1
EXHIBIT 4.15
[EXECUTION COPY]
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LIQUIDITY AGREEMENT,
Dated as of March 4, 1998,
among
DOLLAR THRIFTY FUNDING CORP.,
CERTAIN FINANCIAL INSTITUTIONS,
as the Liquidity Lenders
and
CREDIT SUISSE FIRST BOSTON,
as the Liquidity Agent for
the Liquidity Lenders
CHASE MANHATTAN BANK,
not as party but as
Administrative Agent
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions......................................................... 2
SECTION 1.2. Cross-References.................................................... 2
SECTION 1.3. Accounting and Financial Determinations; No Duplication............. 2
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes.................................. 3
SECTION 2.2. Conditions to the Issuance of Commercial Paper Notes................ 4
SECTION 2.2.1. Representations and Warranties...................................... 4
SECTION 2.2.2. No Liquidity Agreement Amortization Event........................... 5
SECTION 2.2.3. Available Liquidity Commitment...................................... 5
SECTION 2.2.4. No CP Borrowing Base Deficiency..................................... 5
SECTION 2.2.5. CP Borrowing Base Certificate....................................... 5
SECTION 2.2.6. Non-Payment of Series 1998-1 Notes.................................. 5
SECTION 2.3. Commercial Paper Notes.............................................. 5
SECTION 2.4. Commercial Paper Account; Payment of Commercial Paper
Notes............................................................. 6
SECTION 2.5. Series 1998-1 Pledge Account........................................ 6
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments............................................... 6
SECTION 3.1.1. Refunding Advance Commitment........................................ 7
SECTION 3.1.2. Swing Line Commitment............................................... 7
SECTION 3.1.3. Use of Proceeds..................................................... 7
SECTION 3.2. Liquidity Lenders Not Required to Make Certain Liquidity
Advances.......................................................... 7
SECTION 3.2.1. Liquidity Advances.................................................. 7
SECTION 3.2.2. Failure To Fund..................................................... 7
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SECTION 3.3. Termination and Reduction of the Liquidity Commitments.............. 8
SECTION 3.4. Increase of the Aggregate Liquidity Commitment...................... 8
SECTION 3.5. Extensions of Scheduled Liquidity Commitment
Termination Date.................................................. 9
SECTION 3.6. Borrowing Procedures................................................ 9
SECTION 3.6.1. Refunding Advances.................................................. 9
SECTION 3.6.2. Swing Line Advances................................................. 10
SECTION 3.6.3. Commitment Termination Date Liquidity Advances...................... 11
SECTION 3.6.4. Nature of Funding Obligations....................................... 12
SECTION 3.6.5. Failure to Fund by Liquidity Lender................................. 12
SECTION 3.7. Disbursement of Funds............................................... 13
SECTION 3.8. Continuation and Conversion Elections............................... 13
SECTION 3.9. Eurodollar Funding.................................................. 14
SECTION 3.10. Liquidity Advance Notes............................................. 14
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments.......................................... 15
SECTION 4.1.1. Voluntary Prepayments............................................... 15
SECTION 4.1.2. Mandatory Prepayments............................................... 15
SECTION 4.2. Interest Provisions................................................. 16
SECTION 4.2.1. Rates............................................................... 16
SECTION 4.2.2. Post Default Rates.................................................. 17
SECTION 4.3. Payments of Interest................................................ 17
SECTION 4.4. (a) Computation Basis............................................... 18
(b) Determination of Rates......................................... 18
SECTION 4.5. Fees................................................................ 18
ARTICLE V
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Lending Unlawful......................................... 19
SECTION 5.2. Deposits Unavailable................................................ 19
SECTION 5.3. Increased Costs, etc................................................ 19
SECTION 5.4. Funding Losses...................................................... 20
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SECTION 5.5. Increased Capital Costs............................................. 21
SECTION 5.6. Taxes............................................................... 21
SECTION 5.7. Payments, Computations, etc......................................... 25
SECTION 5.8. Sharing of Payments................................................. 25
SECTION 5.9. Replacement of Liquidity Lenders.................................... 26
SECTION 5.10. Order and Priority.................................................. 27
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness......................................... 28
SECTION 6.1.1. Organic Documents, Resolutions...................................... 28
SECTION 6.1.2. Liquidity Agreement................................................. 28
SECTION 6.1.3. Liquidity Advance Notes............................................. 29
SECTION 6.1.4. Collateral Agreement................................................ 29
SECTION 6.1.5. Series 1998-1 Supplement............................................ 29
SECTION 6.1.6. Series 1998-1 Notes................................................. 29
SECTION 6.1.7. Master Lease........................................................ 29
SECTION 6.1.8. Series 1998-1 Letter of Credit...................................... 29
SECTION 6.1.9. Depositary Agreement................................................ 29
SECTION 6.1.10. Dealer Agreement.................................................... 29
SECTION 6.1.11. Absence of Certain Events; Accuracy of Liquidity
Agreement Representations and Warranties; Closing Date
Certificate....................................................... 30
SECTION 6.1.12. Accounts............................................................ 30
SECTION 6.1.13. Rating Letters...................................................... 30
SECTION 6.1.14. Board of Directors.................................................. 30
SECTION 6.1.15. Solvency Certificate................................................ 30
SECTION 6.1.16. Closing Fees and Expenses........................................... 30
SECTION 6.1.17. Certified Copies of Vehicle Disposition Programs.................... 31
SECTION 6.1.18. Opinions, Instruments, Certificates and Other Documents............. 31
SECTION 6.1.19. Notation of Liens................................................... 31
SECTION 6.1.20. Offering Materials.................................................. 31
SECTION 6.1.21. Satisfactory Legal Form............................................. 31
SECTION 6.1.22. Credit Rating of Initial Liquidity Lenders.......................... 31
SECTION 6.1.23. Credit Agreement.................................................... 32
SECTION 6.2. [Reserved].......................................................... 32
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SECTION 6.3. Conditions Precedent to the Making of Each Refunding
Advance........................................................... 32
SECTION 6.3.1. No Bankruptcy....................................................... 32
SECTION 6.3.2. Availability........................................................ 32
SECTION 6.3.3. No Borrowing Base Deficiency........................................ 32
SECTION 6.3.4. Borrowing Request................................................... 32
SECTION 6.3.5. Borrowing Base Certificate.......................................... 32
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Existence and Power................................................. 33
SECTION 7.2. Authorization....................................................... 33
SECTION 7.3. Binding Effect...................................................... 33
SECTION 7.4. Financial Information; Financial Condition.......................... 33
SECTION 7.5. Litigation.......................................................... 34
SECTION 7.6. No ERISA Plan....................................................... 34
SECTION 7.7. Tax Filings and Expenses............................................ 34
SECTION 7.8. Disclosure.......................................................... 34
SECTION 7.9. Investment Company Act; Securities Act.............................. 34
SECTION 7.10. Margin Regulations.................................................. 34
SECTION 7.11. No Consent.......................................................... 35
SECTION 7.12. No Violation of Laws, etc........................................... 35
SECTION 7.13. Ownership; Subsidiaries............................................. 35
SECTION 7.14. Solvency............................................................ 35
SECTION 7.15. No Security Interest................................................ 35
SECTION 7.16. Vehicle Disposition Programs........................................ 36
SECTION 7.17. Other Representations............................................... 36
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants............................................... 36
SECTION 8.1.1. Information......................................................... 36
SECTION 8.1.2. Compliance with Covenants........................................... 38
SECTION 8.1.3. Payment of Obligations.............................................. 38
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SECTION 8.1.4. Maintenance of Separate Existence................................... 38
SECTION 8.1.5. Compliance with Laws................................................ 39
SECTION 8.1.6. Inspection of Property, Books and Records........................... 39
SECTION 8.1.7. Absence of Certain Actions.......................................... 39
SECTION 8.1.8. Notice of Default................................................... 40
SECTION 8.1.9. Notice of Material Proceedings...................................... 40
SECTION 8.1.10. Further Requests.................................................... 40
