) Credit Enhancement. The Series 2000-1 Letter of Credit
Amount plus the Series 2000-1 Available Subordinated Amount shall be in an
amount at least equal to the Minimum Enhancement Amount.
(f) Minimum Series 2000-1 Letter of Credit Amount. The Series
2000-1 Letter of Credit Amount shall at least equal the Minimum Series 2000-1
Letter of Credit Amount.
(g) Reports. The Managing Agents shall have received copies
of the most recent Monthly Note holders' Statement provided to the Trustee
pursuant to Section 5.4 of the Base Indenture and the most recent Monthly
Vehicle Statement provided to RCFC pursuant to Section 24.4(f) of the
Master Lease.
(h) Series Documents. The Series Documents shall be in full
force and effect and, at the time of such Advance, all conditions to the
issuance of the Series 2000-1 Notes under the Series 2000-1 Supplement and under
Section 2.2 of the Base Indenture shall have been satisfied.
(i) Amortization Events. No Amortization Event, Liquidation
Event of Default or Limited Liquidation Event of Default or event which, with
the giving of notice or the passage of time or both would constitute any of the
foregoing, shall have occurred and be continuing.
ARTICLE V.
REPRESENTATIONS AND WARRANTIES OF RCFC
RCFC hereby makes the following representations and warranties
to the Purchasers, the Managing Agents and the Administrative Agent, as of each
Advance Date, and the Purchasers, the Managing Agents and the Administrative
Agent shall be deemed to have relied on such representations and warranties in
making (or committing to make) each Advance on each Advance Date.
Section 5.01 Base Indenture. RCFC repeats and reaffirms to
the Purchasers, the Managing Agents and the Administrative Agent the
representations and warranties of RCFC set forth in the Base Indenture and
represents and warrants that such representations and warranties are true and
correct in all material respects.
Section 5.02 Authority, etc.
(a) RCFC has been duly organized and is validly existing and
in good standing as corporation under the laws of the State of Oklahoma, with
corporate power and authority to own its properties and to transact the
business in which it is now engaged, and RCFC is duly qualified to do business
and is in good standing (or is exempt from such requirements) in each State of
the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the interests of the Purchasers.
15
(b) The issuance, sale, assignment and conveyance of the
Series 2000-1 Notes, the performance of RCFC's obligations under this Agreement
and the other Series Documents and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any Lien (other than any Lien created by the Series
Documents), charge or encumbrance upon any of the property or assets of RCFC
pursuant to the terms of, any indenture, mortgage, deed of trust, loan agreement
or other material agreement or instrument to which it is bound or to which any
of its property or assets is subject, nor will such action result in any
violation of the provisions of its Certificate of Incorporation or By-Laws or
any Governmental Rule applicable to RCFC.
(c) No Governmental Action which has not been obtained is
required by or with respect to RCFC in connection with the execution and
delivery of the Series 2000-1 Notes or any of the Series Documents by RCFC or
the consummation by RCFC of the transactions contemplated hereby or thereby.
(d) Each of the Series Documents has been duly authorized,
executed and delivered by RCFC, and is the valid and legally binding obligation
of RCFC, enforceable against RCFC in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity.
Section 5.03 Series 2000-1 Notes. The Series 2000-1 Notes
have been duly and validly authorized, and, when executed and authenticated in
accordance with the terms of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇, and delivered to
and paid for in accordance with this Agreement, will be duly and validly issued
and outstanding and will be entitled to the benefits of the Series 2000-1
Indenture.
Section 5.04 Litigation. There is no pending or, to RCFC's
knowledge, threatened action, suit or proceeding by or against RCFC before any
Governmental Authority or any arbitrator (i) with respect to the Collateral, any
Series Document, the Series 2000-1 Notes or any of the transactions
contemplated herein or therein, or (ii) with respect to RCFC which, in the case
of any such action, suit or proceeding with respect to RCFC, if adversely
determined, would have a material adverse effect on the ability of RCFC to
perform its obligations hereunder or thereunder.
Section 5.05 The Collateral. The Trustee or the Master
Collateral Agent has a perfected interest in the Collateral free and clear of
all Liens, except for Liens permitted under Section 7.15 of the Base Indenture.
Section 5.06 Taxes, etc. Any taxes, fees and other charges
of Governmental Authorities applicable to RCFC, except for franchise or income
taxes, in connection with the execution, delivery and performance by RCFC of the
Series Documents or otherwise applicable to RCFC in connection with the
transactions contemplated herein have been paid or will be paid by RCFC at or
prior to the Series 2000-1 Closing Date or such Advance Date, as applicable, to
the extent then due.
16
Section 5.07 Authorization. RCFC has authorized the Trustee
to authenticate and deliver the Series 2000-1 Notes to the Managing Agents.
Section 5.08 Financial Condition of RCFC. On the date
hereof and on each Advance Date, RCFC is not insolvent or the subject of any
voluntary or involuntary bankruptcy proceeding.
Section 5.09 Use of Proceeds. No proceeds of any Advance
hereunder will be used by RCFC (i) for a purpose that violates or would
be inconsistent with Regulations T, U or X promulgated by the Board of Governors
of the Federal Reserve System from time to time or (ii) to acquire any security
in any transaction in violation of Section 13 or 14 of the Securities Exchange
Act of 1934, as amended.
Section 5.10 Securities Act. Assuming the Purchasers are
not purchasing with a view toward further distribution and there has been no
general solicitation or general advertising within the meaning of the Securities
Act, the offer and sale of the Series 2000-1 Notes in the manner contemplated
by this Agreement is a transaction exempt from the registration requirements
of the Securities Act, and the Base Indenture is not required to be qualified
under the Trust Indenture Act.
Section 5.11 Investment Company Act. RCFC is not an
"investment company" or controlled by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
Section 5.12 Full Disclosure. No written information
furnished or to be furnished by RCFC or any of its Affiliates, agents or
representatives to the Purchasers, the Administrative Agent or the Managing
Agents for purposes of or in connection with this Agreement, including, without
limitation, any information relating to the Collateral, is or shall be
inaccurate in any material respect, or contains or shall contain any material
misstatement of fact, or omits or shall omit to state a material fact or any
fact necessary to make the statements contained therein not misleading, in each
case as of the date such information was or shall be stated or certified.
Section 5.13 Amortization Events. No Amortization Event,
Liquidation Event of Default or Limited Liquidation Event of Default or event
which, with the giving of notice or the passage of time or both would constitute
any of the foregoing, has occurred and is continuing.
Section 5.14 Related Documents. RCFC has furnished to the
Administrative Agent true, accurate and complete copies of all other Related
Documents to which it is a party as of the Series 2000-1 Closing Date, all of
which Related Documents are in full force and effect as of the Series 2000-1
Closing Date and no terms of any such agreements or documents have been amended,
modified or otherwise waived as of such date.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES OF DTAG
17
DTAG hereby makes the following representations and warranties
to the Purchasers, the Managing Agents and the Administrative Agent as of each
Advance Date, and the Purchasers and the Administrative Agent shall be deemed to
have relied on such representations and warranties in making (or committing to
make) each Advance on each Advance Date.
Section 6.01 Master Lease. DTAG repeats and reaffirms to
the Purchasers, the Managing Agents and the Administrative Agent that each
representation and warranty made by it in the Master Lease and each Related
Document to which it is a party (including any representations and warranties
made by it as Master Servicer) is true and correct in all material respects as
of the date originally made and as of the Series 2000-1 Closing Date.
Section 6.02 Authority, etc..
(a) Each of DTAG, Dollar and Thrifty has been duly organized
and is validly existing and in good standing as a corporation under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own its properties and to transact the business in which it is now
engaged, and each of DTAG, Dollar and Thrifty is duly qualified to do business
and is in good standing (or is exempt from such requirements) in each State of
the United States where the nature of its business requires it to be so
qualified and the failure to be so qualified and in good standing would have a
material adverse effect on the interests of the Purchasers.
(b) The performance of the obligations of each of DTAG, Dollar
and Thrifty under the Series Documents to which it is a party and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
(other than any Lien created by the Series Documents), charge or encumbrance
upon any of the property or assets of either DTAG, Dollar or Thrifty pursuant to
the terms of, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which it or any of its Affiliates is bound
or to which any of its property or assets is subject, nor will such action
result in any violation of the provisions of its Certificate of Incorporation or
By-Laws or any Governmental Rule applicable to DTAG, Dollar or Thrifty.
