EXHIBIT 4.45
[EXECUTION COPY]
ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT,
dated as of March 6, 2001,
among
DOLLAR RENT A CAR SYSTEMS, INC.,
THRIFTY RENT-A-CAR SYSTEM, INC.,
those direct and indirect Subsidiaries of
Dollar Thrifty Automotive Group, Inc. from time to time
becoming additional Lessees hereunder,
RENTAL CAR FINANCE CORP.,
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
and
CREDIT SUISSE FIRST BOSTON,
as the Series 2001-1 Letter of Credit Provider
TABLE OF CONTENTS
Page
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................3
ARTICLE II
ISSUANCE OF SERIES 2001-1 LETTER
OF CREDIT; REIMBURSEMENT OBLIGATION
Section 2.1 Issuance of Series 2001-1 Letter of Credit;
Substitute Series 2001-1 Letter of Credit;
Extensions of the Series 2001-1 Letter of Credit.........3
Section 2.2 Disbursements..............................................7
Section 2.3 Reimbursement..............................................8
Section 2.4 Series 2001-1 Letter of Credit Fees and Expenses..........10
Section 2.5 No Liability of Series 2001-1 Letter of Credit
Provider................................................10
Section 2.6 Surrender of Series 2001-1 Letter of Credit...............10
Section 2.7 Conditions Precedent to Issuance, Increase or
Extension...............................................11
Section 2.8 Certain Eurocurrency Rate and Other Provisions
under the Credit Agreement..............................15
Section 2.9 Obligation Absolute.......................................15
Section 2.10 Events of Default.........................................16
Section 2.11 Grant of Security Interest................................18
Section 2.12 Guarantee.................................................18
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations and Warranties of the Lessees
and DTAG................................................18
Section 3.2 Affirmative Covenants of the Lessees and DTAG.............19
Section 3.3 Negative Covenants of the Lessees and DTAG................21
16976605
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Page
ARTICLE IV
MISCELLANEOUS
Section 4.1 Payments..................................................21
Section 4.2 Expenses..................................................22
Section 4.3 Indemnity.................................................22
Section 4.4 Notices...................................................23
Section 4.5 Amendments; Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial......................25
Section 4.6 Waivers, etc..............................................26
Section 4.7 Severability..............................................26
Section 4.8 Term .....................................................26
Section 4.9 Successors and Assigns....................................27
Section 4.10 Counterparts..............................................27
Section 4.11 Further Assurances........................................27
Section 4.12 Survival of Representations and Warranties................27
Section 4.13 Obligation................................................28
Section 4.14 Headings..................................................28
Section 4.15 Confidentiality...........................................28
Section 4.16 Additional Series 2001-1 Letter of Credit
Providers...............................................28
Section 4.17 Additional Subsidiary Lessees.............................29
Section 4.18 Enhancement Letter of Credit Application and
Agreement...............................................29
Section 4.19 Series 2001-1 Letter of Credit Provider as
Enhancement Provider and Third-Party Beneficiary........29
Section 4.20 No Recourse; No Petition..................................30
Exhibit A -- Form of Series 2001-1 Letter of Credit
Exhibit B -- Form of Affiliate Joinder in Enhancement Letter of
Credit Application and Agreement
Exhibit C -- Form of Notice Requesting Reduction in Series 2001-1
Letter of Credit Amount
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THIS ENHANCEMENT LETTER OF CREDIT APPLICATION AND AGREEMENT, dated as of
March 6, 2001 (as amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with the terms hereof, this
"Agreement"), is entered into by and among DOLLAR RENT A CAR SYSTEMS, INC., an
Oklahoma corporation ("Dollar"), THRIFTY RENT-A-CAR SYSTEM, INC., an Oklahoma
corporation ("Thrifty"), those direct or indirect Subsidiaries of DTAG (as
defined below) that become additional parties to this Agreement from time to
time pursuant to the provisions of Section 4.17 hereof (such additional parties
hereto, Dollar and Thrifty, each a "Lessee" and, collectively, the "Lessees"),
RENTAL CAR FINANCE CORP., a special purpose Oklahoma corporation ("RCFC"),
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation as the Guarantor
("DTAG" or the "Guarantor"), and CREDIT SUISSE FIRST BOSTON, a Swiss banking
corporation, as the Series 2001-1 Letter of Credit Provider ("Credit Suisse
First Boston" or the "Series 2001-1 Letter of Credit Provider").
RECITALS
1. DTAG, Dollar and Thrifty, as borrowers (each a "Borrower" and,
collectively, the "Borrowers"), the financial institutions signatory thereto as
the lenders (each a "Revolving Lender" and, collectively, the "Revolving
Lenders"), Credit Suisse First Boston, in its capacity as administrative agent
thereunder (in such capacity, the "Administrative Agent"), and The Chase
Manhattan Bank, in its capacity as syndication agent thereunder (in such
capacity, the "Syndication Agent"), have entered into an Amended and Restated
Credit Agreement, dated as of August 3, 2000, amending and restating the Credit
Agreement dated as of December 23, 1997 (as amended, supplemented, amended and
restated or otherwise modified from time to time, the"Credit Agreement"),
pursuant to which, in conjunction with this Agreement, the Series 2001-1 Letter
of Credit (as defined in Section 2.1) is being issued as of even date herewith
and the Revolving Lenders are participating in such issuance.
2. DTAG, as Master Servicer, RCFC, Thrifty, Dollar, Bankers Trust
Company, as Master Collateral Agent, and certain additional parties thereto have
entered into an Amended and Restated Master Collateral Agency Agreement, dated
as of December 23, 1997 (as such agreement may be further amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms thereof, the "Master Collateral Agency Agreement"), which Master
Collateral Agency Agreement amended and restated the Master Collateral Agency
Agreement, dated as of December 13, 1995, among Thrifty, Thrifty Car Rental
Finance Corporation, Bankers Trust Company, as the Master Collateral Agent
thereunder, and certain additional parties thereto, and pursuant to which (i)
RCFC has granted to the Master Collateral Agent a first priority security
interest in the RCFC Master Collateral (as defined therein) and (ii) the Lessees
have granted to the Master Collateral Agent a first priority security interest
in the Lessee Grantor Master Collateral (as defined therein), for the benefit of
the parties identified from time to time as the Financing Sources and the
Beneficiaries thereunder (as such terms are defined therein).
3. Contemporaneously with the execution and delivery of this Agreement,
RCFC, as lessor, the Lessees, as lessees, and DTAG, as guarantor of certain of
the Lessees' obligations thereunder, have entered into the Master Motor Vehicle
Lease and Servicing Agreement, dated as of even date herewith (as the same may
be amended, supplemented, amended and restated or otherwise modified from time
to time in accordance with the terms thereof, the "Master Lease"), pursuant to
which RCFC will lease Vehicles (such capitalized term, together with all other
capitalized terms used herein, shall have the meanings assigned thereto pursuant
to Section 1.1) to the Lessees in their respective domestic daily rental
business and DTAG in its capacity as guarantor has guaranteed certain of the
obligations of the Lessees to RCFC thereunder.
4. Contemporaneously with the execution and delivery of this Agreement,
RCFC, as issuer (in such capacity, the "Issuer"), and Bankers Trust Company, a
New York banking corporation ("Bankers Trust Company"), as trustee (in such
capacity, the "Trustee"), are entering into the Series 2001-1 Supplement, dated
as of even date herewith (as the same may be amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with the terms
thereof, the "Series 2001-1 Supplement"), to the Base Indenture, dated as of
December 13, 1995 (as amended as of December 23, 1997, and as the same may be
further amended, supplemented, amended and restated or otherwise modified from
time to time in accordance with the terms thereof, the "Base Indenture" and,
together with the Series 2001-1 Supplement and the other Supplements thereto,
the "Indenture"), between RCFC and the Trustee, pursuant to which RCFC will
issue its Rental Car Asset Backed Notes, Series 2001-1 (the "Series 2001-1
Notes").
5. Contemporaneously with the execution and delivery of this Agreement,
Credit Suisse First Boston, in its capacity as the Series 2001-1 Letter of
Credit Provider, is issuing the Series 2001-1 Letter of Credit, dated as of even
date herewith, (i) as credit support for amounts owed by the Lessees under the
Master Lease and (ii) as credit support for amounts owed by DTAG under the
Demand Note referred to in Section 4.15 of the Series 2001-1 Supplement.
6. The Lessees, RCFC, DTAG and Credit Suisse First Boston, in its
capacity as the Series 2001-1 Letter of Credit Provider, are entering into this
Agreement to provide for the reimbursement by DTAG and the Lessees and the
guarantee of the Lessees' reimbursement obligations hereunder by DTAG, in each
case to the extent and subject to the conditions set forth herein, of any amount
paid by the Series 2001-1 Letter of Credit Provider as a draw upon the Series
2001-1 Letter of Credit.
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:
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions. 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 2001-1 Supplement and (ii) the
Definitions List attached as Schedule 1 to the Base Indenture, as such
Definitions List may be amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with 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 agreements referred to
in clauses (i) and (ii) above, then the meaning assigned to such term in the
Series 2001-1 Supplement shall apply herein.
ARTICLE II
ISSUANCE OF SERIES 2001-1 LETTER
OF CREDIT; REIMBURSEMENT OBLIGATION
Section 2.1 Issuance of Series 2001-1 Letter of Credit; Substitute Series
2001-1 Letter of Credit; Extensions of the Series 2001-1 Letter of Credit. (a)
The Series 2001-1 Letter of Credit Provider hereby agrees, on the terms and
subject to the conditions hereinafter set forth, to issue (i) as credit support
for payments due under the Master Lease, the rights under which have been
assigned by RCFC to the Trustee under the Series 2001-1 Supplement (in respect
of Credit Demands and Termination Demands (in each case as defined in the Series
2001-1 Letter of Credit)), (ii) as support for a LOC Termination Disbursement
under Section 4.16 of the Series 2001-1 Supplement and (iii) as credit support
for draws on the Demand Note under Section 4.15 of the Series 2001-1 Supplement,
an irrevocable letter of credit dated as of even date herewith in substantially
the form attached hereto as Exhibit A, in an amount equal to $14,875,000 (the
"Series 2001-1 Letter of Credit Commitment"), for a term expiring on March 5,
2004 or, if such date is not a Business Day (as defined in the Credit
Agreement), the immediately preceding Business Day (as defined in the Credit
Agreement), or such later date to which the term is extended pursuant to Section
2.1(c) (the "Series 2001-1 Letter of Credit Expiration Date") (as such letter of
credit may be amended, supplemented, amended and restated, substituted or
replaced or otherwise modified from time to time in accordance with the terms
hereof and thereof (including increases in the Series 2001-1 Letter of Credit
Commitment requested pursuant to Section 4.1 of the Credit Agreement and
otherwise permitted pursuant to the terms of the Credit Agreement), the "Series
2001-1 Letter of Credit"). In furtherance of, and not in limitation of, the
terms of the preceding sentence relating to amendments to the Series 2001-1
Letter of Credit, promptly following the Trustee's receipt of written notice
from DTAG, individually and on behalf of the Lessees, substantially in the form
of Exhibit C hereto, requesting a reduction of the Series 2001-1 Letter of
Credit Amount (as defined in the Series 2001-1 Letter of Credit), and in no
event more than two (2) Business Days following the date of its receipt of such
notice, the Trustee shall deliver to the Series 2001-1 Letter of Credit Provider
a Notice of Reduction of Series 2001-1 Letter of Credit Amount substantially in
the form of Annex D to the Series 2001-1 Letter of Credit, which, upon the
Series 2001-1 Letter of Credit Provider's written acknowledgment and agreement,
shall effect a reduction in the Series 2001-1 Letter of Credit Amount as
provided in such Notice (and shall automatically effect a reduction of the
Series 2001-1 Letter of Credit Amount hereunder). Upon the Series 2001-1 Letter
of Credit Provider's written acknowledgment and agreement with each such Notice
of Reduction of Series 2001-1 Letter of Credit Amount, the Series 2001-1 Letter
of Credit Provider will provide promptly copies thereof to the Trustee. Upon the
Trustee's written acknowledgment and acceptance of each Notice of Increase of
Series 2001-1 Letter of Credit Amount (substantially in the form of Annex E to
the Series 2001-1 Letter of Credit), the Trustee will provide promptly copies
thereof to the Series 2001-1 Letter of Credit Provider.
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(b) If a successor Trustee is appointed, promptly following the
appointment of such successor Trustee pursuant to the terms of the Series 2001-1
Supplement and upon receipt of an Instruction to Transfer substantially in the
form of Annex F to the Series 2001-1 Letter of Credit, the Series 2001-1 Letter
of Credit Provider shall deliver for the benefit of such successor Trustee and
the current Trustee, in exchange for the outstanding Series 2001-1 Letter of
Credit, a substitute letter of credit substantially in the form of Exhibit A
hereto, having terms identical to the then outstanding Series 2001-1 Letter of
Credit but in favor of such successor Trustee.
(c) If the Lessees wish to extend the Series 2001-1 Letter of Credit
Expiration Date for purposes of this Agreement and the Series 2001-1 Letter of
Credit, DTAG (on behalf of the Lessees) shall give the Series 2001-1 Letter of
Credit Provider and the Administrative Agent written notice in the form of an
Issuance Request (as defined in the Credit Agreement) to such effect not more
than 75 days and not less than 45 days prior to the date that is three years
from the Series 2001-1 Closing Date (or if such day is not a Business Day (as
defined in the Credit Agreement) then on the next succeeding Business Day (as
defined in the Credit Agreement)) and thereafter not more than 75 days and not
less than 45 days prior to each subsequent one-year anniversary of the Series
2001-1 Closing Date, provided, however, that the additional term of the Series
2001-1 Letter of Credit may not extend beyond the earlier of (i) two years from
its date of extension and (ii) the Commitment Termination Date (as defined in
the Credit Agreement) in effect at the time of such extension. If the Series
2001-1 Letter of Credit Expiration Date is so extended, the Series 2001-1 Letter
of Credit Provider shall either (i) issue to the Trustee in exchange for and
upon receipt of the then outstanding Series 2001-1 Letter of Credit a substitute
letter of credit having terms identical to the then outstanding Series 2001-1
Letter of Credit but expiring on the Series 2001-1 Letter of Credit Expiration
Date, as so extended, or (ii) deliver to the Trustee an amendment to the then
outstanding Series 2001-1 Letter of Credit to reflect such extension of the
Series 2001-1 Letter of Credit Expiration Date.