SECTION 8.1.11. Further Assurances.................................................. 40
SECTION 8.1.12. Vehicle Disposition Programs........................................ 40
SECTION 8.1.13. Use of Proceeds of Commercial Paper Notes........................... 41
SECTION 8.1.14. Vehicles............................................................ 41
SECTION 8.2. Negative Covenants.................................................. 41
SECTION 8.2.1. Liens............................................................... 41
SECTION 8.2.2. Other Indebtedness.................................................. 41
SECTION 8.2.3. Consolidations and Mergers ......................................... 41
SECTION 8.2.4. Sales of Assets..................................................... 42
SECTION 8.2.5. Acquisition of Assets............................................... 42
SECTION 8.2.6. Dividends, Officers' Compensation, etc.............................. 42
SECTION 8.2.7. Name; Chief Executive Office........................................ 42
SECTION 8.2.8. Organic Documents................................................... 42
SECTION 8.2.9. Investments......................................................... 42
SECTION 8.2.10. No Other Agreements; Amendments to CP Program
Documents......................................................... 42
SECTION 8.2.11. Other Business...................................................... 43
SECTION 8.2.12. Offering Document................................................... 43
ARTICLE IX
LIQUIDITY AGREEMENT AMORTIZATION EVENTS
SECTION 9.1. Liquidity Agreement Amortization Event.............................. 43
SECTION 9.1.1. Non-Payment of Obligations.......................................... 43
SECTION 9.1.2. Breach of Warranty.................................................. 43
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations................ 44
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations.................. 44
SECTION 9.1.5. Judgments........................................................... 44
SECTION 9.1.6. Bankruptcy, Insolvency, etc......................................... 44
SECTION 9.1.7. Independent Directors............................................... 44
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(continued)
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SECTION 9.1.8. Enforceability of or Default under CP Program Documents............. 44
SECTION 9.1.9. Investment Company.................................................. 45
SECTION 9.1.10. Program Downgrade................................................... 45
SECTION 9.1.11. Termination of Liquidity Commitments or Reduction of
Aggregate Liquidity Commitment.................................... 45
SECTION 9.1.12. Liquidity Advance under Section 3.6.1(b)............................ 45
SECTION 9.1.13. Series 1998-1 Enhancement Deficiency................................ 45
SECTION 9.2. Action if Liquidity Agreement Amortization Event.................... 45
SECTION 9.3. Limited Liquidity Agreement Amortization Events..................... 46
SECTION 9.3.1. Ineligibility of Manufacturer or Repurchase Program................. 46
SECTION 9.3.2. Termination of Liquidity Commitment................................. 47
SECTION 9.3.3. Rating Downgrade of Liquidity Lender................................ 47
SECTION 9.4. Action Upon Limited Liquidity Agreement Amortization
Event............................................................. 47
ARTICLE X
THE LIQUIDITY AGENT
SECTION 10.1. Actions............................................................. 48
SECTION 10.2. Collateral Agreement................................................ 48
SECTION 10.3. Exculpation......................................................... 49
SECTION 10.4. Successor........................................................... 49
SECTION 10.5. Liquidity Advances by CSFB.......................................... 50
SECTION 10.6. Credit Decisions.................................................... 50
SECTION 10.7. Copies, etc......................................................... 50
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc............................................ 51
SECTION 11.2. Notices............................................................. 53
SECTION 11.3. Payment of Costs and Expenses....................................... 53
SECTION 11.4. Indemnification..................................................... 54
SECTION 11.5. Survival............................................................ 55
SECTION 11.6. Severability........................................................ 55
SECTION 11.7. Headings............................................................ 55
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SECTION 11.8. Execution in Counterparts........................................... 55
SECTION 11.9. Governing Law; Entire Agreement..................................... 55
SECTION 11.10. Successors and Assigns.............................................. 56
SECTION 11.11. Sale and Transfer of Liquidity Advances and Notes;
Participations in Loans and Notes................................. 56
SECTION 11.11.1. Assignments......................................................... 56
SECTION 11.11.2. Participations...................................................... 58
SECTION 11.12. Other Transactions.................................................. 059
SECTION 11.13. Bankruptcy Petition Against DTFC.................................... 59
SECTION 11.14. Limited Recourse to DTFC; No Recourse............................... 59
SECTION 11.15. Survival of Representations and Warranties.......................... 60
SECTION 11.16. Confidentiality..................................................... 60
SECTION 11.17. Jurisdiction; Consent to Service of Process......................... 61
SECTION 11.18. Waiver of Jury Trial................................................ 62
SECTION 11.19. Waiver of Set-Off................................................... 62
EXHIBITS
EXHIBIT A - Form of Liquidity Advance Note
EXHIBIT B - Form of Borrowing Request
EXHIBIT C - Form of Continuation/Conversion Notice
EXHIBIT D - Form of Liquidity Lender Assignment Agreement
EXHIBIT E - Form of Closing Date Certificate
EXHIBIT F - Form of Liquidity Commitment Agreement
EXHIBIT G - Form of U.S. Tax Compliance Certificate
ANNEXES
ANNEX A - Definitions
ANNEX B - Disclosure Materials
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LIQUIDITY AGREEMENT
THIS LIQUIDITY AGREEMENT, dated as of March 4, 1998 (as amended,
supplemented, restated or otherwise modified from time to time, this "Liquidity
Agreement"), among DOLLAR THRIFTY FUNDING CORP., an Oklahoma corporation
("DTFC"), the financial institutions listed on the signature pages hereof under
the heading "Liquidity Lenders" (each such financial institution, together with
each of the financial institutions that has become party hereto pursuant to
Section 11.11.1, including any such financial institution acting in the capacity
of Swing Line Lender, being a "Liquidity Lender" and, collectively, the
"Liquidity Lenders") and CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation
("CSFB"), as liquidity agent (in such capacity, together with any successors and
assigns thereto, the "Liquidity Agent") for the Liquidity Lenders.
W I T N E S S E T H:
WHEREAS, DTFC proposes to issue and sell its Commercial Paper Notes
(such capitalized term and the other capitalized terms used herein shall have
the meanings assigned thereto pursuant to Section 1.1 hereof) in the commercial
paper market and use the net proceeds thereof to, among other things, make
advances under the Series 1998-1 Notes issued by Rental Car Finance Corp., an
Oklahoma corporation ("RCFC"), pursuant to the Base Indenture (as the same may
be amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the "Base Indenture"), dated as of December 13, 1995,
between RCFC and Bankers Trust Company, a New York banking corporation, as
trustee and enhancement agent (the "Trustee"), as amended by Amendment to Base
Indenture, dated as of December 23, 1997, between RCFC and the Trustee, as
supplemented by the Series 1998-1 Supplement thereto (as amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof,
the "Series 1998-1 Supplement") dated as of March 4, 1998, between RCFC and the
Trustee;
WHEREAS, the proceeds of advances made by DTFC under the Series 1998-1
Notes will be used by RCFC to acquire, finance or refinance Group II Vehicles
for leasing to Thrifty Rent-A-Car System, Inc., an Oklahoma corporation
("Thrifty"), Dollar Rent A Car Systems, Inc., an Oklahoma corporation
("Dollar"), and certain direct and indirect Subsidiaries of Dollar Thrifty
Automotive Group, Inc., a Delaware corporation ("DTAG") (Thrifty, Dollar and
such Subsidiaries, each a "Lessee" and, collectively, the "Lessees") under the
Master Motor Vehicle Lease and Servicing Agreement (as amended, supplemented or
otherwise
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modified from time to time in accordance with the terms thereof, the "Master
Lease"), dated as of March 4, 1998, among RCFC, as lessor, the Lessees, as
lessees and servicers, and DTAG, as guarantor and master servicer;
WHEREAS, DTFC desires to obtain Liquidity Commitments from the
Liquidity Lenders to make Liquidity Advances from time to time prior to the
Liquidity Commitment Termination Date in an aggregate principal amount not to
exceed the Aggregate Liquidity Commitment at any one time outstanding; and
WHEREAS, the Liquidity Lenders are willing, on the terms and subject to
the conditions hereinafter set forth (including Section 6.3), to provide such
Liquidity Commitments and make such Liquidity Advances to DTFC;
NOW, THEREFORE, in consideration of the foregoing premises, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions. Certain capitalized terms used herein
(including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in the Definitions List, dated as of March 4, 1998 and
annexed hereto as Annex A, as such Definitions List may be amended, supplemented
or otherwise modified from time to time in accordance with the provisions hereof
(the "Definitions List"). Capitalized terms used herein but not defined herein
or in the Definitions List shall have the meanings assigned to such terms in
Definitions List attached as Schedule I to the Base Indenture and the Series
1998-1 Supplement, provided that any capitalized term used herein but not
defined herein or in the Definitions List but defined in both the Definitions
List attached as Schedule I to the Base Indenture and the Series 1998-1
Supplement shall have the meaning assigned to such term in the Series 1998-1
Supplement .
