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EXHIBIT 4.142
ENHANCEMENT LETTER OF CREDIT
APPLICATION AND AGREEMENT,
dated as of April 21, 2005,
among
DTG OPERATIONS, 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 2005-1 Letter of Credit
Provider
THIS ENHANCEMENT LETTER OF CREDIT APPLICATION AND
AGREEMENT, dated as of April 21, 2005 (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 2005-1
Letter of Credit Provider (“ Credit
Suisse First Boston ” or the
“ Series 2005-1 Letter of Credit
Provider ”).
RECITALS
1. DTAG, DTG Operations and Thrifty Rent-A-Car
System, Inc., an Oklahoma corporation (“
Thrifty ”), as
borrowers (each a “ Borrower ” and, collectively,
the “ Borrowers
”), the financial institutions signatory
thereto as the lenders (each a “ Revolving Lender ” and,
collectively, the “ Revolving
Lenders ”) and Credit Suisse First
Boston, in its capacity as administrative agent thereunder (in such
capacity, the “ Administrative
Agent ”), have entered into a Third
Amended and Restated Credit Agreement, dated as of April 1, 2004,
amending and restating in its entirety the Second Amended and
Restated Credit Agreement, dated as of December 6, 2002 (as so
amended and restated, and together with all amendments,
supplements, amendments and restatements and other modifications,
from time to time thereafter made thereto, the “
Credit Agreement ”), pursuant to which, in conjunction with this
Agreement, the Series 2005-1 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, DTG Operations,
Bankers Trust Company (now known as 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 such agreement may be further amended,
supplemented, amended and restated or otherwise modified from time
to time in accordance with the terms thereof, the “
Master Collateral Agency Agreement
”), which Master Collateral Agency Agreement
amended and restated the Master Collateral Agency Agreement, dated
as of December 13, 1995, among Thrifty, RCFC, 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 2005-1
Supplement, dated as of even date herewith (as the same may be
amended, supplemented, amended and restated or otherwise modified
from time to time in accordance with the terms thereof, the
“ Series 2005-1
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 2005-1 Supplement and the other
Supplements thereto, the “ Indenture ”), between RCFC and
the Trustee, pursuant to which RCFC will issue two classes of
Rental Car Asset Backed Notes, Series 2005-1: (i) the Class A-1
Floating Rate Rental Car Asset Backed Notes (the “
Class A-1 Notes ”) and (ii) the Class A-2 4.59% Rental Car Asset Backed
Notes (the “ Class A-2
Notes ”, and collectively with the
Class A-1 Notes, the “ Series 2005-1
Notes ”).
5. Contemporaneously with the execution and delivery
of this Agreement, Credit Suisse First Boston, in its capacity as
the Series 2005-1 Letter of Credit Provider, is issuing the Series
2005-1 Letter of Credit, dated as of even date herewith, (i) as
credit support for amounts owed by the Lessees under the Master
Lease and (ii) as credit support for amounts owed by DTAG under the
Demand Note referred to in Section 4.15 of the Series 2005-1
Supplement.
6. The Lessees, RCFC, DTAG and Credit Suisse First
Boston, in its capacity as the Series 2005-1 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 2005-1 Letter of Credit Provider
as a draw upon the Series 2005-1 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
2005-1 Supplement (including, without limitation, the effect of
Section 8.9 thereof) 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 2005-1 Supplement shall apply
herein.
