Exhibit 4.57
------------
AMENDMENT NO. 2
TO NOTE PURCHASE AGREEMENT
Dated as of January 31, 2002
This AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT, dated as of January
31, 2002 (this "Amendment") is among RENTAL CAR FINANCE CORP., an Oklahoma
corporation ("RCFC"), DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware
corporation ("DTAG"), the entities party hereto as Conduit Purchasers ("Conduit
Purchasers"), the entities party hereto as Committed Purchasers ("Committed
Purchasers"), the entities party thereto as Managing Agents ("Managing Agents"),
and Bank One, NA ("Administrative Agent").
RECITALS:
A. RCFC, DTAG, the Conduit Purchasers, the Committed Purchasers,
the Managing Agents and the Administrative Agent entered into that certain Note
Purchase Agreement, dated as of December 15, 2000, as amended by that certain
Amendment No. 1 to Note Purchase Agreement dated as of April 20, 2001 (the "Note
Purchase Agreement").
B. RCFC and the Trustee entered into that certain Series 2000-1
Supplement, dated as of December 14, 2000, as amended by that certain Amendment
No. 1 to Series 2000-1 Supplement dated as of April 20, 2001 (the "Supplement").
C. Simultaneously herewith, RCFC and Trustee are entering into
that certain Amendment No. 2 to Series 2000-1 Supplement (the "Supplement
Amendment") for the purpose of, among other things, incorporating the like-kind
exchange program.
D. Simultaneously herewith, DTAG, RCFC, Thrifty, Dollar, the
entities parties thereto as Financing Sources, the entities parties thereto as
Beneficiaries and Bankers Trust Company, as Master Collateral Agent are entering
into that certain Addendum No. 2 to the Amended and Restated Master Collateral
Agency Agreement for the purpose of, among other things, incorporating the
like-kind exchange program (the "Addendum").
E. Simultaneously herewith, RCFC, Dollar, Thrifty and DTAG are
entering into that certain Amendment No. 5 to Master Motor Vehicle Lease and
Servicing Agreement for the purpose of, among other things, incorporating
certain provisions with respect to implementing the like-kind exchange program
(the "Master Lease Amendment" together with the Supplement Amendment and the
Addendum are hereafter referred to as the "Series 2000-1 Amendments").
F. The parties hereto wish to extend the Expiration Date of the
Note Purchase Agreement pursuant to Section 2.03 thereof and to amend the Note
Purchase Agreement as provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used in this Amendment not herein
defined shall have the meaning contained in the Note Purchase Agreement.
Capitalized terms utilized herein but not otherwise defined shall have the
meanings ascribed to such terms in the Supplement.
2. Amendments. Upon the terms and subject to the conditions set forth in
this Amendment and in reliance on the representations and warranties of the
parties hereto set forth in this Amendment, the parties hereto hereby agree as
follows:
a. Each of the definitions "Committed Purchaser", "Conduit
Purchaser", "Expiration Date", "Managing Agent" and "Ownership Group" contained
in Section 1.01 of the Note Purchase Agreement are hereby amended to read in
their entirety as follows:
"Committed Purchaser" means each entity identified as such
under the heading "Committed Purchaser" on Schedule III hereof
(as such Schedule III may from time to time be revised by the
parties to this Agreement) and each of its assigns (with respect
to its commitment to make Advances) that shall become a party to
this Agreement pursuant to Section 12.04 hereof, and such other
purchasers as shall become parties to this Agreement as Committed
Purchasers by execution of an Addendum pursuant to Section 12.18
hereof.
"Conduit Purchaser" means each entity identified as such
under the heading "Conduit Purchaser" on Schedule III hereof (as
such Schedule III may from time to time be revised by the parties
to this Agreement) and each of its permitted assigns that shall
become a party to this Agreement pursuant to Section 12.04
hereof, and such other purchasers as shall become parties to this
Agreement as Conduit Purchasers by execution of an Addendum
pursuant to Section 12.18 hereof.
"Expiration Date" means December 12, 2002, as such date may
be extended by agreement in writing of the parties hereto.
"Managing Agent" means, with respect to any Ownership Group,
the entity identified as such under the heading "Managing Agent"
on Schedule III hereof (as such Schedule III may from time to
time be revised by the parties to this Agreement) and such other
Persons as shall become parties to this Agreement as Managing
Agents by execution of an Addendum pursuant to Section 12.18
hereof, and any successor thereto appointed in accordance with
Section 11.06 hereof.
