Exhibit 4.64
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AMENDMENT NO. 3
TO NOTE PURCHASE AGREEMENT
Dated as of April 16, 2002
This AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT, dated as of April 16,
2002 (this "Amendment") is among RENTAL CAR FINANCE CORP., an Oklahoma
corporation ("RCFC"), DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware
corporation ("DTAG"), the entities party hereto as Conduit Purchasers ("Conduit
Purchasers"), the entities party hereto as Committed Purchasers ("Committed
Purchasers"), the entities party thereto as Managing Agents ("Managing Agents"),
and Bank One, NA ("Administrative Agent").
RECITALS:
A. RCFC, DTAG, the Conduit Purchasers, the Committed Purchasers,
the Managing Agents and the Administrative Agent entered into that certain Note
Purchase Agreement, dated as of December 15, 2000, as amended by that certain
Amendment No. 1 to Note Purchase Agreement, dated as of April 20, 2001 and by
that certain Amendment No. 2 to Note Purchase Agreement, dated as of January 31,
2002 (the "Note Purchase Agreement").
B. RCFC and the Trustee entered into that certain Series 2000-1
Supplement, dated as of December 14, 2000, as amended by that certain Amendment
No. 1 to Series 2000-1 Supplement dated as of April 20, 2001 and by that certain
Amendment No. 2 to Series 2000-1 Supplement dated as of January 31, 2002 (the
"Supplement").
C. Simultaneously herewith, RCFC and Trustee are entering into that
certain Amendment No. 3 to Series 2000-1 Supplement (the "Supplement Amendment"
and, together with this Amendment, the "Series 2000-1 Amendments").
D. The parties hereto wish to add HOLLAND LIMITED SECURITIZATION,
INC. ("Holland"), as a Conduit Purchaser, and ING CAPITAL MARKETS LLC ("ING"),
as a Committed Purchaser.
E. The parties hereto wish to amend the Note Purchase Agreement as
provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment not herein
defined shall have the meaning contained in the Note Purchase Agreement. For
purposes of this Amendment, the following terms shall have the meanings set
forth below:
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a. "Amendment Effective Date" means the date on which all conditions
precedent to the effectiveness of this Amendment, as set forth in Section 3
hereof, have been satisfied.
b. "ING Fee Letter" means that certain letter dated April __, 2002
among RCFC, the Administrative Agent and ING setting forth certain fees payable
by RCFC in connection with this Amendment.
2. Amendments. Upon the terms and subject to the conditions set forth in
this Amendment and in reliance on ranties of the parties hereto set forth in
this Amendment, the parties hereto hereby agree to the following amendments to
the Note Purchase Agreement:
a. Section 1.01 of the Note Purchase Agreement is hereby amended as
follows:
1. The definition of "Ownership Group" is hereby amended in
its entirety to read as follows:
"Ownership Group" means each of the following groups of
Note Purchasers:
(i) Bank One, NA ("Bank One"), Deutsche Bank,
AG, acting through its New York Branch "Deutsche Bank"),
Falcon Asset Securitization Corporation, and any other
Conduit Purchaser administered by Bank One or any of Bank
One's Affiliates (the "Bank One Ownership Group").
(ii) The Bank of Nova Scotia ("BNS"), Liberty
Street Funding Corp., and any other Conduit Purchaser
administered by BNS or any of BNS's Affiliates (the "BNS
Ownership Group").
(iii) Dresdner Bank AG ("Dresdner"), Beethoven
Funding Corporation, and any other Conduit Purchaser
administered by Dresdner or any of Dresdner's Affiliates
(the "Dresdner Ownership Group").
(iv) ING Capital Markets LLC ("ING"), Holland
Limited Securitization, Inc., and any other Conduit
Purchaser administered by ING or any of ING's Affiliates
(the "ING Ownership Group").
(v) Each Managing Agent and its related Conduit
Purchasers and Committed Purchasers as shall become
parties to the Series 2000-1 Note Purchase Agreement (each
an "Additional Ownership Group").