(c) No Governmental Action which has not been obtained is
required by or with respect to DTAG, Dollar or Thrifty in connection with any
of the Series Documents.
(d) Each of the Series Documents to which it is a party has
been duly authorized, executed and delivered by DTAG, Dollar or Thrifty, and is
the valid and legally binding obligation of DTAG, Dollar or Thrifty, as the case
may be, enforceable against DTAG, Dollar or Thrifty, as the case may be, in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
Section 6.03 Litigation. There is no pending or, to the
knowledge of DTAG, threatened action, suit or proceeding by or against DTAG,
Dollar or Thrifty before any Governmental Authority or any arbitrator (i) with
respect to any Series Document or any of the transactions contemplated herein or
therein, or (ii) with respect to DTAG, Dollar or Thrifty which, in the case
of any such action, suit or proceeding with respect to DTAG, Dollar or Thrifty,
if adversely determined, would have a material adverse effect on the ability of
DTAG, Dollar or Thrifty to perform its obligations hereunder or thereunder.
18
Section 6.04 Taxes, etc. Any taxes, fees and other charges
of Governmental Authorities applicable to DTAG, Dollar or Thrifty, except for
franchise or income taxes, in connection with the execution, delivery and
performance by DTAG, Dollar or Thrifty of the Series Documents to which it is a
party or otherwise applicable to DTAG, Dollar or Thrifty in connection with the
transactions contemplated herein or therein have been paid or will be paid by
DTAG, Dollar or Thrifty, as the case may be, at or prior to the Series 2000-1
Closing Date or such Advance Date, as applicable, to the extent then due.
Section 6.05 Financial Condition of DTAG. On the date
hereof and on each Advance Date, none of DTAG, Dollar or Thrifty is insolvent or
the subject of any insolvency proceeding.
Section 6.06 Full Disclosure. No written information
furnished or to be furnished by DTAG, Dollar or Thrifty or their respective
agents or representatives to the Purchasers, the Administrative Agent or the
Managing Agents for purposes of or in connection with the Series Documents is or
shall be inaccurate in any material respect, or contains or shall contain any
material misstatement of fact, or omits or shall omit to state a material fact
or any fact necessary to make the statements contained therein not misleading,
in each case as of the date such information was or shall be stated or
certified.
ARTICLE VII.
REPRESENTATIONS AND WARRANTIES
WITH RESPECT TO THE ADMINISTRATIVE AGENT,
THE MANAGING AGENTS AND THE PURCHASERS
The Administrative Agent, each Managing Agent (on behalf of
itself and on behalf of the related Conduit Purchasers) and the Committed
Purchasers hereby make the following representations and warranties to RCFC and
DTAG, as of the Series 2000-1 Closing Date (in the case of the Administrative
Agent and the Bank One Ownership Group) and as of each Advance Date (in the case
of the Administrative Agent, the Managing Agents and each Ownership Group,
provided that no Managing Agent or Committed Purchaser shall be deemed to make
any representation and warranty as to any Advance Date which occurred prior to
the time that it became a Managing Agent or a Committed Purchaser), and RCFC and
DTAG shall be deemed to have relied upon such representations and warranties in
entering into this Agreement and in consummating the transactions contemplated
by this Agreement (including each issuance of the Series 2000-1 Notes).
Section 7.01 Organization. Each Purchaser Party has been
duly organized and is validly existing and in good standing under the state
or federal laws governing its incorporation or formation, with power and
authority to own its properties and to transact the business in which it is now
engaged and each Purchaser Party is duly qualified to do business and is in good
standing (or is exempt from such requirements) in each State of the United
States where the nature of its business requires it to be so qualified and the
failure to be so qualified and in good standing would have a material adverse
effect on the interests of RCFC in transacting with such Purchaser Party.
19
Section 7.02 Authority, etc. Each Purchaser Party has all
requisite power and authority to enter into and perform its obligations under
this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery by each Purchaser Party of this Agreement and the
consummation by each Purchaser Party of the transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action on the
part of each Purchaser Party. This Agreement has been duly and validly executed
and delivered by each Purchaser Party and constitutes a legal, valid and binding
obligation of each Purchaser Party, enforceable against each Purchaser Party in
accordance with its terms, subject as to enforcement to bankruptcy,
reorganization, insolvency, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity. Neither the execution and delivery by any Purchaser Party
of this Agreement nor the consummation by such Purchaser Party of any of the
transactions contemplated hereby, nor the fulfillment by any Purchaser Party of
the terms hereof, will conflict with, or violate, result in a breach of or
constitute a default under any term or provision of the Articles of
Incorporation or By-laws of any Purchaser Party or any Governmental Rule
applicable to any Purchaser Party.
Section 7.03 Securities Act. The Series 2000-1 Notes (or
interests therein) purchased by any Purchaser Party pursuant to this Agreement
will be acquired for investment only and not with a view to any distribution,
resale or other transfer thereof, except as contemplated by the next sentence.
No Purchaser Party will sell or offer to sell or otherwise transfer its interest
in any Series 2000-1 Note acquired by it (or any interest therein), except
(A) in accordance with the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ and (B) (i) pursuant to an
effective registration statement under the Securities Act or (ii) in a
transaction exempt from the registration requirements of the Securities Act and
applicable state securities or "blue sky" laws, to a Person who the Purchaser
Party reasonably believes is a qualified institutional buyer (within the meaning
thereof in Rule 144A under the Securities Act) that is aware that the resale or
other transfer is being made in reliance upon Rule 144A. Each Purchaser Party
acknowledges that it has no right to require RCFC to register under the
Securities Act, or any other securities law, any Series 2000-1 Note to be
acquired by any Purchaser Party pursuant to this Agreement.
Each Purchaser Party has such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of an investment in the Series 2000-1 Notes and each Purchaser is able to
bear the economic risk of such investment. Each Purchaser Party has reviewed the
Base Indenture and other Series Documents (including the schedules and exhibits
thereto) and has had the opportunity to perform due diligence with respect
thereto and to ask questions of and receive answers from RCFC and its
representatives concerning RCFC, the Collateral, the Series Documents and the
Series 2000-1 Notes. Each of the Purchaser Parties is an institutional
"accredited investor" within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D promulgated by the Securities and Exchange Commission (the
"Commission") under the Securities Act.
Each Purchaser Party understands that the offering and sale of
the Series 2000-1 Notes have not been and will not be registered under the
Securities Act, and have not and will not be registered or qualified under any
applicable "blue sky" or state securities law, and that the offering and sale of
the Series 2000-1 Notes have not been reviewed by, passed on or submitted to the
Commission or any other federal or state agency or commission, securities
exchange or other regulatory body. No Purchaser Party is a Benefit Plan. No
Purchaser Party is acquiring any Series 2000-1 Note (or any interest in a Series
2000-1 Note) directly or indirectly for the benefit of a Benefit Plan.
20
Section 7.04 Investment Company Act. No Purchaser Party is
(a) required to register as an "investment company" or (b) controlled by an
"investment company", in each case within the meaning of the Investment Company
Act of 1940, as amended.
ARTICLE VIII.
COVENANTS OF RCFC AND DTAG
Section 8.01 Access to Information. So long as any Series
2000-1 Note remains outstanding, RCFC and DTAG will, at any time from time to
time during regular business hours with reasonable notice to RCFC or DTAG, as
the case may be, permit the Administrative Agent and the Managing Agents, or
its or their agents or representatives to access to the offices of, the Master
Servicer, any Lessee, DTAG or RCFC (i) to examine, inspect and make copies of
and abstracts from all books and records and documentation relating to the
Collateral on the same terms as are provided to the Trustee under Section 7.8 of
the Base Indenture, and (ii) to visit the offices and properties of, the Master
Servicer, any Lessee, DTAG or RCFC for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to the
Collateral, or the administration and performance of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
and the other Series Documents with any of the officers or employees of, the
Master Servicer, any Lessee, DTAG and/or RCFC, as applicable, having knowledge
of such matters.
Section 8.02 Security Interests; Further Assurances. RCFC
and DTAG will take all action necessary to maintain the Trustee's first priority
perfected security interest for the benefit of the Group II Noteholders in the
Collateral granted pursuant to Section 3.1 of the Base Indenture, Section 3.1 of
the Series 2000-1 Supplement and Section 2.1 of the Master Collateral Agency
Agreement. RCFC and DTAG agree to take any and all acts and to execute any and
all further instruments necessary or reasonably requested by the Administrative
Agent, the Trustee or the Master Collateral Agent to more fully effect the
purposes of this Agreement.