ARTICLE II
ISSUANCE OF SERIES 2005-1 LETTER OF
CREDIT;
REIMBURSEMENT OBLIGATION
Section 2.1 Issuance of
Series 2005-1 Letter of Credit; Substitute Series 2005-1 Letter of
Credit; Extensions of the Series 2005-1 Letter of Credit
. (a) The Series 2005-1 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 2005-1 Supplement
(in respect of Credit Demands and Termination Demands (in each case
as defined in the Series 2005-1 Letter of Credit)), (ii) as support
for a LOC Termination Disbursement under Section 4.16 of the Series
2005-1 Supplement and (iii) as credit support for draws on the
Demand Note under Section 4.15 of the Series 2005-1 Supplement, an
irrevocable letter of credit dated as of even date herewith in
substantially the form attached hereto as Exhibit A, in an
amount equal to $14,400,000 (the “ Series 2005-1 Letter of Credit Commitment
”), for a term expiring on April 20, 2008 or,
if such date is not a Business Day (as defined in the Credit
Agreement), the immediately preceding Business Day (as defined in
the Credit Agreement), or such later date to which the term is
extended pursuant to Section 2.1(c) (the “
Series 2005-1 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
2005-1 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 2005-1 Letter of Credit ”). In furtherance of, and not in limitation of, the
terms of the preceding sentence relating to amendments to the
Series 2005-1 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 2005-1 Letter of
Credit Amount (as defined in the Series 2005-1 Letter of Credit),
and in no event more than two (2) Business Days following the date
of its receipt of such notice, the Trustee shall deliver to the
Series 2005-1 Letter of Credit Provider a Notice of Reduction of
Series 2005-1 Letter of Credit Amount substantially in the form of
Annex D to the Series 2005-1 Letter of Credit, which, upon the
Series 2005-1 Letter of
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Credit Provider’s written acknowledgment and
agreement, shall effect a reduction in the Series 2005-1 Letter of
Credit Amount as provided in such Notice (and shall automatically
effect a reduction of the Series 2005-1 Letter of Credit Amount
hereunder). Upon the Series 2005-1 Letter of Credit
Provider’s written acknowledgment and agreement with each
such Notice of Reduction of Series 2005-1 Letter of Credit Amount,
the Series 2005-1 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
2005-1 Letter of Credit Amount (substantially in the form of Annex
E to the Series 2005-1 Letter of Credit), the Trustee will provide
promptly copies thereof to the Series 2005-1 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 2005-1 Supplement and upon receipt of an
Instruction to Transfer substantially in the form of Annex F to the
Series 2005-1 Letter of Credit, the Series 2005-1 Letter of Credit
Provider shall deliver for the benefit of such successor Trustee
and the current Trustee, in exchange for the outstanding Series
2005-1 Letter of Credit, a substitute letter of credit
substantially in the form of Exhibit A hereto, having terms
identical to the then outstanding Series 2005-1 Letter of Credit
but in favor of such successor Trustee.
(c) If the Lessees wish to extend the Series 2005-1
Letter of Credit Expiration Date for purposes of this Agreement and
the Series 2005-1 Letter of Credit, DTAG (on behalf of the Lessees)
shall give the Series 2005-1 Letter of Credit Provider and the
Administrative Agent written notice in the form of an Issuance
Request (as defined in the Credit Agreement) to such effect not
more than 75 days and not less than 45 days prior to the date that
is three years from the Series 2005-1 Closing Date (or if such day
is not a Business Day (as defined in the Credit Agreement) then on
the next succeeding Business Day (as defined in the Credit
Agreement)) and thereafter not more than 75 days and not less than
45 days prior to each subsequent one-year anniversary of the Series
2005-1 Closing Date, provided
, however
, that the additional term of the Series 2005-1
Letter of Credit may not extend beyond the earlier of (i) two
years from its date of extension and (ii) five Business Days
prior to the Stated Maturity Date (as defined in the Credit
Agreement) in effect at the time of such extension. If the Series
2005-1 Letter of Credit Expiration Date is so extended, the Series
2005-1 Letter of Credit Provider shall either (i) issue to the
Trustee in exchange for and upon receipt of the then outstanding
Series 2005-1 Letter of Credit a substitute letter of credit having
terms identical to the then outstanding Series 2005-1 Letter of
Credit but expiring on the Series 2005-1 Letter of Credit
Expiration Date, as so extended, or (ii) deliver to the Trustee an
amendment to the then outstanding Series 2005-1 Letter of Credit to
reflect such extension of the Series 2005-1 Letter of Credit
Expiration Date.