"Ownership Group" means each of the following groups of Note
Purchasers:
(i) Bank One, NA ("Bank One"), Deutsche Bank, AG,
acting through its New York Branch ("Deutsche Bank"), Falcon
Asset Securitization Corporation, and any other Conduit
Purchaser administered by Bank One or any of Bank One's
Affiliates (the "Bank One Ownership Group").
2
(ii) The Bank of Nova Scotia ("BNS"), Liberty Street
Funding Corp., and any other Conduit Purchaser administered
by BNS or any of BNS's Affiliates (the "BNS Ownership
Group").
(iii) Dresdner Bank AG ("Dresdner"), Beethoven Funding
Corporation, and any other Conduit Purchaser administered by
Dresdner or any of Dresdner's Affiliates (the "Dresdner
Ownership Group").
(iv) Each Managing Agent and its related Conduit
Purchasers and Committed Purchasers as shall become parties
to the Series 2000-1 Note Purchase Agreement (each an
"Additional Ownership Group").
By way of example and for avoidance of doubt, each of the
Bank One Ownership Group, the BNS Ownership Group, the Dresdner
Ownership Group and any Additional Ownership Group is a separate
Ownership Group. An assignee of a Committed Purchaser shall
belong, to the extent of such assignment, to the same Ownership
Group as the assigning Committed Purchaser. A Committed Purchaser
may belong to more than one Ownership Group at a time.
In the event more than one Conduit Purchaser in a particular
Ownership Group becomes a party to this Agreement, the parties
hereto agree to cooperate in good faith, at the request of the
applicable Managing Agent, to amend this Agreement to provide for
separate Ownership Groups for each Conduit Purchaser in such
Ownership Group.
b. The following definitions are hereby added to Section 1.01 of the
Note Purchase Agreement in their appropriate alphabetical sequence:
"Dresdner" has the meaning specified in the definition of
Ownership Group.
"Dresdner Ownership Group" has the meaning specified in the
definition of Ownership Group.
c. Schedule I of the Note Purchase Agreement is hereby amended
in its entirety as set forth in Exhibit A hereto.
d. Schedule II of the Note Purchase Agreement is hereby amended in
its entirety as set forth in Exhibit B hereto.
3
e. Schedule III of the Note Purchase Agreement is hereby amended in
its entirety as set forth in Exhibit C hereto.
3. Conditions to Effectiveness. The effectiveness of this Amendment is
conditioned upon satisfaction of the following conditions precedent:
a. The Administrative Agent shall have received counterparts of the
Series 2000-1 Amendments signed by the parties hereto.
b. Each of the representations and warranties in the Amended Series
Documents (hereinafter defined) and in Sections 4 and 5 below shall be true and
correct in all material respects.
c. The Managing Agents shall have received copies of (i) the
Certificate of Incorporation and By-Laws of RCFC, DTAG, Dollar and Thrifty, (ii)
board of directors resolutions of RCFC, DTAG, Dollar and Thrifty with respect to
the transactions contemplated by the Series 2000-1 Amendments and (iii)
incumbency certificates of RCFC, DTAG, Dollar and Thrifty, each certified by
appropriate corporate authorities.
d. Counsel to RCFC, DTAG, Dollar and Thrifty shall have delivered
to the Managing Agents favorable opinions, dated the date hereof and reasonably
satisfactory in form and substance to the Managing Agents and their counsel,
covering due authorization, perfection and priority matters and such other
matters as any Managing Agent shall reasonably request.
e. Special New York counsel to RCFC, DTAG, Dollar and Thrifty shall
have delivered a favorable opinion, dated the date hereof and reasonably
satisfactory in form and substance to the Managing Agents and their counsel,
covering enforceability and such other matters as any Managing Agent shall
reasonably request.
f. Counsel to th e Trustee shall have delivered to the Managing
Agents a favorable opinion, dated the date hereof and reasonably satisfactory in
form and substance to the Managing Agents and their counsel.
g. The Managing Agents shall have received evidence satisfactory to
them of the completion of all Uniform Commercial Code filings as may be
necessary to perfect or evidence the assignment by RCFC to the Trustee of its
interests in the Collateral, the proceeds thereof and the security interests
granted pursuant to the Amended Series Documents and the Series 2000-1
Amendments.
h. All Governmental Actions of all Governmental Authorities required
with respect to the transactions contemplated hereby and the other Series 2000-1
Amendments shall have been obtained or made.
i. No Amortization Event, Liquidation Event of Default or Limited
Liquidation Event of Default or event which, with the giving of notice or the
passage of time or both would constitute any of the foregoing, shall have
occurred or be continuing.
4
j. The Administrative Agent and Managing Agents shall have received
such other documents, instruments, certificates, opinions and approvals as it
may reasonably request.