Section 8.03 Covenants. RCFC and DTAG will duly observe
and perform, and cause the Lessees to duly observe and perform, each of
their respective covenants set forth in the Series Documents.
Section 8.04 Amendments.
(a) Neither RCFC nor DTAG will make, or permit the Lessees to
make, except as contemplated by Section 3.2(a) of the Base Indenture with
respect to the Master Lease or clauses (c) through (h) of Section 11.1 of the
Base Indenture, any amendment, modification or change to, or provide any waiver
under any Series Document without the prior written consent of each Managing
Agent, which consent shall not be unreasonably withheld, conditioned or delayed.
21
(b) Neither RCFC nor DTAG will make, or permit the Lessees to
make, except as contemplated by Section 3.2(a) of the Base Indenture with
respect to the Master Lease or clauses (c) through (h) of Section 11.1 of the
Base Indenture, any amendment, modification or change to, or provide any waiver
under any Series Document which may be made with the prior consent of the Rating
Agencies or the Required Group II Noteholders without the prior written consent
of the Series 2000-1 Required Noteholders, which consent shall not be
unreasonably withheld, conditioned or delayed.
(c) RCFC will not amend any of its organizational documents,
including its Certificate of Incorporation, without the prior written consent of
the Managing Agents and otherwise in accordance with Section 7.22 of the Base
Indenture.
Section 8.05 Information from DTAG. So long as the Series
2000-1 Notes remain outstanding, DTAG will furnish the following to the
Administrative Agent (and the Administrative Agent shall promptly following
receipt thereof provide copies of the following to each Managing Agent):
(a) a copy of each certificate, opinion, report, statement,
notice or other communication (other than investment instructions) which the
Series Documents require to be furnished by or on behalf of DTAG or RCFC to the
Trustee or the Rating Agencies under any Series Document, concurrently
therewith, and promptly after receipt thereof, a copy of each notice, demand or
other communication received by or on behalf of DTAG or RCFC under any Series
Document;
(b) such other information (including financial information),
documents, records or reports respecting the Collateral, RCFC or the Master
Servicer as a Managing Agent or the Administrative Agent may from time to time
reasonably request; and
(c) promptly upon becoming aware of any Potential Amortization
Event, Amortization Event, Potential Lease Event of Default or Lease Event of
Default, written notice thereof.
Section 8.06 Principal Office. Neither RCFC nor DTAG
shall, nor shall they permit Dollar or Thrifty to, change the location of their
respective principal office without 60 days prior notice to the Administrative
Agent and otherwise in compliance with the Series Documents.
Section 8.07 Additional Series of Notes. RCFC shall not
issue after the Series 2000-1 Closing Date any new Series of Notes entitled
to share in the Group II Collateral unless (a) the Managing Agents have given
their prior written consent to such issuance or (b) (i) the proceeds of such
issuance are to be used to pay in full the Series 2000-1 Invested Amount and
all other amounts due and payable under the Series Documents to the
Purchaser Parties and (ii) the obligations of the Purchasers to make Advances
under the Series Documents is terminated on or prior to the date of such
issuance.
ARTICLE IX.
ADDITIONAL COVENANTS
22
Section 9.01 Legal Conditions to Closing. The parties
hereto will take all reasonable action necessary to obtain (and will cooperate
with one another in obtaining) any consent, authorization, permit, license,
franchise, order or approval of, or any exemption by, any Governmental Authority
or any other Person, required to be obtained or made by it in connection with
any of the transactions contemplated by this Agreement.
Section 9.02 Expenses. Whether or not the initial Advance
on or after the date hereof takes place, except as otherwise expressly provided
herein or in the Administrative Agent's Fee Letter and the Fee Letter, all costs
and expenses (including reasonable due diligence out-of-pocket expenses of
the Managing Agents incurred prior to the date hereof relating to Series
Documents and the transactions contemplated hereby and thereby and reasonable
fees and expenses of counsel to the Administrative Agent and the Managing
Agents) incurred in connection with this Agreement and the other Series
Documents and the transactions contemplated hereby shall (as between RCFC and
the Purchasers) be paid by RCFC.
Section 9.03 Mutual Obligations. On and after the date
hereof, each party hereto will do, execute and perform all such other acts,
deeds and documents as the other party may from time to time reasonably require
in order to carry out the intent of this Agreement.
Section 9.04 Consents, etc. Each Managing Agent agrees not
to unreasonably withhold or delay its consent to any amendment or other matter
requiring consent of the Series 2000-1 Noteholders under a provision of any
Series Document to the extent that such provision specifies that such consent is
not to be unreasonably withheld, conditioned or delayed.
ARTICLE X.
INDEMNIFICATION
Section 10.01 Indemnification.
(a) In consideration of the execution and delivery of this
Agreement by the Purchasers, the Managing Agents and the Administrative Agent,
RCFC hereby indemnifies and holds the Indemnified Parties harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and reasonable expenses incurred in connection therewith
(irrespective of whether any such Indemnified Party is a party to the action for
which indemnification hereunder is sought and including, without limitation, any
liability in connection with the offering and sale of the Series 2000-1 Notes),
including reasonable attorneys' fees and disbursements (collectively, the
"Indemnified Liabilities"), incurred by the Indemnified Parties or any of them
(whether in prosecuting or defending against such actions, suits or claims) as a
result of, or arising out of, or relating to
(i) any transaction financed or to be financed in
whole or in part, directly or indirectly, with the proceeds
of any Advance; or
(ii) the entering into and performance of this
Agreement and any other Series Document by any of the
Indemnified Parties; or
(iii) any breach by RCFC of any representation
warranty or covenant in this Agreement, any other Series
Document or in any certificate or other written material
delivered pursuant hereto or thereto; in each case as
such Indemnified Liabilities are incurred, payable promptly
upon request.
23
(b) In consideration of the execution and delivery of this
Agreement by the Purchasers, the Managing Agents and the Administrative Agent,
DTAG hereby indemnifies and holds the Indemnified Parties harmless from and
against any and all Indemnified Liabilities incurred by the Indemnified Parties
or any of them (whether in prosecuting or defending against such actions, suits
or claims) as a result of, or arising out of, or relating to any breach of any
representation, warranty or covenant of DTAG in this Agreement, any Series
Document or in any certificate or other written material delivered pursuant
hereto, as such Indemnified Liabilities are incurred, payable promptly upon
request.
(c) Notwithstanding the indemnities set forth in Section
10.01(a) and (b) above, in no event shall any Indemnified Party be entitled to
any indemnity or claim with respect to losses resulting from (i) the disposition
price or market value of Group II Vehicles or the performance under Vehicle
Disposition Programs by Eligible Manufacturers, (ii) performance of the
Collateral securing the Series 2000-1 Notes, market fluctuations or similar
market or investment risks associated with ownership of the Series 2000-1 Notes,
(iii) which would otherwise be covered by Section 10.04 hereof, or (iv) arising
from such Indemnified Party's own gross negligence or willful misconduct. If and
to the extent that the foregoing undertaking may be unenforceable for any
reason, each of DTAG and RCFC hereby agrees to make the maximum contribution
owed by it under this Section 10.01 and to the payment and satisfaction of each
of the Indemnified Liabilities owed by it under this Section 10.01 and which is
permissible under applicable law.
Section 10.02 Procedure. In order for an Indemnified Party
to be entitled to any indemnification provided for under this Agreement in
respect of, arising out of, or involving a claim made by any Person against the
Indemnified Party (a "Third Party Claim"), such Indemnified Party must notify
DTAG or RCFC, as applicable (the "Applicable Indemnifying Party") in writing of
the Third Party Claim within a reasonable time after receipt by such Indemnified
Party of written notice of the Third Party Claim unless the Applicable
Indemnifying Party shall have previously obtained actual knowledge thereof.
Thereafter, the Indemnified Party shall deliver to the Applicable Indemnifying
Party, within a reasonable time after the Indemnified Party's receipt thereof,
copies of all notices and documents (including court papers) received by the
Indemnified Party relating to the Third Party Claim.