(d) If the conditions to the extension of the Series
2005-1 Letter of Credit Expiration Date pursuant to
paragraph (c) of
this Section 2.1
that are set forth in Section 6.2 of the Credit
Agreement and Section 2.7
of this Agreement are not satisfied (or waived) on
the fortieth day preceding the Series 2005-1 Letter of Credit
Expiration Date then in effect, each of the Lessees shall use its
best efforts (i) to obtain a successor institution to act as
Series 2005-1 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
2005-1 Cash Collateral Account with cash in the amount of the
Series 2005-1 Letter of Credit Amount immediately prior to any
drawing referred to in subsection (f) below (B) other
cash collateral accounts, overcollateralization or subordinated
securities or (C) with the consent of the Required
Series
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2005-1 Noteholders, a Surety Bond or other similar
arrangements; provided
, however
, that (1) any such successor institution or
other form of substitute credit enhancement referred to in the
foregoing clauses (ii)(B)
and (ii)(C)
shall be subject to the approval of each Rating
Agency and (2) any such successor institution or other form of
substitute credit enhancement referred to in the foregoing
clauses (i) and (ii)(C) shall, if the ratings with respect to such substitute credit
enhancement, if applicable, are less than “A-1” or the
equivalent from Standard & Poor’s, “P-1” or
the equivalent from Moody’s or “F1” or the
equivalent from Fitch (if rated by Fitch), be approved by the
Required Series 2005-1 Noteholders; provided further
, however
, that only after all amounts then owing to the
Series 2005-1 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 2005-1 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 2005-1 Letter of Credit Provider the then outstanding Series
2005-1 Letter of Credit and (z) deliver to the Trustee a
substitute letter of credit having terms identical to the then
outstanding Series 2005-1 Letter of Credit but expiring on the
Series 2005-1 Letter of Credit Expiration Date as so extended and
with such successor institution as the issuer thereof or deliver
such other substitute credit enhancement.
(e) If (i) DTAG (on behalf of the Lessees) does
not request an extension of the Series 2005-1 Letter of Credit
Expiration Date or (ii) the conditions precedent to the
extension of the Series 2005-1 Letter of Credit Expiration Date
pursuant to paragraph (c)
of this Section
2.1 and Section
2.7(b) are not satisfied (or waived) and
the Lessees do not obtain a successor Series 2005-1 Letter of
Credit Provider or other substitute credit enhancement prior to the
date which is 10 Business Days prior to the Series 2005-1 Letter of
Credit Expiration Date, then DTAG (on behalf of the Lessees) shall
immediately notify the Trustee and the Series 2005-1 Insurer in
writing.
(f) If (i) the short-term debt or deposit rating of
the Series 2005-1 Letter of Credit Provider shall be downgraded
below “A-1” by Standard & Poor’s, below
“P-1” by Moody’s or below “F1” by
Fitch (if rated by Fitch) or (ii) the Series 2005-1 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
2005-1 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 2005-1 Cash
Collateral Account with cash in the amount of the Series 2005-1
Letter of Credit Amount, (2) other cash collateral accounts,
overcollateralization or subordinated securities or (3) with
the consent of the Series 2005-1 Noteholders, 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) or
(ii)(B)(3) shall, if
the ratings with respect to such substitute credit enhancement, if
applicable, are less than “A-1” or the equivalent from
Standard & Poor’s, “P-1” or the equivalent
from Moody’s and “F1” or the equivalent from
Fitch (if rated by Fitch), be approved
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by the Required Series 2005-1 Noteholders;
provided further , however , that only after all amounts
then owing to the Series 2005-1 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 2005-1 Letter of Credit.