(d) If the conditions to the extension of the Series 2001-1 Letter of
Credit Expiration Date pursuant to paragraph (c) of this Section 2.1 that are
set forth in Section 6.2 of the Credit Agreement and Section 2.7 of this
Agreement are not satisfied (or waived) on the fortieth day preceding the Series
2001-1 Letter of Credit Expiration Date then in effect, each of the Lessees
shall use its best efforts (i) to obtain a successor institution to act as
Series 2001-1 Letter of Credit Provider or (ii), in the alternative, to
otherwise credit enhance the Master Lease payments to be made by the Lessees
with (A) the funding of the Series 2001-1 Cash Collateral Account with cash in
the amount of the Series 2001-1 Letter of Credit Amount immediately prior to any
drawing referred to in subsection (f) below (whether funded from an LOC
Termination Disbursement or otherwise), (B) other cash collateral accounts,
overcollateralization or subordinated securities or (C) with the consent of the
Required Series 2001-1 Noteholders and the Series 2001-1 Insurer, a Surety Bond
or other similar arrangements; provided, however, that (1) any such successor
institution or other form of substitute credit enhancement referred to in the
foregoing clauses (ii)(B) and (ii)(C) shall be subject to the approval of each
Rating Agency and (2) any such successor institution or other form of substitute
credit enhancement referred to in the foregoing clauses (i) and (ii)(C) shall,
if the ratings with respect to such substitute credit enhancement, if
applicable, are less than "A-1" or the equivalent from Standard & Poor's, "P-1"
or the equivalent from Xxxxx'x and "F1" or the equivalent from Fitch (if rated
by Fitch), be approved by the Required Series 2001-1 Noteholders; provided
further, however, that only after all amounts then owing to the Series 2001-1
Letter of Credit Provider hereunder have been paid in full shall the letter of
credit issued by such successor bank or banks or such other substitute credit
enhancement be substituted for the Series 2001-1 Letter of Credit. If such a
successor institution or such other substitute credit enhancement is obtained,
each of the Lessees and, if applicable, such successor institution shall (x)
sign such documents and instruments as shall be appropriate to evidence such
successor institution's issuance of a substitute letter of credit or such other
substitute credit enhancement, (y) cause the Trustee to return to the Series
2001-1 Letter of Credit Provider the then outstanding Series 2001-1 Letter of
Credit and (z) deliver to the Trustee a substitute letter of credit having terms
identical to the then outstanding Series 2001-1 Letter of Credit but expiring on
the Series 2001-1 Letter of Credit Expiration Date as so extended and with such
successor institution as the issuer thereof or deliver such other substitute
credit enhancement.
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(e) If (i) DTAG (on behalf of the Lessees) does not request an extension
of the Series 2001-1 Letter of Credit Expiration Date or (ii) the conditions
precedent to the extension of the Series 2001-1 Letter of Credit Expiration Date
pursuant to paragraph (c) of this Section 2.1 are not satisfied (or waived) and
the Lessees do not obtain a successor Series 2001-1 Letter of Credit Provider or
other substitute credit enhancement prior to the date which is 30 days prior to
the Series 2001-1 Letter of Credit Expiration Date, then DTAG (on behalf of the
Lessees) shall immediately notify the Trustee and the Series 2001-1 Insurer in
writing, and the Trustee, pursuant to Section 4.16 of the Series 2001-1
Supplement, shall immediately request a LOC Termination Disbursement in
accordance with Section 4.16 of the Series 2001-1 Supplement no later than one
Business Day prior to such Series 2001-1 Letter of Credit Expiration Date in an
amount equal to the Series 2001-1 Letter of Credit Amount. The Trustee shall, in
accordance with Sections 4.16 and 4.17 of the Series 2001-1 Supplement, deposit
the amount of such LOC Termination Disbursement in the Series 2001-1 Cash
Collateral Account and shall use such funds in the same manner as the Series
2001-1 Letter of Credit would be used hereunder.
(f) If (i) the short-term debt or deposit rating of the Series 2001-1
Letter of Credit Provider shall be downgraded below "A-1" by Standard & Poor's,
below "P-1" by Xxxxx'x or below "F1" by Fitch (if rated by Fitch) or (ii) the
Series 2001-1 Letter of Credit Provider has notified DTAG (and has not retracted
such notification) that its compliance with any of its obligations hereunder
would be unlawful, each of the Lessees shall use its best efforts (A) to obtain
a successor institution to act as Series 2001-1 Letter of Credit Provider or
(B), in the alternative, to otherwise credit enhance the Master Lease payments
to be made by the Lessees with (1) the funding of the Series 2001-1 Cash
Collateral Account with cash in the amount of the Series 2001-1 Letter of Credit
Amount (whether funded from an LOC Termination Disbursement or otherwise), (2)
other cash collateral accounts, overcollateralization or subordinated securities
or (3) with the consent of the Required Series 2001-1 Noteholders and the Series
2001-1 Insurer, a Surety Bond or other similar arrangements; provided, however,
that (aa) any such successor institution or other form of substitute credit
enhancement referred to in the foregoing clauses (ii)(B)(2) and (ii)(B)(3) shall
be subject to the approval of each Rating Agency and (bb) any such successor
institution or other form of substitute credit enhancement referred to in the
foregoing clauses (ii)(A) and (ii)(B)(3) shall, if the ratings with respect to
such substitute credit enhancement, if applicable, are less than "A-1" or the
equivalent from Standard & Poor's, "P-1" or the equivalent from Xxxxx'x and "F1"
or the equivalent from Fitch (if rated by Fitch), be approved by the Required
Series 2001-1 Noteholders; provided further, however, that only after all
amounts then owing to the Series 2001-1 Letter of Credit Provider hereunder have
been paid in full shall the letter of credit issued by such successor bank or
banks or such other substitute credit enhancement be substituted for the Series
2001-1 Letter of Credit. If the Lessees do not replace the Series 2001-1 Letter
of Credit Provider within 60 days after the occurrence of any of the events
specified in subclause (i) or (ii) of this clause (f), then DTAG (on behalf of
the Lessees) shall notify the Trustee and the Series 2001-1 Insurer in writing,
and the Trustee, pursuant to Section 4.16 of the Series 2001-1 Supplement, shall
immediately request a LOC Termination Disbursement in accordance with Section
4.16 of the Series 2001-1 Supplement in an amount equal to the Series 2001-1
Letter of Credit Amount. The Trustee shall, in accordance with Sections 4.16 and
4.17 of the Series 2001-1 Supplement, deposit the amount of such LOC Termination
Disbursement into the Series 2001-1 Cash Collateral Account and shall use such
funds in the same manner as the Series 2001-1 Letter of Credit would be used
hereunder.
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(g) In the event that (i) the Series 2001-1 Letter of Credit Provider
shall have notified DTAG (and shall not have retracted such notification) that
its compliance with any of its obligations hereunder or under the related Series
2001-1 Letter of Credit would be unlawful, (ii) the Series 2001-1 Letter of
Credit Provider fails to extend its Series 2001-1 Letter of Credit Expiration
Date pursuant to Section 2.1(c), (iii) any of the Lessees or DTAG is required
pursuant to Sections 5.1, 5.3, 5.5 or 5.6 of the Credit Agreement to make any
payment to or on behalf of the Series 2001-1 Letter of Credit Provider (or would
be so required on or prior to the next following date on which a payment
hereunder is required to be made to or for any such Series 2001-1 Letter of
Credit Provider), (iv) the Series 2001-1 Letter of Credit Provider shall have
wrongfully failed to fund any LOC Credit Disbursement when required hereunder,
or (v) the short-term debt or deposit rating of the Series 2001-1 Letter of
Credit Provider shall be downgraded below "A-1" by Standard & Poor's, below
"P-1" by Xxxxx'x or below "F1" by Fitch (if rated by Fitch), then the Lessees
shall have the right at their own expense, upon notice to the Series 2001-1
Letter of Credit Provider, and such Series 2001-1 Letter of Credit Provider
hereby agrees, to transfer and assign without recourse (in accordance with and
subject to the restrictions contained in Section 4.9 with respect to
assignments) all the interests, rights and obligations of the Series 2001-1
Letter of Credit Provider to a replacement Series 2001-1 Letter of Credit
Provider (having a short-term debt or deposit rating of at least "A-1" by
Standard & Poor's and "P-1" by Xxxxx'x and "F1" by Fitch (if rated by Fitch))
provided by DTAG (on behalf of the Lessees); provided, however, that (w) no such
assignment to any replacement Series 2001-1 Letter of Credit Provider shall
conflict with any law, rule, regulation or order of any Governmental Authority,
(x) such assignment to any replacement Series 2001-1 Letter of Credit Provider
shall be without recourse, representation and warranty and shall be on terms and
conditions reasonably satisfactory to the Series 2001-1 Letter of Credit
Provider and such replacement Series 2001-1 Letter of Credit Provider, (y) the
purchase price paid by such replacement Series 2001-1 Letter of Credit Provider
shall be in an amount equal to the aggregate amount of the LOC Credit
Disbursements owed by the Lessees or DTAG to such replaced Series 2001-1 Letter
of Credit Provider under this Agreement as of the date of such assignment, and
(z) DTAG (on behalf of the Lessees) or such replacement Series 2001-1 Letter of
Credit Provider, as the case may be, shall pay to such replaced Series 2001-1
Letter of Credit Provider in same day funds on the date of such assignment the
principal of and interest accrued to the date of payment on the LOC Credit
Disbursements or LOC Termination Disbursement made by such replaced Series
2001-1 Letter of Credit Provider hereunder and all other amounts accrued for
such replaced Series 2001-1 Letter of Credit Provider's account or owed to it
hereunder, including those amounts owed pursuant to Section 2.4 of this
Agreement and Sections 5.1, 5.3, 5.5 and 5.6 of the Credit Agreement (which are
incorporated herein); provided further, however, that only after all amounts
then owing to the Series 2001-1 Letter of Credit Provider to be replaced
hereunder have been paid in full shall the Series 2001-1 Letter of Credit issued
by the replacement Series 2001-1 Letter of Credit Provider be substituted for
the Series 2001-1 Letter of Credit Provider's Series 2001-1 Letter of Credit. If
such a replacement Series 2001-1 Letter of Credit is obtained, each of the
Lessees and, if applicable, such successor institution, shall sign such
documents and instruments as shall be appropriate to evidence such successor
institution's issuance of a substitute letter of credit or such other substitute
credit enhancement. If a replacement Series 2001-1 Letter of Credit Provider
succeeds the Series 2001-1 Letter of Credit Provider or other substitute credit
enhancement is obtained to replace the Series 2001-1 Letter of Credit, then the
Lessees and, if applicable, such successor institution, shall (a) sign such
documents and instruments as shall be appropriate to evidence such successor
institution's issuance of a substitute letter of credit or such other substitute
credit enhancement, (b) cause the return to the Series 2001-1 Letter of Credit
Provider of the then outstanding Series 2001-1 Letter of Credit, and (c) deliver
to the Trustee a substitute letter of credit having terms identical to the then
outstanding Series 2001-1 Letter of Credit but with such successor institution
as the issuer thereof or deliver such other substitute credit enhancement. DTAG
shall provide prompt written notice to the Trustee of the appointment of any
such successor institution in accordance with the terms of this Agreement.
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Section 2.2 Disbursements. (a) Upon presentation by the Trustee to the
Series 2001-1 Letter of Credit Provider of a certificate in the form of Annex A
to the Series 2001-1 Letter of Credit, and subject to the terms and conditions
set forth in the Series 2001-1 Letter of Credit, the Series 2001-1 Letter of
Credit Provider shall make an LOC Credit Disbursement at the time, in the manner
and to the account specified in the Series 2001-1 Letter of Credit.
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(b) Upon presentation by the Trustee to the Series 2001-1 Letter of Credit
Provider of a certificate in the form of Annex B to the Series 2001-1 Letter of
Credit, and subject to the terms and conditions set forth in the Series 2001-1
Letter of Credit, the Series 2001-1 Letter of Credit Provider shall make an LOC
Termination Disbursement at the time, in the manner and to the account specified
in the Series 2001-1 Letter of Credit.
Section 2.3 Reimbursement. (a) Each Lessee agrees to pay to the Series
2001-1 Letter of Credit Provider on demand (which demand may be made on DTAG on
behalf of the Lessees) on and after each date on which the Series 2001-1 Letter
of Credit Provider shall pay any LOC Credit Disbursement under the Series 2001-1
Letter of Credit in respect of Series 2001-1 Lease Payment Losses allocated to
making a drawing under the Series 2001-1 Letter of Credit, (A) an amount equal
to the portion of such LOC Credit Disbursement allocable to amounts due and
payable by such Lessee under the Master Lease (as determined by the Trustee or,
in the absence of such determination, the Series 2001-1 Letter of Credit
Provider), plus (B) interest on any amount remaining unpaid by such Lessee to
the Series 2001-1 Letter of Credit Provider under clause (A) above, from (and
including) the date such amount is paid by the Series 2001-1 Letter of Credit
Provider under the Series 2001-1 Letter of Credit, until payment in full thereof
(after as well as before judgment), in accordance with the terms of the Credit
Agreement (which terms are incorporated herein by reference). DTAG agrees to pay
to the Series 2001-1 Letter of Credit Provider on demand on and after each date
on which the Series 2001-1 Letter of Credit Provider shall pay any LOC Credit
Disbursement under the Series 2001-1 Letter of Credit allocable to amounts owed
by DTAG under the Demand Note (as determined by the Trustee or, in the absence
of such determination, the Series 2001-1 Letter of Credit Provider) (A) an
amount equal to the portion of such LOC Credit Disbursement so allocable, plus
(B) interest on any amount remaining unpaid by DTAG to the Series 2001-1 Letter
of Credit Provider under the immediately preceding clause (A), from (and
including) the date such amount is paid by the Series 2001-1 Letter of Credit
Provider under the Series 2001-1 Letter of Credit until payment in full thereof
(after as well as before judgment), in accordance with the terms of the Credit
Agreement (which terms are incorporated herein by reference).