SECTION 1.2. Cross-References. Unless otherwise specified, references
in this Liquidity Agreement and in each other CP Program Document to any Article
or Section are references to such Article or Section of this Liquidity Agreement
or such other CP Program Document, as the case may be, and, unless otherwise
specified, references in any Article, Section or definition to any clause are
references to such clause of such Article, Section or definition.
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SECTION 1.3. Accounting and Financial Determinations; No Duplication.
Unless otherwise specified, (i) all accounting terms used herein shall be
interpreted, all accounting determinations and computations hereunder shall be
made, and all Financial Statements required to be delivered hereunder shall be
prepared in conformity with GAAP, and (ii) all accounting determinations and
computations hereunder or under any other CP Program Documents shall be made
without duplication; provided, that if any change in GAAP in itself materially
affects any such determination, computation or financial statement, DTFC may by
notice to the Liquidity Agent and the Collateral Agent, or alternatively the
Liquidity Agent or the Collateral Agent may by notice to DTFC, require that any
such determination, computation or financial statement thereafter be made in
accordance with GAAP as in effect, and applied by DTFC, immediately before such
change in GAAP occurs. Each of the Liquidity Agent and DTFC agrees to enter into
negotiations in good faith to modify the financial representations and covenants
and other applicable provisions contained herein in a manner which reflects any
such change in GAAP without adversely affecting the rights of the Liquidity
Agent and the Liquidity Lenders. .
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes. On the terms and
subject to the provisions of this Liquidity Agreement and the other CP Program
Documents, DTFC may from time to time on or after the Closing Date and prior to
the Liquidity Commitment Termination Date, issue and sell Commercial Paper
Notes; provided, however, that DTFC shall not issue and sell Commercial Paper
Notes if
(a) DTFC and the Depositary have received instructions then in
effect from the Liquidity Agent (copies of which will also be sent to
the Dealers), given in accordance with this Section 2.1, not to issue
or deliver Commercial Paper Notes because (i) the Liquidity Commitment
Termination Date shall have occurred, or (ii) the Commercial Paper
Account or any funds on deposit in, or otherwise to the credit of, the
Commercial Paper Account shall be subject to any stay, writ, judgment,
warrant of attachment, execution or similar process; provided, however,
that if any such stay, writ, judgment, warrant of attachment, execution
or similar process is removed or dismissed, DTFC may recommence the
issuance and sale of Commercial Paper Notes,
(b) the issuance of Commercial Paper Notes is prohibited by
Sections 2.1, 2.2, 9.2 or 9.4 hereof, Sections 3 or 10 of the
Depositary Agreement or Section 5.01 of the Collateral Agreement,
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(c) after giving effect to such issuance and the use of
proceeds thereof, Aggregate Outstandings would exceed the CP Borrowing
Base,
(d) after giving effect to such issuance and the use of
proceeds thereof, the weighted average interest rate of the Outstanding
Commercial Paper Notes, Liquidity Advances and LOC Liquidity
Disbursements would be in excess of 10.00% per annum, unless (i) DTFC
and the Liquidity Agent shall have given their written consent to a
weighted average interest rate in excess of 10.00% per annum, (ii) the
Enhancement Amount shall be increased if required by the Rating
Agencies in connection therewith and (iii) the Rating Agencies shall
have confirmed that such weighted average interest rate will not result
in the downgrading or withdrawal of the then current ratings of the
Commercial Paper Notes; provided, however, that if the ratings of the
Commercial Paper Notes by S&P, Moody's, and DCR will be less than A-1,
P-1, and D-1 respectively, after giving effect to such weighted average
interest rate in excess of 10.00% per annum, such Commercial Paper
Notes will not be issued unless the Majority Banks shall have given
their written consent thereto, or
(e) DTFC and the Depositary shall have received instructions
then in effect from the Liquidity Agent not to issue or deliver
Commercial Paper Notes because any of the conditions set forth in
clauses (b) through (d) of this Section 2.1 shall be true.
The Liquidity Agent shall have no obligation to deliver any instructions set
forth in clause (a) or clause (e) of this Section 2.1 except upon the
instructions of the Majority Banks and any delivery by the Liquidity Agent of
any such instructions shall be subject to the provisions of Section 10.3 and the
rights of the Liquidity Agent hereunder and shall not relieve DTFC, the
Collateral Agent or the Depositary of any of their respective obligations under
any CP Program Document or with respect to the issuance of Commercial Paper
Notes. Any instructions from the Liquidity Agent to DTFC and the Depositary in
accordance with clause (a) or clause (e) of this Section 2.1 shall specify the
reason(s) to cease issuing and delivering Commercial Paper Notes. Without prior
instruction as set forth above, the Liquidity Agent agrees that it shall only
instruct DTFC and the Depositary not to issue and sell Commercial Paper Notes if
there shall have occurred an event described in subclause (i) of clause (a) of
this Section 2.1. Concurrently with the giving of any such instructions to DTFC
and the Depositary, the Liquidity Agent shall give notice thereof to the
Liquidity Lenders, the Collateral Agent, the Dealers, and the Rating Agencies,
but failure to do so shall not impair the effect of such instructions and the
giving of such notice shall be subject to Section 10.3.
SECTION 2.2. Conditions to the Issuance of Commercial Paper Notes. The
right of DTFC to issue Commercial Paper Notes (whether such Commercial Paper
Notes are to be issued to refinance Commercial Paper Notes maturing on the day
such Commercial Paper Notes are to be issued or to increase the Aggregate Face
Amount over that of the preceding day) is subject to the satisfaction of the
following conditions:
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SECTION 2.2.1. Representations and Warranties. With respect to the
issuance of any Commercial Paper Note and after giving effect thereto, the
representations and warranties of DTFC set forth in Article VII hereof, or in
any other CP Program Document to which DTFC is a party, shall be true and
correct (in all material respects to the extent any such representations and
warranties do not incorporate a materiality limitation in their terms) with the
same effect as if then made (unless stated to relate solely to an earlier date,
in which case such representations and warranties shall be true and correct (in
all material respects to the extent any such representations and warranties do
not incorporate a materiality limitation in their terms) as of such earlier
date.
SECTION 2.2.2. No Liquidity Agreement Amortization Event. (a) At the
time of such issuance and after giving effect thereto, no Liquidity Agreement
Amortization Event (and no Potential Liquidity Agreement Amortization Event with
respect to DTFC under Section 9.1.6 and, in the case of any increase in the
Aggregate Face Amount over that of the day preceding the day of such issuance,
no other Potential Liquidity Agreement Amortization Event) shall have occurred
and be continuing.
(b) Such issuance of Commercial Paper Notes shall not be prohibited by
Section 9.4.
SECTION 2.2.3. Available Liquidity Commitment. At the time of the
issuance of each Commercial Paper Note and after giving effect thereto and to
the use of proceeds thereof on such day, (a) the sum of (i) the Aggregate
Liquidity Commitment and (ii) the Series 1998-1 Letter of Credit shall be equal
to or greater than (b) the sum of (i) the Aggregate Outstanding CP and (ii) the
aggregate principal amount of Liquidity Advances Outstanding net of any amounts
on deposit at such time in the Collateral Account set aside for the repayment of
the principal of Liquidity Advances.