(g) In the event that (i) the Series 2005-1 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 2005-1 Letter of
Credit would be unlawful, (ii) the Series 2005-1 Letter of
Credit Provider fails to extend its Series 2005-1 Letter of Credit
Expiration Date pursuant to Section
2.1(c) , (iii) any of the Lessees or DTAG
is required pursuant to Sections 5.1, 5.3, 5.5 or 5.6 of the Credit
Agreement to make any payment to or on behalf of the Series 2005-1
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 2005-1 Letter of Credit
Provider), (iv) the Series 2005-1 Letter of Credit Provider
shall have wrongfully failed to fund any LOC Credit Disbursement
when required hereunder, or (v) the short-term debt or deposit
rating of the Series 2005-1 Letter of Credit Provider shall be
downgraded below “A-1” by Standard & Poor’s,
below “P-1” by Moody’s or below “F1”
by Fitch (if rated by Fitch), then the Lessees shall have the right
at their own expense, upon notice to the Series 2005-1 Letter of
Credit Provider, and such Series 2005-1 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 2005-1 Letter of Credit Provider to a replacement
Series 2005-1 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 Moody’s 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 2005-1 Letter of Credit
Provider shall conflict with any law, rule, regulation or order of
any Governmental Authority, (x) such assignment to any
replacement Series 2005-1 Letter of Credit Provider shall be
without recourse, representation and warranty and shall be on terms
and conditions reasonably satisfactory to the Series 2005-1 Letter
of Credit Provider and such replacement Series 2005-1 Letter of
Credit Provider, (y) the purchase price paid by such
replacement Series 2005-1 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
2005-1 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 2005-1 Letter of Credit
Provider, as the case may be, shall pay to such replaced Series
2005-1 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 2005-1 Letter of Credit
Provider hereunder and all other amounts accrued for such replaced
Series 2005-1 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 2005-1 Letter of Credit
Provider to be replaced hereunder have been paid in full shall the
Series 2005-1 Letter of Credit issued by the replacement Series
2005-1 Letter of Credit Provider be substituted for the Series
2005-1 Letter of Credit Provider’s Series 2005-1 Letter of
Credit. If such a replacement Series 2005-1 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
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of a substitute letter of credit or such other
substitute credit enhancement. If a replacement Series 2005-1
Letter of Credit Provider succeeds the Series 2005-1 Letter of
Credit Provider or other substitute credit enhancement is obtained
to replace the Series 2005-1 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 2005-1 Letter of Credit Provider of the then
outstanding Series 2005-1 Letter of Credit, and (c) deliver to the
Trustee a substitute letter of credit having terms identical to the
then outstanding Series 2005-1 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 2005-1 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 2005-1 Letter
of Credit Provider shall pay any LOC Credit Disbursement under the
Series 2005-1 Letter of Credit in respect of Series 2005-1 Lease
Payment Losses allocated to making a drawing under the Series
2005-1 Letter of Credit, (A) an amount equal to the portion of
such LOC Credit Disbursement allocable to amounts due and payable
by such Lessee under the Master Lease (as determined by the Trustee
or, in the absence of such determination, the Series 2005-1 Letter
of Credit Provider), plus
(B) interest on any amount remaining unpaid by
such Lessee to the Series 2005-1 Letter of Credit Provider
under clause (A)
above, from (and including) the date such amount is
paid by the Series 2005-1 Letter of Credit Provider under the
Series 2005-1 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 2005-1 Letter of
Credit Provider on demand on and after each date on which the
Series 2005-1 Letter of Credit Provider shall pay any LOC Credit
Disbursement under the Series 2005-1 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 2005-1
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 2005-1 Letter of Credit
Provider under the immediately preceding clause (A) , from (and
including) the date such amount is paid by the Series 2005-1 Letter
of Credit Provider under the Series 2005-1 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 2005-1 Letter of Credit in accordance with
Section 2.1(e) or (f) each
Lessee agrees to pay to the Series 2005-1 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 2005-1
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%;
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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 2005-1 Letter of Credit Provider until
payment in full of the Lessee Termination Reimbursement Share by
such Lessee to the Series 2005-1 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 2005-1 Letter of Credit Provider on the
date of such LOC Termination Disbursement in accordance with the
terms of the Credit Agreement (which terms are incorporated herein
by this reference).
(c) Until the Series 2005-1 Letter of
Credit Provider is reimbursed for such LOC Termination
Disbursement, the Series 2005-1 Letter of Credit Provider may
direct in writing the investment in Permitted Investments of the
funds in the Series 2005-1 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 2005-1
Cash Collateral Account) from such investments from time to time
from the Series 2005-1 Cash Collateral Account in accordance with
the following clause (d)
and Sections 4.17(c) and (d) of the Series 2005-1
Supplement. After reimbursement of the Series 2005-1 Letter of
Credit Provider for the full amount of the LOC Termination
Disbursement, DTAG (on behalf of the Lessees) may direct investment
in Permitted Investments of the funds on deposit in the Series
2005-1 Cash Collateral Account and shall be entitled to receive the
earnings thereon from such investments from time to time from
releases of excess amounts from the Series 2005-1 Cash Collateral
Account in accordance with clause (d) below and Sections
4.17(c) and (d) of the Series 2005-1 Supplement.
