EXHIBIT 4.101
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[EXECUTION COPY]
ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT,
dated as of March 25, 2003
among
DTG OPERATIONS, INC.
(formerly known as Dollar Rent A Car Systems, 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 2003-1 Letter of Credit Provider
THIS ENHANCEMENT LETTER OF CREDIT APPLICATION AND AGREEMENT, dated as of
March 25, 2003 (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 DTG OPERATIONS, INC. (formerly known
as Dollar Rent A Car Systems, Inc.), an Oklahoma corporation ("DTG Operations"),
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 and DTG
Operations, 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 2003-1 Letter of Credit Provider ("Credit Suisse First Boston" or the
"Series 2003-1 Letter of Credit Provider").
RECITALS
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1. DTAG, DTG Operations and Thrifty Rent-A-Car System, Inc. ("Thrifty"),
as borrowers, the financial institutions party 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 JPMorgan Chase Bank (f/k/a The Chase
Manhattan Bank), in its capacity as syndication agent thereunder (in such
capacity, the "Syndication Agent"), have entered into a Second Amended and
Restated Credit Agreement, dated as of December 6, 2002, amending and restating
the Amended and Restated Credit Agreement, dated as of August 3, 2000, which
amended and restated the Credit Agreement, dated as of December 23, 1997 (as
such may be further 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 2003-1 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, DTG Operations, Deutsche
Bank Trust Company Americas ("Deutsche Bank 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 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, Deutsche Bank 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).
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3. 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 March 6, 2001 (as
amended by Amendment No. 1 to Master Motor Vehicle Lease and Servicing
Agreement, dated as of December 12, 2002, and Amendment No. 2 to Master Motor
Vehicle Lease and Servicing Agreement, dated as of March 25, 2003, 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 "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 Deutsche Bank Trust
Company, as trustee (in such capacity, the "Trustee"), are entering into the
Series 2003-1 Supplement, dated as of March 25, 2003 (as amended, supplemented,
amended and restated or otherwise modified from time to time in accordance with
the terms thereof, the "Series 2003-1 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 2003-1 Supplement and the other Supplements
thereto, the "Indenture"), between RCFC and the Trustee, pursuant to which RCFC
will issue its Series 2003-1 Floating Rate Rental Car Asset Backed Notes, Class
A (the "Series 2003-1 Notes").
5. Contemporaneously with the execution and delivery of this Agreement,
Credit Suisse First Boston, in its capacity as the Series 2003-1 Letter of
Credit Provider, is issuing the Series 2003-1 Letter of Credit, dated as of even
date herewith, (i) as credit support for amounts owed by the Lessees under the
Master Lease, (ii) as credit support for amounts owed to the Series 2003-1
Insurer following the payment in full of the Series 2003-1 Notes to the extent
provided for in Section 4.10(f) of the Series 2003-1 Supplement and (iii) as
credit support for amounts owed by DTAG under the Demand Note referred to in
Section 4.15 of the Series 2003-1 Supplement.
6. The Lessees, RCFC, DTAG and Credit Suisse First Boston, in its
capacity as the Series 2003-1 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 2003-1 Letter of Credit Provider as a draw upon the Series
2003-1 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 2003-1 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 2003-1 Supplement shall apply herein.
ARTICLE II
ISSUANCE OF SERIES 2003-1 LETTER OF CREDIT;
REIMBURSEMENT OBLIGATION
Section 2.1 Issuance of Series 2003-1 Letter of Credit; Substitute
Series 2003-1 Letter of Credit. (a) The Series 2003-1 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
2003-1 Supplement (in respect of Credit Demands (other than a Credit
Demand-Payout) and Termination Demands (in each case as defined in the Series
2003-1 Letter of Credit)), (ii) as support for a LOC Termination Disbursement
under Section 4.16 of the Series 2003-1 Supplement, (iii) as credit support for
amounts owed to the Series 2003-1 Insurer following the payment in full of all
obligations of the Issuer under the Series 2003-1 Notes due on or before the
Series 2003-1 Termination Date under Section 4.10(f) of the Series 2003-1
Supplement (in respect of a Credit Demand-Payout (as defined in the Series
2003-1 Letter of Credit)) and (iv) as credit support for draws on the Demand
Note under Section 4.15 of the Series 2003-1 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 $10,375,000 (the "Series 2003-1
Letter of Credit Commitment"), for a term expiring on August 1, 2005 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) (the "Series 2003-1
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 2003-1 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 2003-1 Letter of Credit"). In
furtherance of, and not in limitation of, the terms of the preceding sentence
relating to amendments to the Series 2003-1 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 2003-1 Letter of Credit Amount (as defined in the Series
2003-1 Letter of Credit), and in no event more than two (2) Business Days
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following the date of its receipt of such notice, the Trustee shall deliver to
the Series 2003-1 Letter of Credit Provider a Notice of Reduction of Series
2003-1 Letter of Credit Amount substantially in the form of Annex D to the
Series 2003-1 Letter of Credit, which, upon the Series 2003-1 Letter of Credit
Provider's written acknowledgment and agreement, shall effect a reduction in the
Series 2003-1 Letter of Credit Amount as provided in such Notice (and shall
automatically effect a reduction of the Series 2003-1 Letter of Credit Amount
hereunder). Upon the Series 2003-1 Letter of Credit Provider's written
acknowledgment and agreement with each such Notice of Reduction of Series 2003-1
Letter of Credit Amount, the Series 2003-1 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 2003-1 Letter
of Credit Amount (substantially in the form of Annex E to the Series 2003-1
Letter of Credit), the Trustee will provide promptly copies thereof to the
Series 2003-1 Letter of Credit Provider.
(b) If a successor Trustee is appointed, promptly following the
appointment of such successor Trustee pursuant to the terms of the Series 2003-1
Supplement and upon receipt of an Instruction to Transfer substantially in the
form of Annex F to the Series 2003-1 Letter of Credit, the Series 2003-1 Letter
of Credit Provider shall deliver for the benefit of such successor Trustee and
the current Trustee, in exchange for the outstanding Series 2003-1 Letter of
Credit, a substitute letter of credit substantially in the form of Exhibit A
hereto, having terms identical to the then outstanding Series 2003-1 Letter of
Credit but in favor of such successor Trustee.
(c) [Reserved.]
(d) Each of the Lessees shall use its best efforts (i) to obtain a
successor institution to act as Series 2003-1 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 2003-1 Cash Collateral
Account with cash in the amount of the Series 2003-1 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) with the consent
of the Series 2003-1 Insurer, other cash collateral accounts,
overcollateralization or subordinated securities or (C) with the consent of the
Required Series 2003-1 Noteholders and the Series 2003-1 Insurer, a Surety Bond
or other similar arrangements, in each case, prior to the fifteenth Business Day
preceding the Series 2003-1 Letter of Credit Expiration Date; 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 or "F1"
or the equivalent from Fitch (if rated by Fitch), be approved by the Required
Series 2003-1 Noteholders and the Series 2003-1 Insurer; provided further,
however, that only after all amounts then owing to the Series 2003-1 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 2003-1 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
2003-1 Letter of Credit Provider the then outstanding Series 2003-1 Letter of
Credit and (z) deliver to the Trustee a substitute letter of credit having terms
identical to the then outstanding Series 2003-1 Letter of Credit but expiring on
a date subsequent to the Series 2003-1 Letter of Credit Expiration Date and with
such successor institution as the issuer thereof or deliver such other
substitute credit enhancement.
