EXHIBIT 4.140
$400,000,000 SERIES 2005-1 RENTAL
CAR ASSET BACKED NOTES
$290,000,000 SERIES 2005-1
FLOATING RATE RENTAL CAR ASSET BACKED NOTES, CLASS
A-1
$110,000,000 2005-1 4.59% RENTAL
CAR ASSET BACKED NOTES, CLASS A-2
RENTAL CAR FINANCE
CORP.
NOTE PURCHASE
AGREEMENT
April 14, 2005
Deutsche Bank Securities Inc.
60 Wall Street
New York, New York 10005
J.P. Morgan Securities Inc.
270 Park Avenue, 10th Floor
New York, New York 10017
ABN AMRO Incorporated
55 East 52nd Street
New York, New York 10055
Credit Suisse First Boston LLC
11 Madison Avenue
New York, New York 10010
Dresdner Kleinwort Wasserstein Securities
LLC
1301 Avenue of the Americas
New York, New York 10019
Scotia Capital (USA) Inc.
One Liberty Plaza
165 Broadway, 25th Floor
New York, New York 10007
Dear Sirs:
1.
Introductory . Rental Car Finance Corp., an Oklahoma
corporation (the “Company”) and a wholly-owned
subsidiary of Dollar Thrifty Automotive Group, Inc., a Delaware
corporation (“DTAG”), proposes, subject to the terms
and conditions stated herein, to issue and sell to Deutsche Bank
Securities Inc. (“Deutsche Bank”), J.P. Morgan
Securities Inc. (“JPMorgan”), ABN AMRO Incorporated
(“ABN AMRO”), Credit Suisse First Boston LLC
(“Credit Suisse First Boston”), Dresdner Kleinwort
Wasserstein Securities LLC (“Dresdner Kleinwort
Wasserstein”) and Scotia Capital (USA) Inc. (“Scotia
Capital”) and (each an “Initial Purchaser” and
together, the “Initial Purchasers”):
$290,000,000 principal amount of its
Series 2005-1 Floating Rate Rental Car Asset Backed Notes, Class
A-1 (collectively, the “Class A-1 Notes”) and
$110,000,000 principal amount of its Series 2005-1 4.59% Rental Car
Asset Backed Notes, Class A-2 (collectively, the “Class A-2
Notes”, and together with the Class A-1 Notes, the
“Offered Securities”) to be issued under (i) a base
indenture dated as of December 13, 1995 (as amended, modified or
supplemented to the date hereof, the “Base Indenture”),
and a Series 2005-1 Supplement to the Base Indenture, dated as of
April 21, 2005 (the “Series 2005-1 Supplement”),
between the Company and Deutsche Bank Trust Company Americas as
Trustee (the Base Indenture, as supplemented by the Series 2005-1
Supplement, is referred to
herein as the
“Indenture”), on a private placement basis pursuant to
an exemption from the registration requirements of the United
States Securities Act of 1933, as amended (the “Securities
Act”), and hereby agrees with the Initial Purchasers as
follows:
2.
Representations and Warranties of the Company and DTAG .
Each of the Company and DTAG represents and warrants to, and agrees
with, the Initial Purchasers that:
(a)
A preliminary
private placement memorandum relating to the Offered Securities has
been prepared by the Company.
Such preliminary private placement
memorandum, dated April 7, 2005, as supplemented as of the date of
this Agreement, the final private placement memorandum, and any
supplement thereto, together with the documents listed in Schedule
B to this Agreement and any other document approved by the Company
or DTAG for delivery by the Initial Purchasers to offerees in
connection with the contemplated resale of the Offered Securities,
including such financial statements as are specified in Schedule C
to this Agreement that have been provided to the Initial Purchasers
for such purpose by DTAG, are collectively referred to as the
“Offering Document”.
The preliminary private placement
memorandum as of its date, the private placement memorandum as of
its date and as of the Closing Date (as defined below), the
remaining documents comprising the Offering Document as of their
dates and as of, as applicable, the date of this Agreement and the
Closing Date do not or will not on such dates include any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Offering Document based upon written information furnished
to DTAG or the Company by the Initial Purchasers specifically for
use therein, it being understood and agreed that the only such
information is that specified in Schedule E to this
Agreement.