SECTION 2.2.4. No CP Borrowing Base Deficiency. With respect to the
issuance of any Commercial Paper Note, a CP Borrowing Base Deficiency shall not
exist and the issuance of such Commercial Paper Note, after giving effect to the
repayment of any Commercial Paper Notes, Liquidity Advances and LOC Liquidity
Disbursements made with the proceeds thereof, would not result in a CP Borrowing
Base Deficiency.
SECTION 2.2.5. CP Borrowing Base Certificate. The Liquidity Agent shall
have received an Officer's Certificate, dated the date of such issuance, duly
executed and delivered by an Authorized Officer of DTFC, certifying the amount
of the CP Borrowing Base as of the close of business on the last day of the
calendar month immediately preceding such date of issuance.
SECTION 2.2.6. Non-Payment of Series 1998-1 Notes. At the time of such
issuance and after giving effect thereto, no Amortization Event or Potential
Amortization Event under
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Section 8.1 of the Base Indenture or Lease Event of Default under Section 17.1
of the Master Lease shall have occurred and be continuing.
SECTION 2.3. Commercial Paper Notes. DTFC agrees that each promissory
note constituting a Commercial Paper Note shall (a) be substantially in the form
of Exhibit A to the Depositary Agreement or substantially in the form of the
Master Note attached as Exhibit E to the Depositary Agreement, and be completed
in accordance with this Liquidity Agreement and the Depositary Agreement
(including any provisions for book-entry securities contained therein), (b) be
dated the date of issuance thereof, (c) be made payable to the order of a named
payee or bearer, (d) have a maturity date which shall not be later than the
earlier of (i) the third Business Day prior to the earliest of the Scheduled
Liquidity Commitment Termination Date and the Series 1998-1 Letter of Credit
Expiration Date in effect on the date of issuance thereof and (ii) the date
which is 58 days after the date of issuance thereof, (e) be in a face amount of
at least $100,000 and an integral multiple of $1,000, and (f) be exempt from the
registration requirements of the Securities Act of 1933, as amended, pursuant to
Section 3(a)(3) thereof. Subject to the provisions of the Depositary Agreement,
all Commercial Paper Notes shall be delivered and issued against payment
therefor in immediately available funds on the date of issuance, and otherwise
in accordance with the terms of this Liquidity Agreement and the Depositary
Agreement.
SECTION 2.4. Commercial Paper Account; Payment of Commercial Paper
Notes. (a) Contemporaneously with the execution and delivery by DTFC of the
Depositary Agreement, and for the purposes of this Liquidity Agreement and the
Depositary Agreement, DTFC shall cause the Depositary to establish at its office
at 4 Albany Street, New York, New York 10006, a segregated trust account in its
corporate trust department for the exclusive benefit of the Holders of the
outstanding Commercial Paper Notes (the "Commercial Paper Account"), over which
the Depositary shall have exclusive control and sole right of withdrawal.
(b) Proceeds of the sale of Commercial Paper Notes shall be deposited
in the Commercial Paper Account only to the extent necessary to pay matured and
concurrently maturing Commercial Paper Notes, whether or not presented to the
Depositary for payment; otherwise, proceeds of the sale of Commercial Paper
Notes shall be applied according to the terms of the Collateral Agreement.
SECTION 2.5. Series 1998-1 Pledge Account. DTFC from time to time may
deposit funds of DTFC into the Series 1998-1 Pledge Account to be held by the
Collateral Agent as additional security for the payment and performance of
DTFC's Obligations to the Secured Parties. If on any date a Borrowing Base
Deficiency or CP Borrowing Base Deficiency continues to exist after application
of all Deposited Funds required to be applied on such date from the Collateral
Account, the Termination Advance Account and the Liquidity Lender Account
pursuant to Section 2.01 or 5.02 of the Collateral Agreement, as applicable,
then
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amounts on deposit in the Series 1998-1 Pledge Account shall be applied to make
payments on such date, in accordance with the penultimate paragraph of Section
5.01 of the Collateral Agreement, to the extent necessary to reduce such
Borrowing Base Deficiency or CP Borrowing Base Deficiency to zero.
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments. Subject to and in accordance with
the terms and the conditions of this Liquidity Agreement (including Article VI),
each Liquidity Lender severally and not jointly agrees to make Refunding
Advances, and the Swing Line Lender agrees to make Swing Line Advances to DTFC
pursuant to this Section 3.1.
SECTION 3.1.1. Refunding Advance Commitment. Subject to and in
accordance with the terms and conditions hereof (including, without limitation,
the terms and conditions set forth in Section 6.3), each Liquidity Lender
severally and not jointly agrees to make, from time to time, on or before such
Liquidity Lender's Liquidity Commitment Termination Date, advances for the
purposes set forth in Section 3.1.3 (relative to such Liquidity Lender
(including its Commitment Termination Date Liquidity Advance), its "Refunding
Advances") to DTFC equal to (a) in the case of Refunding Advances (other than
any Commitment Termination Date Liquidity Advance), such Liquidity Lender's
Percentage of the aggregate amount of the Borrowing of Refunding Advances
requested by DTFC or the Collateral Agent, as attorney-in-fact for DTFC, to be
made on such day, and (b) in the case of Commitment Termination Date Liquidity
Advances, such Liquidity Lender's Overall Percentage of the Aggregate Face
Amount on the date of such Commitment Termination Date Liquidity Advance. On the
terms and subject to the conditions hereof, DTFC may from time to time borrow,
prepay and reborrow Refunding Advances (other than Commitment Termination Date
Liquidity Advances).
SECTION 3.1.2. Swing Line Commitment. Subject to and in accordance with
the terms and conditions hereof (including, without limitation, the terms and
conditions set forth in Section 6.3), the Swing Line Lender agrees to make, from
time to time, on or before such Liquidity Lender's Liquidity Commitment
Termination Date, Swing Line Advances equal to the aggregate amount of Swing
Line Advances requested by DTFC or the Collateral Agent, as attorney-in-fact for
DTFC, to be made on such day. On the terms and subject to the conditions hereof,
DTFC may from time to time borrow, prepay and reborrow Swing Line Advances.
SECTION 3.1.3. Use of Proceeds. Proceeds of each Refunding Advance and
each Swing Line Advance shall be deposited by DTFC into the Commercial Paper
Account and
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proceeds of each Commitment Termination Date Liquidity Advance shall be
deposited by DTFC into the Termination Advance Account, in each case, for the
repayment of maturing Commercial Paper Notes or to repay matured Liquidity
Advances. DTFC shall not use the proceeds of any Liquidity Advance for any other
purpose.
SECTION 3.2. Liquidity Lenders Not Required to Make Certain Liquidity
Advances.
SECTION 3.2.1. Liquidity Advances. No Liquidity Lender shall be
required to make a Liquidity Advance to the extent that after giving effect to
such Liquidity Advance (i) the aggregate principal amount of all Liquidity
Advances (including any Swing Line Advances) Outstanding would exceed the
Aggregate Liquidity Commitment or (ii) the aggregate principal amount of such
Liquidity Lender's Liquidity Advances (including, in the case of the Swing Line
Lender, any Swing Line Advances) Outstanding would exceed such Liquidity
Lender's Liquidity Commitment.
SECTION 3.2.2. Failure To Fund. The provisions of this Section 3.2.2
shall only be operative at any time when the number of Liquidity Lenders whose
respective Liquidity Commitments have not expired or been terminated and the
Series 1998-1 Letter of Credit Provider shall exceed one (1) in the aggregate.