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(e) If the Lessees do not obtain a successor Series 2003-1 Letter of
Credit Provider or other substitute credit enhancement prior to the date which
is ten Business Days prior to the Series 2003-1 Letter of Credit Expiration
Date, then DTAG (on behalf of the Lessees) shall immediately notify the Trustee
and the Series 2003-1 Insurer in writing, and the Trustee, pursuant to Section
4.16 of the Series 2003-1 Supplement, shall immediately request a LOC
Termination Disbursement in accordance with Section 4.16 of the Series 2003-1
Supplement no later than ten Business Days prior to such Series 2003-1 Letter of
Credit Expiration Date in an amount equal to the lesser of (i) the sum of (x)
the Series 2003-1 Invested Amount on such date and (y) the aggregate amount of
any prior allocations (not including any allocations with respect to Losses or
Lease Payment Losses to the extent the same has been covered by payments in
respect of principal of the Series 2003-1 Notes under the Series 2003-1 Policy)
of (A) Lease Payment Losses to making a drawing under the Series 2003-1 Letter
of Credit pursuant to Section 4.7 of the Series 2003-1 Supplement that have not
been drawn under the Series 2003-1 Letter of Credit pursuant to Section 4.14(b)
of the Series 2003-1 Supplement and (B) Losses to making a drawing under the
Demand Note pursuant to Section 4.7 of the Series 2003-1 Supplement that would
otherwise have been funded from a drawing under the Series 2003-1 Letter of
Credit pursuant to Section 4.15(b) of the Series 2003-1 Supplement but have not
in fact been fully funded under Section 4.15(b) of the Series 2003-1 Supplement,
in each case, as a result of the limitations imposed on the amount of any such
draw under the Series 2003-1 Letter of Credit by the Available Draw Amount or
the Permitted Principal Draw Amount under such Section 4.14(b) or 4.15(b), as
the case may be, of the Series 2003-1 Supplement and (ii) the Series 2003-1
Letter of Credit Amount on such date. The Trustee shall, in accordance with
Sections 4.16 and 4.17 of the Series 2003-1 Supplement, deposit the amount of
such LOC Termination Disbursement in the Series 2003-1 Cash Collateral Account
and shall use such funds in the same manner as the Series 2003-1 Letter of
Credit would be used hereunder.
(f) If (i) the short-term debt or deposit rating of the Series 2003-1
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 2003-1 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 2003-1 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 2003-1 Cash
Collateral Account with cash in the amount of the Series 2003-1 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 2003-1 Noteholders and the Series
2003-1 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 clause (ii)(A) 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 or "F1" or the
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equivalent from Fitch (if rated by Fitch), be approved by the Required Series
2003-1 Noteholders and the Series 2003-1 Insurer; provided further, however,
that only after all amounts then owing to the Series 2003-1 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 2003-1 Letter of Credit. If the Lessees do not
replace the Series 2003-1 Letter of Credit Provider within 30 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 2003-1 Insurer in writing, and the Trustee, pursuant to Section 4.16
of the Series 2003-1 Supplement, shall immediately request a LOC Termination
Disbursement in accordance with Section 4.16 of the Series 2003-1 Supplement in
an amount equal to the lesser of (I) the sum of (x) the Series 2003-1 Invested
Amount as of such date and (y) the aggregate amount of any prior allocations
(not including any allocations with respect to Losses or Lease Payment Losses to
the extent the same has been covered by payments in respect of principal of the
Series 2003-1 Notes under the Series 2003-1 Policy) of (A) Lease Payment Losses
to making a drawing under the Series 2003-1 Letter of Credit pursuant to Section
4.7 of the Series 2003-1 Supplement that have not been drawn under the Series
2003-1 Letter of Credit pursuant to Section 4.14(b) of the Series 2003-1
Supplement and (B) Losses to making a drawing under the Demand Note pursuant to
Section 4.7 of the Series 2003-1 Supplement that would otherwise have been
funded from a drawing under the Series 2003-1 Letter of Credit pursuant to
Section 4.15(b) of the Series 2003-1 Supplement but have not in fact been fully
funded under Section 4.15(b) of the Series 2003-1 Supplement, in each case, as a
result of the limitations imposed on the amount of any such draw under the
Series 2003-1 Letter of Credit by the Available Draw Amount or the Permitted
Principal Draw Amount under such Section 4.14(b) or 4.15(b), as the case may be,
of the Series 2003-1 Supplement and (II) the Series 2003-1 Letter of Credit
Amount on such date. The Trustee shall, in accordance with Sections 4.16 and
4.17 of the Series 2003-1 Supplement, deposit the amount of such LOC Termination
Disbursement into the Series 2003-1 Cash Collateral Account and shall use such
funds in the same manner as the Series 2003-1 Letter of Credit would be used
hereunder.
(g) In the event that (i) the Series 2003-1 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
2003-1 Letter of Credit would be unlawful, (ii) the Series 2003-1 Letter of
Credit Expiration Date is not extended on or prior to the fifteenth Business Day
preceding the then Series 2003-1 Letter of Credit Expiration Date to a date
subsequent to the then Series 2003-1 Letter of Credit Expiration Date, (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 2003-1
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 2003-1 Letter of Credit Provider), (iv) the Series 2003-1 Letter of
Credit Provider shall have wrongfully failed to fund any LOC Credit Disbursement
when required under the Series 2003-1 Letter of Credit, or (v) the short-term
debt or deposit rating of the Series 2003-1 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
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their own expense, upon notice to the Series 2003-1 Letter of Credit Provider,
and such Series 2003-1 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 2003-1 Letter of Credit Provider to a replacement
Series 2003-1 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 2003-1
Letter of Credit Provider shall conflict with any law, rule, regulation or order
of any Governmental Authority, (x) such assignment to any replacement Series
2003-1 Letter of Credit Provider shall be without recourse, representation and
warranty and shall be on terms and conditions reasonably satisfactory to the
Series 2003-1 Letter of Credit Provider and such replacement Series 2003-1
Letter of Credit Provider, (y) the purchase price paid by such replacement
Series 2003-1 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 2003-1 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 2003-1 Letter of Credit Provider, as the case may be, shall
pay to such replaced Series 2003-1 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 2003-1 Letter of Credit Provider hereunder and all other
amounts accrued for such replaced Series 2003-1 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 2003-1 Letter of Credit Provider to
be replaced hereunder have been paid in full shall the Series 2003-1 Letter of
Credit issued by the replacement Series 2003-1 Letter of Credit Provider be
substituted for the Series 2003-1 Letter of Credit Provider's Series 2003-1
Letter of Credit. If such a replacement Series 2003-1 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 2003-1 Letter of
Credit Provider succeeds the Series 2003-1 Letter of Credit Provider or other
substitute credit enhancement is obtained to replace the Series 2003-1 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 2003-1 Letter
of Credit Provider of the then outstanding Series 2003-1 Letter of Credit, and
(c) deliver to the Trustee a substitute letter of credit having terms identical
to the then outstanding Series 2003-1 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.
Section 2.2 [Reserved.]
Section 2.3 Reimbursement. (a) Each Lessee agrees to pay to the Series
2003-1 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 2003-1 Letter
of Credit Provider shall pay any LOC Credit Disbursement under the Series 2003-1
Letter of Credit in respect of Series 2003-1 Lease Payment Losses allocated to
making a drawing under the Series 2003-1 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,
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in the absence of such determination, the Series 2003-1 Letter of Credit
Provider) (it being acknowledged and agreed that if any LOC Credit Disbursement
is made as a result of a draw on the Series 2003-1 Letter of Credit pursuant to
Section 4.10(f) of the Series 2003-1 Supplement, then the percentage thereof
that is to be reimbursed by each Lessee shall be such percentage as determined
by the Series 2003-1 Letter of Credit Provider in its discretion and which
percentage when taken together with the percentage of each other Lessee shall
equal 100%), plus (B) interest on any amount remaining unpaid by such Lessee to
the Series 2003-1 Letter of Credit Provider under clause (A) above, from (and
including) the date such amount is paid by the Series 2003-1 Letter of Credit
Provider under the Series 2003-1 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 2003-1 Letter of Credit Provider on demand on and after each date
on which the Series 2003-1 Letter of Credit Provider shall pay any LOC Credit
Disbursement under the Series 2003-1 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 2003-1 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 2003-1 Letter
of Credit Provider under the immediately preceding clause (A), from (and
including) the date such amount is paid by the Series 2003-1 Letter of Credit
Provider under the Series 2003-1 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 2003-1
Letter of Credit in accordance with Section 2.1(e) or (f) each Lessee agrees to
pay to the Series 2003-1 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 2003-1 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 2003-1 Letter of
Credit Provider until payment in full of the Lessee Termination
Reimbursement Share by such Lessee to the Series 2003-1 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).