The information required to be
delivered to holders and prospective purchasers of the Offered
Securities pursuant to Section 7.27 of the Base Indenture in
accordance with Rule 144A(d)(4) under the Securities Act (the
“Additional Issuer Information”) does not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions
from the Additional Issuer Information based upon written
information furnished to DTAG or the Company by the Initial
Purchasers specifically for use therein, it being understood and
agreed that the only such information is that specified in Schedule
E to this Agreement.
(b)
The Offered
Securities have been duly authorized by the Company and, when
delivered and paid for pursuant to this Agreement and the
Indenture, will have been duly executed, authenticated, issued and
delivered and will constitute valid and legally binding obligations
of the Company, entitled to the benefits provided in the Indenture
and enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity
principles.
(c)
The Company
has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Oklahoma, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Offering Document.
DTAG has been duly incorporated and
is an existing corporation in good standing under the laws of the
State of Delaware, with power and authority (corporate and other)
to own its properties and conduct its business as described in the
Offering Document.
Each of the Company and DTAG is duly
qualified and licensed to do business as a foreign corporation in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, other than jurisdictions in which the failure to be
so qualified and licensed shall not, individually or in the
aggregate, have a material adverse effect on the condition
(financial or other), business or results of operations of the
Company, DTAG and DTAG’s subsidiaries taken as a whole, or on
the ability of the Company or DTAG to perform its obligations under
(as applicable) this Agreement or the other Related Documents (as
defined in the Series 2005-1 Supplement) to which it is a
party.
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(d)
The Series
2005-1 Supplement has been duly authorized, and when the Offered
Securities are delivered and paid for pursuant to this Agreement
and the Indenture on the Closing Date, the Series 2005-1 Supplement
will have been duly executed and delivered, and will constitute a
valid and legally binding obligation of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’
rights and to general equity principles.
(e)
No consent,
approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement or
any other Related Document in connection with the issuance and sale
of the Offered Securities by the Company, except the filing of any
financing statements as may be required to perfect the interest of
the Trustee and the Master Collateral Agent (as defined in the
Indenture) in the collateral pledged thereto under the Related
Documents.
(f)
Neither
the Company nor DTAG is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any agreement or instrument to which it is a party or
by which it or its properties are bound which would have a material
adverse effect on the transactions contemplated in this Agreement
or in the Related Documents.
(g)
The
execution, delivery and performance of this Agreement and the other
Related Documents, and the issuance and sale of the Offered
Securities and compliance with the terms and provisions hereof and
thereof will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any
statute, any rule, regulation or order of any governmental agency
or body or any court, domestic or foreign, having jurisdiction over
the Company, DTAG, or, to the best knowledge of the Company or
DTAG, any subsidiary of DTAG or any of their properties, or any
agreement or instrument to which the Company, DTAG, or, to the best
knowledge of the Company or DTAG, any subsidiary of DTAG is a party
or by which the Company, DTAG, or any subsidiary of DTAG is bound
or to which any of the properties of the Company, DTAG, or, to the
best knowledge of the Company or DTAG, any subsidiary of DTAG is
subject, or the charter or by-laws of the Company, DTAG, or, to the
best knowledge of the Company or DTAG, any subsidiary of DTAG, that
would have a material adverse effect on the ability of the Company
or DTAG to perform its obligations under (as applicable) this
Agreement or the other Related Documents to which it is a party or
that are otherwise material in the context of the sale of the
Offered Securities.
Each of the Company and DTAG has
full power and authority (corporate and otherwise) to enter into
this Agreement and the other Related Documents to which it is a
party and to consummate the transactions contemplated hereby and
thereby, including, in the case of the Company, the full power and
authority to authorize, issue and sell the Offered Securities as
contemplated by this Agreement and the Series 2005-1
Supplement.
(h)
As of the
Closing Date, the representations and warranties of the Company and
DTAG contained in the Related Documents will be true and correct,
except that with respect to any such representation or warranty
which represents or warrants as to a specific date, such
representation or warranty shall be true and correct as of such
date.
(i)
This Agreement has been
duly authorized, executed and delivered by the Company and DTAG and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity
principles.