(b) In the event of a LOC Termination Disbursement under the Series 2001-1
Letter of Credit in accordance with Section 2.1(e) or (f) each Lessee agrees to
pay to the Series 2001-1 Letter of Credit Provider an amount equal to:
(i) a percentage of the amount of such LOC Termination Disbursement
that is allocable, as determined by the Trustee or, in the absence of such
determination, the Series 2001-1 Letter of Credit Provider, to amounts due
and payable by such Lessee under the Master Lease (the "Lessee Termination
Reimbursement Share") and which in the aggregate for all such Lessees is
equal to 100%;
plus
(ii) interest on the Lessee Termination Reimbursement Share allocable
to such Lessee remaining unpaid by such Lessee from the date of payment of
such LOC Termination Disbursement by the Series 2001-1 Letter of Credit
Provider until payment in full of the Lessee Termination Reimbursement
Share by such Lessee to the Series 2001-1 Letter of Credit Provider (after
as well as before judgment), at a rate per annum provided for by the terms
of the Credit Agreement (which terms are incorporated herein by this
reference).
8
Each Lessee shall pay its respective Lessee Termination Reimbursement Share
of such LOC Termination Disbursement to the Series 2001-1 Letter of Credit
Provider on the date of such LOC Termination Disbursement in accordance with the
terms of the Credit Agreement (which terms are incorporated herein by this
reference).
(c) Until the Series 2001-1 Letter of Credit Provider is reimbursed for
such LOC Termination Disbursement, the Series 2001-1 Letter of Credit Provider
may direct in writing the investment in Permitted Investments of the funds in
the Series 2001-1 Cash Collateral Account from such LOC Termination Disbursement
made under Section 2.1(e) or (f) and shall be entitled to receive the earnings
thereon when such earnings are realized (the term "earnings" to include interest
payable by each Lessee on amounts withdrawn from the Series 2001-1 Cash
Collateral Account) from such investments from time to time from the Series
2001-1 Cash Collateral Account in accordance with the following clause (d) and
Sections 4.17(c) and (d) of the Series 2001-1 Supplement. After reimbursement of
the Series 2001-1 Letter of Credit Provider for the full amount of the LOC
Termination Disbursement, DTAG (on behalf of the Lessees) may direct investment
in Permitted Investments of the funds on deposit in the Series 2001-1 Cash
Collateral Account and shall be entitled to receive the earnings thereon from
such investments from time to time from releases of excess amounts from the
Series 2001-1 Cash Collateral Account in accordance with clause (d) below and
Sections 4.17(c) and (d) of the Series 2001-1 Supplement.
(d) Earnings from investments in the Series 2001-1 Cash Collateral Account
shall be paid first, to the Series 2001-1 Letter of Credit Provider to the
extent accruing on the amount of a LOC Termination Disbursement made under
Section 2.1(e) or (f) until the earlier of the date the Series 2001-1 Letter of
Credit Provider is reimbursed for such amount or the date interest begins to
accrue on the full amount of such LOC Termination Disbursement and second, to
the related Lessee. Any amounts (other than earnings on investments) released
from the Series 2001-1 Cash Collateral Account in accordance with Section
4.17(d) of the Series 2001-1 Supplement shall be paid to the Series 2001-1
Letter of Credit Provider to the extent the Series 2001-1 Letter of Credit
Provider has not been fully reimbursed by the Lessees under clauses (a) and (c)
above for LOC Credit Disbursements or a LOC Termination Disbursement. Upon
reimbursement in full to the Series 2001-1 Letter of Credit Provider of amounts
owed under clauses (a) and (c) above, amounts released from the Series 2001-1
Cash Collateral Account in accordance with Section 4.17(d) of the Series 2001-1
Supplement shall be paid to the Lessees.
(e) After a LOC Termination Disbursement has been made, any withdrawals
made by the Trustee from the Series 2001-1 Cash Collateral Account in respect of
Series 2001-1 Lease Payment Losses (as notified to RCFC and the Lessees by the
Trustee pursuant to Section 4.14 of the Series 2001-1 Supplement) shall be
reimbursed to the Series 2001-1 Cash Collateral Account in accordance with
Section 4.7 of the Series 2001-1 Supplement.
9
Section 2.4 Series 2001-1 Letter of Credit Fees and Expenses. This
Agreement hereby incorporates by reference as though fully set forth herein, all
provisions of the Credit Agreement on the fees and expenses due and payable to
the Series 2001-1 Letter of Credit Provider in connection with issuance of the
Series 2001-1 Letter of Credit including, without limitation, Sections 3.3 and
4.3 thereof, and Dollar, Thrifty and DTAG each hereby agrees to pay such fees
and expenses pursuant to and in the manner provided in the Credit Agreement.
Section 2.5 No Liability of Series 2001-1 Letter of Credit Provider. Each
of the Lessees and DTAG acknowledges that the Series 2001-1 Letter of Credit
Provider is not responsible for any risks of acts or omissions of the Trustee
and any other beneficiary or transferee of the Series 2001-1 Letter of Credit
with respect to its use of the Series 2001-1 Letter of Credit. Neither the
Series 2001-1 Letter of Credit Provider nor any of its respective employees,
officers or directors shall be liable or responsible for: (a) the use which may
be made of the Series 2001-1 Letter of Credit or any acts or omissions of the
Trustee and any transferee in connection therewith; (b) the validity or
genuineness of documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, fraudulent or forged; (c)
payment by the Series 2001-1 Letter of Credit Provider against presentation of
documents which do not comply with the terms of the Series 2001-1 Letter of
Credit, including failure of any documents to bear any reference or adequate
reference to the Series 2001-1 Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Series 2001-1 Letter
of Credit; provided, however, that the Series 2001-1 Letter of Credit Provider
shall be liable to each Lessee to the extent of any direct, as opposed to
consequential, damages suffered by such Lessee which were caused by (i) the
Series 2001-1 Letter of Credit Provider's willful misconduct or gross negligence
in determining whether documents presented under the Series 2001-1 Letter of
Credit comply with the terms of the Series 2001-1 Letter of Credit or (ii) the
Series 2001-1 Letter of Credit Provider's gross negligence in failing to make or
willful failure to make lawful payment under the Series 2001-1 Letter of Credit
after the presentation to the Series 2001-1 Letter of Credit Provider by the
Trustee of a certificate strictly complying with the terms and conditions of the
Series 2001-1 Letter of Credit. In furtherance and not in limitation of the
foregoing, the Series 2001-1 Letter of Credit Provider may accept documents that
appear on their face to be in order, without responsibility for further
investigation.
Section 2.6 Surrender of Series 2001-1 Letter of Credit. Provided that the
Series 2001-1 Letter of Credit Provider is not then in default under the Series
2001-1 Letter of Credit by reason of its having wrongfully failed to honor a
demand for payment previously made by the Trustee under the Series 2001-1 Letter
of Credit, the Series 2001-1 Letter of Credit Provider shall instruct the
Trustee to surrender the Series 2001-1 Letter of Credit to the Series 2001-1
Letter of Credit Provider on the earliest of (i) the Series 2001-1 Letter of
Credit Expiration Date, (ii) the date on which the Series 2001-1 Letter of
Credit Provider honors a Certificate of Termination Demand presented under the
Series 2001-1 Letter of Credit to the extent of the Series 2001-1 Letter of
Credit Amount as in effect on such date, and (iii) the date on which the Series
2001-1 Letter of Credit Provider receives written notice from the Trustee that a
letter of credit or other credit enhancement has been substituted for the Series
2001-1 Letter of Credit.
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Section 2.7 Conditions Precedent to Issuance, Increase or Extension. (a)
The following constitute conditions precedent to the obligation of the Series
2001-1 Letter of Credit Provider to issue the Series 2001-1 Letter of Credit
(provided, that such conditions will be deemed to be satisfied upon the issuance
of the Series 2001-1 Letter of Credit):
(i) On the date of issuance of the Series 2001-1 Letter of Credit,
each condition precedent to the issuance of the Series 2001-1 Letter of
Credit set forth in Section 6.2 of the Credit Agreement shall be satisfied
(which conditions are hereby incorporated herein by this reference).
(ii) On the date of issuance of the Series 2001-1 Letter of Credit,
all representations and warranties of each of the Lessees and DTAG
contained in this Agreement and in each other Related Document to which any
of the Lessees or DTAG is a party shall be true and correct immediately
prior to, and after giving effect to, the issuance of the Series 2001-1
Letter of Credit.
(iii) On the date of issuance of the Series 2001-1 Letter of Credit,
and after giving effect to the transactions contemplated by this Agreement
and the Series 2001-1 Letter of Credit, there shall exist no Potential
Event of Default or Event of Default under this Agreement.
(iv) The Series 2001-1 Letter of Credit Provider shall have received
(A) the favorable written opinions of counsel to each of the Lessees, DTAG
and RCFC, dated the Series 2001-1 Closing Date, covering such matters as
the Series 2001-1 Letter of Credit Provider may reasonably request, (B)
copies of any representation letters or certificates (or similar documents)
provided to the Trustee, the Series 2001-1 Insurer, any of the Lessees,
DTAG or RCFC and (C) copies of all opinions delivered to the Trustee or the
Series 2001-1 Insurer, as an addressee or with reliance letters.
(v) The Series 2001-1 Letter of Credit Provider shall have received
from each of the Lessees and DTAG (A) a copy of the resolutions of its
Board of Directors or other governing body, certified as of the Series
2001-1 Closing Date by the secretary or assistant secretary thereof,
authorizing the execution, delivery and performance of this Agreement and
the other Related Documents (and the procurement of the Series 2001-1
Letter of Credit) and (B) an incumbency certificate thereof with respect
to its officers, agents or other representatives authorized to execute
this Agreement and the Related Documents to which it is a party.
(vi) The Series 2001-1 Letter of Credit Provider shall be reasonably
satisfied with the final terms and conditions of the transactions
contemplated hereby, including, without limitation, all legal and tax
aspects thereof, and all documentation relating to the transactions shall
be in form and substance reasonably satisfactory to the Series 2001-1
Letter of Credit Provider.
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(vii) On the date of issuance of the Series 2001-1 Letter of Credit,
immediately prior to, and after giving effect to, the issuance of the
Series 2001-1 Letter of Credit, except as disclosed in Item 7.7 of the
Disclosure Schedule (as defined in the Credit Agreement) there shall be no
action, suit, investigation, litigation or proceeding pending against or,
to the knowledge of DTAG or any Lessee, threatened against or affecting
any of DTAG or any Lessee, before any court or arbitrator or any
governmental body, agency or official that (A) would be reasonably likely
to have resulted in a material adverse change in the business,
operations, property, assets, liabilities, condition (financial or
otherwise), or prospects of DTAG and the Lessees, taken as a whole, since
December 31, 2000 or (B) which in any manner draws into question the
legality, validity or enforceability of this Agreement or any Related
Document, the consummation of the transactions contemplated hereby, or the
ability of DTAG or any Lessee to comply with any of the respective terms
thereunder.
(viii) All governmental and third party consents and approvals
necessary in connection with this Agreement and the Series 2001-1 Letter of
Credit or the transactions contemplated hereby or thereby shall have been
obtained (without the imposition of any conditions that are not, in its
reasonable judgment, acceptable to the Series 2001-1 Letter of Credit
Provider) and shall remain in effect; all applicable waiting periods shall
have expired without any action being taken by any competent authority;
and no law or regulation shall be applicable that restrains, prevents
or imposes materially adverse conditions upon this Agreement or the Series
2001-1 Letter of Credit or the transactions contemplated hereby or thereby.
(ix) The Series 2001-1 Letter of Credit Provider shall have received
such other documents (including, without limitation, an executed copy (or
duplicate thereof) of each other Related Document) certificates,
instruments, approvals or opinions as the Series 2001-1 Letter of Credit
Provider may reasonably request.
(x) The following shall be true and correct (and the Series 2001-1
Letter of Credit Provider shall have received a certificate of each of the
Lessees and RCFC as to the following):
(A) Each Eligible Vehicle Disposition Program shall be in full
force and effect and enforceable against the related Manufacturer.
(B) Each of the Lessees and RCFC shall not have sold, assigned,
or otherwise encumbered any of the Vehicles purchased or otherwise
financed with the proceeds of the Series 2001-1 Notes except as
permitted under the Related Documents.
(C) RCFC and the Lessees shall each have assigned to the Master
Collateral Agent a first priority security interest in its rights
under the Eligible Vehicle Disposition Programs and amounts receivable
from the Manufacturers pursuant to the Eligible Vehicle Disposition
Programs.
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(xi) RCFC and the Lessees shall each have granted to the Master
Collateral Agent, for the benefit of the Trustee on behalf of the Series
2001-1 Noteholders and the Series 2001-1 Insurer, a first priority
security interest in all Vehicles now or hereafter purchased or otherwise
financed with the proceeds of the Series 2001-1 Notes in accordance with
the terms of the Series 2001-1 Supplement.
(xii) The Series 2001-1 Letter of Credit Provider shall have consented
to the composition of the Board of Directors of RCFC (including each of
the Independent Directors), which consent shall not be unreasonably
withheld.
(xiii)The Series 2001-1 Letter of Credit Provider shall have received
any fees and expenses due and payable pursuant to Section 4.2 or pursuant
to the Credit Agreement, including, without limitation, pursuant to Section
3.3 and 4.3 thereof, and all reasonable legal fees and expenses.
(b) The following constitute conditions precedent to the obligation of the
Series 2001-1 Letter of Credit Provider to extend the Series 2001-1 Letter of
Credit Expiration Date or increase the Series 2001-1 Letter of Credit Commitment
(provided that such conditions will be deemed to be satisfied upon such
extension or increase with respect to the Series 2001-1 Letter of Credit):
(i) On the date of extension or increase, each condition precedent
to the issuance of the Series 2001-1 Letter of Credit set forth in Section
6.2 of the Credit Agreement shall continue to be satisfied (which
conditions are hereby incorporated herein by this reference).
(ii) On the date of extension or increase with respect to the Series
2001-1 Letter of Credit, all representations and warranties of each of the
Lessees and DTAG contained in this Agreement and in each other Related
Document to which any of the Lessees or DTAG is a party shall be true and
correct immediately prior to, and after giving effect to, the extension or
increase with respect to the Series 2001-1 Letter of Credit.