Each Lessee shall pay its respective Lessee Termination Reimbursement Share
of such LOC Termination Disbursement to the Series 2003-1 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).
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(c) Until the Series 2003-1 Letter of Credit Provider is reimbursed for
such LOC Termination Disbursement, the Series 2003-1 Letter of Credit Provider
may direct in writing the investment in Permitted Investments of the funds in
the Series 2003-1 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 2003-1 Cash
Collateral Account) from such investments from time to time from the Series
2003-1 Cash Collateral Account in accordance with the following clause (d) and
Sections 4.17(c) of the Series 2003-1 Supplement.
(d) Earnings from investments in the Series 2003-1 Cash Collateral Account
shall be paid to the Series 2003-1 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 2003-1 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.
(e) In the event that (i) the Series 2003-1 Cash Collateral Account
Surplus on any Payment Date, after giving effect to all withdrawals from the
Series 2003-1 Cash Collateral Account, is greater than zero and (ii) no
Enhancement Deficiency or Asset Amount Deficiency will result from such
withdrawal, DTAG shall instruct the Trustee in writing to withdraw from the
Series 2003-1 Cash Collateral Account an amount equal to the Series 2003-1 Cash
Collateral Account Surplus and pay the Series 2003-1 Letter of Credit Provider
to the extent the Series 2003-1 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.
(e) After a LOC Termination Disbursement has been made, any withdrawals
made by the Trustee from the Series 2003-1 Cash Collateral Account in respect of
Series 2003-1 Lease Payment Losses (as notified to RCFC and the Lessees by the
Trustee pursuant to Section 4.14 of the Series 2003-1 Supplement) shall be
reimbursed to the Series 2003-1 Cash Collateral Account in accordance with
Section 4.7 of the Series 2003-1 Supplement.
Section 2.4 Series 2003-1 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 2003-1 Letter of Credit Provider in connection with issuance of
the Series 2003-1 Letter of Credit including, without limitation, Sections 3.3
and 4.3 thereof, and DTG Operations 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 2003-1 Letter of Credit Provider.
Each of the Lessees and DTAG acknowledges that the Series 2003-1 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 2003-1 Letter of
Credit with respect to its use of the Series 2003-1 Letter of Credit. Neither
the Series 2003-1 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 2003-1 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 2003-1 Letter of Credit Provider against presentation of
documents which do not comply with the terms of the Series 2003-1 Letter of
9
Credit, including failure of any documents to bear any reference or adequate
reference to the Series 2003-1 Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Series 2003-1 Letter
of Credit; provided, however, that the Series 2003-1 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 2003-1 Letter of Credit Provider's willful misconduct or gross negligence
in determining whether documents presented under the Series 2003-1 Letter of
Credit comply with the terms of the Series 2003-1 Letter of Credit or (ii) the
Series 2003-1 Letter of Credit Provider's gross negligence in failing to make or
willful failure to make lawful payment under the Series 2003-1 Letter of Credit
after the presentation to the Series 2003-1 Letter of Credit Provider by the
Trustee of a certificate strictly complying with the terms and conditions of the
Series 2003-1 Letter of Credit. In furtherance and not in limitation of the
foregoing, the Series 2003-1 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 2003-1 Letter of Credit. Provided that
the Series 2003-1 Letter of Credit Provider is not then in default under the
Series 2003-1 Letter of Credit by reason of its having wrongfully failed to
honor a demand for payment previously made by the Trustee under the Series
2003-1 Letter of Credit, the Series 2003-1 Letter of Credit Provider and DTAG
(on behalf of itself and the Lessees) shall instruct the Trustee to surrender
the Series 2003-1 Letter of Credit to the Series 2003-1 Letter of Credit
Provider on the earliest of (a) the Series 2003-1 Letter of Credit Expiration
Date, (b) the date on which the Series 2003-1 Letter of Credit Provider honors
(i) a Certificate of Credit Demand presented under the Series 2003-1 Letter of
Credit in respect of a Credit Demand-Payout (as defined in the Series 2003-1
Letter of Credit) or (ii) a Certificate of Termination Demand presented under
the Series 2003-1 Letter of Credit, and (c) the date on which the Series 2003-1
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 2003-1
Letter of Credit.
Section 2.7 Conditions Precedent to Issuance or Increase. (a) The
following constitute conditions precedent to the obligation of the Series 2003-1
Letter of Credit Provider to issue the Series 2003-1 Letter of Credit (provided,
that such conditions will be deemed to be satisfied upon the issuance of the
Series 2003-1 Letter of Credit):
(i) On the date of issuance of the Series 2003-1 Letter of
Credit, each condition precedent to the issuance of the Series 2003-1
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 2003-1 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 2003-1
Letter of Credit.
10
(iii) On the date of issuance of the Series 2003-1 Letter of
Credit, and after giving effect to the transactions contemplated by this
Agreement and the Series 2003-1 Letter of Credit, there shall exist no
Potential Event of Default or Event of Default under this Agreement.
(iv) The Series 2003-1 Letter of Credit Provider shall have
received as of the date of issuance of the Series 2003-1 Letter of Credit a
copy of the confirmation letter from each of S&P, Xxxxx'x and Fitch to the
effect that the Series 2003-1 Notes shall have been given a rating of at
least "AAA" by S&P, "Aaa" by Xxxxx'x and "AAA" by Fitch which ratings shall
be in full force and effect.
(v) The Series 2003-1 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 2003-1 Closing Date, covering such
matters as the Series 2003-1 Letter of Credit Provider may reasonably
request, (B) copies of any representation letters or certificates (or
similar documents) provided to the Trustee, the Series 2003-1 Insurer, any
of the Lessees, DTAG or RCFC and (C) copies of all opinions delivered to
the Trustee or the Series 2003-1 Insurer, as an addressee or with reliance
letters.
(vi) The Series 2003-1 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
2003-1 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 2003-1
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.
(vii) The Series 2003-1 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 2003-1
Letter of Credit Provider.
(viii) On the date of issuance of the Series 2003-1 Letter of
Credit, immediately prior to, and after giving effect to, the issuance of
the Series 2003-1 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,
2002 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.
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(ix) All governmental and third party consents and approvals
necessary in connection with this Agreement and the Series 2003-1 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 2003-1 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
2003-1 Letter of Credit or the transactions contemplated hereby or thereby.
(x) The Series 2003-1 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 2003-1 Letter of Credit
Provider may reasonably request.
(xi) The following shall be true and correct (and the Series
2003-1 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 nd RCFC shall not have sold, assigned,
or otherwise encumbered any of the Vehicles purchased or otherwise
financed with the proceeds of the Series 2003-1 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.
(xii) RCFC and the Lessees shall each have granted to the Master
Collateral Agent, for the benefit of the Trustee on behalf of the Series
2003-1 Noteholders and the Series 2003-1 Insurer, a first priority security
interest in all Vehicles now or hereafter purchased or otherwise financed
with the proceeds of the Series 2003-1 Notes in accordance with the terms
of the Series 2003-1 Supplement.
(xiii) The Series 2003-1 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.
(xiv) The Series 2003-1 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.