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(j)
Except
as disclosed in the Offering Document, the Company has good and
marketable title to all properties and assets owned by it, in each
case free from liens, encumbrances and defects that would
materially affect the value thereof or materially interfere with
the use made or to be made thereof by it.
(k)
The Company,
DTAG and, to the best knowledge of the Company or DTAG,
DTAG’s subsidiaries possess all material certificates,
licenses, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated
by them and have not received any notice of proceedings relating to
the revocation or modification of any such certificate, license,
authority or permit that, if determined adversely to the Company,
DTAG or any U.S. subsidiary of DTAG, would individually or in the
aggregate have a material adverse effect on the Company, DTAG and
DTAG’s subsidiaries taken as a whole.
(l)
Except
as set forth in Schedule D to this Agreement and specifically
identified as a labor dispute, no labor dispute with the employees
of the Company, DTAG or, to the best knowledge of the Company or
DTAG, DTAG’s subsidiaries exists or in any case, to the
knowledge of the Company or DTAG, is imminent that might have a
material adverse effect on the Company, DTAG and DTAG’s
subsidiaries taken as a whole.
(m)
Except as disclosed
in the Offering Document or as set forth in Schedule D to this
Agreement, there are no pending actions, suits or proceedings
against or affecting the Company, DTAG or, to the best knowledge of
the Company or DTAG, any U.S. subsidiary of DTAG, or any of their
respective properties that, if determined adversely to the Company,
DTAG or any subsidiaries of DTAG, would individually or in the
aggregate have a material adverse effect on the condition
(financial or other), business or results of operations of the
Company, DTAG and DTAG’s subsidiaries taken as a whole, or
would materially and adversely affect the ability of the Company or
DTAG to perform its obligations under (as applicable) this
Agreement or the other Related Documents to which it is a party, or
which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company’s or DTAG’s knowledge,
contemplated.
(n)
The financial
statements provided to the Initial Purchasers, as specified in
Schedule C of this Agreement, present fairly in all material
respects the financial position of DTAG and its consolidated
subsidiaries (including the Company) as of the dates shown and
their results of operations and cash flows for the periods shown,
and, except as otherwise disclosed in the Offering Document, such
financial statements have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis.
(o)
Since the
date of the latest audited consolidated financial statements
provided to the Initial Purchasers, as specified in Schedule C of
this Agreement, there has been no material adverse change nor any
development or event known to the Company or DTAG that in the
reasonable expectation of the Company or DTAG shall cause a
material adverse change in the condition (financial or other),
business, properties or results of operations of the Company and
DTAG taken as a whole, DTAG and DTAG’s subsidiaries taken as
a whole, and, except as disclosed in or contemplated by the
Offering Document, there has been no dividend or distribution of
any kind declared, paid or made by the Company or DTAG on any class
of its capital stock.
(p)
Neither the
Company nor DTAG is an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to
be registered under Section 8 of the United States Investment
Company Act of 1940 (the “Investment Company Act”), nor
is it a closed-end investment company required to be registered,
but not registered, thereunder; and neither the Company nor DTAG is
and, after giving effect to the offering and sale of the Offered
Securities and the application of the proceeds thereof as described
in the Offering Document, will be an “investment
company” as defined in the Investment Company Act.
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(q)
No securities
of the same class (within the meaning of Rule 144A(d)(3) under the
Securities Act) as the Offered Securities are:
(i) listed
on any national securities exchange registered under Section 6 of
the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or quoted in a U.S. automated
inter-dealer quotation system; or
(ii) convertible
or exchangeable into securities so listed or quoted at the time of
issuance.
(r)
The
offer and sale of the Offered Securities by the Company to the
Initial Purchasers in the manner contemplated by this Agreement
will be exempt from the registration requirements of the Securities
Act and it is not necessary to qualify the Indenture under the
United States Trust Indenture Act of 1939, as amended (the
“Trust Indenture Act”).