(iii) On the date of extension or increase with respect to the Series
2001-1 Letter of Credit, and after giving effect to the transactions
contemplated by this Agreement and the Series 2001-1 Letter of Credit,
there shall exist no Potential Event of Default or Event of Default under
this Agreement.
(iv) On the date of extension or increase with respect to the Series
2001-1 Letter of Credit, immediately prior to, and after giving effect to,
the extension or increase with respect to the Series 2001-1 Letter of
Credit, except as disclosed in Item 7.7 of the Disclosure Schedule (as
defined in the Credit Agreement), there shall be no action, suit,
investigation, litigation or proceeding pending against or, to the
knowledge of DTAG or any Lessee, threatened against or affecting any of
DTAG or any Lessee, before any court or arbitrator or any governmental
body, agency or official that (A) would be reasonably likely to have
resulted in a material adverse change in the business, operations,
property, assets, liabilities, condition (financial or otherwise), or
prospects of DTAG and the Lessees, taken as a whole, since December 31,
2000, or (B) which in any manner draws into question the legality, validity
or enforceability of this Agreement or any Related Document, the
consummation of the transactions contemplated hereby, or the ability of
DTAG or any Lessee to comply with any of the respective terms thereunder.
13
(v) All governmental and third-party consents and approvals
necessary in connection with this Agreement and the Series 2001-1 Letter
of Credit or the transactions contemplated hereby or thereby shall continue
to be in effect (without the imposition of any conditions that are not, in
its reasonable judgment, acceptable to the Series 2001-1 Credit Provider);
and no law or regulation shall be applicable that restrains, prevents or
imposes materially adverse conditions upon this Agreement or the Series
2001-1 Letter of Credit or the transactions contemplated hereby or thereby.
(vi ) The Series 2001-1 Letter of Credit Provider shall have received
such other` documents (including, without limitation, an executed copy (or
duplicate thereof) of each other Related Document) certificates,
instruments, approvals or opinions as the Series 2001-1 Letter of Credit
Provider may reasonably request.
(vii) The following shall be true and correct (and the Series 2001-1
Letter of Credit Provider shall have received a certificate of each of the
Lessees and RCFC as to the following):
(A) Each Eligible Vehicle Disposition Program shall be in full
force and effect, enforceable against the related Manufacturer.
(B) Each of the Lessees and RCFC shall not have sold, assigned,
or otherwise encumbered any of the Vehicles purchased or otherwise
financed with the proceeds of the Series 2001-1 Notes except as
permitted under the Related Documents.
(C) The Master Collateral Agent shall continue to have a first
priority security interest in the rights of RCFC and the Lessees under
the Eligible Vehicle Disposition Programs and amounts receivable from
the Manufacturers pursuant to the Eligible Vehicle Disposition
Programs.
(viii)The Master Collateral Agent, for the benefit of the Series
2001-1 Noteholders and the Series 2001-1 Insurer, shall continue to have a
first priority security interest (as granted by RCFC and the Lessees) in
all Vehicles now or hereafter purchased or otherwise financed with the
proceeds of the Series 2001-1 Notes in accordance with the terms of the
Series 2001-1 Supplement.
(ix) The Series 2001-1 Letter of Credit Provider shall continue to
consent to the composition of the Board of Directors of RCFC (including the
Independent Directors), which consent shall not be unreasonably withheld.
14
(x) The Series 2001-1 Letter of Credit Provider shall have received
any fees and expenses due and payable pursuant to Section 4.2 or pursuant
to the Credit Agreement including, without limitation, pursuant to Section
3.3 and 4.3 thereof, and all reasonable legal fees and expenses.
Section 2.8 Certain Eurocurrency Rate and Other Provisions under the Credit
Agreement. This Agreement hereby incorporates by reference as though fully set
forth herein all provisions of the Credit Agreement set forth under Sections 5.1
through 5.10 thereof, including, without limitation, as if the LOC Disbursements
referred to herein were Loans (as defined in the Credit Agreement) under the
Credit Agreement.
Section 2.9 Obligation Absolute. The payment obligations of each of DTAG
and each Lessee under this Agreement and any other agreement or instrument
relating to the Series 2001-1 Letter of Credit to reimburse the Series 2001-1
Letter of Credit Provider with respect to each LOC Disbursement shall be
absolute, unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and such other agreement or
instrument under all circumstances, including, without limitation, the following
circumstances:
(a) any lack of validity or enforceability of this Agreement, the
Series 2001-1 Letter of Credit or any other Related Document;
(b) any change in the time, manner or place of payment of, or in any
other terms of, all or any of the obligations of either of DTAG or any
Lessee in respect of the Series 2001-1 Letter of Credit or any other
amendment or waiver of or any consent to departure from all or any of the
Related Documents;
(c) the existence of any claim, set-off, defense or other right
which either of DTAG or any Lessee may have at any time against the Trustee
or any other beneficiary or any transferee of the Series 2001-1 Letter of
Credit (or any persons or entities for whom the Trustee, any such
beneficiary or any such transferee may be acting), or any other person or
entity, whether in connection with this Agreement, the transactions
contemplated hereby or by the Related Documents or any unrelated
transaction;
(d) any statement or any other document presented under the Series
2001-1 Letter of Credit proving to be forged, fraudulent or invalid in any
respect or any statement therein being untrue or inaccurate in any respect;
(e) any statement or any other document presented under the Series
2001-1 Letter of Credit proving to be insufficient in any respect;
(f) payment by the Series 2001-1 Letter of Credit Provider under the
Series 2001-1 Letter of Credit against presentation of a draft or
certificate which does not comply with the terms of the Series 2001-1
Letter of Credit;
15
(g) any exchange, release or non-perfection of any collateral, or
any release or amendment or waiver of or consent to departure from any
guarantee, for all or any of the obligations of each of DTAG and each
Lessee in respect of the Series 2001-1 Letter of Credit; or
(h) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, DTAG, any Lessee or a guarantor.
Section 2.10 Events of Default. Upon the occurrence and continuance of any
of the following events (herein referred to as an "Event of Default"):
(a) any Lessee (or DTAG on behalf of such Lessee) shall fail to pay
any LOC Credit Disbursement owing by such Lessee or any amounts owing by
such Lessee for LOC Termination Disbursements on the date when such amount
is due;
(b) any Lessee (or DTAG on behalf of any such Lessee) shall fail to
pay any interest, fees or other amounts payable under this Agreement or the
Credit Agreement, in each case within three Business Days of the date when
such interest, fees or other amounts are due;
(c) any representation, warranty, certification or statement made by
any Lessee, RCFC or DTAG in this Agreement or in any other Related Document
to which it is a party, or any certificate, financial statement or other
document delivered pursuant hereto or thereto shall have been incorrect in
any material respect when made or deemed made and after the expiration of
any grace period applicable thereto;
(d) RCFC shall fail to make any payment in respect of any
Indebtedness when due or within any applicable grace period, which
Indebtedness is in an outstanding principal amount in excess of $100,000;
(e) an Event of Bankruptcy shall have occurred with respect to RCFC;
(f) any judgment or order for the payment of money in excess of
$100,000 (to the extent not covered by insurance provided by a carrier
that has not disputed coverage) shall be rendered against RCFC and
either (i) enforcement proceedings shall have been commenced by any
creditor upon such judgment or order or (ii) there shall be any period of
20 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
(g) an Event of Default (as defined in the Credit Agreement) shall
have occurred and be continuing (whether or not waived);
16
(h) DTAG shall default in the performance or observance of any
agreement or covenant contained in Section 2.12;
(i) any Lessee or DTAG shall default in the performance or
observance of any other agreement or covenant contained in this Agreement
not specifically referred to elsewhere in this Section 2.10, and such
default shall not be cured to the Series 2001-1 Letter of Credit Provider's
reasonable satisfaction within a period of 30 days from the date on which
the Series 2001-1 Letter of Credit Provider has given written notice
thereof to such Lessee or DTAG;
(j) there shall occur any default by any Lessee or DTAG under any of
the Related Documents (other than this Agreement or as otherwise provided
in this Section 2.10), which shall not be cured to the Series 2001-1 Letter
of Credit Provider's reasonable satisfaction within the applicable cure
period, if any, provided for in such Related Document; or
(k) any Related Document shall (except in accordance with its
terms), in whole or in part, terminate, cease to be effective or cease to
be the legally valid, binding and enforceable obligation of any Lessee,
DTAG or RCFC, or any Lessee, DTAG or RCFC shall, directly or indirectly,
contest in any manner such effectiveness, validity, binding nature or
enforceability;
then, the Series 2001-1 Letter of Credit Provider may by notice to DTAG on
behalf of the applicable Lessee or Lessees, in the case of an Event of Default
caused by or regarding any such Lessee or Lessees, (i) declare (to the extent
not theretofore due and payable) the principal amount of outstanding LOC Credit
Disbursements and the Lessee Termination Reimbursement Share of outstanding LOC
Termination Disbursements, if any, to be due and payable, together with accrued
interest thereon and all other sums payable by such Lessee or Lessees, hereunder
and thereunder, whereupon the same shall become due and payable without
presentment, demand, protest, or further notice of any kind, all of which are
hereby expressly waived by such Lessee or Lessees and DTAG and (ii) deem an
amount equal to any undrawn portion of the Series 2001-1 Letter of Credit to
have been paid or disbursed (notwithstanding that such amount may not in fact
have been so paid or disbursed), and DTAG and the Lessees shall be immediately
obligated to reimburse the Series 2001-1 Letter of Credit Provider the amount
deemed to have been so paid or disbursed by the Series 2001-1 Letter of Credit
Provider as if a demand had been made by the Series 2001-1 Letter of Credit
Provider to the Lessees under Section 2.3 hereof and any amounts so received by
the Series 2001-1 Letter of Credit Provider shall be maintained and applied in
accordance with Section 4.7 of the Credit Agreement, and, in any case, the
Series 2001-1 Letter of Credit Provider may take any other action permitted to
be taken by it hereunder, under any Related Document or under applicable law or
otherwise; provided that if an Event of Bankruptcy shall have occurred with
respect to any Lessee or DTAG all sums payable by the Lessees and DTAG hereunder
shall automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
each of the Lessees and DTAG.
17
"Potential Event of Default" shall mean, for purposes of this Agreement,
any occurrence or event which, after notice or lapse of time or both, would
constitute an Event of Default hereunder.
Section 2.11 Grant of Security Interest. As security for the prompt and
complete payment and performance of the obligations of DTAG and each of the
Lessees hereunder to the Series 2001-1 Letter of Credit Provider, each of DTAG
and the Lessees hereby acknowledges and confirms its respective pledge,
hypothecation, assignment, transfer and delivery to the Master Collateral Agent
under the Master Collateral Agency Agreement for the benefit of the Series
2001-1 Letter of Credit Provider under Section 2.1 of the Master Collateral
Agency Agreement of a continuing, second priority security interest in the
Lessee Grantor Master Collateral, whether now existing or hereafter created,
subject to the terms and priorities set forth therein and in the other Related
Documents, including, without limitation, the security interest in such
collateral granted by each of the Lessees pursuant to the Master Lease and by
RCFC to the Trustee for the benefit of any Series of Notes outstanding.
Section 2.12 Guarantee. The Guarantor confirms its guarantee under Section
4.10 and Article X of the Credit Agreement of, inter alia, the obligations of
the Lessees hereunder, including without limitation, (i) the obligations of the
Lessees to make payments under this Agreement and (ii) the due and punctual
performance and observance of all the terms, conditions, covenants, agreements
and indemnities of the Lessees under this Agreement, and agrees that, if for any
reason whatsoever, any Lessee fails to so perform and observe such terms,
conditions, covenants, agreements and indemnities, the Guarantor will duly and
punctually perform and observe the same.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1 Representations and Warranties of the Lessees and DTAG. Each of
the Lessees hereby represents and warrants (which representations and warranties
shall be deemed made on the date of issuance of the Series 2001-1 Letter of
Credit and on the date of each extension (if any) of the Series 2001-1 Letter of
Credit and each increase (if any) of the Series 2001-1 Letter of Credit
Commitment) to the Series 2001-1 Letter of Credit Provider (and each of the
Revolving Lenders under the Credit Agreement), as to itself, and DTAG represents
and warrants (which representations and warranties shall be deemed made on the
date of issuance of the Series 2001-1 Letter of Credit and on the date of each
extension (if any) of the Series 2001-1 Letter of Credit and each increase (if
any) of the Series 2001-1 Letter of Credit Commitment, to the Series 2001-1
Letter of Credit Provider (and each of the Revolving Lenders under the Credit
Agreement), as to itself and as to each of the Lessees that:
(a) Authorization; Enforceability. Each of the Lessees and DTAG has
full power and has taken all necessary action to authorize it to execute,
deliver and perform this Agreement and each of the other Related Documents
to which it is a party in accordance with their respective terms, and to
consummate the transactions contemplated hereby and thereby. This Agreement
has been duly executed and delivered by each of the Lessees and DTAG and
is, and each of the other Related Documents to which any of the Lessees or
DTAG is a party is, a legal, valid and binding obligation of any such
Lessee and DTAG, as applicable, enforceable against such Lessee or DTAG in
accordance with its terms.
18
(b) Compliance. The execution, delivery and performance, in
accordance with their respective terms, by each of the Lessees and DTAG of
this Agreement and each of the other Related Documents to which it is a
party, and the consummation of the transactions contemplated hereby and
thereby, do not and will not (i) require any consent, approval,
authorization or registration not already obtained or effected, (ii)
violate any material law with respect to any of the Lessees or DTAG, (iii)
conflict with, result in a breach of, or constitute a default under the
certificate or articles of incorporation or by-laws or other organizational
documents of any of the Lessees or DTAG or under any material indenture,
agreement, or other instrument to which any of the Lessees or DTAG is a
party or by which its properties may be bound or (iv) result in or require
the creation or imposition of any Lien upon or with respect to any property
now owned or hereafter acquired by any of the Lessees except Permitted
Liens.
(c) Manufacturer Programs. No Manufacturer Event of Default has
occurred and is continuing.
(d) Master Lease Representations. The representations and warranties
made by each of the Lessees in the Master Lease are true and correct in all
material respects.