12
(b) The following constitute conditions precedent to the obligation of the
Series 2003-1 Letter of Credit Provider to increase the Series 2003-1 Letter of
Credit Commitment (provided that such conditions will be deemed to be satisfied
upon such increase with respect to the Series 2003-1 Letter of Credit):
(i) On the date of increase, each condition precedent to the
issuance of the Series 2003-1 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 increase with respect to the Series 2003-1
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 increase with respect
to the Series 2003-1 Letter of Credit.
(iii) On the date of increase with respect to the Series 2003-1
Letter of Credit, and after giving effect to the transactions contemplated
by this Agreement and the Series 2003-1 Letter of Credit, there shall exist
no Potential Event of Default or Event of Default under this Agreement.
(iv) The Series 2003-1 Letter of Credit Provider shall have
received as of the date of issuance of the Series 2003-1 Letter of Credit a
copy of the confirmation letter from each of S&P, Xxxxx'x and Fitch to the
effect that the Series 2003-1 Notes shall have been given a rating of at
least "AAA" by S&P, "Aaa" by Xxxxx'x and "AAA" by Fitch which ratings shall
be in full force and effect.
(v) On the date of increase with respect to the Series 2003-1
Letter of Credit, immediately prior to, and after giving effect to, the
increase with respect to the Series 2003-1 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, 2002, 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.
(vi) All governmental and third-party consents and approvals
necessary in connection with this Agreement and the Series 2003-1 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 2003-1 Credit Provider); and
no law or regulation shall be applicable that restrains, prevents or
imposes materially adverse conditions upon this Agreement or the Series
2003-1 Letter of Credit or the transactions contemplated hereby or thereby.
13
(vii) The Series 2003-1 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 2003-1 Letter of Credit
Provider may reasonably request.
(viii) The following shall be true and correct (and the Series
2003-1 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 2003-1 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.
(ix) The Master Collateral Agent, for the benefit of the Series
2003-1 Noteholders and the Series 2003-1 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 2003-1 Notes in accordance with the terms of the
Series 2003-1 Supplement.
(x) The Series 2003-1 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.
(xi) The Series 2003-1 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 2003-1 Letter of Credit to reimburse the Series 2003-1
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:
14
(a) any lack of validity or enforceability of this Agreement, the
Series 2003-1 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 2003-1 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 2003-1 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
2003-1 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
2003-1 Letter of Credit proving to be insufficient in any respect;
(f) payment by the Series 2003-1 Letter of Credit Provider under the
Series 2003-1 Letter of Credit against presentation of a draft or
certificate which does not comply with the terms of the Series 2003-1
Letter of Credit;
(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 2003-1 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;
15
(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;
(h) DTAG shall default in the performance or observance of any
agreement or covenant contained in clause (i) of Section 2.12 or clause (b)
of Section 3.2;
(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 2003-1 Letter of Credit Provider's
reasonable satisfaction within a period of 30 days from the date on which
the Series 2003-1 Letter of Credit Provider has given written notice
thereof to such Lessee or DTAG;
(j) any Lessee or DTAG shall default in the performance or observance
of any agreement or covenant contained in any Related Document (other than
this Agreement, the Master Lease or as otherwise provided in this Section
2.10), and such default shall not be cured to the Series 2003-1 Letter of
Credit Provider's reasonable satisfaction within a period of 30 days from
the date on which the Series 2003-1 Letter of Credit Provider has given
written notice thereof to such Lessee or DTAG (provided, that such 30-day
cure period shall be a period consisting of 15 days in the case where such
default relates to the failure of DTAG, as Master Servicer, to perform or
observe any agreement or covenant contained in the Master Collateral Agency
Agreement); 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;
16
then, the Series 2003-1 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 2003-1 Letter of Credit to
have been paid or disbursed (notwithstanding that such amount may not in fact
have been so paid or disbursed and that such amounts remain available to be
drawn under the Series 2003-1 Letter of Credit), and DTAG and the Lessees shall
be immediately obligated to reimburse the Series 2003-1 Letter of Credit
Provider the amount deemed to have been so paid or disbursed by the Series
2003-1 Letter of Credit Provider as if a demand had been made by the Series
2003-1 Letter of Credit Provider to the Lessees under Section 2.3 hereof and any
amounts so received by the Series 2003-1 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 2003-1 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.
"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 each of the Lessees
hereunder to the Series 2003-1 Letter of Credit Provider, each of 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 2003-1 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.
17
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 2003-1
Letter of Credit and on the date of each increase (if any) of the Series 2003-1
Letter of Credit Commitment) to the Series 2003-1 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 2003-1 Letter of Credit and on
the date of each increase (if any) of the Series 2003-1 Letter of Credit
Commitment), to the Series 2003-1 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.
(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.
18
(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 and the Amendment Agreement referred to therein, including,
without limitation, those set forth in Sections 7.1 through 7.18 of the
Credit Agreement, 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 2003-1 Letter of Credit has not expired or any amount is owing to the
Series 2003-1 Letter of Credit Provider hereunder, each of the Lessees and DTAG
agrees that, unless at any time the Series 2003-1 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;
(b) Events of Default. Furnish, or cause to be furnished to the
Series 2003-1 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 2003-1 Letter of Credit Provider, promptly upon the delivery to RCFC
by DTAG, 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
2003-1 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 2003-1
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 2003-1 Letter
of Credit Provider may from time to time reasonably request in order to
protect the interests of the Series 2003-1 Letter of Credit Provider under
or as contemplated by this Agreement or any other Related Document;
19
(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 2003-1 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 LLP dated March 25, 2003 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 LLP addressing the issue of
substantive consolidation as it may relate to DTAG and RCFC; and
(h) Verification of Titles. Upon the request of the Series 2003-1
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 2003-1
Letter of Credit Provider.
Section 3.3 Negative Covenants of the Lessees and DTAG. So long as the
Series 2003-1 Letter of Credit has not expired or any amount is owing to the
Series 2003-1 Letter of Credit Provider hereunder, each of the Lessees and DTAG
agrees that, unless at any time the Series 2003-1 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.
20
(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.
(d) Additional Lessees. Permit any Person to become a lessee under
the Master Lease unless prior to becoming a lessee thereunder such Person
has become a Lessee hereunder in accordance with the terms hereof.
ARTICLE IV
MISCELLANEOUS
Section 4.1 Payments.(a) Unless otherwise specified herein, all payments
to the Series 2003-1 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 2003-1 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 2003-1 Letter of Credit Provider as the Series
2003-1 Letter of Credit Provider may direct.
(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 2003-1 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 2003-1 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.
21
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 2003-1
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
2003-1 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 2003-1 Letter of Credit Provider and, in their capacities as
such, officers, directors, shareholders, affiliates, controlling persons,
employees, agents and servants of the Series 2003-1 Letter of Credit Provider,
from and against any and all claims, damages, losses, liabilities, costs or
expenses whatsoever which the Series 2003-1 Letter of Credit Provider may incur
or which may be claimed against the Series 2003-1 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 2003-1 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
2003-1 Letter of Credit Provider or a breach by the Series 2003-1 Letter of
Credit Provider (or its agents or employees or any other Person under its
control) of its obligations under the Series 2003-1 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 2003-1
Letter of Credit Provider, in connection with prosecuting or defending any such
claims, for reasonable attorneys' fees and expenses.
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.
22
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
If to the Series 2003-1 Letter of Credit Provider:
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
Telecopier: (000) 000-0000
with a copy to:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to DTG Operations:
DTG Operations, Inc.
(formerly known as
Dollar Rent A Car Systems, Inc.)
0000 Xxxx 00xx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
23
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.