Subject to Section 3.2.1, in the event that one or more Liquidity Lenders fails
to fund its or their Percentage of the Liquidity Advances to be provided by the
Liquidity Lenders by 3:00 p.m., New York City time, on any Business Day (other
than a Commitment Termination Date Liquidity Advance or a Liquidity Advance the
proceeds of which are to be used to repay maturing Liquidity Advances), the
Liquidity Agent shall notify each of the other Liquidity Lenders not later than
4:00 p.m., New York City time, on such Business Day and each of the other
Liquidity Lenders shall, before 5:00 p.m., New York City time, on such Business
Day, make available to the Liquidity Agent at the Liquidity Agent's address
specified for such purpose, in immediately available funds, a Liquidity Advance
in a principal amount equal to such unfunded amount multiplied by a fraction,
the numerator of which is the Liquidity Commitment of such Liquidity Lender and
the denominator of which is the Aggregate Liquidity Commitment (less the
Liquidity Commitments of the defaulting Liquidity Lenders). After the Liquidity
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article VI, the Liquidity Agent will make such funds available to
DTFC by 5:30 p.m., New York City time. Any Liquidity Advance made pursuant to
this Section 3.2.2 shall be a Base Rate Advance subject to conversion in
accordance with the provisions of Section 3.8 hereof.
SECTION 3.3. Termination and Reduction of the Liquidity Commitments.
(a) DTFC may, upon at least three Business Days' prior written notice to the
Liquidity Agent bearing the signatures of two (2) Authorized Officers of DTFC
(who shall give prompt written notice thereof to each Liquidity Lender, the
Dealers and the Depositary), irrevocably terminate or reduce in part the
Aggregate Liquidity Commitment; provided, however, that the Aggregate Liquidity
Commitment shall not be reduced on any day in an amount such that the Aggregate
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Liquidity Commitment would be less than the sum of (i)(x) the Aggregate
Outstanding CP on such day, less (y) the Series 1998-1 Letter of Credit Amount,
plus (ii) the aggregate principal amount of all Liquidity Advances (including
any Swing Line Advances) Outstanding (other than Commitment Termination Date
Liquidity Advances) on such day net of any amounts on deposit on such day in the
Collateral Account set aside for the repayment of the principal of Liquidity
Advances; provided, further, that any partial reduction shall be at least
$5,000,000 with respect to the first reduction and in an integral multiple of
$1,000,000 thereafter. Any such reduction of the Aggregate Liquidity Commitment
shall reduce ratably the Liquidity Commitment of each Liquidity Lender.
(b) The Liquidity Agent shall give notice to the Dealers as to any
change in the Aggregate Liquidity Commitment promptly after any reduction
thereof.
(c) No termination or reduction of the Aggregate Liquidity Commitment
by DTFC pursuant to this Section 3.3 shall be effective unless the Liquidity
Agent or DTFC shall have given notice to S&P, Moody's and DCR of such
termination or reduction.
SECTION 3.4. Increase of the Aggregate Liquidity Commitment. The
Aggregate Liquidity Commitment may be increased from time to time to an amount
greater than the amount of the Aggregate Liquidity Commitment then in effect
through the increase of a Liquidity Lender's Liquidity Commitment or the
addition of one or more Eligible Liquidity Lenders as a party to this Liquidity
Agreement; provided, however, that no such increase shall become effective
unless all of the following conditions shall have been satisfied:
(a) DTFC and the Liquidity Agent shall have given their
written consent thereto;
(b) such Liquidity Lender or Eligible Liquidity Lender, as the
case may be, and DTFC shall have executed and delivered to the
Liquidity Agent a Liquidity Commitment Agreement;
(c) the Enhancement Amount shall be increased to the Minimum
Enhancement Amount that would be required by the increased Series
1998-1 Invested Amount resulting from the increase in the Aggregate
Liquidity Commitment;
(d) the conditions to making Advances under Section 2.01 of
the Note Purchase Agreement shall have been met; and
(e) the Rating Agencies confirm in writing that such increase
in the Aggregate Liquidity Commitment will not result in the
downgrading below the then current ratings or a withdrawal of the
ratings of the Commercial Paper Notes.
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SECTION 3.5. Extensions of Scheduled Liquidity Commitment Termination
Date. Each Liquidity Lender's Scheduled Liquidity Commitment Termination Date
may be extended from time to time by a written agreement among DTFC, such
Liquidity Lender and the Liquidity Agent.
SECTION 3.6. Borrowing Procedures. Borrowings of Refunding Advances,
Commitment Termination Date Liquidity Advances and Swing Line Advances shall be
made in accordance with this Section 3.6.
SECTION 3.6.1. Refunding Advances. (a) Upon receipt from DTFC of notice
(not later than 12:15 p.m., New York City time) pursuant to Section 5(b) of the
Depositary Agreement that, on any Business Day that any Commercial Paper Notes
mature, the amount required to pay in full all Commercial Paper Notes maturing
on such Business Day will be more than the net amount obtained by the issuance
of Commercial Paper Notes on such day plus the amount available for payment of
such Commercial Paper Notes in the Commercial Paper Account (the amount of such
excess, the "Commercial Paper Deficit"), the Collateral Agent shall, if such
notice contains an instruction from the Depositary to the Collateral Agent to
deliver a Borrowing Request, by delivering a Borrowing Request to the Liquidity
Agent (who will notify the other Liquidity Lenders of such Borrowing Request not
later than 2:00 p.m., New York City time) for a Borrowing consisting of
Refunding Advances, irrevocably request, not later than 12:30 p.m., New York
City time, on the date of a proposed Borrowing, that a Borrowing be made in an
aggregate principal amount equal to the excess, if any, of (A) the Commercial
Paper Deficit over (B) the sum of the aggregate amount, if any, applied or to be
applied on such Business Day to the Commercial Paper Deficit from amounts
available therefor in the Collateral Account and the Termination Advance Account
that are allocated to the payment of maturing Commercial Paper Notes and from
the proceeds of Swing Line Advances being made on such day. On the terms and
subject to the conditions of this Liquidity Agreement, each such Borrowing shall
be initially comprised of Base Rate Advances (subject to conversion in
accordance with the provisions of Section 3.8) and shall be made on the Business
Day specified in such Borrowing Request. For the purposes of this Section 3.6.1,
Commercial Paper Notes maturing on any day which have been paid with proceeds of
an advance made by the Depositary that has not been reimbursed shall nonetheless
be deemed to be unpaid.
(b) If on any Business Day in a Related Month the weighted average
interest rate of the Outstanding Commercial Paper Notes and Outstanding
Liquidity Advances exceeds 10% per annum, then DTFC shall notify the Liquidity
Agent thereof in writing no later than 11:00 a.m. (New York City time), that
unless the requirements for the continued issuance of Commercial Paper Notes set
forth in Section 2.1(d) shall have been complied with not later than 11:00 a.m.
(New York City time) on the last Business Day before the Payment Date with
respect to such Related Month, the Collateral Agent (provided DTFC shall have
delivered the notice specified above), shall, by delivering a Borrowing Request
to the Liquidity Agent (who will notify the
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other Liquidity Lenders of such Borrowing Request not later than 12:00 noon, New
York City time) for a Borrowing consisting of Refunding Advances, irrevocably
request, not later than 11:30 a.m., New York City time, on such last Business
Day before such Payment Date, that such Borrowing be made in an aggregate
principal amount equal to the lesser of (i) the Aggregate Liquidity Commitment
on such date minus the aggregate principal amount of all Liquidity Advances
(including any Swing Line Advances) Outstanding on such date as determined
immediately prior to such Borrowing Request and (ii) the Aggregate Outstanding
CP on such date.