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By way of example and for avoidance of doubt, each of the
Bank One Ownership Group, the BNS Ownership Group, the Dresdner
Ownership Group and any Additional Ownership Group is a separate
Ownership Group. An assignee of a Committed Purchaser shall
belong, to the extent of such assignment, to the same Ownership
Group as the assigning Committed Purchaser. A Committed Purchaser
may belong to more than one Ownership Group at a time.
In the even t more than one Conduit Purchaser in a
particular Ownership Group becomes a party to this Agreement, the
parties hereto agree to cooperate in good faith, at the request
of the applicable Managing Agent, to amend this Agreement to
provide for separate Ownership Groups for each Conduit Purchaser
in such Ownership Group.
b. Section 1.01 of the Note Purchase Agreement is hereby amended by
adding the following definitions in proper alphabetical order:
1. "ING" has the meaning specified in the definition of
Ownership Group.
2. "ING Ownership Group" has the meaning specified in the
definition of Ownership Group.
c. Schedule I to the Note Purchase Agreement is hereby deleted
in its entirety and replaced with the revised Schedule I attached hereto as
Exhibit A.
d. Schedule II to the Note Purchase Agreement is hereby deleted
in its entirety and replaced with the revised Schedule II attached hereto as
Exhibit B.
e. Schedule III to the Note Purchase Agreement is hereby deleted
in its entirety and replaced with the revised Schedule III attached hereto as
Exhibit C.
3. Conditions to Effectiveness. The effectiveness of this Amendment is
conditioned upon satisfaction of the following conditions precedent:
a. The Administrative Agent shall have received counterparts of the
Series 2000-1 Amendment signed by the parties hereto. The Administrative Agent
shall have received the ING Fee Letter, and such document shall be in full force
and effect.
b. Each of the representations and warranties in the Amended Series
Documents (hereinafter defined) and in Sections 4 and 5 below shall be true and
correct in all material respects.
c. The Managing Agents shall have received copies of (i) the
Certificate of Incorporation and By-Laws of RCFC, DTAG, Dollar and Thrifty (ii)
board of directors resolutions of RCFC, DTAG, Dollar and Thrifty with respect to
the transactions contemplated by the Series 2000-1 Amendments and (iii)
incumbency certificates of RCFC, DTAG, Dollar and Thrifty each certified by
appropriate corporate authorities.
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d. Counsel to RCFC, DTAG, Dollar and Thrifty shall have delivered
to the Managing Agents favorable opinions, dated the date hereof and reasonably
satisfactory in form and substance to the Managing Agents and their counsel,
covering due authorization and such other matters as any Managing Agent shall
reasonably request.
e. Special New York counsel to RCFC and DTAG shall have delivered
favorable opinions, dated the date hereof and reasonably satisfactory in form
and substance to the Managing Agents and their counsel, covering enforceability
and such other matters as any Managing Agent shall reasonably request.
f. Counsel to the Trustee shall have delivered to the Managing
Agents a favorable opinion, dated the date hereof and reasonably satisfactory in
form and substance to the Managing Agents and their counsel.
g. ING shall have received payment of the fees payable pursuant to
the ING Fee Letter.
h. All Governmental Actions of all Governmental Authorities required
with respect to the transactions contemplated by the Series 2000-1 Amendments
shall have been obtained or made.
i. No Amortization Event, Liquidation Event of Default or Limited
Liquidation Event of Default or event which, with the giving of notice or the
passage of time or both would constitute any of the foregoing, shall have
occurred or be continuing.
j. The Administrative Agent and Managing Agents shall have received
such other documents, instruments, certificates, opinions and approvals as it
may reasonably request.
4. Representations and Warranties of RCFC. RCFC hereby makes the
following representations and warranties to the Purchasers, the Managing Agents
and the Administrative Agent, as of the date hereof and as of the Amendment
Effective Date, and the Purchasers, the Managing Agents and the Administrative
Agent shall be deemed to have relied on such representations and warranties in
entering into this Amendment:
a. The performance of RCFC's obligations under the Series 2000-1
Amendments and the Series Documents, as amended by the Series 2000-1 Amendments
(the "Amended Series Documents"), and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any Lien (other than any Lien created by the
Amended Series Documents), charge or encumbrance upon any of the property or
assets of RCFC pursuant to the terms of, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which it is bound or
to which any of its property or assets is subject, nor will such action result
in any violation of the provisions of its Certificate of Incorporation or
By-laws or any Governmental Rule applicable to RCFC.
b. No Governmental Action which has not been obtained is required
by or with respect to RCFC in connection with the execution and delivery of this
Amendment or the Supplement Amendment by RCFC or the consummation by RCFC of the
transactions contemplated hereby or thereby or by the Amended Series Documents.