(e) Vehicles. Each Program Vehicle was, on the date of purchase
thereof or thereafter became, a Group III Vehicle that was eligible for
inclusion under an Eligible Vehicle Disposition Program, and each
Non-Program Vehicle was, on the date of purchase thereof or thereafter
became, a Group III Vehicle that qualified as an Eligible Vehicle.
(f) Representations and Warranties under the Credit Agreement. Each
of the representations and warranties of DTAG set forth in the Credit
Agreement, including, without limitation, those set forth in Sections 7.1
through 7.17 thereof, is true and correct and is hereby incorporated herein
by this reference.
Section 3.2 Affirmative Covenants of the Lessees and DTAG. So long as the
Series 2001-1 Letter of Credit has not expired or any amount is owing to the
Series 2001-1 Letter of Credit Provider hereunder, each of the Lessees and DTAG
agrees that, unless at any time the Series 2001-1 Letter of Credit Provider
shall otherwise expressly consent in writing, it will, and in the case of DTAG,
it will cause each of the Lessees to:
(a) Affirmative Covenants under the Credit Agreement. Comply with
each of the affirmative covenants applicable to it set forth in the Credit
Agreement including, without limitation, those set forth in Section 8.1
thereof, which affirmative covenants are hereby incorporated herein by this
reference;
19
(b) Events of Default. Furnish, or cause to be furnished to the
Series 2001-1 Letter of Credit Provider, as soon as possible but in any
event within three Business Days after the occurrence of any Event of
Default or a Potential Event of Default under this Agreement, a written
statement of the President, any Vice President, the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary (each, an
"Authorized Officer") of DTAG or an Authorized Officer of the applicable
Lessee, as the case may be, describing such event and the action that DTAG
or the applicable Lessee, as the case may be, proposes to take with respect
thereto;
(c) Certain Information. Furnish, or cause to be furnished to the
Series 2001-1 Letter of Credit Provider, promptly upon the delivery by RCFC
to DTFC, a copy of the financial information and other materials required
to be delivered by DTAG to RCFC pursuant to Section 24.4 of the Master
Lease (other than the VIN list as required by Section 24.4(f) of the
Master Lease);
(d) Manufacturers. Furnish, or cause to be furnished to the Series
2001-1 Letter of Credit Provider, promptly after obtaining actual knowledge
thereof, notice of any Manufacturer Event of Default or termination or
replacement of an Eligible Vehicle Disposition Program;
(e) Other. Furnish, or cause to be furnished to the Series 2001-1
Letter of Credit Provider, promptly, from time to time, such other
information, documents, or reports with respect to the Master Lease
Collateral (as defined in the Master Lease) or the condition or operations,
financial or otherwise, of DTAG or any Lessee as the Series 2001-1 Letter
of Credit Provider may from time to time reasonably request in order to
protect the interests of the Series 2001-1 Letter of Credit Provider under
or as contemplated by this Agreement or any other Related Document;
(f) Maintenance of the Vehicles. Maintain and cause to be maintained
in good repair, working order, and condition, reasonable wear and tear
excepted, all of the Vehicles in accordance with each Lessee's respective
ordinary business practices with respect to all other vehicles owned
thereby and shall use its best efforts to maintain the Program Vehicles as
Group III Vehicles that are eligible under a Eligible Vehicle Disposition
Program and the Non-Program Vehicles as Group III Vehicles that are
Eligible Vehicles, in each case except to the extent that any such failure
to comply with such requirements does not, in the aggregate, materially
adversely affect the interests of the Series 2001-1 Letter of Credit
Provider under this Agreement or the likelihood of repayment of its
obligations hereunder, and, from time to time, make or cause to be made all
appropriate repairs, renewals, and replacements with respect to the
Vehicles;
(g) Maintenance of Separate Existence. Each Lessee and DTAG
acknowledge their receipt of a copy of those certain opinion letters issued
by Xxxxxx & Xxxxxxx dated March 6, 2001 addressing the issue of substantive
consolidation as it may relate to DTAG and RCFC. Each of the Lessees, DTAG
and RCFC hereby agrees to maintain in place all policies and procedures,
and take and continue to take all action, described in the factual
assumptions set forth in such opinion letter and relating to such Person,
except as may be confirmed as not required in a subsequent or supplemental
opinion of Xxxxxx & Xxxxxxx addressing the issue of substantive
consolidation as it may relate to DTAG and RCFC; and
20
(h) Verification of Titles. Upon the request of the Series 2001-1
Letter of Credit Provider, cause a title check by a Person acceptable to
the Master Collateral Agent on a reasonable number of the Vehicles,
including verification that the titles reflect the pledge to the Master
Collateral Agent, and shall cause the results of such title check to be
furnished to the Master Collateral Agent with a copy for the Series 2001-1
Letter of Credit Provider.
Section 3.3 Negative Covenants of the Lessees and DTAG. So long as the
Series 2001-1 Letter of Credit has not expired or any amount is owing to the
Series 2001-1 Letter of Credit Provider hereunder, each of the Lessees and DTAG
agrees that, unless at any time the Series 2001-1 Letter of Credit Provider
shall otherwise expressly consent in writing, it will not and, in the case of
DTAG, will not permit any Lessee to:
(a) Negative Covenants under the Credit Agreement. Fail to comply
with each of the negative covenants applicable to it set forth in the
Credit Agreement including, without limitation, those set forth in Section
8.2 thereof, which negative covenants are hereby incorporated herein by
this reference.
(b) Liens. Create or permit to exist any Lien with respect to the
Group III Collateral or the Master Lease Collateral now or hereafter
existing or acquired, except for Permitted Liens.
(c) Use of Vehicles. Use or authorize the Vehicles to be used in any
manner (i) that would make such Vehicles that are Program Vehicles
ineligible for repurchase or sale under the applicable Eligible Vehicle
Disposition Program, (ii) for any illegal purposes or (iii) that could
subject the Vehicles to confiscation.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Payments. (a) Unless otherwise specified herein, all payments
to the Series 2001-1 Letter of Credit Provider hereunder shall be made in lawful
currency of the United States and in immediately available funds prior to 11:00
a.m. (New York City time) on the date such payment is due by wire transfer to
the Series 2001-1 Letter of Credit Provider, Account Name: Credit Suisse First
Boston, Account No. 903124-01, Account ABA 000-000-000, Attention: Trade
Services, at the Federal Reserve Bank of New York, or to such other office or
account maintained by the Series 2001-1 Letter of Credit Provider as the Series
2001-1 Letter of Credit Provider may direct.
21
(b) Whenever any payment under this Agreement shall be stated to be due on
a day which is not a Business Day, such payment, unless otherwise provided
herein, shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in computing interest, commissions or fees,
if any, in connection with such payment.
Section 4.2 Expenses. Each of the Lessees agrees to pay all costs and
reasonable expenses incurred by the Series 2001-1 Letter of Credit Provider
(including, without limitation, reasonable attorneys' fees and expenses), if
any, in connection with the preparation, execution and delivery, administration,
enforcement, amendment or waiver of the obligations of the Lessees or DTAG under
this Agreement or any other Related Document or any other agreement furnished
hereto or in connection herewith or in+ connection with any negotiations arising
out of any Potential Event of Default under this Agreement or any events or
circumstances that may give rise to a Potential Event of Default under this
Agreement and with respect to presenting claims in or otherwise participating in
any bankruptcy, insolvency or other similar proceeding involving creditors'
rights generally and any ancillary proceedings.
The Lessees each agree to pay on demand all reasonable expenses of the
Series 2001-1 Letter of Credit Provider in connection with the filing,
recording, refiling or rerecording of this Agreement, the Related Documents
and/or any UCC financing statements relating thereto and all amendments,
supplements and modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or refiled or
rerecorded by the terms hereof.
In addition, each of the Lessees shall pay any and all stamp and other
taxes and fees payable or determined to be payable in connection with the
execution, delivery, filing and recording of this Agreement or the Series 2001-1
Letter of Credit (or any payment thereunder or transfer thereof), any other
Related Document and any such other documents, and agree to save the Series
2001-1 Letter of Credit Provider harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
Section 4.3 Indemnity. The Lessees each agree to indemnify and hold
harmless the Series 2001-1 Letter of Credit Provider and, in their capacities as
such, officers, directors, shareholders, affiliates, controlling persons,
employees, agents and servants of the Series 2001-1 Letter of Credit Provider,
from and against any and all claims, damages, losses, liabilities, costs or
expenses whatsoever which the Series 2001-1 Letter of Credit Provider may incur
or which may be claimed against the Series 2001-1 Letter of Credit Provider by
any Person whatsoever (including reasonable fees and expenses of counsel) in
each case arising out of or by reason of or in connection with, or in connection
with the preparation of a defense of, any investigation, litigation or
proceeding arising out of, relating to or in connection with the execution and
delivery of, or payment of any LOC Credit Disbursement or LOC Termination
Disbursement payable by the Lessees under the Series 2001-1 Letter of Credit or
this Agreement or any other Related Document, or any acts or omissions of any of
the Lessees in connection herewith or therewith, or any transactions
contemplated hereby or thereby (whether or not consummated), or any inaccuracies
or alleged inaccuracies in any material respect or any untrue statement or
alleged untrue statement of any of the Lessees contained or incorporated by
reference in any Related Document or the omission or alleged omission by any of
the Lessees to state therein a material fact necessary to make such statements,
in the light of the circumstances under which they are or were made, not
misleading, except to the extent that such claim, damage, loss, liability, cost
or expense is caused by the willful misconduct or gross negligence of the Series
2001-1 Letter of Credit Provider or a breach by the Series 2001-1 Letter of
Credit Provider (or its agents or employees or any other Person under its
control) of its obligations under the Series 2001-1 Letter of Credit, as
determined by a final judgment of a court of competent jurisdiction, and
provided that any such Lessee shall be required to indemnify the Series 2001-1
Letter of Credit Provider, in connection with prosecuting or defending any such
claims, for reasonable attorneys' fees and expenses.
22
Section 4.4 Notices. All notices, requests and other communications to any
party hereunder shall be in writing (including bank wire, facsimile transmission
or similar writing) and addressed, delivered or transmitted to such party at its
address or telecopy number set forth below, or at such other address or telecopy
number, as the case may be, as such party may hereafter specify for the purpose
by notice to the other party. Each such notice, request or communication shall
be deemed to have been duly given or made when delivered, or five Business Days
after being deposited in the mail, postage prepaid and return receipt requested,
or in the case of facsimile notice, when electronic confirmation thereof is
received by the transmitter.
If to DTAG:
Dollar Thrifty Automotive Group, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to RCFC:
Rental Car Finance Corp.
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
23
If to the Series 2001-1 Letter of Credit Provider:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Short and Medium-Term Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Credit Suisse First Boston
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: W. Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Dollar:
Dollar Rent A Car Systems, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. XxXxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Thrifty:
Thrifty Rent-A-Car System, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to an Additional Lessee:
At the address for notices to such Additional Lessee set forth
in the related Affiliate Joinder in Enhancement Letter of
Credit Application and Agreement.
24
If to the Trustee:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust and Agency Group/Structured
Finance
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Series 2001-1 Insurer:
Ambac Assurance Corporation
Xxx Xxxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: General Counsel
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Section 4.5 Amendments; Governing Law; Consent to Jurisdiction; Waiver of
Jury Trial. This Agreement and the rights and obligations of the parties
hereunder may not be amended or otherwise modified orally but only by an
instrument in writing signed by the Series 2001-1 Letter of Credit Provider and
each other party hereto against whom enforcement of such amendment or
modification is sought. This Agreement shall be construed in accordance with and
governed by the laws of the State of New York. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY LESSEE, DTAG OR RCFC WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
RELATED DOCUMENT SHALL BE BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED BY
LAW) FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY
EXECUTION AND DELIVERY OF THIS AGREEMENT THE LESSEES, DTAG AND RCFC EACH ACCEPTS
FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY,
THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. THE
LESSEES, DTAG AND RCFC EACH DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, WHOSE
ADDRESS IS 000 XXXXXX XXXXXX, 00XX XXXXX, XXX XXXX, XXX XXXX 00000, AND SUCH
OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY ANY LESSEE, DTAG OR RCFC, AS THE
CASE MAY BE, IRREVOCABLY AGREEING IN WRITING TO SERVE, AS ITS AGENT TO RECEIVE
ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT,
SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY ANY LESSEE, DTAG OR RCFC, AS THE CASE
MAY BE, TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH
PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO ANY LESSEE, DTAG OR
RCFC, AS APPLICABLE, SO SERVED AT ITS ADDRESS PROVIDED IN SECTION 4.4, EXCEPT
THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY
SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY
ANY LESSEE, DTAG OR RCFC, AS THE CASE MAY BE, REFUSES TO ACCEPT SERVICE, THE
LESSEES, DTAG AND RCFC EACH HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL
CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF THE
SERIES 2001-1 LETTER OF CREDIT PROVIDER TO BRING PROCEEDINGS AGAINST ANY LESSEE,
DTAG OR RCFC IN THE COURTS OF ANY OTHER JURISDICTION.
25
THE SERIES 2001-1 LETTER OF CREDIT PROVIDER, EACH LESSEE, DTAG AND RCFC
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER RELATED DOCUMENT, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE SERIES 2001-1 LETTER OF CREDIT PROVIDER, ANY LESSEE, DTAG OR
RCFC IN CONNECTION HEREWITH OR THEREWITH. THE LESSEES, DTAG AND RCFC EACH
ACKNOWLEDGE AND AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR
THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER RELATED DOCUMENT TO WHICH
IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SERIES
2001-1 LETTER OF CREDIT PROVIDER ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER RELATED DOCUMENT.
Section 4.6 Waivers, etc. Neither any failure nor any delay on the part of
the Series 2001-1 Letter of Credit Provider in exercising any right, power or
privilege hereunder or under the Series 2001-1 Letter of Credit or any other
Related Document shall operate as a waiver thereof, nor shall a single or
partial exercise thereof preclude any other or further exercise or the exercise
of any other right, power or privilege. The remedies herein and in the Related
Documents are cumulative and not exclusive of any remedies provided by law.