If to the Trustee:
Deutsche Bank Trust Company Americas
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Division
Telecopier: (000) 000-0000/2332
If to the Series 2003-1 Insurer:
MBIA Insurance Corporation
000 Xxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Insured Portfolio Management - Structured Finance
(IPM-SF) (Rental Car Finance Corp Series 2003-1
Rental Car Asset Backed Notes)
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 2003-1 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
24
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 2003-1 LETTER OF CREDIT PROVIDER TO BRING PROCEEDINGS AGAINST ANY LESSEE,
DTAG OR RCFC IN THE COURTS OF ANY OTHER JURISDICTION.
THE SERIES 2003-1 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 2003-1 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
2003-1 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 2003-1 Letter of Credit Provider in exercising any right, power or
privilege hereunder or under the Series 2003-1 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 2003-1 Letter of Credit.
25
Section 4.9 Successors and Assigns. This Agreement shall be binding upon
the Series 2003-1 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 2003-1
Letter of Credit Provider; and provided further, however, that the Series 2003-1
Letter of Credit Provider may at any time (i) assign all or a portion of its
obligations under the Series 2003-1 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 2003-1 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 2003-1 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 2003-1 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
2003-1 Letter of Credit Provider shall be entitled to receive any increased
costs or indemnities payable hereunder incurred by the Series 2003-1 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 2003-1 Letter of Credit
Provider hereby acknowledges and agrees that any such disposition will not alter
or affect the Series 2003-1 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 2003-1 Letter of Credit Provider
hereunder and under the Series 2003-1 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 2003-1
Letter of Credit Provider such additional assignments, agreements, powers and
instruments as are reasonably required by the Series 2003-1 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 2003-1 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 2003-1
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 2003-1 Letter of Credit.
26
Section 4.13 Obligation. Each of the Series 2003-1 Letter of Credit
Provider and each of the Lessees understands and agrees that the Series 2003-1
Letter of Credit is irrevocable and the obligations of the Series 2003-1 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 2003-1 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 2003-1 Letter of Credit Provider as a defense to payment under the Series
2003-1 Letter of Credit (except for the failure of any documents presented
thereunder to comply with the terms of the Series 2003-1 Letter of Credit) or as
the basis of a right of set off by the Series 2003-1 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 2003-1 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 2003-1 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 2003-1 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 2003-1
Letter of Credit Provider from a source other than DTAG, the Lessees or RCFC.
Section 4.16 Additional Series 2003-1 Letter of Credit Providers. The
Series 2003-1 Letter of Credit Provider acknowledges and agrees that the Lessees
may obtain Series 2003-1 Letter of Credit Provider commitments from additional
Series 2003-1 Letter of Credit Providers from time to time, provided such
commitments are, unless the Series 2003-1 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.
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 2003-1 Letter of Credit Provider and the Trustee:
27
(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 2003-1 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 2003-1 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 2003-1 Letter of Credit Provider as Enhancement
Provider and Third-Party Beneficiary. The Lessees, RCFC and DTAG each hereby
acknowledges and agrees that the Series 2003-1 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 2003-1 Supplement, a third-party beneficiary of the
provisions set forth in Article 11 of the Base Indenture, Section 8.7 of the
Series 2003-1 Supplement and Section 22 of the Master Lease.
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
2003-1 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 2003-1 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
28
(ii) prior to the date which is one year and one day after the
payment in full of any 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]
29
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 2003-1 Letter of Credit Provider
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
RENTAL CAR FINANCE CORP.
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Vice President and Treasurer
LESSEE:
DTG OPERATIONS, INC.
By:_____________________________________
Name: Xxxxxx X. Xxxx
Title: Treasurer
30
EXHIBIT A
TO ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT
IRREVOCABLE LETTER OF CREDIT
No. __________
Xxxxx 00, 0000
Xxxxxxxx Bank Trust Company Americas,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000/2332
Attention: Corporate Trust Division
Dear Sir or Madam:
The undersigned ("Credit Suisse First Boston" or the "Series 2003-1 Letter
of Credit Provider") hereby establishes, at the request and for the account of
Dollar Thrifty Automotive Group, Inc. ("DTAG"), DTG Operations, Inc. ("DTG
Operations") (formerly known as Dollar Rent A Car Systems, Inc.) and each of the
parties identified as a Lessee (collectively, the "Lessees") pursuant to 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 2003-1 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 2003-1 Supplement, dated as of March 25,
2003 (as the same may be amended, supplemented or otherwise modified from time
to time, the "Series 2003-1 Supplement"), between RCFC, as the issuer, and
Deutsche Bank Trust Company Americas, 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 2003-1 Letter of
Credit"), in the aggregate maximum amount of TEN MILLION THREE HUNDRED
SEVENTY-FIVE THOUSAND DOLLARS ($10,375,000) (such amount, as the same may be
reduced, increased and reinstated from time to time as provided herein, being
the "Series 2003-1 Letter of Credit Amount"), effective immediately and expiring
at 4:00 p.m. (New York time) at our New York office at Xxx Xxxxxxx Xxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, Attention: Trade Services Department,
Facsimile No.: (000) 000-0000 (such office or any other office which may be
designated by the Series 2003-1 Letter of Credit Provider by written notice
delivered to you, being the "Series 2003-1 Letter of Credit Provider's Office")
on August 1, 2005 (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.
A-1
The Series 2003-1 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 2003-1 Letter of
Credit Provider at the Series 2003-1 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" and, in the case of any such
certificate in which the Trustee certifies that such Credit Demand is being
presented pursuant to Section 4.10(f) of the Series 2003-1 Supplement, such
Credit Demand is referred to hereinafter as a "Credit Demand-Payout"), an amount
equal to the face amount of each such draft but in the aggregate amount not
exceeding the Series 2003-1 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 2003-1 Letter of Credit Provider at the Series 2003-1 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 2003-1 Letter of Credit Amount as in effect on such Business Day,
provided, that only one Credit Demand-Payout or only one Termination Demand may
be made hereunder. Any Credit Demand or Termination Demand may be delivered by
facsimile transmission to the Series 2003-1 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 2003-1 Letter of Credit Provider honoring any Credit Demand
(other than a Credit Demand-Payout) presented hereunder, the Series 2003-1
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 2003-1 Letter of Credit Amount shall automatically be reduced to zero and
this Series 2003-1 Letter of Credit shall be terminated upon the Series 2003-1
Letter of Credit Provider honoring a Credit Demand-Payout or a Termination
Demand presented to it hereunder.
The Series 2003-1 Letter of Credit Amount shall be automatically reinstated
with respect to reimbursement of any Credit Demand (other than a Credit
Demand-Payout) when and to the extent, but only when and to the extent, that (i)
the Series 2003-1 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 (other than a Credit Demand-Payout)
and (ii) the Series 2003-1 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, DTG or any other Lessee has occurred and is continuing; provided, however,
that the Series 2003-1 Letter of Credit Amount shall, in no event, be reinstated
to an amount greater than the Series 2003-1 Letter of Credit Amount as in effect
immediately prior to such Credit Demand.
A-2
The Series 2003-1 Letter of Credit Amount shall be automatically reduced in
accordance with the terms of a written request from the Trustee to the Series
2003-1 Letter of Credit Provider in substantially the form of Annex D attached
hereto that is acknowledged and agreed to in writing by the Series 2003-1 Letter
of Credit Provider. The Series 2003-1 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 2003-1 Letter of
Credit Provider in substantially the form of Annex E attached hereto certifying
that the Series 2003-1 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 2003-1 Letter of Credit
Provider at the Series 2003-1 Letter of Credit Provider's Office. If the Series
2003-1 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 2003-1 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 2003-1
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 2003-1 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 2003-1 Letter of Credit, after 1:00 p.m. (New York
City time) on a Business Day prior to the termination hereof, the Series 2003-1
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 2003-1 Letter of Credit Provider,
payment under this Series 2003-1 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.