Section 10.03 Defense of Claims. If a Third Party Claim is
made against an Indemnified Party, (a) the Applicable Indemnifying Party will
be entitled to participate in the defense thereof and, (b) if it so chooses,
to assume the defense thereof with counsel selected by the Applicable
Indemnifying Party, provided that in connection with such assumption (i) such
counsel is not reasonably objected to by the Indemnified Party and (ii) the
Applicable Indemnifying Party first admits in writing its liability to indemnify
the Indemnified Party with respect to all elements of such claim in full. Should
the Applicable Indemnifying Party so elect to assume the defense of a Third
Party Claim, the Applicable Indemnifying Party will not be liable to the
Indemnified Party for any legal expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof. If the Applicable
Indemnifying Party elects to assume the defense of a Third Party Claim, the
Indemnified Party will (i) cooperate in all reasonable respects with the
Applicable Indemnifying Party in connection with such defense and (ii) not admit
any liability with respect to, or settle, compromise or discharge, such Third
Party Claim without the Applicable Indemnifying Party's prior written consent,
as the case may be. If the Applicable Indemnifying Party shall assume the
defense of any Third Party Claim, the Indemnified Party shall be entitled to
participate in (but not control) such defense with its own counsel at its own
expense. If the Applicable Indemnifying Party does not assume the defense of any
such Third Party Claim, the Indemnified Party may defend the same in such manner
as it may deem appropriate, including settling such claim or litigation after
giving notice to the Applicable Indemnifying Party of such terms and the
Applicable Indemnifying Party will promptly reimburse the Indemnified Party upon
written request. Anything contained in this Agreement to the contrary
notwithstanding, no Applicable Indemnifying Party shall be entitled to assume
the defense of any part of a Third Party Claim that seeks an order, injunction
or other equitable relief or relief for other than money damages against the
Indemnified Party.
24
Section 10.04 Indemnity for Taxes, Reserves and Expense.
(a) If after the date hereof, the adoption of any Governmental
Rule or bank regulatory guideline or any amendment or change in the
interpretation of any existing or future Governmental Rule or bank regulatory
guideline by any Governmental Authority charged with the administration,
interpretation or application thereof, or the compliance with any directive of
any Governmental Authority (in the case of any bank regulatory guideline,
whether or not having the force of Governmental Rule):
(i) shall subject any Indemnified Party to any
tax, duty, deduction or other charge with respect to the
Collateral, the Series 2000-1 Indenture, the Series 2000-1
Notes, this Agreement or payments of amounts due thereunder,
or shall change the basis of taxation of payments to any
Indemnified Party of amounts payable in respect thereof
(except for changes in the rate of general corporate,
franchise, net income or other income tax imposed on such
Indemnified Party by the United States of America, the
jurisdiction in which such Indemnified Party's principal
executive office is located or any other jurisdiction in which
the Indemnified Party would be subject to such tax even if
the transactions contemplated by this Agreement had not
occurred); or
(ii) shall impose, modify or deem applicable any
reserve, capital, special deposit or similar requirement
(including, without limitation, any such requirement imposed
by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or
credit extended by, any Indemnified Party or shall impose
on any Indemnified Party or on the United States market for
certificates of deposit or the London interbank market any
other condition affecting the Collateral, the Series 2000-1
Indenture, the Series 2000-1 Notes, this Agreement or payments
of amounts due thereunder (including with respect to
Eurocurrency liability reserves); or
(iii) imposes upon any Indemnified Party any other
cost or expense (including, without limitation, reasonable
attorneys' fees and expenses, and expenses of litigation or
preparation therefor in contesting any of the foregoing if
such a contest is requested by the Applicable Indemnifying
Party) with respect to the Receivables, the Series 2000-1
Notes, any Series Document or payments of amounts due
hereunder or thereunder;
25
and the result of any of the foregoing is to increase the cost or reduce the
payments to such Indemnified Party with respect to the Collateral, the Series
2000-1 Indenture, the Series 2000-1 Notes, this Agreement or payments of amounts
due thereunder or the obligations thereunder or the funding of any Advances with
respect thereto by any Purchaser, by an amount deemed by such Indemnified Party
to be material, then RCFC agrees to pay such Indemnified Party, within 10 days
after demand by such Indemnified Party, such additional amount or amounts as
will compensate such Indemnified Party for such increased cost or reduced
payments.
(b) If any Indemnified Party shall have determined that, after
the date hereof, the adoption of any applicable law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Governmental Authority, or any directive regarding
capital adequacy (in the case of any bank regulatory guideline, whether or not
having the force of law) of any such Governmental Authority, has or would have
the effect of reducing the rate of return on capital of such Indemnified Party
(or its parent) as a consequence of such Indemnified Party's obligations
hereunder or with respect hereto to a level below that which such Indemnified
Party (or its parent) could have achieved but for such adoption, change, request
or directive (taking into consideration its policies with respect to capital
adequacy) by an amount deemed by such Indemnified Party to be material, then
from time to time, RCFC agrees to pay such Indemnified Party, within 10 days
after demand by any such Indemnified Party, such additional amount or amounts as
will compensate such Indemnified Party (or its parent) for such reduction.
(c) Any Indemnified Party who makes a demand for payment of
increased costs or capital pursuant to Section 10.04(a) or (b) shall promptly
deliver to RCFC a certificate setting forth in reasonable detail the computation
of such increased costs or capital and specifying the basis therefor and
such other information as may be reasonably requested by RCFC. In the absence of
manifest error, such certificate shall be conclusive and binding for all
purposes. Each Indemnified Party shall use reasonable efforts to mitigate the
effect upon RCFC of any such increased costs or capital requirements; provided,
it shall not be obligated to take any action that it determines would be
disadvantageous to it or inconsistent with its policies.
(d) This Section 10.04 shall not be interpreted or construed
to provide indemnification or compensation for reserves or reserve requirements
in respect of Eurocurrency liabilities to the extent otherwise covered by the
inclusion of reserves or reserve requirements in the definition of Eurodollar
Rate.
Section 10.05 Costs, Expenses, Taxes, Breakage Payments and
Increased Costs under Agreement and Program Facility.
(a) RCFC shall be obligated to pay on demand to each Managing
Agent and the Administrative Agent (i) all reasonable costs and expenses in
connection with the preparation, execution and delivery of this Agreement, the
other documents to be delivered hereunder or in connection herewith and any
requested amendments, waivers or consents or examination or visit by the
Administrative Agent pursuant to Section 8.01 including, without limitation, the
reasonable fees and out-of-pocket expenses of counsel for the Administrative
Agent, with respect thereto and with respect to advising the Administrative
Agent or such Managing Agent as to its rights and remedies under this Agreement
and the other documents delivered hereunder or in connection herewith and (ii)
all costs and expenses, if any, in connection with the enforcement of this
Agreement and the other documents delivered hereunder or in connection herewith.
26
(b) In addition, RCFC shall be obligated to pay on demand any
and all stamp and other taxes and fees payable in connection with the execution,
delivery, filing and recording of this Agreement, the Series 2000-1 Notes or the
other documents and agreements to be delivered hereunder, and agrees to hold
each Purchaser, each Managing Agent and the Administrative Agent harmless from
and against any liabilities with respect to or resulting from any delay in
paying or omission to pay such taxes and fees.
(c) RCFC shall be obligated to pay to the applicable Ownership
Groups promptly on request by the Administrative Agent, the amount of any
Additional Amounts to the extent not paid when required pursuant to Section 4.7
of the Series 2000-1 Supplement; provided that such payment obligation of RCFC
shall be satisfied only out of funds payable to RCFC pursuant to the Series
Documents. The other provisions of this Article X are subject to the preceding
sentence.
(d) If a Conduit Purchaser becomes obligated to compensate
any financial institution under its commercial paper program as a result of
any events or circumstances similar to those described in Sections 10.04 or
10.05(b), such Conduit Purchaser shall promptly deliver to RCFC a certificate
setting forth in reasonable detail the computation of such amounts. In the
absence of manifest error, such certificate shall be conclusive and binding for
all purposes. RCFC shall be obligated to pay to the Conduit Purchaser, promptly
after receipt of such certificate, such additional amounts as may be necessary
to reimburse the Conduit Purchaser for any amounts so paid by the Conduit
Purchaser. With respect to amounts to be paid pursuant to this Section 10.05(d)
as a result of any events or circumstances similar to those described in Section
10.04 or 10.05(b) hereof, the Conduit Purchaser shall request the party to be
compensated to use its reasonable efforts to mitigate the effect upon RCFC of
any such increased costs or capital requirements; provided, such party shall not
be obligated to take any action that it determines would be disadvantageous to
it or inconsistent with its policies.