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c. Each of this Amendment and the Supplement Amendment has been
duly authorized, executed and delivered by RCFC, and this Amendment, the
Supplement Amendment and the Amended Series Documents are the valid and legally
binding obligations of RCFC, enforceable against RCFC in accordance with their
respective terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
d. There is no pending or, to RCFC's knowledge, threatened action,
suit or proceeding by or against RCFC before any Governmental Authority or any
arbitrator (i) with respect to this Amendment, the Supplement Amendment or any
Amended Series Document or any of the transactions contemplated herein or
therein, or (ii) with respect to RCFC which, in the case of any such action,
suit or proceeding with respect to RCFC, if adversely determined, would have a
material adverse effect on the ability of RCFC to perform its obligations
hereunder or thereunder.
5. Representations and Warranties of DTAG. DTAG hereby makes the
following representations and warranties to the Purchasers, the Managing Agents
and the Administrative Agent as of the date hereof and as of the Amendment
Effective Date, and the Purchasers and the Administrative Agent shall be deemed
to have relied on such representations and warranties in entering this
Amendment:
a. The performance of the obligations of DTAG under this Amendment
and the Amended Series Documents to which it is a party and the consummation of
the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any Lien (other than any Lien
created by the Amended Series Documents), charge or encumbrance upon any of the
property or assets of DTAG pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which
it or any of its Affiliates is bound or to which any of its property or assets
is subject, nor will such action result in any violation of the provisions of
its Certificate of Incorporation or By-laws or any Governmental Rule applicable
to DTAG.
b. No Governmental Action which has not been obtained is required
by or with respect to DTAG in connection with the execution and delivery of this
Amendment by DTAG or the consummation by DTAG of the transactions contemplated
hereby.
c. This Amendment has been duly authorized, executed and delivered
by DTAG and is the valid and legally binding obligation of DTAG, enforceable
against DTAG in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other similar laws of
general applicability relating to or affecting creditors' rights and to general
principles of equity.
d. There is no pending or, to the knowledge of DTAG, threatened
action, suit or proceeding by or against DTAG before any Governmental Authority
or any arbitrator (i) with respect to this Amendment or any Amended Series
Document to which it is a party or any of the transactions contemplated herein
or therein, or (ii) with respect to DTAG which, in the case of any such action,
suit or proceeding with respect to DTAG, if adversely determined, would have a
material adverse effect on the ability of DTAG to perform its obligations
hereunder or thereunder.
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6. Reference to and Effect on Note Purchase Agreement.
a. Upon and after the effectiveness of this Amendment, each
reference in the Note Purchase Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Note Purchase Agreement, and
each reference in the Series Documents to "the Note Purchase Agreement", "the
Series 2000-1 Note Purchase Agreement", "thereunder", "thereof" or words of like
import referring to the Note Purchase Agreement, shall mean and be a reference
to the Note Purchase Agreement as modified hereby.
b. Except as specifically modified above, the Note Purchase
Agreement is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. The consents contained herein are limited
to the specific facts and circumstances set forth therein and shall not operate
as a waiver of, or a consent to any variation from, any other provision of the
Note Purchase Agreement or any of the Series Documents.
c. The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Secured Party under any of the Series Documents, nor,
except as expressly provided herein, constitute a waiver or amendment of any
provision of any of the Series Documents.
d. On and as of the Amendment Effective date, Holland and ING shall
be deemed to be a party to the Note Purchase Agreement (without further action)
as a Conduit Purchaser and a Committed Purchaser, respectively, and shall have
all of the rights, duties and obligations of a Conduit Purchaser and a Committed
Purchaser party to the Note Purchase Agreement (as amended hereby).