Making a non-complying drawing, withdrawing, or failing to make any drawing
does not waive or otherwise prejudice the right to make another timely drawing
or a timely redrawing; provided that, for the avoidance of doubt, no drawing (or
redrawing) may be made following the Scheduled Letter of Credit Expiration Date.
Upon the earliest of (a) the date on which the Series 2003-1 Letter of
Credit Provider honors (i) a Credit Demand-Payout or (ii) a Termination Demand,
(b) the date on which the Series 2003-1 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 2003-1 Letter of Credit and (c)
the Scheduled Letter of Credit Expiration Date, this Series 2003-1 Letter of
Credit shall automatically terminate and you shall surrender this Series 2003-1
Letter of Credit to the undersigned Series 2003-1 Letter of Credit Provider on
such day.
This Series 2003-1 Letter of Credit is transferable only in its entirety to
any transferee(s) who you certify to the Series 2003-1 Letter of Credit Provider
has succeeded you, as Trustee under the Series 2003-1 Supplement, and may be
successively transferred only in its entirety. Transfer of this Series 2003-1
Letter of Credit to such transferee shall be effected by the presentation to the
Series 2003-1 Letter of Credit Provider of this Series 2003-1 Letter of Credit
accompanied by a certificate in substantially the form of Annex F attached
hereto. Upon such presentation the Series 2003-1 Letter of Credit Provider shall
forthwith issue a new irrevocable letter of credit in favor of the transferee
with provisions therein identical with this Series 2003-1 Letter of Credit.
A-3
This Series 2003-1 Letter of Credit sets forth in full the undertaking of
the Series 2003-1 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 2003-1 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; provided that (i)
notwithstanding any provisions of Article 17 of the Uniform Customs which
contains provisions to the contrary, if this Series 2003-1 Letter of Credit
expires during an interruption of business (as described in such Article 17),
the Series 2003-1 Letter of Credit Provider agrees to effect payment under this
Series 2003-1 Letter of Credit if a drawing which conforms to the terms and
conditions of this Series 2003-1 Letter of Credit is made (A) within thirty (30)
days after the resumption of business and (B) prior to the Scheduled Letter of
Credit Expiration Date and (ii) Article 41 of the Uniform Customs shall not
apply to this Series 2003-1 Letter of Credit.
Communications with respect to this Series 2003-1 Letter of Credit shall be
in writing and shall be addressed to the Series 2003-1 Letter of Credit Provider
at the Series 2003-1 Letter of Credit Provider's Office, specifically referring
to the number of this Series 2003-1 Letter of Credit.
Very truly yours,
CREDIT SUISSE FIRST BOSTON, as Series
2003-1 Letter of Credit Provider
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
A-4
ANNEX A
-------
CERTIFICATE OF CREDIT DEMAND
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
Certificate of Credit Demand under the Irrevocable Letter of Credit No.
____________ (the "Series 2003-1 Letter of Credit"; the terms defined therein
and not otherwise defined herein being used herein as therein defined), dated as
of March 25, 2003, issued by Credit Suisse First Boston, New York Branch, as the
Series 2003-1 Letter of Credit Provider, in favor of Deutsche Bank Trust Company
Americas, as the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby certifies
to the Series 2003-1 Letter of Credit Provider as follows:
1. Deutsche Bank Trust Company Americas is the Trustee under the Series
2003-1 Supplement referred to in the Series 2003-1 Letter of Credit.
2. As of the date of this certificate, there exist [Series 2003-1 Lease
Payment Losses (as such term is defined in the Series 2003-1 Supplement)
allocated to making a drawing under the Series 2003-1 Letter of Credit pursuant
to Section 4.7(a)(iii)(A), (b)(iii)(A) or (c)(iii)(A) of the Series 2003-1
Supplement]1 [unpaid Series 2003-1 Insurer Reimbursement Amounts, Series 2003-1
Insurer Costs or Series 2003-1 Insurer Payment (as each such term is defined in
the Series 2003-1 Supplement) for which the Series 2003-1 Insurer may request
that the Trustee make a drawing under the Series 2003-1 Letter of Credit
pursuant to Section 4.10(f) of the Series 2003-1 Supplement]2 [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 2003-1 Supplement has
not been deposited into the Series 2003-1 Collection Account (as defined in the
Series 2003-1 Supplement referred to in the Series 2003-1 Letter of Credit)]3 in
the amount of $___________.
3. The Trustee is making a drawing under the Series 2003-1 Letter of
Credit [as required by Section 4.14(b) of the Series 2003-1 Supplement for an
amount equal to $__________, which amount is equal to the lesser of (i) the
Series 2003-1 Lease Payment Losses (as defined in the Series 2003-1 Supplement)
allocated to making a drawing under the Series 2003-1 Letter of Credit pursuant
--------
1 Include this text if Credit Demand is pursuant to Section 4.14(b) of the
Series 2003-1 Supplement.
2 Include this text if Credit Demand is pursuant to Section 4.10(f) of the
Series 2003-1 Supplement.
3 Include this text if Credit Demand is pursuant to Section 4.15(b) of the
Series 2003-1 Supplement.
A-A-1
to Sections 4.7(a)(iii)(A), 4.7(b)(iii)(A) or 4.7(c)(iii)(A), as applicable, of
the Series 2003-1 Supplement, and (ii) the Available Draw Amount (as defined in
the Series 2003-1 Supplement) on the date of this certificate]4 [as required by
Section 4.10(f) of the Series 2003-1 Supplement for an amount equal to
$________, which amount is equal to the least of (i) the sum, without
duplication, of all unpaid Series 2003-1 Insurer Reimbursement Amounts, Series
2003-1 Insurer Costs and Series 2003-1 Insurer Payment (as each such term is
defined in the Series 2003-1 Supplement), (ii) the Series 2003-1 Letter of
Credit Amount on the date of this certificate and (iii) the aggregate amount of
any prior allocations of (A) Lease Payment Losses (as such term is defined in
the Series 2003-1 Supplement) to making a drawing under the Series 2003-1 Letter
of Credit pursuant to Section 4.7 of the Series 2003-1 Supplement that have not
been drawn under the Series 2003-1 Letter of Credit pursuant to Section 4.14(b)
of the Series 2003-1 Supplement and (B) Losses (as such term is defined in the
Series 2003-1 Supplement) to making a drawing under the Demand Note (as such
term is defined in the Series 2003-1 Supplement) pursuant to Section 4.7 of the
Series 2003-1 Supplement that would otherwise have been funded from a drawing
under the Series 2003-1 Letter of Credit pursuant to Section 4.15(b) of the
Series 2003-1 Supplement but have not in fact been fully funded under Section
4.15(b) of the Series 2003-1 Supplement, in each case, as a result of the
limitations imposed on the amount of any such draw under the Series 2003-1
Letter of Credit by the Available Draw Amount or the Permitted Principal Draw
Amount (as each such term is defined in the Series 2003-1 Supplement) under such
Section 4.14(b) or 4.15(b), as the case may be, of the Series 2003-1
Supplement]5 [as required by Section 4.15(b) of the Series 2003-1 Supplement for
an amount equal to $________, which amount is equal to the lesser of (i) the sum
of, without duplication, (A) (1) that portion of the amount demanded under the
Demand Note (as defined in the Series 2003-1 Supplement) as specified in Section
4.15(a) of the Series 2003-1 Supplement that has not been deposited into the
Series 2003-1 Collection Account (as defined in the Series 2003-1 Supplement) as
of 10:00 a.m. (New York City time) on the date of this certificate, in the case
where this certificate is being provided pursuant to Section 4.15(b)(x) of the
Series 2003-1 Supplement or (2) the amount of the stayed demand for payment in
the case where this certificate is being provided pursuant to Section 4.15(b)(y)
of the Series 2003-1 Supplement and (B) the amount avoided and recovered in the
case where this certificate is being provided pursuant to Section 4.15(b)(z) of
the Series 2003-1 Supplement and (ii) the Available Draw Amount (as defined in
the Series 2003-1 Supplement)]6 (the "Series 2003-1 LOC Credit Disbursement").