Section 10.06 Carrying Charges. The indemnifications payable
by RCFC under this Article X shall constitute Carrying Charges within the
meaning of the Series 2000-1 Supplement.
ARTICLE XI.
THE ADMINISTRATIVE AGENT; THE MANAGING AGENTS
Section 11.01 Authorization and Action. Each Ownership
Group and its Managing Agent hereby accepts the appointment of and authorizes
the Administrative Agent to take such action as agent on its behalf and to
exercise such powers as are delegated to the Administrative Agent by the terms
hereof, together with such powers as are reasonably incidental thereto. Except
for actions which the Administrative Agent is expressly required to take
pursuant to this Agreement, the Administrative Agent shall not be required to
take any action which exposes the Administrative Agent to personal liability or
which is contrary to applicable law unless the Administrative Agent shall
receive further assurances to its satisfaction from the Managing Agents, of the
indemnification obligations under Section 11.04 hereof against any and all
liability and expense which may be incurred in taking or continuing to take such
action. The Administrative Agent agrees to give to the Managing Agents prompt
notice of each notice and determination given to it by RCFC, the Master Servicer
or the Trustee, pursuant to the terms of this Agreement or the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇▇.
27
Subject to Section 11.06 hereof, the appointment and authority
of the Administrative Agent hereunder shall terminate upon the payment to (a)
the Purchasers and the Managing Agents of all amounts owing to the Purchasers
and the Managing Agents hereunder and (b) the Administrative Agent of all
amounts due to it hereunder. The Administrative Agent shall deliver to each
Managing Agent all reports, notices, etc. in the possession of the
Administrative Agent to which the Managing Agents are entitled to the extent not
therefore delivered.
Each member of each Ownership Group hereby accepts the
appointment of and authorizes the related Managing Agent to take such action as
agent on its behalf and to exercise such powers (including, without limitation,
the power to bind each member of the related Ownership Group) as are delegated
to such Managing Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. Each Managing Agent will hold Series 2000-1 Notes
as agent for all of the Purchasers in the related Ownership Group. Each Managing
Agent reserves the right, in its sole discretion, to take any actions and
exercise any rights or remedies under this Agreement, any other Series Document
and any related agreements and documents. Except for actions which a Managing
Agent is expressly required to take pursuant to this Agreement, such Managing
Agent shall not be required to take any action which exposes such Managing Agent
to personal liability or which is contrary to applicable law unless such
Managing Agent shall receive further assurances to its satisfaction from its
Ownership Group of the indemnification obligations under Section 11.04 hereof
against any and all liability and expense which may be incurred in taking or
continuing to take such action. Each Managing Agent agrees to give to each
member of its Ownership Group prompt notice of each notice and determination
given to it by RCFC, the Master Servicer or the Trustee, pursuant to the terms
of this Agreement or the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇. Subject to Section 11.06
hereof, the appointment and authority of a Managing Agent hereunder shall
terminate upon the payment to (a) its Ownership Group of all amounts owing such
Ownership Group hereunder and (b) such Managing Agent of all amounts due
hereunder.
Section 11.02 Agent's Reliance, etc. Neither the
Administrative Agent, the Managing Agents nor any of their respective directors,
officers, agents or employees shall be liable for any action taken or omitted
to be taken by it or them as Administrative Agent or Managing Agent under or in
connection with this Agreement, any other Series Document or any related
agreement or document, except for its or their own gross negligence or willful
misconduct. Without limiting the foregoing, the Administrative Agent and each
Managing Agent: (i) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to the Purchasers and shall not be responsible to the Purchasers
for any statements, warranties or representations made by RCFC or DTAG (in any
capacity) in connection with any Series Document; (iii) shall not have any duty
to ascertain or to inquire as to the performance or observance of any of the
terms, covenants or conditions of any Series Document on the part of RCFC or
DTAG (in any capacity) or to inspect the property (including the books and
records) of RCFC or DTAG (in any capacity); (iv) shall not be responsible to any
Purchaser for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; and (v) shall incur no liability under or in
respect of this Agreement by acting upon any notice (including notice by
telephone), consent, certificate or other instrument or writing (which may be by
telex) believed by it in good faith to be genuine and signed or sent by the
proper party or parties.
28
Section 11.03 Administrative Agent, Managing Agents and
Affiliates. Bank One and its Affiliates, and each Managing Agent and its
Affiliates, may generally engage in any kind of business with RCFC, DTAG, any of
their respective Affiliates and any Person who may do business with or own
securities of RCFC, DTAG or any of their respective Affiliates, all (i) as if
Bank One were not the Administrative Agent and without any duty to account
therefor to the Managing Agents or Ownership Groups and (ii) as if such parties
were not Managing Agents and without any duty to account therefor to their
respective Ownership Groups.
Section 11.04 Indemnification. Each Committed Purchaser
severally agrees to indemnify the Administrative Agent and the Managing Agent
of such Committed Purchaser's Ownership Group (to the extent not reimbursed by
RCFC or DTAG), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against the Administrative Agent or such Managing Agent in any way
relating to or arising out of this Agreement or any other Series Document or any
action taken or omitted by the Administrative Agent or such Managing Agent under
this Agreement or any other Series Document; provided, that (i) no Committed
Purchaser shall be liable for any portion of such liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting or arising from the Administrative Agent's or such
Managing Agent's gross negligence or willful misconduct and (ii) no Committed
Purchaser shall be liable for any amount in respect of any compromise or
settlement or any of the foregoing unless such compromise or settlement is
approved by such Purchaser. Without limitation of the generality of the
foregoing, each Committed Purchaser agrees to reimburse the Administrative
Agent, and the Managing Agent of such Committed Purchaser's Ownership Group,
promptly upon demand, for any reasonable out-of-pocket expenses (including
reasonable counsel fees) incurred by the Administrative Agent or such Managing
Agent in connection with the administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
provided, that no Purchaser shall be responsible for the costs and expenses of
the Administrative Agent or such Managing Agent in defending itself against any
claim alleging the gross negligence or willful misconduct of the Administrative
Agent or such Managing Agent to the extent such gross negligence or willful
misconduct is determined by a court of competent jurisdiction in a final and
non-appealable decision.
29
Section 11.05 Advance Decision. Each Purchaser acknowledges
that it has, independently and without reliance upon the Administrative Agent or
any Managing Agent, and based on such documents and information as it has deemed
appropriate, made its own evaluation and decision to enter into this Agreement
and to purchase an interest in the Series 2000-1 Notes. Each Purchaser
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any of its Affiliates or any Managing Agent or its
Affiliates, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own decisions in taking or not
taking action under this Agreement or any related agreement, instrument or other
document.
Section 11.06 Successor Agents. The Administrative Agent or
any Managing Agent may resign at any time by giving sixty days' written notice
thereof to the Purchasers, RCFC, the Master Servicer and the Trustee. Upon
any such resignation, the Purchasers shall have the right to appoint a
successor Administrative Agent, and such Managing Agent's Ownership Group shall
have the right to appoint a successor Managing Agent, in each case as approved
by RCFC which approval will not be unreasonably withheld, conditioned or
delayed). If no successor Administrative Agent or Managing Agent, as the case
may be, shall have been so appointed and shall have accepted such appointment,
within sixty days after the retiring Administrative Agent's or Managing Agent's
giving of notice of resignation, then the retiring Administrative Agent or
Managing Agent, as the case may be, may appoint a successor Administrative Agent
or Managing Agent. If such successor Administrative Agent or Managing Agent, as
the case may be, is not an Affiliate of the resigning Administrative Agent or
Managing Agent, as the case may be, such successor Administrative Agent or
Managing Agent, as the case may be, shall be subject to RCFC's prior written
approval (which approval will not be unreasonably withheld, conditioned or
delayed). Upon the acceptance of any appointment as Administrative Agent or
Managing Agent hereunder by a successor Administrative Agent or Managing Agent,
as the case may be, such successor Administrative Agent or Managing Agent shall
thereupon succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring Administrative Agent or Managing Agent, as
the case may be, and the retiring Administrative Agent or Managing Agent, as the
case may be, shall be discharged from its duties and obligations under this
Agreement. After any resignation of the Administrative Agent or a Managing Agent
hereunder as Administrative Agent or Managing Agent, the provisions of this
Article XI shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Administrative Agent or a Managing Agent, as the
case may be, under this Agreement.