Section 4.7 Severability. Any provisions of this Agreement which are
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
Section 4.8 Term. This Agreement shall remain in full force and effect
until the reimbursement of all LOC Disbursements by the Lessees or DTAG, as the
case may be, and the payment by the Lessees or DTAG, as the case may be, of all
other amounts payable hereunder, notwithstanding the earlier termination of the
Series 2001-1 Letter of Credit.
26
Section 4.9 Successors and Assigns. This Agreement shall be binding upon
the Series 2001-1 Letter of Credit Provider and its successors and assigns, each
Lessee and its successors and assigns, DTAG and its successors and assigns, and
RCFC and its successors and assigns; provided, however, that none of the
Lessees, DTAG or RCFC may transfer or assign any of its obligations, rights, or
interests hereunder without the prior written consent of the Series 2001-1
Letter of Credit Provider; and provided further, however, that the Series 2001-1
Letter of Credit Provider may at any time (i) assign all or a portion of its
obligations under the Series 2001-1 Letter of Credit and its rights under this
Agreement to a successor institution satisfying the requirements set forth in
Section 4.16(a) of the Series 2001-1 Supplement; provided further, however, that
(x) DTAG shall have consented in writing to such assignment (which consent shall
not be unreasonably withheld), and (y) such assignment shall be for an amount at
least equal to $5,000,000, or (ii) grant participations to any other Person, in
all or part of its obligations under the Series 2001-1 Letter of Credit and its
rights under this Agreement (it being understood and agreed that the Lessees
shall have no obligation to give notices to any such participant, that such
participation will not in any way reduce the Series 2001-1 Letter of Credit
Provider's commitment to make LOC Disbursements hereunder, and that such
participation (other than a participation held by a Revolving Lender pursuant to
the Credit Agreement) shall not increase the obligations (including with respect
to costs and expenses) of the Lessees hereunder); provided that the Series
2001-1 Letter of Credit Provider shall be entitled to receive any increased
costs or indemnities payable hereunder incurred by the Series 2001-1 Letter of
Credit Provider or such participant to the extent not in excess of such amounts
calculated as if there were no participation. The Series 2001-1 Letter of Credit
Provider hereby acknowledges and agrees that any such disposition will not alter
or affect the Series 2001-1 Letter of Credit Provider's direct obligations to
the Trustee, and that none of the Lessees, DTAG or RCFC shall have any
obligations to have any communication or relationship with any participant in
order to enforce such obligations of the Series 2001-1 Letter of Credit Provider
hereunder and under the Series 2001-1 Letter of Credit. All agreements,
representations and warranties made herein shall survive the execution and
delivery of this Agreement.
Section 4.10 Counterparts. This Agreement may be executed in any number of
counterparts, and by the different parties hereto on the same or separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute one and the same agreement.
Section 4.11 Further Assurances. The Lessees, DTAG and RCFC each agree to
do such further acts and things and to execute and deliver to the Series 2001-1
Letter of Credit Provider such additional assignments, agreements, powers and
instruments as are reasonably required by the Series 2001-1 Letter of Credit
Provider to carry into effect the purposes of this Agreement and under the
Related Documents or to better assure and confirm to the Series 2001-1 Letter of
Credit Provider its rights, powers and remedies hereunder and under the Related
Documents.
Section 4.12 Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by DTAG, the
Lessees and RCFC in connection herewith shall survive the execution and delivery
of this Agreement, regardless of any investigation made by the Series 2001-1
Letter of Credit Provider or on its behalf and shall continue so long as and
until such time as all obligations hereunder and under the Related Documents
shall have been paid in full. The obligations of the Lessees under Sections 2.5,
4.1, 4.2 and 4.3 shall in each case survive any termination of this Agreement,
the payment in full of all obligations hereunder or under any other Related
Document and the termination of the Series 2001-1 Letter of Credit.
27
Section 4.13 Obligation. Each of the Series 2001-1 Letter of Credit
Provider and each of the Lessees understands and agrees that the Series 2001-1
Letter of Credit is irrevocable and the obligations of the Series 2001-1 Letter
of Credit Provider as issuer thereof shall be unaffected by any default
hereunder, including, without limitation any failure to pay the amounts due and
payable to the Series 2001-1 Letter of Credit Provider under Section 2.4. No
failure of any of the Lessees (or any person or organization acting on behalf
thereof) or the Trustee to take any action (whether required hereunder or
otherwise), nor any action taken by any of the Lessees shall be asserted by the
Series 2001-1 Letter of Credit Provider as a defense to payment under the Series
2001-1 Letter of Credit (except for the failure of any documents presented
thereunder to comply with the terms of the Series 2001-1 Letter of Credit) or as
the basis of a right of set off by the Series 2001-1 Letter of Credit Provider
against its obligations to make any such payment.
Section 4.14 Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 4.15 Confidentiality. The Series 2001-1 Letter of Credit Provider
agrees that it shall not disclose any Confidential Information (as defined
below) to any Person without the consent of DTAG, the Lessees or RCFC, as
applicable, other than (a) to the Series 2001-1 Letter of Credit Provider's
Affiliates and to the Administrative Agent and the Revolving Lenders and their
respective officers, directors, employees, agents and advisors and to actual or
prospective assignees and participants, and then only on a confidential basis,
(b) as required by any law, rule or regulation or judicial process and (c) as
requested or required by any state, federal or foreign authority or examiner
regulating banks or banking.
"Confidential Information" means information that DTAG, the Lessees or RCFC
furnishes to the Series 2001-1 Letter of Credit Provider on a confidential
basis, but does not include any such information that is or becomes generally
available to the public or that is or becomes available to the Series 2001-1
Letter of Credit Provider from a source other than DTAG, the Lessees or RCFC.
Section 4.16 Additional Series 2001-1 Letter of Credit Providers. The
Series 2001-1 Letter of Credit Provider acknowledges and agrees that the Lessees
may obtain Series 2001-1 Letter of Credit Provider commitments from additional
Series 2001-1 Letter of Credit Providers from time to time, provided such
commitments are, unless the Series 2001-1 Letter of Credit Provider otherwise
consents, on the same terms and provisions as this Agreement and provide for
obligations that rank pari passu with each Lessee's obligations hereunder.
28
Section 4.17 Additional Subsidiary Lessees. Any direct or indirect
Subsidiary of DTAG (each a "DTAG Subsidiary") shall have the right to become a
"Lessee" under and pursuant to the terms of this Agreement by complying with the
provisions of Section 28.1 of the Master Lease and the provisions of this
Section 4.17. In the event a DTAG Subsidiary desires to become "Lessee" under
this Agreement, then the Guarantor and such DTAG Subsidiary shall execute and
deliver to the Series 2001-1 Letter of Credit Provider and the Trustee:
(i) an Affiliate Joinder in Enhancement Letter of Credit Application and
Agreement in the form attached hereto as Exhibit B (each, an "Affiliate Joinder
in Enhancement Letter of Credit Application and Agreement");
(ii) copies of the documentation set forth in clauses (a) through (j) of
Section 28.1 of the Master Lease;
(iii)an Officers' Certificate and an opinion of counsel each stating that
the joinder described in clause (i) above by such DTAG Subsidiary complies with
this Section 4.17 and that all conditions precedent herein provided for relating
to such transaction have been complied with; and
(iv) any additional documentation that the Series 2001-1 Letter of Credit
Provider or the Trustee may reasonably require to evidence the assumption by
such DTAG Subsidiary of the obligations and liabilities set forth in this
Agreement.
Upon satisfaction of the foregoing conditions and receipt by each of the Trustee
and the Series 2001-1 Letter of Credit Provider of original executed copies of
the applicable Affiliate Joinder in Enhancement Letter of Credit Application and
Agreement executed by such DTAG Subsidiary and the Guarantor, such DTAG
Subsidiary shall for all purposes be deemed to be a "Lessee" for purposes of
this Agreement and shall be entitled to the benefits and subject to the
liabilities and obligations of a Lessee hereunder.
Section 4.18 Enhancement Letter of Credit Application and Agreement. This
Agreement is an Enhancement Letter of Credit Application and Agreement executed
pursuant to the Credit Agreement. In the event that, after construing the terms
of this Agreement and the Credit Agreement in a manner that would seek to avoid
any purported inconsistency or conflict between the terms of this Agreement, on
the one hand, and the terms of the Credit Agreement, on the other hand, such
inconsistency or conflict cannot be avoided, the terms of this Agreement shall
control.
Section 4.19 Series 2001-1 Letter of Credit Provider as Enhancement
Provider and Third-Party Beneficiary. The Lessees, RCFC and DTAG each hereby
acknowledges and agrees that the Series 2001-1 Letter of Credit Provider is (i)
an "Enhancement Provider" (as such term is used in the Base Indenture) and (ii)
without limiting the effect of any other provision contained in the Base
Indenture or the Series 2001-1 Supplement, a third-party beneficiary of the
provisions set forth in Article 11 of the Base Indenture and Section 8.7 of the
Series 2001-1 Supplement.
29
Section 4.20 No Recourse; No Petition. (a) Each of the parties hereto
hereby covenants and agrees that:
(i) no recourse shall be had for the payment of any amount owing in
respect of any disbursement made under this Agreement or the Series 2001-1
Letter of Credit or for the payment of any fee hereunder or thereunder or
any other obligation or claim arising out of or based upon this Agreement
or the Series 2001-1 Letter of Credit against RCFC or any stockholder,
employee, officer, director or incorporator of RCFC based on their status
as such or their actions in connection therewith; and
(ii) prior to the date which is one year and one day after the
payment in full of any Series 2001-1 Notes issued by RCFC pursuant to the
Indenture, such party 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 (it being agreed and understood
that nothing contained herein shall preclude participation by any such
party in assertion or defense of its claims in any such proceeding
involving RCFC);
provided, however, that nothing in this clause (a) shall constitute a waiver of
any right to indemnification, reimbursement or other payment from RCFC to such
party pursuant to any Related Document (other than this Agreement) to which RCFC
is a party.
(b) In the event that any such party takes action in violation of clause
(a)(ii), RCFC agrees that it shall file an answer with the bankruptcy court or
otherwise properly contest the filing of such a petition by such party 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.
(c) The provisions of this Section 4.20 shall survive the termination of
this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
30
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, as of the day and year first
above written.
DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC.
By:
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
CREDIT SUISSE FIRST BOSTON, as the
Series 2001-1 Letter of Credit Provider
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
RENTAL CAR FINANCE CORP.
By:
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
LESSEES:
DOLLAR RENT A CAR SYSTEMS, INC.
By:
----------------------------------------
Name: Xxxxxxx X. XxXxxxx
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.
By:
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Treasurer
EXHIBIT A
TO ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT
IRREVOCABLE LETTER OF CREDIT
No. __________
March 6, 2001
Bankers Trust Company,
as Trustee under the
Series 2001-1 Supplement
referred to below
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Dear Sir or Madam:
The undersigned ("Credit Suisse First Boston" or the "Series 2001-1 Letter
of Credit Provider") hereby establishes, at the request and for the account of
Dollar Thrifty Automotive Group, Inc. ("DTAG"), Dollar Rent A Car Systems, Inc.
("Dollar"), Thrifty Rent-A-Car System, Inc. ("Thrifty"), and each of the parties
identified as a Lessee (collectively, the "Lessees") in that certain Enhancement
Letter of Credit Application and Agreement, dated as of even date herewith (as
the same may be amended, supplemented, restated or otherwise modified from time
to time, the "Enhancement Letter of Credit Agreement"), among the Lessees, the
Series 2001-1 Letter of Credit Provider, Rental Car Finance Corp., a special
purpose Oklahoma corporation ("RCFC"), and DTAG in your favor as Trustee under
that certain Series 2001-1 Supplement, dated as of March 6, 2001 (as the same
may be amended, supplemented or otherwise modified from time to time, the
"Series 2001-1 Supplement"), between RCFC, as the issuer, and Bankers Trust
Company, as Trustee (in such capacity, the "Trustee"), to the Base Indenture,
dated as of December 13, 1995 (as amended as of December 23, 1997, and as the
same may be further amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with the terms thereof, the "Base
Indenture"), between RCFC and the Trustee, this Irrevocable Letter of Credit No.
____________ (the "Series 2001-1 Letter of Credit"), in the aggregate maximum
amount of FOURTEEN MILLION EIGHT HUNDRED SEVENTY-FIVE THOUSAND DOLLARS
($14,875,000) (such amount, as the same may be reduced, increased and reinstated
from time to time as provided herein, being the "Series 2001-1 Letter of Credit
Amount"), effective immediately and expiring at 4:00 p.m. (New York time) at our
New York office at Five Xxxxx Xxxxx Xxxxxx, (0xx Xxxxx), Xxx Xxxx, XX
00000-0000, Attention: Xxxxxx Xxxxxxxxxx, Telephone No. 000-000-0000, Facsimile
No. 000-000-0000 or 000-000-0000 (such office or any other office which may be
designated by the Series 2001-1 Letter of Credit Provider by written notice
delivered to you, being the "Series 2001-1 Letter of Credit Provider's Office")
on March 5, 2004 (or, if such date is not a Business Day (as defined below), the
immediately preceding Business Day) (the "Scheduled Letter of Credit Expiration
Date"). You are referred to herein (and in each Annex hereto) as the Trustee.
The Series 2001-1 Letter of Credit Provider irrevocably authorizes you to
draw on it, in accordance with the terms and conditions and subject to the
reductions in amount as hereinafter set forth, (1) in one or more drawings by
one or more of the Trustee's drafts, each drawn on the Series 2001-1 Letter of
Credit Provider at the Series 2001-1 Letter of Credit Provider's Office, payable
at sight on a Business Day (as defined below), and accompanied by the Trustee's
written and completed certificate purported to be signed by the Trustee in
substantially the form of Annex A attached hereto (any such draft accompanied by
such certificate being a "Credit Demand"), an amount equal to the face amount of
each such draft but in the aggregate amount not exceeding the Series 2001-1
Letter of Credit Amount as in effect on such Business Day and (2) in a single
drawing by the Trustee's draft, drawn on the Series 2001-1 Letter of Credit
Provider at the Series 2001-1 Letter of Credit Provider's Office, payable at
sight on a Business Day, and accompanied by the Trustee's written and completed
certificate purported to be signed by the Trustee in substantially the form of
Annex B attached hereto (such draft accompanied by such certificate being a
"Termination Demand"), an amount equal to the face amount of each such draft but
in the aggregate amount not exceeding the Series 2001-1 Letter of Credit Amount
as in effect on such Business Day, provided, that only one Termination Demand
may be made hereunder. Any Credit Demand or Termination Demand may be delivered
by facsimile transmission to the Series 2001-1 Letter of Credit Provider's
Office. "Business Day" means any day other than a Saturday, Sunday or other day
on which banks are required or authorized by law to close in New York City, New
York. Upon the Series 2001-1 Letter of Credit Provider honoring any Credit
Demand presented hereunder, the Series 2001-1 Letter of Credit Amount shall
automatically be decreased by an amount equal to the amount of such Credit
Demand. In addition to the foregoing reduction, the Series 2001-1 Letter of
Credit Amount shall automatically be reduced to zero and this Series 2001-1
Letter of Credit shall be terminated upon the Series 2001-1 Letter of Credit
Provider honoring any Termination Demand presented to it hereunder.