4. Representations and Warranties of RCFC. RCFC hereby makes the
following representations and warranties to the Purchasers, the Managing Agents
and the Administrative Agent, as of the date hereof and as of the date this
Amendment is effective in accordance with the provisions of Section 3 hereof
(the "Amendment Effective Date"), and the Purchasers, the Managing Agents and
the Administrative Agent shall be deemed to have relied on such representations
and warranties in entering into this Amendment:
a. The performance of RCFC's obligations under the Series 2000-1
Amendments and the Series Documents as amended, and as further amended by the
Series 2000-1 Amendments (the "Amended Series Documents"), and the consummation
of the transactions herein and therein contemplated will not conflict with or
result in a breach of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any Lien (other than any Lien
created by the Amended Series Documents), charge or encumbrance upon any of the
property or assets of RCFC pursuant to the terms of, any indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which
it is bound or to which any of its property or assets is subject, nor will such
action result in any violation of the provisions of its Certificate of
Incorporation or By-laws or any Governmental Rule applicable to RCFC.
b. No Governmental Action which has not been obtained is required
by or with respect to RCFC in connection with the execution and delivery of this
Amendment or the other Series 2000-1 Amendments by RCFC or the consummation by
RCFC of the transactions contemplated hereby or thereby or by the Amended Series
Documents.
c. Each of this Amendment and the other Series 2000-1 Amendments
have been duly authorized, executed and delivered by RCFC, and this Amendment,
the other Series 2000-1 Amendments and the Amended Series Documents are the
valid and legally binding obligations of RCFC, enforceable against RCFC in
accordance with their respective terms, subject as to enforcement to bankruptcy,
insolvency, reorganization, moratorium and other similar laws of general
applicability relating to or affecting creditors' rights and to general
principles of equity.
d. There is no pending or, to RCFC's knowledge, threatened action,
suit or proceeding by or against RCFC before any Governmental Authority or any
arbitrator (i) with respect to this Amendment, the other Series 2000-1
Amendments or any Amended Series Document or any of the transactions
contemplated herein or therein, or (ii) with respect to RCFC which, in the case
of any such action, suit or proceeding with respect to RCFC, if adversely
determined, would have a material adverse effect on the ability of RCFC to
perform its obligations hereunder or thereunder.
5. Representations and Warranties of DTAG. DTAG hereby makes the
following representations and warranties to the Purchasers, the Managing Agents
and the Administrative Agent as of the date hereof and as of the Amendment
Effective Date, and the Purchasers and the Administrative Agent shall be deemed
to have relied on such representations and warranties in entering this
Amendment:
5
a. The performance of the obligations of DTAG under the Series
2000-1 Amendments and the Amended Series Documents to which it is a party and
the consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
(other than any Lien created by the Amended Series Documents), charge or
encumbrance upon any of the property or assets of DTAG pursuant to the terms of,
any indenture, mortgage, deed of trust, loan agreement or other material
agreement or instrument to which it or any of its Affiliates is bound or to
which any of its property or assets is subject, nor will such action result in
any violation of the provisions of its Certificate of Incorporation or By-laws
or any Governmental Rule applicable to DTAG.
b. No Governmental Action which has not been obtained is required
by or with respect to DTAG in connection with the execution and delivery of this
Amendment or the other Series 2000-1 Amendments by DTAG or the consummation by
DTAG of the transactions contemplated hereby.
c. Each of this Amendment, the other Series 2000-1 Amendments and
the Amended Series Documents to which DTAG is a party have been duly authorized,
executed and delivered by DTAG and is the valid and legally binding obligation
of DTAG, enforceable against DTAG in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and other
similar laws of general applicability relating to or affecting creditors' rights
and to general principles of equity.
d. There is no pending or, to the knowledge of DTAG, threatened
action, suit or proceeding by or against DTAG before any Governmental Authority
or any arbitrator (i) with respect to this Amendment, the other Series 2000-1
Amendments or any Amended Series Document to which it is a party or any of the
transactions contemplated herein or therein, or (ii) with respect to DTAG which,
in the case of any such action, suit or proceeding with respect to DTAG, if
adversely determined, would have a material adverse effect on the ability of
DTAG to perform its obligations hereunder or thereunder.