ARTICLE XII.
MISCELLANEOUS
Section 12.01 Amendments.
(a) No amendment or waiver of any provision of this Agreement
shall in any event be effective unless the same shall be in writing and signed
by all of the parties hereto, and then such amendment, waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.
30
(b) No Managing Agent, in its capacity as a Series 2000-1
Noteholder, shall enter into or agree to any amendment or waiver to the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ or the Master Collateral Agency Agreement without the consent
of all of the Managing Agents.
Section 12.02 Notices. All notices and other communications
provided for hereunder shall, unless otherwise stated herein, be in writing
(including facsimiles, telex or cable communication) and mailed, telecopied,
cabled or delivered, as to each party hereto, at its address set forth in
Schedule I hereto or at such other address as shall be designated by such party
in a written notice to the other parties hereto. All such notices and
communications shall, when mailed, telecopied, telegraphed or cabled, be
effective when deposited in the mails, confirmed by telephone, delivered to the
telegraph company or delivered to the cable company, respectively. All notices
to the Trustee or the Rating Agencies shall be made in accordance with Section
12.1 of the Base Indenture.
Section 12.03 No Waiver; Remedies. No failure on the part
of any party hereto to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
Section 12.04 Binding Effect; Assignability.
(a) This Agreement shall be binding upon and inure to the
benefit of the parties to this Agreement and their respective successors and
assigns (including any subsequent holders of the Series 2000-1 Notes) subject,
in the case of the Administrative Agent and the Managing Agents, to Section
11.06; provided, however, that RCFC shall not have the right to assign its
rights hereunder or any interest herein (by operation of law or otherwise)
without the prior written consent of the Managing Agents.
(b) With the consent of RCFC (which consent will not be
unreasonably withheld, conditioned or delayed), each Committed Purchaser party
to this Agreement may assign all or a portion of its rights and obligations
under this Agreement to any financial or other institution reasonably acceptable
to the related Managing Agent. The parties to each such assignment shall execute
and deliver an Assignment and Acceptance to the Administrative Agent (and the
Administrative Agent shall promptly deliver copies thereof to the Managing
Agents and RCFC). From and after the effective date of such Assignment and
Acceptance, the assigning Committed Purchaser shall be relieved of its rights
and obligations hereunder to the extent so assigned.
(c) With the consent of RCFC (which consent will not be
unreasonably withheld, conditioned or delayed), each Conduit Purchaser party
to this Agreement may assign all or a portion of its rights and obligations
under this Agreement to any RIC. The parties to each such assignment shall
execute and deliver an Assignment and Acceptance to the Administrative Agent
(and the Administrative Agent shall promptly deliver copies thereof to the
Managing Agents and RCFC). From and after the effective date of such Assignment
and Acceptance, the assigning Conduit Purchaser shall be relieved of its rights
and obligations hereunder to the extent so assigned.
31
(d) Without the consent of RCFC, each Conduit Purchaser may
assign all or a portion of its rights and obligations under this Agreement
to its Program Support Providers.
(e) Any Purchaser may, in the ordinary course of its business
and in accordance with applicable law, at any time sell to one or more
Persons (each, a "Participant") participating interests in all or a portion of
its rights and obligations under this Agreement. Notwithstanding any such sale
by a Purchaser of participating interests to a Participant, such Purchaser's
rights and obligations under this Agreement shall remain unchanged, such
Purchaser shall remain solely responsible for the performance thereof, and RCFC,
the Administrative Agent and the other parties hereto shall continue to deal
solely and directly with such Purchaser in connection with such Purchaser's
rights and obligations under this Agreement. RCFC also agrees that each
Participant shall be entitled to the benefits of Article X hereof; provided,
however, that all amounts payable by RCFC to any such Participant shall be
limited to the amounts which would have been payable to the Purchaser selling
such participating interest had such interest not been sold.
(f) RCFC acknowledges that each Conduit Purchaser may, without
any consent, assign its rights under this Agreement to the collateral agent for
such Conduit Purchaser and for the benefit of other secured parties under such
Conduit Purchaser's Commercial Paper program.
(g) This Agreement shall create and constitute the continuing
obligation of the parties hereto in accordance with its terms, and shall remain
in full force and effect until such time as all amounts payable with respect to
the Series 2000-1 Notes shall have been paid in full.
Section 12.05 Provision of Documents and Information. RCFC
acknowledges and agrees that the Conduit Purchasers, the Committed Purchasers,
the Managing Agents and Administrative Agent are permitted to provide to the
Program Support Providers, permitted assignees and participants, the placement
agents for their respective Commercial Paper, the rating agencies with respect
to such Commercial Paper and other liquidity and credit providers under their
respective Commercial Paper programs, opinions, certificates, documents and
other information relating to RCFC, DTAG and the Collateral delivered to the
Conduit Purchasers, the Committed Purchasers, the Managing Agents or the
Administrative Agent pursuant to this Agreement.
Section 12.06 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS.
Section 12.07 No Proceedings.
(a) Each party hereto agrees that so long as any Commercial
Paper or other senior indebtedness of a Conduit Purchaser shall be outstanding
or there shall not have elapsed one year plus one day since the last day on
which any Commercial Paper or other senior indebtedness of a Conduit Purchaser
shall have been outstanding, it shall not file, or join in the filing of, or
solicit or encourage any Person to file, a petition against such Conduit
Purchaser under the Federal Bankruptcy Code, or commence or join in, or solicit
or encourage any Person to commence or join in, the commencement of any
bankruptcy, reorganization, arrangement, insolvency, liquidation or other
similar proceeding against such Conduit Purchaser.
32
(b) Each of the parties hereto hereby covenants and agrees
that, prior to the date which is one year and one day after the payment in
full of any Series 2000-1 Notes issued by RCFC pursuant to the Base Indenture,
it will not institute against, or join with any other Person in instituting
against, RCFC, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any Federal or state
bankruptcy or similar law, all as more particularly set forth in Section 12.16
of the Base Indenture and subject to any retained rights set forth therein;
provided, however, that nothing in this Section 12.07(b) shall constitute a
waiver of any right to indemnification, reimbursement or other payment from RCFC
pursuant to this Agreement or the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇. In the event that any
party hereto takes action in violation of this Section 12.07(b), RCFC agrees
that it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such a petition by any such Person against RCFC or the
commencement of such action and raise the defense that such Person has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as its counsel advises that it may assert. The
provisions of this Section 12.07(b) shall survive the termination of this
Agreement. Nothing contained herein shall preclude participation by any party
hereto in assertion or defense of its claims in any such proceeding involving
RCFC.
Section 12.08 Execution in Counterparts. This Agreement may
be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which when taken together shall constitute one and the
same agreement.
Section 12.09 No Recourse. The obligations of any Purchaser
under this Agreement, or any other agreement, instrument, document or
certificate executed and delivered by or issued by such Purchaser or any officer
thereof are solely the corporate or partnership obligations of such Purchaser.
No recourse shall be had for payment of any fee or other obligation or claim
arising out of or relating to this Agreement or any other agreement, instrument,
document or certificate executed and delivered or issued by such Purchaser or
any officer thereof in connection therewith, against any stockholder, limited
partner, employee, officer, director or incorporator of such Purchaser.
Section 12.10 Limited Recourse. The obligations of RCFC
under this Agreement and the other Series Documents are solely the corporate
obligations of RCFC. No recourse shall be had for the payment of any fee or
other obligation or claim arising out of or relating to this Agreement or the
other Series Documents or any other agreement, instrument, document or
certificate executed and delivered or issued by RCFC or by any partner of RCFC
or any officer thereof in connection herewith or therewith, against any
stockholder, employee, officer or director of RCFC. Each of the parties hereto
agree that all fees, expenses and other costs payable hereunder by RCFC shall be
payable only to the extent set forth in Section 12.17 of the Base Indenture and
that all other amounts owed to them by RCFC shall be payable solely from amounts
that become available for payment pursuant to the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇.
33
Without limiting the generality of the foregoing, and
notwithstanding any other provision of this Agreement, (i) RCFC shall have no
liability for any obligation of DTAG or for any claim against DTAG, and (ii)
DTAG shall have no liability for any obligation of RCFC or for any claim against
RCFC.
Section 12.11 Survival. All representations, warranties,
covenants, and indemnification contained in this Agreement, including, without
limitation, Article X and Sections 12.07, 12.09 and 12.10, and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the sale, transfer or repayment of the Series 2000-1 Notes.