The Series 2003-1 LOC Credit Disbursement does not exceed the amount that is
available to be drawn by the Trustee under the Series 2003-1 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 Deutsche Bank Trust Company Americas, as
Trustee].
5. The Trustee acknowledges that, pursuant to the terms of the Series
2003-1 Letter of Credit, upon the Series 2003-1 Letter of Credit Provider
honoring the draft accompanying this certificate, the Series 2003-1 Letter of
Credit Amount shall be automatically decreased by an amount equal to such draft.
--------
4 Include this text if Credit Demand is pursuant to Section 4.14(b) of the
Series 2003-1 Supplement.
5 Include this text if Credit Demand is pursuant to Section 4.10(f) of the
Series 2003-1 Supplement.
6 Include this text if Credit Demand is pursuant to Section 4.15(b) of the
Series 2003-1 Supplement.
A-A-2
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of___________, _____.
Deutsche Bank Trust Company Americas,
as Trustee
By:_____________________________________
Name:
Title:
A-A-3
ANNEX B
-------
CERTIFICATE OF TERMINATION DEMAND
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
Certificate of Termination Demand under the Irrevocable Letter of Credit
No. ___________ (the "Series 2003-1 Letter of Credit"; the terms defined therein
and not otherwise defined herein being used herein as therein defined), dated as
of March 25, 2003, issued by Credit Suisse First Boston, as the Series 2003-1
Letter of Credit Provider, in favor of Deutsche Bank Trust Company Americas, as
the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby certifies
to the Series 2003-1 Letter of Credit Provider as follows:
1. Deutsche Bank Trust Company Americas is the Trustee under the Series
2003-1 Supplement referred to in the Series 2003-1 Letter of Credit.
2. Pursuant to Section 4.16 of the Series 2003-1 Supplement, the
Trustee, in its capacity as such, is making a drawing in an amount (the
"Termination Demand Amount") equal to the lesser of (A) the sum of (x) the
Series 2003-1 Invested Amount (as such term is defined in the Series 2003-1
Supplement) on date of this certificate and (y) the aggregate amount of any
prior allocations (not including any allocations with respect to Losses or Lease
Payment Losses (as each such term is defined in the Series 2003-1 Supplement) to
the extent the same has been covered by payments in respect of principal of the
Series 2003-1 Notes under the Series 2003-1 Policy (as such term is defined in
the Series 2003-1 Supplement)) of (A) Lease Payment Losses (as such term is
defined in the Series 2003-1 Supplement) to making a drawing under the Series
2003-1 Letter of Credit pursuant to Section 4.7 of the Series 2003-1 Supplement
that have not been drawn hereunder pursuant to Section 4.14(b) of the Series
2003-1 Supplement and (B) Losses (as such term is defined in the Series 2003-1
Supplement) to making a drawing under the Demand Note (as such term is defined
in the Series 2003-1 Supplement) pursuant to Section 4.7 of the Series 2003-1
Supplement that would otherwise have been funded from a drawing under the Series
2003-1 Letter of Credit pursuant to Section 4.15(b) of the Series 2003-1
Supplement but have not in fact been fully funded under Section 4.15(b) of the
Series 2003-1 Supplement, in each case, as a result of the limitations imposed
on the amount of any such draw under the Series 2003-1 Letter of Credit by the
Available Draw Amount or the Permitted Principal Draw Amount (as each such term
is defined in the Series 2003-1 Supplement) under such Section 4.14(b) or
4.15(b), as the case may be, of the Series 2003-1 Supplement and (B) the Series
2003-1 Letter of Credit Amount as in effect on such date.
3. The amount of the draft accompanying this certificate is $________
which is equal to the Termination Demand Amount. The Termination Demand Amount
does not exceed the amount that is available to be drawn by the Trustee under
the Series 2003-1 Letter of Credit on the date of this certificate.
A-B-1
4. The amount of the draft shall be delivered pursuant to the following
instructions:
[insert payment instructions (including payment date)
for wire to Deutsche Bank Trust Company Americas, as
Trustee]
5. The Trustee acknowledges that, pursuant to the terms of the Series
2003-1 Letter of Credit, upon the Series 2003-1 Letter of Credit Provider
honoring the draft accompanying this certificate, the Series 2003-1 Letter of
Credit Amount shall automatically be reduced to zero and the Series 2003-1
Letter of Credit shall terminate and be immediately returned to the Series
2003-1 Letter of Credit Provider.
A-B-2
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of ___________, _____.
Deutsche Bank Trust Company Americas,
as Trustee
By:_____________________________________
Name:
Title:
A-B-3
ANNEX C
-------
CERTIFICATE OF REINSTATEMENT OF SERIES 2003-1 LETTER OF CREDIT AMOUNT
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
Certificate of Reinstatement of Series 2003-1 Letter of Credit Amount under
the Irrevocable Letter of Credit No. ____________ (the "Series 2003-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 25, 2003, issued by Credit Suisse
First Boston, as the Series 2003-1 Letter of Credit Provider, in favor of
Deutsche Bank Trust Company Americas, as the Trustee.
The undersigned, a duly authorized officer of Dollar Thrifty Automotive
Group, Inc., hereby certifies to the Series 2003-1 Letter of Credit Provider as
follows:
1. As of the date of this certificate, the Series 2003-1 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"), DTG Operations, Inc.
("DTG Operations") (formerly known as Dollar Rent A Car Systems, Inc.) or any
other Lessee has occurred and is continuing. "Event of Bankruptcy", with respect
to DTAG, DTG Operations 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).
A-C-1
3. Accordingly, pursuant to the terms and conditions of the Series 2003-1
Letter of Credit, the Series 2003-1 Letter of Credit Amount is hereby reinstated
in the amount of $[ ] so that the Series 2003-1 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:
A-C-2
ANNEX D
-------
NOTICE OF REDUCTION OF SERIES 2003-1 LETTER OF CREDIT AMOUNT
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
Notice of Reduction of Series 2003-1 Letter of Credit Amount under the
Irrevocable Letter of Credit No. _____________ (the "Series 2003-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 25, 2003, issued by Credit Suisse
First Boston, as the Series 2003-1 Letter of Credit Provider, in favor of
Deutsche Bank Trust Company Americas, as the Trustee.
The undersigned, a duly authorized officer of the Trustee, hereby notifies
the Series 2003-1 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 2003-1
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 2003-1 Letter of
Credit Provider acknowledges and agrees that the aggregate maximum amount of the
Series 2003-1 Letter of Credit is reduced to $____________ from $____________
pursuant to and in accordance with the terms and provisions of the Series 2003-1
Letter of Credit and, that the reference in the first paragraph of the Series
2003-1 Letter of Credit to "_____________________________ ($____________ )" is
amended to read "_____________________________ ($____________ )".
3. This request, upon your acknowledgment and agreement set forth below,
shall constitute an amendment to the Series 2003-1 Letter of Credit and shall
form an integral part thereof and confirms that all other terms of the Series
2003-1 Letter of Credit remain unchanged.
4. The Series 2003-1 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.
A-D-1
IN WITNESS WHEREOF, the Trustee has executed and delivered this certificate
on this ____ day of ___________, _____.