6. Reference to and Effect on Note Purchase Agreement.
a. Upon and after the effectiveness of this Amendment, each
reference in the Note Purchase Agreement to "this Agreement", "hereunder",
"hereof" or words of like import referring to the Note Purchase Agreement, and
each reference in the Series Documents to "the Note Purchase Agreement", "the
Series 2000-1 Note Purchase Agreement", "thereunder", "thereof" or words of like
import referring to the Note Purchase Agreement, shall mean and be a reference
to the Note Purchase Agreement as modified hereby.
b. Except as specifically modified above, the Note Purchase
Agreement is and shall continue to be in full force and effect and is hereby in
all respects ratified and confirmed. The consents contained herein are limited
to the specific facts and circumstances set forth herein and shall not operate
as a waiver of, or a consent to any variation from, any other provision of the
Note Purchase Agreement or any of the Series Documents.
6
7. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
8. Severability. Any provision of this Amendment that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
9. Counterparts. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same agreement. Delivery of
an executed counterpart of a signature page to this Amendment by facsimile shall
be effective as delivery of a manually executed counterpart of this Amendment.
[Signature Pages Follow]
7
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be executed by their respective officers thereunto duly authorized, as of the
date first written above.
RENTAL CAR FINANCE CORP., as Seller
By: ____________________________________________
Xxxxxx X. Xxxx
Vice President and Treasurer
DOLLAR THRIFTY AUTOMOTIVE GROUP,
INC., as Master Servicer
By: ____________________________________________
Xxxxxx X. Xxxx
Treasurer
FALCON ASSET SECURITIZATION CORPORATION,
as a Conduit Purchaser
By: ____________________________________________
Name:
Title:
BANK ONE, NA, as a Committed Purchaser, as
the Managing Agent for the Bank One Ownership
Group and as the Administrative Agent
By: ____________________________________________
Name:
Title:
DEUTSCHE BANK, AG, New York Branch,
as a Committed Purchaser
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
LIBERTY STREET FUNDING CORP.,
as a Conduit Purchaser
By: ____________________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as a Committed Purchaser
and as the Managing Agent for the BNS
Ownership Group
By: ____________________________________________
Name:
Title:
BEETHOVEN FUNDING CORPORATION,
as a Conduit Purchaser
By: ____________________________________________
Name:
Title:
DRESDNER BANK AG, as a Committed Purchaser
and as the Managing Agent for the Dresdner
Ownership Group
By: ____________________________________________
Name:
Title:
By: ____________________________________________
Name:
Title:
EXHIBIT A
SCHEDULE I
ADDRESSES FOR NOTICE
In the case of RCFC:
-------------------
Rental Car Finance Corp.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
In the case of the Master Servicer:
----------------------------------
Dollar Thrifty Automotive Group, Inc.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
In the case of the Administrative Agent:
---------------------------------------
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Rental Car Finance Portfolio Manager
In the case of the Conduit Purchasers:
-------------------------------------
Falcon Asset Securitization Corporation
x/x Xxxx Xxx, XX
0 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Falcon Funding Manager
Liberty Street Funding Corp.
c/o Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
Schedule I - 1
With a copy to:
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Beethoven Funding Corporation
x/x Xxxxxxxx Xxxx XX, Xxx Xxxx Branch
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Backed Finance
Facsimile: (000) 000-0000
With a copy to:
Global Securitization Services, LLC
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
In the case of the Committed Purchasers and the Managing Agents:
---------------------------------------------------------------
Bank One, NA
1 Bank Xxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Rental Car Finance Portfolio Manager
Deutsche Bank, AG, New York Branch
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx Xxx
Facsimile: (000) 000-0000
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Last
Facsimile: (000) 000-0000
With a copy to:
Schedule I - 2
The Bank of Nova Scotia
Xxx Xxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Dresdner Bank AG
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Asset Backed Finance
Facsimile: (000) 000-0000
Schedule I - 3
EXHIBIT B
SCHEDULE II
GROUP FUNDING LIMITS
Ownership Group Group Funding Limit
--------------- -------------------
Bank One Ownership Group One Hundred Twenty-five million dollars
($125,000,000)
BNS Ownership Group Seventy-five million dollars ($75,000,000)
Dresdner Ownership Group Seventy-five million dollars ($75,000,000)
Schedule II - 1
EXHIBIT C
SCHEDULE III
PURCHASER PERCENTAGES
Managing Agent Conduit Purchaser Committed Purchaser Purchaser Percentage
-------------- ----------------- ------------------- --------------------
Bank One, NA Falcon Asset Securitization Bank One, NA 27.272727%
Corporation
Deutsche Bank, AG 18.000000%
The Bank of Nova Scotia Liberty Street Funding Corp. The Bank of Nova Scotia 27.000000%
Dresdner Bank AG Beethoven Funding Dresdner Bank 27.272727%
Corporation
Schedule III - 1