Section 12.12 Tax Characterization. Each party to this
Agreement (a) acknowledges that it is the intent of the parties to this
Agreement that, for accounting purposes and for all federal, state and local
income and franchise tax purposes, the Series 2000-1 Notes will be treated as
evidence of indebtedness issued by RCFC, (b) agrees to treat the Series 2000-1
Notes for all such purposes as indebtedness and (c) agrees that the provisions
of the Related Documents shall be construed to further these intentions.
Section 12.13 Severability; Series 2000-1 Note Rate
Limitation.
(a) If any one or more of the covenants, agreements,
provisions or terms of this Agreement shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms shall be deemed
severable from the remaining covenants, agreements, provisions or terms of this
Agreement and shall in no way affect the validity or enforceability of the other
provisions of this Agreement or of the Series 2000-1 Notes.
(b) Notwithstanding anything in this Agreement, the other
Series Documents or any Series 2000-1 Note to the contrary, if at any time the
Series 2000-1 Note Rate, together with all fees, charges and other amounts which
are treated as interest on the Series 2000-1 Notes, under applicable law
(collectively the "Charges"), shall exceed the maximum lawful rate (the "Maximum
Rate") which may be contracted for, charged, taken, received or reserved by the
Series 2000-1 Noteholders in accordance with the terms of this Agreement, the
other Series Documents or any Series 2000-1 Note, then the Series 2000-1 Note
Rate, together with all Charges payable in respect of the Series 2000-1 Notes,
shall be limited to the Maximum Rate and, to the extent lawful, the Series
2000-1 Note Rate and Charges that would have been payable in respect of the
Series 2000-1 Notes, but were not payable as a result of the operation of this
Section, shall be cumulated and the Series 2000-1 Note Rate and Charges payable
to the Series 2000-1 Noteholders in respect of other periods shall be increased
(but not above the Maximum Rate therefor) until such cumulated amount shall have
been received by the Series 2000-1 Noteholders.
Section 12.14 Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the meaning or
interpretation of any provision hereof.
Section 12.15 Submission to Jurisdiction. Each of the
parties hereto hereby irrevocably and unconditionally:
34
(a) submits for itself and its property in any legal action
or proceeding relating to this Agreement, any other Series Document, any Series
2000-1 Note or the other documents executed and delivered in connection herewith
or for recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York, the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought
in such courts and waives any objection that it may now or hereafter have to the
venue of such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Person at its address determined in accordance with Section 12.02; and
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction.
Section 12.16 Characterization as Related Document; Entire
Agreement. This Agreement shall be deemed to be a Related Document for all
purposes of the Base Indenture and the other Related Documents. This Agreement,
together with the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇, the documents delivered pursuant to
Article IV and the other Related Documents, including the exhibits and schedules
thereto, contains a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all previous oral statements and other
writings with respect thereto.
Section 12.17 Confidentiality.
(a) Each of the Purchaser Parties hereby agrees that it shall
not disclose the terms and conditions of the Series Documents or any
Confidential Information to any Person without the prior written consent of the
Master Servicer, RCFC and the applicable Lessee. Notwithstanding anything herein
to the contrary, the foregoing shall not be construed to prohibit any Purchaser
Party from (i) disclosing any and all information that is or becomes publicly
known through no fault of a Purchaser Party, (ii) disclosure of any and all
information (which makes reference to RCFC or this transaction) obtained by any
Purchaser Party from sources (other than RCFC) that have not notified the
Purchaser Parties that such information is subject to a confidentiality
obligation with RCFC, (iii) disclosing any and all information (A) if required
to do so by any applicable statute, law, rule or regulation, (B) to any
government agency or regulatory body having or claiming authority to regulate or
oversee any aspects of a Purchaser Party's business or that of its Affiliates,
(C) pursuant to any subpoena, civil investigative demand or similar demand or
request of any court, regulatory authority, arbitrator or arbitration to which
any Purchaser Party or an Affiliate or an officer, director or employee thereof
is a party, (D) in any preliminary or final offering circular, registration
statement or contract or other document pertaining to the transactions
contemplated herein approved in advance by RCFC, (E) to any Affiliate,
independent or internal auditor, agent, employee or attorney of any Purchaser
Party having a need to know the same, provided that the Purchaser Party advises
such recipient of the confidential nature of the information being disclosed or
(F) to any Rating Agency, or (iv) any other disclosure authorized by RCFC.
35
"Confidential Information" means information that RCFC, the
Master Servicer or the applicable Lessee furnishes to any Purchaser Party on a
confidential basis, but does not include any such information that is or becomes
generally available to the public other than as a result of a disclosure by such
Purchaser Party or other Person to which such Purchaser Party delivered such
information or that is or becomes available to a Purchaser Party from a source
other than RCFC, the Master Servicer or the applicable Lessee, provided that
such source is not (1) known to such Purchaser Party to be bound by a
confidentiality agreement with RCFC, the Master Servicer or the applicable
Lessee, as the case may be, or (2) known to such Purchaser Party to be otherwise
prohibited from transmitting the information by a contractual, legal or
fiduciary obligation.
(b) Neither RCFC nor DTAG shall, nor shall RCFC or DTAG permit
its Affiliates to, disclose, (x) the terms and conditions of this Agreement
to anyone not a party hereto or (y) any other non-public information with
respect to the Purchaser Parties and their respective businesses obtained by
RCFC, DTAG or their respective Affiliates in connection with the structuring,
negotiating and execution of the transactions contemplated herein; provided,
however, that RCFC, DTAG and their respective Affiliates may disclose such
non-public information: (i) to the their respective officers, directors,
employees, auditors and legal counsel; (ii) if requested, to any Rating Agency
which rates any Series of Notes issued under the Base Indenture; (iii) as may be
required by any law, rule or regulation, (iv) as may be required by any
direction, request or order of any judicial, administrative or regulatory
authority or proceedings; and (v) to such persons as may be approved in writing
by the Administrative Agent.
Section 12.18 Additional Ownership Groups. Unless an
Amortization Event or event which, with the giving of notice or the passage of
time or both would constitute an Amortization Event shall have occurred and be
continuing, RCFC may, upon at least three (3) Business Days' prior written
notice to each Managing Agent and the Administrative Agent, cause an Additional
Ownership Group and its related Managing Agent, Conduit Purchasers and Committed
Purchasers to become parties to this Agreement by complying with the provisions
of this Section 12.18. Each such notice shall set forth the name of the Managing
Agent, the Conduit Purchasers and the Committed Purchasers which are members of
such Additional Ownership Group, the Group Funding Limit with respect to such
Additional Ownership Group, the related Committed Purchaser's Purchaser
Percentage and the desired effective date of such Additional Ownership Group
becoming a party to this Agreement. Each Additional Ownership Group shall, upon
the execution of an Addendum by such Additional Ownership Group, the
Administrative Agent and RCFC, become a party to this Agreement from and after
the date of such execution with the same effect as if such Additional Ownership
Group had been an original party hereunder. If, in connection with an Additional
Ownership Group becoming a party to this Agreement, the Administrative Agent
shall reasonably determine that the principal amount of the Demand Note should
be increased, DTAG hereby agrees to deliver a new Demand Note to RCFC in an
principal amount equal to the amount of such increase.
36
[SIGNATURES FOLLOW]
37
IN WITNESS WHEREOF, the parties have caused this Agreement
to be executed by their respective officers thereunto duty authorized, as of the
date first above written.