SECTION 3.6.2. Swing Line Advances. If on any Business Day DTFC or the
Collateral Agent determines that there exists a Commercial Paper Deficit, the
excess of which Commercial Paper Deficit over the sum of the aggregate amount,
if any, applied or to be applied on such Business Day to the Commercial Paper
Deficit from amounts available therefor in the Collateral Account and the
Termination Advance Account that are allocated to the payment of maturing
Commercial Paper Notes is equal to or less than $5,000,000, DTFC or the
Collateral Agent, as the case may be, shall promptly (and in no case later than
12:00 noon New York City, New York time on the date of such discovery) notify
the Depositary of such Commercial Paper Deficit and DTFC or the Collateral
Agent, as attorney-in-fact for DTFC, may, or the Collateral Agent, upon the
instruction of the Depositary pursuant to Section 5(b) of the Depositary
Agreement, shall by delivering a Borrowing Request to the Liquidity Agent for
forwarding to the Swing Line Lender for a Borrowing consisting of a Swing Line
Advance, irrevocably request, not later than 12:30 p.m., New York City time, on
the date of a proposed Borrowing, that a Borrowing be made in an aggregate
principal amount equal to the least of
(a) $5,000,000 minus the aggregate principal amount of all
Swing Line Advances then Outstanding;
(b) the excess, if any, of the Swing Line Lender's Liquidity
Commitment as a Liquidity Lender over the aggregate principal amount of
all of its Liquidity Advances Outstanding on the date of such proposed
Borrowing (without giving effect to such proposed Borrowing); and
(c) the excess of the Commercial Paper Deficit over the sum of
the aggregate amount, if any, applied or to be applied on such Business
Day to the Commercial Paper Deficit from amounts available therefor in
the Collateral Account and the Termination Advance Account that are
allocated to the payment of maturing Commercial Paper Notes.
On the terms and subject to the conditions of this Liquidity Agreement, each
such Borrowing shall be a Base Rate Advance (subject to conversion in accordance
with the provisions of Section 3.8), and shall be made on the Business Day
specified in such Borrowing Request. For the purposes of this Section 3.6.2,
Commercial Paper Notes maturing on any day which
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have been paid with proceeds of an advance made by the Depositary that has not
been reimbursed shall nonetheless be deemed to be unpaid. If, after giving
effect to any Swing Line Advance requested pursuant to this Section 3.6.2, (a)
the aggregate principal amount of Swing Line Advances would be greater than
$5,000,000, or (b) the aggregate principal amount of Swing Line Advances is less
than or equal to $5,000,000 and such Swing Line Advances are not repaid within
five Business Days or (c) the aggregate principal amount of all Liquidity
Advances Outstanding made by the Swing Line Lender would exceed its Liquidity
Commitment, then in any such case, subject to Section 3.2.1, each Liquidity
Lender shall immediately and unconditionally, upon written notice thereof by the
Swing Line Lender, make a Refunding Advance to DTFC in an amount equal to such
Liquidity Lender's Percentage of the aggregate principal amount of the Swing
Line Advances Outstanding, the proceeds of which Refunding Advance will be
applied to the repayment of Swing Line Advances made by the Swing Line Lender.
Notwithstanding Section 6.3, the obligation of the Liquidity Lenders to make
Liquidity Advances under this Section 3.6.2 shall be unconditional. The Swing
Line Advances and Liquidity Advances made pursuant to this Section 3.6.2 shall
be comprised of Base Rate Advances, subject to conversion in accordance with the
provisions of Section 3.8 hereof.
SECTION 3.6.3. Commitment Termination Date Liquidity Advances. DTFC may
request each Liquidity Lender, on the Scheduled Liquidity Commitment Termination
Date with respect to such Liquidity Lender's Liquidity Commitment, to make a
Refunding Advance to DTFC on the terms and subject to the conditions of this
Liquidity Agreement. Any such Commitment Termination Date Liquidity Advance
shall not exceed such Liquidity Lender's Overall Percentage of the Aggregate
Face Amount on the date of such Commitment Termination Date Liquidity Advance
and the aggregate amount of any previously made Liquidity Advances of such
Liquidity Lender that are outstanding on such date shall be converted into, and
for all purposes of this Liquidity Agreement shall be treated as, a Commitment
Termination Date Liquidity Advance.
SECTION 3.6.4. Nature of Funding Obligations. The obligations of the
Liquidity Lenders hereunder are several and not joint. All Liquidity Advances
(other than Swing Line Advances and Commitment Termination Date Liquidity
Advances) under this Liquidity Agreement shall be made by the Liquidity Lenders
simultaneously and proportionately to their respective Percentages, it being
understood that, subject to Section 3.2.2, no Liquidity Lender shall be
responsible for any failure by any other Liquidity Lender to perform its
obligation to make a Liquidity Advance hereunder and that the Liquidity
Commitment of any Liquidity Lender shall not be increased or decreased as a
result of the failure by any other Liquidity Lender to perform its obligation to
make a Liquidity Advance. The failure of any Liquidity Lender to make available
to the Liquidity Agent its ratable share of any Borrowing shall not relieve any
other Liquidity Lender of its obligation hereunder to make available to the
Liquidity Agent such other Liquidity Lender's pro rata share of such Borrowing
on the date such funds are to be made available pursuant to the terms of this
Liquidity Agreement.
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Notwithstanding the foregoing, each Liquidity Lender shall continue to be
obligated to make Liquidity Advances upon a default by a Liquidity Lender as
required by Section 3.2.2.
SECTION 3.6.5. Failure to Fund by Liquidity Lender. Unless the
Liquidity Agent shall have been notified by any Liquidity Lender prior to 2:30
p.m., New York City time, on the date of any Borrowing in respect of any
Liquidity Advances that such Liquidity Lender does not intend to make available
to the Liquidity Agent such Liquidity Lender's Liquidity Advances on such date
of Borrowing, the Liquidity Agent may assume that such Liquidity Lender has made
such amount available to the Liquidity Agent on such date of Borrowing and the
Liquidity Agent in its sole discretion may, but shall not be obligated to, make
available to DTFC a corresponding amount on such date of Borrowing. If such
corresponding amount is not in fact made available to the Liquidity Agent by
such Liquidity Lender on or prior to a date of Borrowing, such Liquidity Lender
agrees to pay to the Liquidity Agent forthwith on demand such corresponding
amount together with interest thereon, and DTFC agrees to repay to the Liquidity
Agent (to the extent not paid by the defaulting Liquidity Lender) forthwith on
the Business Day immediately following the date of demand therefor such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to DTFC until the date such amount is paid or
repaid to the Liquidity Agent, at (a) in the case of such Liquidity Lender, the
Federal Funds Rate for the first Business Day and thereafter at the Base Rate,
and (b) in the case of DTFC, the interest rate that would be applicable at the
time to a Borrowing of Base Rate Advances made on such date of Borrowing. If
such Liquidity Lender shall pay to the Liquidity Agent such corresponding
amount, such amount so paid shall constitute such Liquidity Lender's Liquidity
Advance, and if both such Liquidity Lender and DTFC shall have paid and repaid,
respectively, such corresponding amount, the Liquidity Agent shall promptly pay
over to DTFC such corresponding amount in same day funds, but DTFC shall remain
obligated for all interest thereon. To the extent any such amount due to the
Liquidity Agent under this Section 3.6.5 has not been paid in full, the
Liquidity Agent may make a demand on the Collateral Agent to pay such amount in
accordance with Sections 2.01 and 5.02(b) of the Collateral Agreement.
SECTION 3.7. Disbursement of Funds. (a) Upon receipt of each Borrowing
Request for Refunding Advances, the Liquidity Agent shall give to each Liquidity
Lender prompt notice thereof and of such Liquidity Lender's share of the
Borrowing requested thereby no later than 2:00 p.m., New York City time, on the
date of receipt. On or before 3:00 p.m., New York City time, on the date of the
proposed Borrowing, each Liquidity Lender shall deposit with the Liquidity Agent
same day funds in an amount equal to (i) such Liquidity Lender's Percentage of
the requested Borrowing (except in the case of a Commitment Termination Date
Liquidity Advance) or (ii) in the case of a Commitment Termination Date
Liquidity Advance, such Liquidity Lender's Overall Percentage of the Aggregate
Face Amount on the date of such Commitment Termination Date Liquidity Advance.
Such deposit will be made to a segregated trust account (Account No. 931454-31)
established by the Liquidity
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Agent or such other account which the Liquidity Agent shall specify from time to
time by notice to the Liquidity Lenders.
(b) Upon receipt of a Borrowing Request for a Swing Line Advance, the
Liquidity Agent shall give the Swing Line Lender prompt notice thereof and of
the amount of the Borrowing requested thereby. On or before 2:00 p.m., New York
City time, on the date of the proposed Borrowing, the Swing Line Lender shall
deposit with the Liquidity Agent same day funds in an amount equal to the
requested Borrowing. Such deposit shall be made to an account which the
Liquidity Agent shall specify from time to time by notice to the Swing Line
Lender.