The Series 2001-1 Letter of Credit Amount shall be automatically reinstated
with respect to reimbursement of any Credit Demand when and to the extent, but
only when and to the extent, that (i) the Series 2001-1 Letter of Credit
Provider is reimbursed by any of the Lessees or DTAG (on behalf of any of the
Lessees), as the case may be, in full for any amount drawn hereunder by any
Credit Demand and (ii) the Series 2001-1 Letter of Credit Provider receives
written notice from DTAG in substantially the form of Annex C attached hereto
certifying that no Event of Bankruptcy (as defined in Annex C attached hereto)
with respect to DTAG, Dollar, Thrifty or any other Lessee has occurred and is
continuing; provided, however, that the Series 2001-1 Letter of Credit Amount
shall, in no event, be reinstated to an amount greater than the Series 2001-1
Letter of Credit Amount as in effect immediately prior to such Credit Demand.
2
The Series 2001-1 Letter of Credit Amount shall be automatically reduced in
accordance with the terms of a written request from the Trustee to the Series
2001-1 Letter of Credit Provider in substantially the form of Annex D attached
hereto that is acknowledged and agreed to in writing by the Series 2001-1 Letter
of Credit Provider. The Series 2001-1 Letter of Credit Amount shall be
automatically increased upon receipt by (and written acknowledgment of such
receipt by) the Trustee of written notice from the Series 2001-1 Letter of
Credit Provider in substantially the form of Annex E attached hereto certifying
that the Series 2001-1 Letter of Credit Amount has been increased and setting
forth the amount of such increase.
Each Credit Demand and Termination Demand shall be dated the date of its
presentation, and shall be presented to the Series 2001-1 Letter of Credit
Provider at the Series 2001-1 Letter of Credit Provider's Office. If the Series
2001-1 Letter of Credit Provider receives any Credit Demand or Termination
Demand at such office, all in strict conformity with the terms and conditions of
this Series 2001-1 Letter of Credit, not later than 1:00 p.m. (New York City
time) on a Business Day prior to the termination hereof, the Series 2001-1
Letter of Credit Provider will make such funds available by 4:00 p.m. (New York
City time) on the same day in accordance with your payment instructions. If the
Series 2001-1 Letter of Credit Provider receives any Credit Demand or
Termination Demand at such office, all in strict conformity with the terms and
conditions of this Series 2001-1 Letter of Credit, after 1:00 p.m. (New York
City time) on a Business Day prior to the termination hereof, the Series 2001-1
Letter of Credit Provider will make the funds available by 4:00 p.m. (New York
City time) on the next succeeding Business Day in accordance with your payment
instructions. If you so request the Series 2001-1 Letter of Credit Provider,
payment under this Series 2001-1 Letter of Credit may be made by wire transfer
of Federal Reserve Bank of New York funds to your respective accounts in a bank
on the Federal Reserve wire system or by deposit of same day funds into a
designated account.
Upon the earliest of (i) the date on which the Series 2001-1 Letter of
Credit Provider honors a Termination Demand presented hereunder to the extent of
the Series 2001-1 Letter of Credit Amount as in effect on such date, (ii) the
date on which the Series 2001-1 Letter of Credit Provider receives written
notice from you that an alternate letter of credit or other credit enhancement
has been substituted for this Series 2001-1 Letter of Credit and (iii) the
Scheduled Letter of Credit Expiration Date, this Series 2001-1 Letter of Credit
shall automatically terminate and you shall surrender this Series 2001-1 Letter
of Credit to the undersigned Series 2001-1 Letter of Credit Provider on such
day.
This Series 2001-1 Letter of Credit is transferable only in its entirety to
any transferee(s) who you certify to the Series 2001-1 Letter of Credit Provider
has succeeded you, as Trustee under the Series 2001-1 Supplement, and may be
successively transferred only in its entirety. Transfer of this Series 2001-1
Letter of Credit to such transferee shall be effected by the presentation to the
Series 2001-1 Letter of Credit Provider of this Series 2001-1 Letter of Credit
accompanied by a certificate in substantially the form of Annex F attached
hereto. Upon such presentation the Series 2001-1 Letter of Credit Provider shall
forthwith transfer this Series 2001-1 Letter of Credit to the transferee and
endorse this Series 2001-1 Letter of Credit in favor of the transferee or, if
requested by the transferee, issue a new irrevocable letter of credit in favor
of the transferee with provisions therein consistent with this Series 2001-1
Letter of Credit.
3
This Series 2001-1 Letter of Credit sets forth in full the undertaking of
the Series 2001-1 Letter of Credit Provider, and such undertaking shall not in
any way be modified, amended, amplified or limited by reference to any document,
instrument or agreement referred to herein, except only the certificates and the
drafts referred to herein; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except for
such certificates and such drafts and the Uniform Customs (defined below).
This Series 2001-1 Letter of Credit is subject to the Uniform Customs and
Practice for Documentary Credits, 1993 Revision, ICC Publication No. 500 (the
"Uniform Customs"), and, as to matters not covered by the Uniform Customs, shall
be governed by the laws of the State of New York, including, the Uniform
Commercial Code as in effect in the State of New York.
Communications with respect to this Series 2001-1 Letter of Credit shall be
in writing and shall be addressed to the Series 2001-1 Letter of Credit Provider
at the Series 2001-1 Letter of Credit Provider's Office, specifically referring
to the number of this Series 2001-1 Letter of Credit.
Very truly yours,
CREDIT SUISSE FIRST BOSTON, as
Series 2001-1 Letter of Credit Provider
By
----------------------------------------
Name:
Title:
By
----------------------------------------
Name:
Title:
4
ANNEX A
CERTIFICATE OF CREDIT DEMAND
Credit Suisse First Boston
Five World Trade Center
New York, New York 10048-0928
Attention: Xxxxxx Xxxxxxxxxx
Certificate of Credit Demand under the Irrevocable Letter of Credit No.
____________ (the "Series 2001-1 Letter of Credit"; the terms defined therein
and not otherwise defined herein being used herein as therein defined), dated as
of March 6, 2001, issued by Credit Suisse First Boston, New York Branch, as the
Series 2001-1 Letter of Credit Provider, in favor of Bankers Trust Company, as
the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby certifies
to the Series 2001-1 Letter of Credit Provider as follows:
1. Bankers Trust Company is the Trustee under the Series 2001-1
Supplement referred to in the Series 2001-1 Letter of Credit.
2. As of the date of this certificate, there exist [Series 2001-1 Lease
Payment Losses (as such term is defined in the Series 2001-1 Supplement referred
to in the Series 2001-1 Letter of Credit) allocated to making a drawing under
the Series 2001-1 Letter of Credit pursuant to Sections 4.7(a)(iii)(A),
(b)(iii)(A) or (c)(iii)(A) of such Series 2001-1 Supplement]* [an amount due and
payable by Dollar Thrifty Automotive Group, Inc., a Delaware corporation
("DTAG"), under the Demand Note (the "Demand Note") issued by DTAG to Rental Car
Finance Corp. pursuant to Section 4.15(a) of the Series 2001-1 Supplement has
not been deposited into the Series 2001-1 Collection Account (as defined in the
Series 2001-1 Supplement referred to in the Series 2001-1 Letter of Credit)]**
in the amount of $__________.
3. The Trustee is making a drawing under the Series 2001-1 Letter of
Credit [as required by Section 4.14(b) of the Series 2001-1 Supplement]***
[in an amount due and payable by DTAG
_______________________
* Include this sentence if Credit Demand is pursuant to Section 4.14(b) of
the Series 2001-1 Supplement.
** Include this sentence if Credit Demand is pursuant to Section 4.15(b) of
the Series 2001-1 Supplement.
*** Include this sentence if Credit Demand is pursuant to Section 4.14(b) of
the Series 2001-1 Supplement. under the Demand Note pursuant to Section
4.15(b) of the Series 2001-1 Supplement]* for an amount equal to $________,
which amount is the Series 2001-1 LOC Credit Disbursement (the "Series
2001-1 LOC Credit Disbursement"). The Series 2001-1 LOC Credit Disbursement
does not exceed the amount that is available to be drawn by the Trustee
under the Series 2001-1 Letter of Credit on the date of this certificate.
4. The amount of the draft shall be delivered pursuant to the following
instructions:
[insert payment instructions (including payment date)
for wire to Bankers Trust Company as Trustee].
5. The Trustee acknowledges that, pursuant to the terms of the Series
2001-1 Letter of Credit, upon the Series 2001-1 Letter of Credit Provider
honoring the draft accompanying this certificate, the Series 2001-1 Letter of
Credit Amount shall be automatically decreased by an amount equal to such draft.
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of ___________, _____.
BANKERS TRUST COMPANY, as Trustee
By:
----------------------------------------
Name:
Title:
____________________
* Include this sentence if Credit Demand is pursuant to Section 4.15(b) of
the Series 2001-1 Supplement.
A-2
ANNEX B
CERTIFICATE OF TERMINATION DEMAND
Credit Suisse First Boston
Five World Trade Center
New York, New York 10048-0928
Attention: Xxxxxx Xxxxxxxxxx
Certificate of Termination Demand under the Irrevocable Letter of Credit
No. ___________ (the "Series 2001-1 Letter of Credit"; the terms defined therein
and not otherwise defined herein being used herein as therein defined), dated as
of March 6, 2001, issued by Credit Suisse First Boston, as the Series 2001-1
Letter of Credit Provider, in favor of Bankers Trust Company, as the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby certifies
to the Series 2001-1 Letter of Credit Provider as follows:
1. Bankers Trust Company is the Trustee under the Series 2001-1
Supplement referred to in the Series 2001-1 Letter of Credit.
2. Pursuant to Section 4.16 of the Series 2001-1 Supplement, the Trustee,
in its capacity as such, is making a drawing in the amount of the Series 2001-1
Letter of Credit Amount as in effect on the date of this certificate (such
amount being the "Series 2001-1 Letter of Credit Amount").
3. The amount of the draft accompanying this certificate is $________ which
is equal to the Series 2001-1 Letter of Credit Amount as of the date hereof. The
Series 2001-1 Letter of Credit Amount does not exceed the amount that is
available to be drawn by the Trustee under the Series 2001-1 Letter of Credit on
the date of this certificate.
4. The amount of the draft shall be delivered pursuant to the following
instructions:
[insert payment instructions (including payment date)
for wire to Bankers Trust Company as Trustee]
5. The Trustee acknowledges that, pursuant to the terms of the Series
2001-1 Letter of Credit, upon the Series 2001-1 Letter of Credit Provider
honoring the draft accompanying this certificate, the Series 2001-1 Letter of
Credit Amount shall automatically be reduced to zero and the Series 2001-1
Letter of Credit shall terminate and be immediately returned to the Series
2001-1 Letter of Credit Provider.
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of ____________, ____.
BANKERS TRUST COMPANY, as Trustee
By:
----------------------------------------
Name:
Title:
X-0
XXXXX X
XXXXXXXXXXX XX XXXXXXXXXXXXX XX XXXXXX 0000-0 LETTER OF CREDIT AMOUNT
Credit Suisse First Boston
Five World Trade Center
New York, New York 10048-0928
Attention: Xxxxxx Xxxxxxxxxx
Certificate of Reinstatement of Series 2001-1 Letter of Credit Amount under
the Irrevocable Letter of Credit No. ____________ (the "Series 2001-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 6, 2001, issued by Credit Suisse
First Boston, as the Series 2001-1 Letter of Credit Provider, in favor of
Bankers Trust Company, as the Trustee.
The undersigned, a duly authorized officer of Dollar Thrifty Automotive
Group, Inc., hereby certifies to the Series 2001-1 Letter of Credit Provider as
follows:
1. As of the date of this certificate, the Series 2001-1 Letter of Credit
Provider has been reimbursed in full by [______________________] in the amount
of $ [______________________] in respect of the Credit Demand made on
____________________.
2. As of the date of this certificate, no Event of Bankruptcy with
respect to Dollar Thrifty Automotive Group, Inc. ("DTAG"), Dollar Rent A Car
Systems, Inc. ("Dollar"), Thrifty Rent-A- Car System, Inc. ("Thrifty") or any
other Lessee has occurred and is continuing. "Event of Bankruptcy", with respect
to DTAG, Dollar, Thrifty or any other Lessee, means (a) a case or other
proceeding shall be commenced, without the application or consent of such
person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such person,
the appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such person or all or any substantial part of its
assets, or any similar action with respect to such person under any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and any such case or proceeding shall continue undismissed,
or unstayed and in effect, for a period of 60 consecutive days; or an order for
relief in respect of such person shall be entered in an involuntary case under
The Bankruptcy Reform Act of 1978, as amended from time to time, and as codified
as 11 U.S.C. Section 101 et. seq., (the "Bankruptcy Code") or any other similar
law now or hereafter in effect; or (b) such person shall commence a voluntary
case or other proceeding under the Bankruptcy Code or any applicable insolvency,
reorganization, debt arrangement, dissolution or other similar law now or
hereafter in effect, or shall consent to the appointment of or taking possession
by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) for such person or for any substantial part of its property,
or shall make any general assignment for the benefit of creditors; or (c) a
corporation or similar entity or its board of directors shall vote to implement
any of the actions set forth in the preceding clause (b).