RENTAL CAR FINANCE CORP., as Seller
By: _____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and Treasurer
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., as
Master Servicer
By: _____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
S-1
FALCON ASSET SECURITIZATION CORPORATION,
as a Conduit Purchaser
By: _____________________________________
Name: ▇▇▇▇▇▇▇ ▇. Power
Title: Authorized Signatory
BANK ONE, NA, as a Committed Purchaser,
as the Managing Agent for the Bank One
Ownership Group and as the
Administrative Agent
By: _____________________________________
Name: ▇▇▇▇▇▇▇ ▇. Power
Title: Authorized Signatory
▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ FUNDING CORP., as a Conduit
Purchaser
By: _____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Committed
Purchaser and as the Managing Agent
for the BNS Ownership Group
By: _____________________________________
Name:
Title:
S-3
EXHIBIT A
FORM OF BORROWING REQUEST
Bank One, NA, as Managing Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Rental Car Finance Portfolio Manager
The Bank of Nova Scotia, as Managing Agent
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
This Borrowing Request is delivered to you pursuant to Section
2.02 of that certain Note Purchase Agreement, dated as of December 15, 2000 (as
amended, supplemented, restated or otherwise modified from time to time, the
"Note Purchase Agreement"), among Rental Car Finance Corp., an Oklahoma
corporation ("RCFC"), Dollar Thrifty Automotive Group, Inc., a Delaware
corporation, as Master Servicer ("DTAG", and in such capacity, the "Master
Servicer"), the Conduit Purchasers party thereto, the Committed Purchasers party
thereto, the Managing Agents party thereto and Bank One, NA, as Administrative
Agent (the "Administrative Agent"). Unless otherwise defined herein or as the
context otherwise requires, terms used herein have the meaning assigned thereto
under Section 1.01 of the Note Purchase Agreement.
The undersigned hereby requests that an Advance be made in the
aggregate principal amount of $___________ on ____________, 200_. Each Ownership
Group is hereby requested to make an Advance on such date in the amount set
forth below opposite its name:
Bank One Ownership Group $___________________
BNS Ownership Group $___________________
[Additional Ownership Group] $___________________
[The undersigned hereby certifies that (i) the Aggregate Asset
Amount as of the date hereof is an amount equal to $______________ , and (ii)
the Enhancement Amount as of the date hereof is an amount equal to
$_______________.]
A-1
The undersigned hereby acknowledges that the delivery of this
Borrowing Request and the acceptance by undersigned of the proceeds of the
Advance requested hereby constitute a representation and warranty by the
undersigned that, on the date hereof and on the date of such Advance, and before
and after giving effect thereto and to the application of the proceeds
therefrom, (i) all conditions set forth in Article IV of the Note Purchase
Agreement have been satisfied, (ii) all the terms, covenants, agreements and
conditions of the Series Documents to be complied with and performed by RCFC,
DTAG, Dollar and Thrifty at or before the time of such Advance shall have been
complied with and performed in all material respects, and (iii) each of the
representations and warranties of RCFC, DTAG, Dollar and Thrifty made in the
Series Documents shall be true and correct in all material respects as of the
time of such Advance (except to the extent they expressly relate to an earlier
or later time).
The undersigned agrees that if prior to the time of the
Advance requested hereby any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so notify both you
and the Purchasers. Except to the extent, if any, that prior to the time of the
Advance requested hereby you and the Purchasers shall receive written notice to
the contrary from the undersigned, each matter certified to herein shall be
deemed once again to be certified as true and correct at the date of such
Advances as if then made.
Please wire transfer the proceeds of the Advance to the
following account pursuant to the following instructions:
[insert payment instructions]
The undersigned has caused this Borrowing Request to be
executed and delivered, and the certification and warranties contained herein to
be made, by its duly Authorized Officer this ____ day of __________, 200_.
RENTAL CAR FINANCE CORP.
By: _____________________________________
Name:
Title:
A-2
EXHIBIT B
FORM OF REDUCTION REQUEST
Bank One, NA, as Managing Agent and Administrative Agent
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Rental Car Finance Portfolio Manager
The Bank of Nova Scotia, as Managing Agent
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇
Ladies and Gentlemen:
This request for the reduction of the Series 2000-1 Maximum
Invested Amount is delivered to you pursuant to Section 2.04(a) of that certain
Note Purchase Agreement, dated as of December 15, 2000 (as amended,
supplemented, restated or otherwise modified from time to time, the "Note
Purchase Agreement"), among Rental Car Finance Corp., an Oklahoma corporation,
Dollar Thrifty Automotive Group, Inc., a Delaware corporation, as Master
Servicer, the Conduit Purchasers party thereto, the Committed Purchasers party
thereto, the Managing Agents party thereto and Bank One, NA, as Administrative
Agent. Unless otherwise defined herein or as the context otherwise requires,
terms used herein have the meaning assigned thereto under Section 1.01 of the
Note Purchase Agreement.
The undersigned hereby requests that the Series 2000-1 Maximum
Invested Amount be reduced in the aggregate amount of $___________ on
____________, 200_. The Group Funding Limit of each Ownership Group shall be
decreased by the amount set forth below opposite its name:
Bank One Ownership Group $___________________
BNS Ownership Group $___________________
[Additional Ownership Group] $___________________
The undersigned hereby represents and warrants that, after
giving effect to the reduction requested hereby, the Series 2000-1 Maximum
Invested Amount shall not be lower than the Series 2000-1 Invested Amount. The
undersigned agrees that if prior to the time of the reduction requested hereby
the foregoing will not be true and correct at such time as if then made, it will
immediately so notify both you and the Purchasers. Except to the extent, if any,
that prior to the time of the reduction requested hereby you and the Purchasers
shall receive written notice to the contrary from the undersigned, the matter
certified to herein shall be deemed once again to be certified as true and
correct at the date of such reduction as if then made.
B-1
The undersigned has caused this request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ____ day of __________, 200_.
RENTAL CAR FINANCE CORP.
By: ________________________________________
Name:
Title:
B-2
EXHIBIT C
ADDENDUM TO AGREEMENT
Each of the undersigned
(i) confirms that it has received a copy of the Note Purchase
Agreement, dated as of December 15, 2000 (as the same from time to time may be
amended, supplemented, waived or modified and in effect, the "Agreement";
capitalized terms used herein and not defined shall have the meanings assigned
to such terms in the Agreement), among RCFC, DTAG, the Conduit Purchasers, the
Committed Purchasers, the Managing Agents and the Administrative Agent, and such
other agreements, documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Addendum; (ii) appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under the Agreement as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iii) agrees to all of the provisions of the
Agreement; (iv) agrees that the related Group Funding Limit is
$_________________ and the related Committed Purchaser's Purchase Percentage is
___ percent (__%); (v) designates ___________ as the Managing Agent for itself,
and such Managing Agent hereby accepts such appointment; and (iv) becomes a
party to the Agreement and a Purchaser or Managing Agent, as the case may be,
thereunder with the same effect as if the undersigned were an original signatory
to the Agreement. The notice address for each member of the Additional Ownership
Group is as follows:
[INSERT ADDRESS]
This Addendum shall be effective when a counterpart hereof,
signed by the undersigned, RCFC and the Administrative Agent has been delivered
to the parties hereto.
This Addendum shall be governed by and construed in accordance
with the laws of the State of New York.
IN WITNESS WHEREOF, the undersigned have caused this Addendum
to be duly executed and delivered by its duly authorized officer or agent as of
this ____ day of __________, 200_.
[NAME OF ADDITIONAL MANAGING AGENT], as
Managing Agent
By: _____________________________________
Name:
Title:
C-1
[NAME OF ADDITIONAL CONDUIT PURCHASER],
as Conduit Purchaser
By: _____________________________________
Name:
Title:
[NAME OF ADDITIONAL COMMITTED PURCHASER],
as Committed Purchaser
By: _____________________________________
Name:
Title:
Acknowledged and Agreed to as of the date first above written:
RENTAL CAR FINANCE CORP.
By: ______________________________
Name:
Title:
BANK ONE, NA, as Administrative Agent
By: ______________________________
Name:
Title:
C-2
SCHEDULE I
ADDRESSES FOR NOTICE
In the case of RCFC:
Rental Car Finance Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Master Servicer:
Dollar Thrifty Automotive Group, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Administrative Agent:
Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Rental Car Finance Portfolio Manager
In the case of the Conduit Purchasers:
Falcon Asset Securitization Corporation
▇/▇ ▇▇▇▇ ▇▇▇, ▇▇
▇ Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Falcon Funding Manager
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Schedule I-1
With a copy to:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
In the case of the Committed Purchasers and the Managing Agents:
Bank One, NA
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Rental Car Finance Portfolio Manager
The Bank of Nova Scotia
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: R. ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Schedule I-2
SCHEDULE II
GROUP FUNDING LIMITS
Ownership Group Group Funding Limit
Bank One Ownership Group Seventy-five million dollars ($75,000,000)
BNS Ownership Group Seventy-five million dollars ($75,000,000)
Schedule II-1
SCHEDULE III
PURCHASER PERCENTAGES
Committed Purchaser Purchaser Percentage
------------------- ---------------------
Bank One, NA Fifty percent (50%)
The Bank of Nova Scotia Fifty percent (50%)
Schedule III-1