(c) Unless the Liquidity Agent determines that any condition specified
in Section 6.3, in the case of Refunding Advances or Swing Line Advances, has
not been satisfied, the Liquidity Agent will remit the aggregate of the amounts
of (i) Refunding Advances or Swing Line Advances so made available by the
Liquidity Lenders (or, in the case of any Swing Line Advance, the Swing Line
Lender) to the Commercial Paper Account and (ii) Commitment Termination Date
Liquidity Advances so made available by the Liquidity Lenders to the Termination
Advance Account.
SECTION 3.8. Continuation and Conversion Elections. By delivering a
Continuation/ Conversion Notice to the Liquidity Agent (which will give prompt
notice to the Liquidity Lenders) on or before 11:15 a.m., New York City time, on
a Business Day, DTFC may from time to time irrevocably elect that all or any
portion in an aggregate minimum amount of $5,000,000 and an integral multiple of
$1,000,000 of any Liquidity Advances be
(a) in the case of Base Rate Advances, on not less than three
nor more than five Business Days' prior notice, converted into
Eurodollar Advances; or
(b) in the case of Eurodollar Advances, on prior notice given
not less than three nor more than five Business Days prior to the end
of the related Interest Period, continued as Eurodollar Advances.
In the absence of delivery of a Continuation/Conversion Notice at least three
Business Days prior to the last day of the related Interest Period, in the case
of any Eurodollar Advance, such Eurodollar Advance shall, on such last day,
automatically convert to a Base Rate Advance. In the absence of delivery of a
Continuation/Conversion Notice at least three Business Days prior to the last
day of the related Interest Period, in the case of any Base Rate Advance, such
Base Rate Advance shall automatically continue as a Base Rate Advance. No
portion of the principal amount of any Liquidity Advances Outstanding may be
continued as, or be converted into, Eurodollar Advances when any Liquidity
Agreement Amortization Event or Potential Liquidity Agreement Amortization Event
has occurred and is continuing.
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SECTION 3.9. Eurodollar Funding. (a) Each Liquidity Lender may, if it
so elects, fulfill its obligation to make, continue or convert Eurodollar
Advances hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Liquidity Lender) to make or
maintain such Eurodollar Advance; provided, however, that such Eurodollar
Advance shall nonetheless be deemed to have been made and to be held by such
Liquidity Lender, and the obligation of DTFC to repay such Eurodollar Advance
shall nevertheless be to such Liquidity Lender for the account of such foreign
branch, Affiliate or international banking facility.
(b) DTFC shall not be permitted to request, and the Liquidity Lenders
shall not be required to maintain, any number of Interest Periods with respect
to Eurodollar Advances in effect at any time hereunder in excess of 20.
SECTION 3.10. Liquidity Advance Notes. Each Liquidity Lender's
Liquidity Advances (including its Refunding Advances and Commitment Termination
Date Liquidity Advance and, in the case of the Swing Line Lender, any Swing Line
Advances) under its Liquidity Commitment shall be evidenced by a Liquidity
Advance Note, duly executed on behalf of DTFC, and payable to the order of such
Liquidity Lender in a maximum principal amount equal in each case to such
Liquidity Lender's original Liquidity Commitment (which Liquidity Advance Note
shall, unless requested by such Liquidity Lender, be in substantially the form
of Exhibit A to this Liquidity Agreement and shall be held by the Liquidity
Agent on behalf of the Liquidity Lenders). DTFC hereby irrevocably authorizes
each Liquidity Lender to make (or cause to be made) appropriate notations on the
grid attached to such Liquidity Lender's Liquidity Advance Note (or on any
continuation of such grid), which notations, if made, shall evidence, inter
alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to, the Liquidity Advances evidenced thereby. Such
notations shall be conclusive and binding on DTFC absent manifest error;
provided, however, that the failure of any Liquidity Lender to make any such
notation or any error in any such notation shall not limit or otherwise affect
any Obligations of DTFC.
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments. DTFC shall repay in full the
unpaid principal amount of each Liquidity Advance on the earlier to occur of (i)
the Scheduled Maturity Date and (ii) the date all Obligations are declared or
otherwise become due and payable under Section 9.2. Prior thereto, DTFC shall
make repayments and prepayments in accordance with this Section 4.1.
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SECTION 4.1.1. Voluntary Prepayments. From time to time on any Business
Day, DTFC may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Liquidity Advance; provided, however, that
(a) DTFC shall, in the case of the voluntary prepayment of any
Eurodollar Advance, give the Liquidity Agent at least three but no more
than five Business Days' prior written notice (which notice shall be
irrevocable) of its intent to prepay such Eurodollar Advance and DTFC
shall specify in such prior written notice the amount of such
prepayment;
(b) all such voluntary prepayments which are partial
prepayments shall be in a minimum aggregate principal amount equal to
$1,000,000 and in an integral multiple of $100,000;
(c) all such voluntary prepayments shall be applied, unless
otherwise specified by DTFC, first, pro rata among Base Rate Advances
for the repayment thereof and then, pro rata among Eurodollar Advances
having the same Interest Period in the inverse order of their
maturities, for the repayment thereof; and
(d) no such voluntary prepayment of any Eurodollar Advance may
be made on any day other than the last day of the Interest Period for
such Eurodollar Advance unless, as required by Section 5.4, breakage
fees are paid in connection with such prepayment.
SECTION 4.1.2. Mandatory Prepayments. (a) Concurrently with any partial
reduction or termination of the Aggregate Liquidity Commitment pursuant to
Section 3.3, all funds available on such day in the Collateral Account for the
payment of Liquidity Advances, as provided in Section 2.01 or 5.02, as
applicable, of the Collateral Agreement, shall be applied to repay as much of
the Liquidity Advances (and interest accrued thereon) as shall be necessary so
that the sum of the aggregate principal amount of Liquidity Advances Outstanding
(other than Commitment Termination Date Liquidity Advances) plus the Aggregate
Face Amount will not exceed the Aggregate Liquidity Commitment plus the Series
1998-1 Letter of Credit after giving effect to such termination or reduction
and, to the extent such funds are not sufficient to pay such excess (and
interest accrued thereon), all funds subsequently deposited in the Collateral
Account and allocated to the payment of Liquidity Advances in accordance with
the priorities set forth in Section 2.01 or 5.02, as applicable, of the
Collateral Agreement shall be applied to pay such excess (and interest accrued
thereon) until so paid.
(b) If, on any Business Day, a Borrowing Base Deficiency or CP
Borrowing Base Deficiency, as applicable, exists, all funds available for the
payment of Commercial Paper Notes, Liquidity Advances or LOC Liquidity
Disbursements on such day in the Collateral Account, as provided in Section 2.01
or 5.02, as applicable, of the Collateral Agreement, shall
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be (i) first, deposited in the Commercial Paper Account for application to the
payment of maturing Commercial Paper Notes (and, in the case of deposits made
pursuant to Section 2.01 of the Collateral Agreement, unmatured Commercial Paper
Notes) and (ii) second, applied to repay Liquidity Advances and LOC Liquidity
Disbursements (and interest accrued thereon) pro rata in accordance with their
outstanding principal amount, in each case, as shall be necessary so that after
giving effect to such application there shall be no Borrowing Base Deficiency or
CP Borrowing Base Deficiency, as applicable, and, to the extent such funds or
other amounts are not sufficient therefor, all funds subsequently deposited in
the Collateral Account and allocated to the payment of Liquidity Advances and
LOC Liquidity Disbursements in accordance with the priorities set forth in
Section 2.01 or 5.02, as applicable, of the Collateral Agreement shall be
applied or set aside for the pro rata application thereof to the payment of
Liquidity Advances Outstanding and LOC Liquidity Disbursements Outstanding until
there shall be no Borrowing Base Deficiency or CP Borrowing Base Deficiency, as
applicable.