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(s)
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Neither the Company, nor any of its affiliates,
nor any person acting on its or their behalf:
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(i) has,
within the six-month period prior to the date hereof, offered or
sold in the United States or to any U.S. person (as such terms are
defined in Regulation S under the Securities Act) the Offered
Securities or any security of the same class or series as the
Offered Securities; or
(ii) has
offered or will offer or sell the Offered Securities by means of
any directed selling efforts within the meaning of Rule 902(b) of
Regulation S (“Directed Selling Efforts”), including
specifically, any activity undertaken for the purpose of, or that
could reasonably be expected to have the effect of, conditioning
the market in the United States for any of the Offered Securities,
including, but not limited to, placement of an advertisement,
including without limitation a “tombstone”, that refers
to this Agreement or the Offered Securities issued and sold
pursuant hereto in any publication that is either printed primarily
for distribution in the United States or has had, during the twelve
(12) months preceding the date of this Agreement, an average
circulation in the United States of 15,000 or more copies per
issue, except as otherwise permitted by Regulation S promulgated
under the Securities Act; or
(iii) has
offered or sold, or will offer or sell, any of the Offered
Securities to any person in the United States, except as permitted
under Regulation S or to persons who the Company or such affiliate
or person acting on its behalf, as applicable, believes are
qualified institutional buyers within the meaning of Rule 144A
(“Rule 144A”), in accordance with the requirements of
such Rule; or
(iv) has
offered or will offer to sell any of the Offered Securities by
means of any form of general solicitation or general advertising
(as those terms are used in Regulation D under the Securities Act),
including, but not limited to:
(A)
any advertisement,
article, notice (except in accordance with Rule 135c promulgated
under the Securities Act) or other communication published in any
newspaper, magazine, or similar media or broadcast over television
or radio; and
(B)
any seminar or
meeting whose attendees have been invited by any general
solicitation or general advertising, or in any manner involving a
public offering within the meaning of Section 4(2) of the
Securities Act. The Company has not entered and will not enter into
any contractual arrangement with respect to the distribution of the
Offered Securities except for this Agreement.
3.
Purchase, Sale and Delivery of Offered Securities .
On the basis of the representations, warranties and agreements in
this Agreement, but subject to the terms and conditions in this
Agreement, the Company agrees to sell to the Initial Purchasers,
and the Initial Purchasers agree to purchase, severally and not
jointly, from the Company, the respective principal amount of the
Offered Securities set forth opposite their respective names in
Schedule A to this Agreement, at the purchase price specified in
Schedule A.
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The Company will deliver against
payment of the purchase price the Offered Securities initially
represented by one or more global Securities in definitive form
(the “Global Securities”), deposited with the Trustee
as custodian for The Depository Trust Company (“DTC”)
and, in the case of the Global Securities to be sold in the United
States, registered in the name of Cede & Co., as nominee for
DTC or, in the case of Global Securities sold in offshore
transactions, registered in the name of a nominee of DTC for the
accounts of the Euroclear System (“Euroclear”) and
Clearstream Banking, société anonyme
(“Clearstream”). Interests in any Global Security will
be held only in book-entry form through DTC, except in the limited
circumstances described in the Offering Document. Payment for the
Offered Securities shall be made by the Initial Purchasers in
Federal (same day) funds by wire transfer to an account in New York
previously designated to the Initial Purchasers by the Company at a
bank acceptable to the Initial Purchasers or official check or
checks drawn to the order of Rental Car Finance Corp. at the office
of Latham & Watkins LLP, 885 Third Avenue, New York, New York
10022-4802, at 11:00 A.M. (New York time), on April 21, 2005,
or at such other time not later than seven (7) full business days
thereafter as the Initial Purchasers and the Company determine,
such time being herein referred to as the “Closing
Date”, against delivery to the Trustee as custodian for DTC
of the Global Securities representing all of the Offered
Securities. The Global Securities will be made available for
inspection at the above office of Latham & Watkins LLP at least
24 hours prior to the Closing Date.
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4.
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Representations by the Initial Purchasers;
Resale by the Initial Purchasers .
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(a)
Each of the
Initial Purchasers represents and warrants to the Company and DTAG
that it is an “accredited investor” as defined in Rule
501(a)(1) under the Securities Act.
(b)
Each of the
Initial Purchasers acknowledges that the Offered Securities have
not been and will not be registered under the Securities Act or any
state securities laws and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S or pursuant to an exemption
from the registration requirements of the Securities
Act.
Each of the Initial Purchasers
severally represents and agrees that it has offered and sold the
Offered Securities and will offer and sell the Offered
Securities:
(i)
as part of its
distribution at any time; and
(ii)
otherwise until
forty (40) days after the later of the commencement of the offering
and the Closing Date,
only in accordance with Rule 144A or
Rule 903 under the Securities Act.