7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Severability. Any provision of this Amendment that is 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.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile shall
be effective as delivery of a manually executed counterpart of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as
of the date first written above.
RENTAL CAR FINANCE CORP., as Seller
By:_____________________________________
Xxxxxx X. Xxxx
Vice President and Treasurer
DOLLAR THRIFTY AUTOMOTIVE GROUP,
INC., as Master Servicer
By:_____________________________________
Xxxxxx X. Xxxx
Treasurer
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FALCON ASSET SECURITIZATION
CORPORATION, as a Conduit Purchaser
By:_____________________________________
Name:
Title:
BANK ONE, NA, as a Committed Purchaser,
as the Managing Agent for the Bank One
Ownership Group and as the
Administrative Agent
By:_____________________________________
Name:
Title:
DEUTSCHE BANK, AG, New York Branch,
as a Committed Purchaser
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
X-0
XXXXXXX XXXXXX FUNDING CORP., as a
Conduit Purchaser
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Committed
Purchaser and as the Managing Agent
for the BNS Ownership Group
By:_____________________________________
Name:
Title:
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BEETHOVEN FUNDING CORPORATION, as a
Conduit Purchaser
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, as a Committed
Purchaser and as the Managing Agent
for the Dresdner Ownership Group
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
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HOLLAND LIMITED SECURITIZATION, INC.,
as a Conduit Purchaser
By: ING Capital Markets LLC,
as attorney-in-fact
By:_____________________________________
Name:
Title:
ING CAPITAL MARKETS LLC, as a Committed
Purchaser and as the Managing Agent
for the ING Ownership Group
By:_____________________________________
Name:
Title:
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EXHIBIT A
SCHEDULE I
ADDRESSES FOR NOTICE
In the case of RCFC:
-------------------
Rental Car Finance Corp.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
In the case of the Master Servicer:
----------------------------------
Dollar Thrifty Automotive Group, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
In the case of the Administrative Agent:
---------------------------------------
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Rental Car Finance Portfolio Manager
In the case of the Conduit Purchasers:
-------------------------------------
Falcon Asset Securitization Corporation
x/x Xxxx Xxx, XX
0 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Falcon Funding Manager
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Schedule I - 1
With a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Beethoven Funding Corporation
x/x Xxxxxxxx Xxxx XX, Xxx Xxxx Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Backed Finance
Facsimile: (000) 000-0000
With a copy to:
Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
Holland Limited Securitization, Inc.
c/o ING Capital Markets LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx XxXxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
c/o Lord Securities
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
In the case of the Committed Purchasers and the Managing Agents:
---------------------------------------------------------------
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Rental Car Finance Portfolio Manager
Schedule I - 0
Xxxxxxxx Xxxx, XX, Xxx Xxxx Branch
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx
Facsimile: (000) 000-0000
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Last
Facsimile: (000) 000-0000
With a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Dresdner Bank AG
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Backed Finance
Facsimile: (000) 000-0000
ING Capital Markets LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx XxXxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Schedule I - 3
EXHIBIT B
SCHEDULE II
GROUP FUNDING LIMITS
Ownership Group Group Funding Limit
--------------- -------------------
Bank One Ownership Group One Hundred Twenty-five million dollars
($125,000,000)
BNS Ownership Group Seventy-five million dollars ($75,000,000)
Dresdner Ownership Group Seventy-five million dollars ($75,000,000)
ING Ownership Group Fifty million dollars ($50,000,000)
Schedule II - 1
EXHIBIT C
SCHEDULE III
PURCHASER PERCENTAGES
Managing Agent Conduit Purchaser Committed Purchaser Purchaser Percentage
-------------- ----------------- ------------------- --------------------
Bank One, NA Falcon Asset Securitization Bank One, NA 23.076924%
Corporation
Deutsche Bank, AG 15.000000%
The Bank of Nova Scotia Liberty Street Funding Corp. The Bank of Nova Scotia 23.000000%
Dresdner Bank AG Beethoven Funding Dresdner Bank 23.076923%
Corporation
ING Capital Markets LLC Holland Limited ING Capital Markets LLC 15.384615%
Securitization, Inc.
