Exhibit 4.97
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AMENDMENT NO. 5
TO NOTE PURCHASE AGREEMENT
Dated as of March 18, 2003
This AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT, dated as of March 18, 2003
(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 (the "Conduit
Purchasers"), the entities party hereto as Committed Purchasers (the "Committed
Purchasers"), the entities party thereto as Managing Agents (the "Managing
Agents"), and THE BANK OF NOVA SCOTIA (the "Administrative Agent").
RECITALS:
A. RCFC, DTAG, the Conduit Purchasers, the Committed Purchasers,
the Managing Agents and Bank One, NA, as 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, by that certain Amendment No. 2 to Note Purchase Agreement, dated as of
January 31, 2002, by that certain Amendment No. 3 to Note Purchase Agreement,
dated as of April 16, 2002, by that certain Addendum to Note Purchase Agreement,
dated as of August 15, 2002 and by that certain Amendment No. 4 to Note Purchase
Agreement, dated as of December 12, 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, by that certain
Amendment No. 2 to Series 2000-1 Supplement dated as of January 31, 2002, by
that certain Amendment No. 3 to Series 2000-1 Supplement dated as of April 16,
2002, , by that certain Amendment No. 4 to Series 2000-1 Supplement dated as of
August 12, 2002, by that certain Amendment No. 5 to Series 2000-1 Supplement
dated as of August 15, 2002; and by that certain Amendment No. 6 to Series
2000-1 Supplement dated as of December 12, 2002 (the "Supplement").
C. Simultaneously herewith, RCFC and Trustee are entering into
that certain Amendment No. 7 to the Supplement (the "Supplement Amendment" and,
together with this Amendment, the "Series 2000-1 Amendments").
D. 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:
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.
2. Amendments. Upon the terms and subject to the conditions set forth in
this Amendment and in reliance on the representations and warranties of the
parties hereto set forth in this Amendment, the parties hereto hereby agree to
the following amendments to the Note Purchase Agreement:
a. The introductory paragraph of Section 10.04(a) of the Note
Purchase Agreement is hereby amended in its entirety to read as follows:
(a) If after the date hereof, (1) the adoption of any
Governmental Rule or bank regulatory guideline or any amendment or
change in the interpretation of any existing or future Governmental
Rule or bank regulatory guideline by any Governmental Authority
charged with the administration, interpretation or application
thereof, or the compliance with any directive of any Governmental
Authority (whether or not having the force of Governmental Rule) or
(2) the Financial Accounting Standards Board's Interpretation No. 46,
or any other change in accounting standards or the issuance of any
other pronouncement, release or interpretation, causes or requires the
consolidation of all or a portion of the assets and liabilities of a
Conduit Purchaser with the assets and liabilities of any Indemnified
Party:
b. Schedule II of the Note Purchase Agreement is hereby amended in
its entirety as set forth in Exhibit A hereto.
c. Schedule III of the Note Purchase Agreement is hereby amended
in its entirety as set forth in Exhibit B hereto.
3. Waiver of Section 2.04. Notwithstanding anything to the contrary in
the Note Purchase Agreement, the parties hereto hereby waive compliance with the
notice requirement set forth in Section 2.04(b) of the Note Purchase Agreement.
4. 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 Amendments signed by the parties thereto.
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 ) an
Officer's Certificate certifying that the Certificate of Incorporation and
By-Laws of RCFC and DTAG have not changed since December 6, 2002, (ii) board of
directors resolutions of RCFC and DTAG with respect to the transactions
contemplated by the Series 2000-1 Amendments and (iii) incumbency certificates
of RCFC and DTAG each certified by appropriate corporate authorities.
d. Counsel to RCFC and DTAG 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.
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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.
x. Xxxxxxxx shall have received payment of the fees payable
pursuant to that certain fee letter agreement dated as of the date hereof among
BNS, Dresdner, RCFC and DTAG.
g. 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.
h. 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.
i. The Administrative Agent and Managing Agents shall have received
such other documents, instruments, certificates, opinions and approvals as they
may reasonably request.
5. 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 the
Series 2000-1 Amendments by RCFC or the consummation by RCFC of the transactions
contemplated thereby or by the Amended Series Documents.
c. Each of the Series 2000-1 Amendments has been duly authorized,
executed and delivered by RCFC, and the Series 2000-1 Amendments 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.
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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 the Series 2000-1 Amendments 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.
6. 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 or the consummation by DTAG of the transactions contemplated hereby or
thereby or by the Amended Series Documents to which it is a party.
c. This Amendment has been duly authorized, executed and delivered
by DTAG and this Amendment and the Amended Series Documents to which it is a
party are the valid and legally binding obligations of DTAG, enforceable against
DTAG 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 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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7. 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.
8. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
9. 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.
10. 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.
[Signature Pages Follow]
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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
X-0
XXXXXXX XXXXXX FUNDING CORP., as a
Conduit Purchaser
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Committed
Purchaser, as the Managing Agent for
the BNS 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:
S-2
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:
X-0
XXXXXXXXX FUNDING CORPORATION, as a
Conduit Purchaser
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
ABN AMRO BANK N.V., as a Committed
Purchaser and as the Managing Agent
for the ABN Ownership Group
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
S-4
Consented to as of the date first written above:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
formerly known as Bankers Trust Company,
a New York banking corporation
By:_____________________________________
Name:
Title:
CREDIT SUISSE FIRST BOSTON, CAYMAN ISLANDS BRANCH
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
S-5
EXHIBIT A
SCHEDULE II
GROUP FUNDING LIMITS
Ownership Group Group Funding Limit
--------------- -------------------
BNS Ownership Group One Hundred Twenty-Five million dollars ($125,000,000)
Dresdner Ownership Group One Hundred million dollars ($100,000,000)
ABN Ownership Group Fifty million dollars ($50,000,000)
Ex. A-1
EXHIBIT B
SCHEDULE III
PURCHASER PERCENTAGES
-------------------- ------------------- ---------------------- ----------------
Purchaser
Managing Agent Conduit Purchaser Committed Purchaser Percentage
-------------------- ------------------- ---------------------- ----------------
The Bank of Liberty Street The Bank of 27.0000000%
Nova Scotia Funding Corp. Nova Scotia
Deutsche Bank, AG 18.0000000%
Dresdner Bank AG Beethoven Funding Dresdner Bank 36.0000000%
Corporation
ABN AMRO Bank N.V. Amsterdam Funding ABN AMRO Bank N.V. 18.0000000%
Corporation
Ex. B-1