Deutsche Bank Trust Company Americas,
as Trustee
By:_____________________________________
Name:
Title:
ACKNOWLEDGED AND AGREED:
CREDIT SUISSE FIRST BOSTON
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
A-D-2
ANNEX E
-------
NOTICE OF INCREASE OF SERIES 2003-1 LETTER OF CREDIT AMOUNT
Deutsche Bank Trust Company Americas,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000/2332
Attention: Corporate Trust Division
Notice of Increase of Series 2003-1 Letter of Credit Amount under the
Irrevocable Letter of Credit No. ______________ (the "Series 2003-1 Letter of
Credit"; the terms defined therein and not otherwise defined herein being used
herein as therein defined), dated as of March 25, 2003, issued by Credit Suisse
First Boston, as the Series 2003-1 Letter of Credit Provider, in favor of
Deutsche Bank Trust Company Americas, as the Trustee.
The undersigned, duly authorized officers of the Series 2003-1 Letter of
Credit Provider, hereby notify the Trustee as follows:
1. The Series 2003-1 Letter of Credit Provider has received a request
from DTG Operations, Inc. (formerly known as Dollar Rent A Car Systems, Inc.) to
increase the Series 2003-1 Letter of Credit Amount by $_______, and the Series
2003-1 Letter of Credit Provider is permitted to increase the Series 2003-1
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 2003-1 Letter of Credit is increased to $____________ from
$____________ pursuant to and in accordance with the terms and provisions of the
Series 2003-1 Letter of Credit and that the reference in the first paragraph of
the Series 2003-1 Letter of Credit to "_____________________________
($____________ )" is amended to read "________________ ($_________)".
3. This notice, upon your acknowledgment set forth below, shall
constitute an amendment to the Series 2003-1 Letter of Credit and shall form an
integral part thereof and confirms that all other terms of the Series 2003-1
Letter of Credit remain unchanged.
4. The Trustee is requested to execute and deliver its acknowledgment and
acceptance to this notice to the Series 2003-1 Letter of Credit Provider, in the
manner provided in Section 4.4 of the Enhancement Letter of Credit Agreement.
A-E-1
IN WITNESS WHEREOF, the Series 2003-1 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:
Deutsche Bank Trust Company
Americas, as Trustee
By:_____________________________________
Name:
Title:
A-E-2
ANNEX F
-------
INSTRUCTION TO TRANSFER
______________ _____
Credit Suisse First Boston
One Madison Avenue, 2nd Floor
New York, New York 10010-3629
Attention: Trade Services Department
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 2003-1 Letter of Credit") issued by the Series
2003-1 Letter of Credit Provider named therein in favor of the undersigned. The
transferee has succeeded the undersigned as Trustee under the Series 2003-1
Supplement (as defined in the Series 2003-1 Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the Series 2003-1
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 2003-1 Letter of Credit
pertaining to transfers.
The Series 2003-1 Letter of Credit is returned herewith and in accordance
therewith we ask that this transfer be effective and that the Series 2003-1
Letter of Credit Provider issue a new irrevocable letter of credit in favor of
the transferee with provisions identical with the Series 2003-1 Letter of
Credit.
A-F-1
Very truly yours,
Deutsche Bank Trust Company Americas,
as Trustee
By:_____________________________________
Name:
Title:
A-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 2003-1 Letter of Credit Provider (in such capacity, the "Series
2003-1 Letter of Credit Provider") and Deutsche Bank Trust Company Americas, as
the Trustee (in such capacity, the "Trustee"), pursuant to that certain
Enhancement Letter of Credit Application and Agreement, dated as of March 25,
2003 (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 2003-1 Letter of Credit
Provider, DTG Operations, Inc. (formerly known as Dollar Rent A Car Systems,
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 2003-1 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.
B-1
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 2003-1 LETTER OF CREDIT AMOUNT
-------------------------------------
Deutsche Bank Trust Company Americas,
as Trustee
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier: (000) 000-0000/2332
Attention: Corporate Trust Division
Request for Reduction of Series 2003-1 Letter of Credit Amount under the
Enhancement Letter of Credit Application and Agreement, dated as of March 25,
2003 (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 DTG
Operations, Inc. (formerly known as Dollar Rent A Car Systems, 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 2003-1
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
Deutsche Bank Trust Company Americas in its capacity as the Trustee under the
Series 2003-1 Supplement referred to in the Enhancement Letter of Credit
Application and Agreement (the "Trustee") as follows:
1. The Series 2003-1 Letter of Credit Amount as of the date of this
request prior to giving effect to the reduction of the Series 2003-1 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 2003-1 Letter of Credit Provider a Notice of Reduction of Series
2003-1 Letter of Credit Amount substantially in the form of Annex D to the
Series 2003-1 Letter of Credit (the "Notice of Reduction") for a reduction in
the Series 2003-1 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 2003-1 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.
C-1
3. To the best of the knowledge of the undersigned, the Series 2003-1
Letter of Credit Amount will be $_____________, (ii) the Series 2003-1 Available
Subordinated Amount will be $_____________, (iii) the Cash Liquidity Amount will
be $___________ 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 2003-1 Letter of Credit Amount after giving effect to the
reduction requested in paragraph 2 of this request will not cause (i) the Series
2003-1 Letter of Credit Amount to be less than the Minimum Series 2003-1 Letter
of Credit Amount, (ii) the Series 2003-1 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 2003-1 Letter of Credit
Provider and the Trustee that, as of the date on which the Series 2003-1 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 2003-1 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 2003-1 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 2003-1 Letter of Credit Amount
shall be deemed canceled upon receipt by each of the Series 2003-1 Letter of
Credit Provider and the Trustee of such notice in writing.
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:_____________________________________
Name:
Title:
C-2
TABLE OF CONTENTS
Page
RECITALS.......................................................................1
ARTICLE I
DEFINITIONS
Section 1.1 Definitions................................................3
ARTICLE II
ISSUANCE OF SERIES 2003-1 LETTER OF CREDIT;
REIMBURSEMENT OBLIGATION
Section 2.1 Issuance of Series 2003-1 Letter of Credit; Substitute
Series 2003-1 Letter of Credit..........................3
Section 2.2 [Reserved.]................................................7
Section 2.3 Reimbursement..............................................7
Section 2.4 Series 2003-1 Letter of Credit Fees and Expenses...........9
Section 2.5 No Liability of Series 2003-1 Letter of Credit Provider....9
Section 2.6 Surrender of Series 2003-1 Letter of Credit...............10
Section 2.7 Conditions Precedent to Issuance or Increase..............10
Section 2.8 Certain Eurocurrency Rate and Other Provisions under
the Credit Agreement...................................14
Section 2.9 Obligation Absolute.......................................14
Section 2.10 Events of Default.........................................15
Section 2.11 Grant of Security Interest................................17
Section 2.12 Guarantee.................................................17
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................20
ARTICLE IV
MISCELLANEOUS
Section 4.1 Payments..................................................21
Section 4.2 Expenses..................................................21
Section 4.3 Indemnity.................................................22
Section 4.4 Notices...................................................22
Section 4.5 Amendments; Governing Law; Consent to Jurisdiction;
Waiver of Jury Trial...................................24
Section 4.6 Waivers, etc..............................................25
-i-
Section 4.7 Severability..............................................25
Section 4.8 Term......................................................25
Section 4.9 Successors and Assigns....................................26
Section 4.10 Counterparts..............................................26
Section 4.11 Further Assurances........................................26
Section 4.12 Survival of Representations and Warranties................26
Section 4.13 Obligation................................................27
Section 4.14 Headings..................................................27
Section 4.15 Confidentiality...........................................27
Section 4.16 Additional Series 2003-1 Letter of Credit Providers.......27
Section 4.17 Additional Subsidiary Lessees.............................27
Section 4.18 Enhancement Letter of Credit Application and Agreement....28
Section 4.19 Series 2003-1 Letter of Credit Provider as Enhancement
Provider and Third-Party Beneficiary...................28
Section 4.20 No Recourse; No Petition..................................28
Exhibit A -- Form of Series 2003-1 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 2003-1
Letter of Credit Amount
-ii-