(d) Earnings from investments in the Series 2005-1
Cash Collateral Account shall be paid first, to the Series 2005-1
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 2005-1 Letter of Credit Provider is
reimbursed for such amount or the date interest begins to accrue on
the full amount of such LOC Termination Disbursement and second, to
the related Lessee. Any amounts (other than earnings on
investments) released from the Series 2005-1 Cash Collateral
Account in accordance with Section 4.17(d) of the Series 2005-1
Supplement shall be paid to the Series 2005-1 Letter of Credit
Provider to the extent the Series 2005-1 Letter of Credit Provider
has not been fully reimbursed by the Lessees under
clauses (a) and (c) above for LOC Credit Disbursements or a LOC Termination
Disbursement. Upon reimbursement in full to the Series 2005-1
Letter of Credit Provider of amounts owed under
clauses (a) and (c) above, amounts released from the Series 2005-1 Cash Collateral
Account in accordance with Section 4.17(d) of the Series 2005-1
Supplement shall be paid to the Lessees.
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(e) After a LOC Termination Disbursement has been
made, any withdrawals made by the Trustee from the Series 2005-1
Cash Collateral Account in respect of Series 2005-1 Lease Payment
Losses (as notified to RCFC and the Lessees by the Trustee pursuant
to Section 4.14 of the Series 2005-1 Supplement) shall be
reimbursed to the Series 2005-1 Cash Collateral Account in
accordance with Section 4.7 of the Series 2005-1
Supplement.
Section 2.4 Series 2005-1
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 2005-1 Letter of Credit
Provider in connection with issuance of the Series 2005-1 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 2005-1 Letter of Credit Provider .
Each of the Lessees and DTAG acknowledges that the Series 2005-1
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 2005-1 Letter of Credit with respect to its use of
the Series 2005-1 Letter of Credit. Neither the Series 2005-1
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 2005-1 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 2005-1 Letter of Credit
Provider against presentation of documents which do not comply with
the terms of the Series 2005-1 Letter of Credit, including failure
of any documents to bear any reference or adequate reference to the
Series 2005-1 Letter of Credit; or (d) any other circumstances
whatsoever in making or failing to make payment under the Series
2005-1 Letter of Credit; provided , however , that the Series 2005-1
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 2005-1
Letter of Credit Provider’s willful misconduct or gross
negligence in determining whether documents presented under the
Series 2005-1 Letter of Credit comply with the terms of the Series
2005-1 Letter of Credit or (ii) the Series 2005-1 Letter of
Credit Provider’s gross negligence in failing to make or
willful failure to make lawful payment under the Series 2005-1
Letter of Credit after the presentation to the Series 2005-1 Letter
of Credit Provider by the Trustee of a certificate strictly
complying with the terms and conditions of the Series 2005-1 Letter
of Credit. In furtherance and not in limitation of the foregoing,
the Series 2005-1 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 2005-1 Letter of Credit . Provided
that the Series 2005-1 Letter of Credit Provider is not then in
default under the Series 2005-1 Letter of Credit by reason of its
having wrongfully failed to honor a demand for payment previously
made by the Trustee under the Series 2005-1 Letter of Credit, the
Series 2005-1 Letter of Credit Provider and DTAG (on behalf of
itself and the Lessees) shall instruct the Trustee to surrender the
Series 2005-1 Letter of Credit to the Series 2005-1 Letter of
Credit Provider on the earliest of (i) the Series 2005-1
Letter of Credit Expiration Date, (ii) the date on which the
Series 2005-1 Letter of Credit Provider honors a Certificate of
Termination Demand presented under the Series 2005-1 Letter of
Credit to the extent of the Series 2005-1 Letter of Credit Amount
as in effect on such date, (iii) the date on which the Series
2005-1 Notes are paid in full, and (iv) the date on which the
Series 2005-1 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 2005-1 Letter of
Credit.