3. Accordingly, pursuant to the terms and conditions of the Series 2001-1
Letter of Credit, the Series 2001-1 Letter of Credit Amount is hereby reinstated
in the amount of $[ ] so that the Series 2001-1 Letter of Credit Amount after
taking into account such reinstatement is in an amount equal to $[ ].
IN WITNESS WHEREOF, Dollar Thrifty Automotive Group, Inc. has executed and
delivered this certificate on this ____ day of __________, ____.
DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC.
By:
----------------------------------------
Name:
Title:
X-0
XXXXX X
XXXXXX XX XXXXXXXXX XX XXXXXX 0000-0 LETTER OF CREDIT AMOUNT
Credit Suisse First Boston
Five World Trade Center
New York, New York 10048-0928
Attention: Xxxxxx Xxxxxxxxxx
Notice of Reduction of Series 2001-1 Letter of Credit Amount under the
Irrevocable Letter of Credit No. _____________ (the "Series 2001-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 6, 2001, issued by Credit Suisse
First Boston, as the Series 2001-1 Letter of Credit Provider, in favor of
Bankers Trust Company, as the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby notifies
the Series 2001-1 Letter of Credit Provider as follows:
1. The Trustee has received a notice pursuant to the Enhancement Letter
of Credit Agreement authorizing it to request a reduction of the Series 2001-1
Letter of Credit Amount to $__________ and is delivering this notice in
accordance with the terms of the Enhancement Letter of Credit Agreement.
2. By its acknowledgment and agreement below, the Series 2001-1 Letter of
Credit Provider acknowledges and agrees that the aggregate maximum amount of the
Series 2001-1 Letter of Credit is reduced to $____________ from $____________
pursuant to and in accordance with the terms and provisions of the Series 2001-1
Letter of Credit and, that the reference in the first paragraph of the Series
2001-1 Letter of Credit to "_____________________________ ($____________ )" is
amended to read "_____________________________ ($____________ )" and the
reference in the third paragraph of the Series 2001-1 Letter of Credit to
"$____________" is amended to read " $____________".
3. This request, upon your acknowledgment and agreement set forth below,
shall constitute an amendment to the Series 2001-1 Letter of Credit and shall
form an integral part thereof and confirms that all other terms of the Series
2001-1 Letter of Credit remain unchanged.
4. The Series 2001-1 Letter of Credit Provider is requested to execute
and deliver its acknowledgment and agreement to this notice to the Trustee in
the manner provided in Section 4.4 of the Enhancement Letter of Credit
Agreement.
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of __________, ____.
BANKERS TRUST COMPANY, as Trustee
By:
----------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
CREDIT SUISSE FIRST BOSTON
By:
-----------------------------------------
Name:
Title:
By:
-----------------------------------------
Name:
Title:
X-0
XXXXX X
XXXXXX XX XXXXXXXX XX XXXXXX 0000-0 LETTER OF CREDIT AMOUNT
Bankers Trust Company,
as Trustee under the
Series 2001-1 Supplement
referred to below
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Notice of Increase of Series 2001-1 Letter of Credit Amount under the
Irrevocable Letter of Credit No. ______________ (the "Series 2001-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 6, 2001, issued by Credit Suisse
First Boston, as the Series 2001-1 Letter of Credit Provider, in favor of
Bankers Trust Company, as the Trustee.
The undersigned, duly authorized officers of the Series 2001-1 Letter of
Credit Provider, hereby notify the Trustee as follows:
1. The Series 2001-1 Letter of Credit Provider has received a request
from Dollar Rent A Car Systems, Inc. and/or Thrifty Rent-A-Car System, Inc. to
increase the Series 2001-1 Letter of Credit Amount by $_______, and the Series
2001-1 Letter of Credit Provider is permitted to increase the Series 2001-1
Letter of Credit Amount by such amount under the Credit Agreement defined in the
Enhancement Letter of Credit Agreement.
2. Upon your acknowledgment set forth below, the aggregate maximum amount
of the Series 2001-1 Letter of Credit is increased to $____________ from
$____________ pursuant to and in accordance with the terms and provisions of the
Series 2001-1 Letter of Credit and that the reference in the first paragraph of
the Series 2001-1 Letter of Credit to "_____________________________
($____________ )" is amended to read "_____________________________
($____________ )" and the reference in the third paragraph of the Series 2001-1
Letter of Credit to "$____________" is amended to read "$ ___________".
3. This notice, upon your acknowledgment set forth below, shall
constitute an amendment to the Series 2001-1 Letter of Credit and shall form an
integral part thereof and confirms that all other terms of the Series 2001-1
Letter of Credit remain unchanged.
4. The Trustee is requested to execute and deliver its acknowledgment and
acceptance to this notice to the Series 2001-1 Letter of Credit Provider, in the
manner provided in Section 4.4 of the Enhancement Letter of Credit Agreement.
1
IN WITNESS WHEREOF, the Series 2001-1 Letter of Credit Provider has
executed and delivered this certificate on this ____ day of __________, ____.
CREDIT SUISSE FIRST BOSTON
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
ACKNOWLEDGED:
BANKERS TRUST COMPANY,
as Trustee
By:
-----------------------------------------
Name:
E-2
ANNEX F
INSTRUCTION TO TRANSFER
Credit Suisse First Boston
Five World Trade Center
New York, New York 10048-0928
Attention: Xxxxxx Xxxxxxxxxx
Re: Irrevocable Letter of Credit No.
Ladies and Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
[Name of Transferee]
[Address]
all rights of the undersigned beneficiary to draw under the above-captioned
letter of credit (the "Series 2001-1 Letter of Credit") issued by the Series
2001-1 Letter of Credit Provider named therein in favor of the undersigned. The
transferee has succeeded the undersigned as Trustee under the Series 2001-1
Supplement (as defined in the Series 2001-1 Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the Series 2001-1
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however, that
no rights shall be deemed to have been transferred to the transferee until such
transfer complies with the requirements of the Series 2001-1 Letter of Credit
pertaining to transfers.
The Series 2001-1 Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that the Series 2001-1
Letter of Credit Provider transfer the Series 2001-1 Letter of Credit to our
transferee and that the Series 2001-1 Letter of Credit Provider endorse the
Series 2001-1 Letter of Credit returned herewith in favor of the transferee or,
if requested by the transferee, issue a new irrevocable letter of credit in
favor of the transferee with provisions consistent with the Series 2001-1 Letter
of Credit.
Very truly yours,
BANKERS TRUST COMPANY, as Trustee
By:
----------------------------------------
Name:
Title:
F-2
EXHIBIT B
TO THE ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT
FORM OF AFFILIATE JOINDER IN ENHANCEMENT LETTER OF
CREDIT APPLICATION AND AGREEMENT
THIS AFFILIATE JOINDER IN ENHANCEMENT LETTER OF CREDIT APPLICATION AND
AGREEMENT (this "Joinder") is executed as of _______________ ___, _____, by
_______________, a ____________________________________ ("Joining Party"), and
delivered to each of Credit Suisse First Boston, a Swiss banking corporation, as
the Series 2001-1 Letter of Credit Provider (in such capacity, the "Series
2001-1 Letter of Credit Provider") and Bankers Trust Company, as the Trustee (in
such capacity, the "Trustee"), pursuant to that certain Enhancement Letter of
Credit Application and Agreement, dated as of March 6, 2001 (as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms thereof, the "Enhancement Letter of Credit Application
Agreement"), among the Series 2001-1 Letter of Credit Provider, Dollar Rent A
Car Systems, Inc., Thrifty Rent-A-Car System, Inc., any additional Subsidiaries
of Dollar Thrifty Automotive Group, Inc. from time to time becoming Lessees
thereunder, Rental Car Finance Corp. and Dollar Thrifty Automotive Group, Inc.
Capitalized terms used herein but not defined herein shall have the meanings
provided for in the Enhancement Letter of Credit Application and Agreement.
R E C I T A L S:
WHEREAS, the Joining Party is a direct or indirect Subsidiary of DTAG; and
WHEREAS, the Joining Party desires to become a "Lessee" under and pursuant
to Section 4.17 the Enhancement Letter of Credit Application and Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the Joining Party, the Joining
Party agrees as follows:
A G R E E M E N T:
1. The Joining Party hereby represents and warrants to and in favor of the
Series 2001-1 Letter of Credit Provider and the Trustee that (i) the Joining
Party is a direct or indirect Subsidiary of DTAG, (ii) all of the conditions
required to be satisfied pursuant to Section 4.17 of the Enhancement Letter of
Credit Application and Agreement in respect of the Joining Party becoming a
Lessee thereunder have been satisfied and (iii) all of the representations and
warranties contained in Section 3.1 of the Enhancement Letter of Credit
Application and Agreement with respect to the Lessees are true and correct as
applied to the Joining Party as of the date hereof.
2. The Joining Party hereby agrees to assume all of the obligations of a
"Lessee" under the Enhancement Letter of Credit Application and Agreement and
agrees to be bound by all of the terms, covenants and conditions therein.
3. By its execution and delivery of this Joinder, the Joining Party hereby
becomes a Lessee for all purposes under the Enhancement Letter of Credit
Application and Agreement. By its execution and delivery of this Joinder, DTAG
acknowledges that the Joining Party is a Lessee for all purposes under the
Enhancement Letter of Credit Application and Agreement.
IN WITNESS WHEREOF, the Joining Party has caused this Joinder to be duly
executed as of the day and year first above written.
[Name of Joining Party]
By:
----------------------------------------
Name:
Title:
Accepted and Acknowledged by:
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:
-----------------------------------------
Name:
Title:
B-2
EXHIBIT C
TO THE ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT
REQUEST FOR REDUCTION OF
SERIES 2001-1 LETTER OF CREDIT AMOUNT
Bankers Trust Company,
as Trustee under the
Series 2001-1 Supplement
referred to below
0 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Corporate Trust Division
Request for Reduction of Series 2001-1 Letter of Credit Amount under the
Enhancement Letter of Credit Application and Agreement, dated as of March 6,
2001 (as amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof as of the date hereof, the "Enhancement Letter
of Credit Application and Agreement"; the terms defined therein and not
otherwise defined herein being used herein as therein defined), among Dollar
Rent A Car Systems, Inc., Thrifty Rent-A-Car System, Inc., those additional
Subsidiaries of Dollar Thrifty Automotive Group, Inc. from time to time becoming
parties thereto, Rental Car Finance Corp., Dollar Thrifty Automotive Group, Inc.
and Credit Suisse First Boston, as the Series 2001-1 Letter of Credit Provider.
The undersigned, a duly authorized officer of Dollar Thrifty Automotive
Group, Inc., individually and on behalf of the Lessees, hereby certifies to
Bankers Trust Company in its capacity as the Trustee under the Series 2001-1
Supplement referred to in the Enhancement Letter of Credit Application and
Agreement (the "Trustee") as follows:
1. The Series 2001-1 Letter of Credit Amount as of the date of this
request prior to giving effect to the reduction of the Series 2001-1 Letter of
Credit Amount requested in paragraph 2 of this request is $_____________.
2. The Trustee is hereby requested pursuant to Section 2.1(a) of the
Enhancement Letter of Credit Application and Agreement to execute and deliver to
the Series 2001-1 Letter of Credit Provider a Notice of Reduction of Series
2001-1 Letter of Credit Amount substantially in the form of Annex D to the
Series 2001-1 Letter of Credit (the "Notice of Reduction") for a reduction in
the Series 2001-1 Letter of Credit Amount by an amount equal to $_____________.
The Trustee is requested to execute and deliver the Notice of Reduction promptly
following its receipt of this request, and in no event more than two (2)
Business Days following the date of its receipt of this request (as required
pursuant to Section 2.1(a) of the Enhancement Letter of Credit Application and
Agreement), and to provide for the reduction pursuant to the Notice of Reduction
to be as of ______, _______. The undersigned understands that the Trustee will
be relying on the contents hereof. The undersigned further understands that the
Trustee shall not be liable to the undersigned for any failure to transmit (or
any delay in transmitting) the Notice of Reduction (including any fees and
expenses attributable to the Series 2001-1 Letter of Credit Amount not being
reduced in accordance with this paragraph) to the extent such failure (or delay)
does not result from the gross negligence or willful misconduct of the Trustee.
3. To the best of the knowledge of the undersigned, the Series 2001-1
Letter of Credit Amount will be $_____________, (ii) the Series 2001-1 Available
Subordinated Amount will be $_____________, (iii) the Cash Liquidity Amount and
(iv) the Enhancement Amount will be $_____________, in each case as of the date
of the reduction requested in paragraph 2 of this request.
4. The Series 2001-1 Letter of Credit Amount after giving effect to the
reduction requested in paragraph 2 of this request will not cause (i) the Series
2001-1 Letter of Credit Amount to be less than the Minimum Series 2001-1 Letter
of Credit Amount, (ii) the Series 2001-1 Available Subordinated Amount to be
less than the Minimum Subordinated Amount or (iii) the Enhancement Amount to be
less than the Minimum Enhancement Amount, in each case as of the date the
reduction requested in paragraph 2 of this request.
5. The undersigned acknowledges and agrees that the execution and
delivery of this request by the undersigned constitutes a representation and
warranty by the undersigned to each of the Series 2001-1 Letter of Credit
Provider and the Trustee that, as of the date on which the Series 2001-1 Letter
of Credit Amount is reduced by the amount set forth in paragraph 2 of this
request, each of the statements set forth in this request is true and correct to
the best of the knowledge of the undersigned.
6. The undersigned agrees that if on or prior to the date as of which
the Series 2001-1 Letter of Credit Amount is reduced by the amount set forth in
paragraph 2 of this request the undersigned obtains knowledge that any of the
statements set forth in this request is not true and correct or will not be true
and correct after giving effect to such reduction, the undersigned shall
immediately so notify each of the Series 2001-1 Letter of Credit Provider and
the Trustee by telephone and in writing by telefacsimile in the manner provided
in Section 4.4 of the Enhancement Letter of Credit Application and Agreement and
the request set forth herein to reduce the Series 2001-1 Letter of Credit Amount
shall be deemed canceled upon receipt by each of the Series 2001-1 Letter of
Credit Provider and the Trustee of such notice in writing.
C-2
IN WITNESS WHEREOF, Dollar Thrifty Automotive Group, Inc., individually and
on behalf of the Lessees, has executed and delivered this request on this ______
day of ________, ____.
DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC.
By:
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Name:
Title:
C-3