Accordingly, each Initial Purchaser
severally represents and agrees on behalf of itself that neither
such Initial Purchaser nor its affiliates, nor any persons acting
on or their behalf, have engaged or will engage in any Directed
Selling Efforts with respect to the Offered Securities, and each
Initial Purchaser agrees that it and its affiliates and all persons
acting on their behalf have complied and will comply with the
offering restrictions requirement of Regulation S.
Each Initial Purchaser agrees that,
at or prior to confirmation of sale of the Offered Securities, such
Initial Purchaser will have sent to each distributor, dealer or
person receiving a selling concession, fee or other remuneration
that purchases the Offered Securities from it during the restricted
period a confirmation or notice to substantially the following
effect:
“The Securities covered hereby
have not been and will not be registered under the U.S. Securities
Act of 1933, as amended (the “Securities Act”), and may
not be offered or sold within the United States or to, or for the
account or benefit of, U.S. persons (i) as part of their
distribution at any time or (ii) otherwise until forty (40) days
after the later of the date of the commencement of the offering and
the closing date, except in either case in accordance with
Regulation S (or Rule 144A if available) under the Securities Act.
Terms used above have the meanings given to them by Regulation
S.”
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Terms used in this subsection (b)
have the meanings given to them by Regulation S.
(c)
Each of the
Initial Purchasers agrees that it and each of its affiliates has
not entered and will not enter into any contractual arrangement
with respect to the distribution of the Offered Securities except
for any such arrangements with the prior written consent of the
Company.
(d)
Each of the
Initial Purchasers agrees that it and each of its affiliates will
not offer or sell the Offered Securities by means of any form of
general solicitation or general advertising, within the meaning of
Rule 502(c) under the Securities Act, including, but not limited
to:
(i) any
advertisement, article, notice or other communication published in
any newspaper, magazine or similar media or broadcast over
television or radio; or
(ii) any
seminar or meeting whose attendees have been invited by any general
solicitation or general advertising.
Each of the Initial Purchasers
severally agrees, with respect to resales made in reliance on Rule
144A of any of the Offered Securities, to deliver either with the
confirmation of such resale or otherwise prior to settlement of
such resale a notice to the effect that the resale of such Offered
Securities has been made in reliance upon the exemption from the
registration requirements of the Securities Act provided by Rule
144A.
(e)
Each of the
Initial Purchasers represents and warrants to the Company and DTAG
and agrees that (i) it has not offered or sold and, prior to the
expiration of six (6) months from the Closing Date, will not offer
or sell any Offered Securities to persons in the United Kingdom
except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as
principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not
result in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995 (as
amended); (ii) it has complied and will comply with all applicable
provisions of the Financial Services and Market Act 2000 (the
“FSMA”) with respect to anything done by it in relation
to the Offered Securities in, from, or otherwise involving the
United Kingdom; and (iii) it has only communicated or caused to be
communicated, and will only communicate or cause to be communicated
any invitation or inducement to engage in investment activity
(within the meaning of Section 21 of the FSMA) received by it in
connection with the issue or sale of any Offered Securities in
circumstances in which Section 21(1) of the FSMA does not apply to
the Company.
5.
Certain Agreements of the Company and DTAG . Each of the
Company and DTAG agrees with the Initial Purchasers
that:
(a)
The Company
and DTAG will advise each of the Initial Purchasers promptly of any
proposal to amend or supplement the Offering Document and will not
effect such amendment or supplementation without each Initial
Purchaser’s consent. If, at any time prior to the completion
of the resale by the Initial Purchasers in the distribution of the
Offered Securities by the Initial Purchasers any event occurs as a
result of which the Offering Document as then amended or
supplemented would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any such
time to amend or supplement the Offering Document to comply with
any applicable law, the Company and DTAG promptly will notify the
Initial Purchasers of such event and promptly will prepare, at
their own expense, an amendment or supplement which will correct
such statement or omission or effect such compliance. Neither the
Initial Purchasers’ consent to, nor the Initial
Purchasers’ delivery to offerees or investors of, any such
amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 6 of this Agreement.
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(b)
&nbs