9
Section 2.7 Conditions
Precedent to Issuance, Increase or Extension . (a) The following constitute conditions precedent to the
obligation of the Series 2005-1 Letter of Credit Provider to issue
the Series 2005-1 Letter of Credit ( provided , that such conditions will
be deemed to be satisfied upon the issuance of the Series 2005-1
Letter of Credit):
(i) On the date of issuance of the Series 2005-1
Letter of Credit, each condition precedent to the issuance of the
Series 2005-1 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 2005-1
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 2005-1 Letter of
Credit.
(iii) On the date of issuance of the Series 2005-1
Letter of Credit, and after giving effect to the transactions
contemplated by this Agreement and the Series 2005-1 Letter of
Credit, there shall exist no Potential Event of Default or Event of
Default under this Agreement.
(iv) The Series 2005-1 Letter of Credit Provider
shall have received as of the date of issuance of the Series 2005-1
Letter of Credit a copy of the confirmation letter from each of
S&P, Moody’s and Fitch to the effect that the Series
2005-1 Notes shall have been given a rating of at least
“AAA” by S&P, “Aaa” by Moody’s
and “AAA” by Fitch which ratings shall be in full force
and effect.
(v) The Series 2005-1 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 2005-1
Closing Date, covering such matters as the Series 2005-1 Letter of
Credit Provider may reasonably request, (B) copies of any
representation letters or certificates (or similar documents)
provided to the Trustee, the Series 2005-1 Insurer, any of the
Lessees, DTAG or RCFC and (C) copies of all opinions delivered to
the Trustee or the Series 2005-1 Insurer, as an addressee or with
reliance letters.
(vi) The Series 2005-1 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 2005-1 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 2005-1 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.
10
(vii) The Series 2005-1 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 2005-1 Letter of
Credit Provider.
(viii) On the date of issuance of the Series 2005-1
Letter of Credit, immediately prior to, and after giving effect to,
the issuance of the Series 2005-1 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, 2004 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.
(ix) All governmental and third party consents and
approvals necessary in connection with this Agreement and the
Series 2005-1 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 2005-1 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 2005-1 Letter of Credit or the transactions
contemplated hereby or thereby.
(x) The Series 2005-1 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 2005-1 Letter of Credit Provider may reasonably
request.
(xi) The following shall be true and correct (and
the Series 2005-1 Letter of Credit Provider shall have received a
certificate of each of the Lessees and RCFC as to the
following):
(A) Each Eligible Vehicle Disposition Program shall
be in full force and effect and enforceable against the related
Manufacturer.
(B) Each of the Lessees and RCFC shall not have
sold, assigned, or otherwise encumbered any of the Vehicles
purchased or otherwise financed with the proceeds of the Series
2005-1 Notes except as permitted under the Related
Documents.
11
(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 2005-1 Noteholders and the Series 2005-1
Insurer, a first priority security interest in all Vehicles now or
hereafter purchased or otherwise financed with the proceeds of the
Series 2005-1 Notes in accordance with the terms of the Series
2005-1 Supplement.
(xiii) The Series 2005-1 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 2005-1 Letter of Credit Provider
shall have received any fees and expenses due and payable pursuant
to Section 4.2 or pursuant to the Credit Agreement, including, without
limitation, pursuant to Section 3.3 and 4.3 thereof, and all
reasonable legal fees and expenses.
(b) The following constitute conditions precedent to
the obligation of the Series 2005-1 Letter of Credit Provider to
extend the Series 2005-1 Letter of Credit Expiration Date or
increase the Series 2005-1 Letter of Credit Commitment (
provided that such
conditions will be deemed to be satisfied upon such extension or
increase with respect to the Series 2005-1 Letter of
Credit):
(i) On the date of extension or increase, each
condition precedent to the issuance of the Series 2005-1 Letter of
Credit set forth in Section 6.2 of the Credit Agreement shall
continue to be satisfied (which conditions are hereby incorporated
herein by this reference).
(ii) On the date of extension or increase with
respect to the Series 2005-1 Letter of Credit, all representations
and warranties of each of the Lessees and DTAG contained in this
Agreement and in each other Related Document to which any of the
Lessees or DTAG is a party shall be true and correct immediately
prior to, and after giving effect to, the extension or increase
with respect to the Series 2005-1 Letter of Credit.
(iii) On the date of extension or increase with
respect to the Series 2005-1 Letter of Credit, and after giving
effect to the transactions contemplated by this Agreement and the
Series 2005-1 Letter of Credit, there shall exist no Potential
Event of Default or Event of Default under this
Agreement.
(iv) The Series 2005-1 Letter of Credit Provider
shall have received as of the date of such increase or extension of
the Series 2005-1 Letter of Credit a copy of the confirmation
letter from each of S&P, Moody’s and Fitch to the effect
that the Series 2005-1 Notes shall have been given a rating of at
least “AAA” by S&P, “Aaa” by
Moody’s and “AAA” by Fitch which ratings shall be
in full force and effect.
12
(v) On the date of extension or increase with
respect to the Series 2005-1 Letter of Credit, immediately prior
to, and after giving effect to, the extension or increase with
respect to the Series 2005-1 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, 2004, 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 2005-1 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 2005-1 Credit Provider); and no
law or regulation shall be applicable that restrains, prevents or
imposes materially adverse conditions upon this Agreement or the
Series 2005-1 Letter of Credit or the transactions contemplated
hereby or thereby.
(vii) The Series 2005-1 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 2005-1 Letter of Credit Provider may reasonably
request.
(viii) The following shall be true and correct (and
the Series 2005-1 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
2005-1 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 2005-1 Noteholders and the Series 2005-1 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 2005-1 Notes in
accordance with the terms of the Series 2005-1
Supplement.
13
(x) The Series 2005-1 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 2005-1 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 2005-1 Letter of
Credit to reimburse the Series 2005-1 Letter of Credit Provider
with respect to each LOC Disbursement shall be absolute,
unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement and such other
agreement or instrument under all circumstances, including, without
limitation, the following circumstances:
(a) any lack of validity or enforceability of this
Agreement, the Series 2005-1 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 2005-1
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 2005-1 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 2005-1 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 2005-1 Letter of Credit proving to be insufficient
in any respect;
14
(f) payment by the Series 2005-1 Letter of Credit
Provider under the Series 2005-1 Letter of Credit against
presentation of a draft or certificate which does not comply with
the terms of the Series 2005-1 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 2005-1 Letter
of Credit; or
(h) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including, without
limitation, any other circumstance that might otherwise constitute
a defense available to, or a discharge of, DTAG, any Lessee or a
guarantor.
Section 2.10 Events of
Default . Upon the occurrence and
continuance of any of the following events (herein referred to as
an “ Event of Default
”):
(a) any Lessee (or DTAG on behalf of such Lessee)
shall fail to pay any LOC Credit Disbursement owing by such Lessee
or any amounts owing by such Lessee for LOC Termination
Disbursements on the date when such amount is due;
(b) any Lessee (or DTAG on behalf of any such
Lessee) shall fail to pay any interest, fees or other amounts
payable under this Agreement or the Credit Agreement, in each case
within three Business Days of the date when such interest, fees or
other amounts are due;
(c) any representation, warranty, certification or
statement made by any Lessee, RCFC or DTAG in this Agreement or in
any other Related Document to which it is a party, or any
certificate, financial statement or other document delivered
pursuant hereto or thereto shall have been incorrect in any
material respect when made or deemed made and after the expiration
of any grace period applicable thereto;
(d) RCFC shall fail to make any payment in respect
of any Indebtedness when due or within any applicable grace period,
which Indebtedness is in an outstanding principal amount in excess
of $100,000;
(e) an Event of Bankruptcy shall have occurred with
respect to RCFC;
(f) any judgment or order for the payment of money
in excess of $100,000 (to the extent not covered by insurance
provided by a carrier that has not disputed coverage) shall be
rendered against RCFC and either (i) enforcement proceedings shall
have been commenced by any creditor upon such judgment or order or
(ii) there shall be any period of 20 consecutive days during which
a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect;
(g) an Event of Default (as defined in the Credit
Agreement) shall have occurred and be continuing;
15
(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
2005-1 Letter of Credit Provider’s reasonable satisfaction
within a period of 30 days from the date on which the Series 2005-1
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 2005-1 Letter o
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