(c) Each mandatory payment required by clause (a) (in the case of a
reduction or termination pursuant to Section 3.3) or clause (b) above shall, for
purposes of Section 9.1.1 and all other provisions of this Liquidity Agreement,
be due and payable in full on the Business Day on which such reduction or
termination or such Borrowing Base Deficiency or CP Borrowing Base Deficiency
exists, whether or not sufficient funds are then available to make such payment.
SECTION 4.2. Interest Provisions. Interest on the principal amount of
Liquidity Advances Outstanding shall accrue and be payable in accordance with
this Section 4.2.
SECTION 4.2.1. Rates. (a) Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, DTFC may elect that
Liquidity Advances comprising a Borrowing accrue interest at a rate per annum:
(i) on that portion maintained from time to time as a Base
Rate Advance, equal to the Base Rate from time to time in effect; or
(ii) on that portion maintained as a Eurodollar Advance,
during each Interest Period applicable thereto, equal to the Eurodollar
Rate (Reserve Adjusted) for such Interest Period.
(b) If any Liquidity Lender shall determine in good faith that reserves
under Regulation D of the Board of Governors of the Federal Reserve System
("Regulation D") are required to be maintained by it in respect of, or that a
portion of its costs of maintaining reserves under Regulation D is properly
attributable to, one or more of its Eurodollar Advances, DTFC shall pay to such
Liquidity Lender additional interest on the unpaid principal amount of each such
Eurodollar Advance from the date such reserves were required to be maintained
until such principal amount is paid in full or converted into a Base Rate
Advance,
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at an interest rate per annum equal at all times to the remainder obtained by
subtracting (i) the Eurodollar Rate for the Interest Period for such Eurodollar
Advance from (ii) the rate obtained by dividing such Eurodollar Rate by an
amount equal to one minus the Eurodollar Reserve Percentage (expressed as a
decimal) of such Liquidity Lender for such Eurodollar Interest Period. Any
Liquidity Lender claiming any additional interest payable pursuant to this
clause (b) shall provide a written certificate to the Liquidity Agent, DTFC and
the Rating Agencies setting forth the amount of such additional interest and
reasonable detail as to the calculation thereof. DTFC shall pay such Liquidity
Lender the amount shown as due on any such certificate within 30 days following
the date on which such certificate was delivered to DTFC.
SECTION 4.2.2. Post Default Rates. Without giving effect to Section
5.10 hereof, after the date on which any amount of any Liquidity Advance is due
and payable (whether on the last day of an Interest Period, on the Scheduled
Maturity Date, when a mandatory prepayment initially becomes due or upon
acceleration or otherwise), or after any other monetary Obligation of DTFC shall
have become due and payable, DTFC shall pay, but only to the extent permitted by
law, interest (after as well as before judgment) on the principal amount of
Liquidity Advances then Outstanding (whether or not the same shall then be due
and payable) and each other monetary Obligation hereunder (but only if the same
shall then be due and payable in accordance with the terms of this Liquidity
Agreement) at a rate per annum equal to a margin of 2% per annum plus (i) in the
case of any Liquidity Advances then Outstanding and in respect of which Interest
Periods remain in effect, the respective interest rates then applicable to such
Liquidity Advances, and (ii) in all other cases, a rate per annum equal to the
rate per annum that would then be in effect with respect to a Base Rate Advance.
SECTION 4.3. Payments of Interest. Accrued interest in respect of each
Liquidity Advance shall be payable in arrears (whether by acceleration, demand
or otherwise) on each payment date set forth below:
(a) with respect to any Base Rate Advance, on the last
Business Day of each calendar quarter, beginning with the first such
date to occur after such Base Rate Advance is made;
(b) with respect to any Eurodollar Advance, on the last day of
each applicable Interest Period (and, if such Interest Period shall
exceed three months, on the three-month anniversary of the commencement
of such Interest Period);
(c) in the case of any payment or prepayment, in whole or in
part, of principal outstanding on any Liquidity Advance, on the amount
and on the date of such payment or prepayment;
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(d) with respect to any Base Rate Advance converted into a
Eurodollar Advance on a day when interest would not otherwise have been
payable pursuant to clause (a), on the date of such conversion; and
(e) on that portion of any Liquidity Advance which is
accelerated pursuant to Section 9.2, immediately upon such
acceleration.
Interest accrued on Liquidity Advances or other monetary Obligations arising
under this Liquidity Agreement or any other CP Program Document after the date
such amount is due and payable shall be payable upon demand.
SECTION 4.4. (a) Computation Basis. Interest accruing based on the Base
Rate shall be computed on the basis of the actual number of days elapsed and a
365 (or, if applicable, 366) day year. Interest accruing based on the Eurodollar
Rate (Reserve Adjusted) shall be computed on the basis of the actual number of
days elapsed and a 360 day year.
(b) Determination of Rates. The Liquidity Agent shall notify the
Trustee, DTAG, in its capacity as Master Servicer under the Master Lease, and
DTFC, in writing on or prior to each Determination Date regarding the Series
1998-1 Note Rate, Base Rate, CP Rate and Eurodollar Rate for the related
Interest Period.
SECTION 4.5. Fees. (a) Commitment Fee. DTFC agrees to pay to the
Liquidity Agent for the account of each Liquidity Lender an ongoing commitment
fee (the "Commitment Fee") equal to 0.1875% per annum of the average daily
unused portion of each such Liquidity Lender's Liquidity Commitment, such fee to
accrue from the Closing Date until the Liquidity Commitment Termination Date.
The Commitment Fee shall be computed based on the actual number of days elapsed
and a 360 day year. The Commitment Fee shall be payable in arrears on the last
Business Day of each calendar quarter occurring after the Closing Date and on
the Liquidity Commitment Termination Date.
(b) Upfront Fee. DTFC agrees to pay to the Liquidity Agent for the
account of each Liquidity Lender, as applicable, an upfront fee (the "Upfront
Fee") as set forth in the Fee Letter, which shall be payable immediately upon
the Closing Date. In the event that (i) a Liquidity Lender's short-term credit
rating is reduced to below A-1 by S&P, below P-1 by Moody's or below D-1 by DCR
(if rated by DCR) prior to its initial Liquidity Commitment Termination Date,
and (ii) DTFC elects to replace such Liquidity Lender pursuant to the terms of
this Liquidity Agreement, then such Liquidity Lender shall reimburse DTFC for an
amount equal to the unearned portion of the Upfront Fee actually received by
such Liquidity Lender (based on the remaining period from the date of such
replacement to such Liquidity Lender's Scheduled Commitment Termination Date).
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ARTICLE V
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Lending Unlawful. If any Liquidity Lender shall
reasonably determine (which determination shall, upon notice thereof to DTFC and
the other Liquidity Lenders, be conclusive and binding on DTFC) that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for such Liquidity Lender to make,
continue or maintain any Liquidity Advance as, or to convert any Liquidity
Advance into, a Eurodollar Advance, the obligation of such Liquidity Lender to
make, continue or maintain or convert any such Liquidity Advance as a Eurodollar
Advance shall, upon such determination, forthwith be suspended until such
Liquidity Lender shall notify the Liquidity Agent and DTFC that the
circumstances causing such suspension no longer exist, and DTFC shall
immediately convert (in the manner provided for in Section 3.8) all Eurodollar
Advances of such Liquidity Lender into Base Rate Advances at the end of the then
current Interest Periods with respect thereto or sooner, if required by such law
or assertion.
SECTION 5.2. Deposits Unavailable. If the Liquidity Agent shall have
reasonably determined that
(a) Eurodollar deposits in the relevant amount and for the
relevant Interest Period are not available to all Reference Lenders in
the relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to Eurodollar Advances; or
(c) the Majority Banks have notified the Liquidity Agent that,
with respect to any interest rate otherwise applicable hereunder to any
Eurodollar Advances the Interest Period for which has not then
commenced, such interest rate will not adequately reflect the cost to
such Majority Banks of making, funding or maintaining their respective
Eurodollar Advances for such Interest Period,
then, upon notice from the Liquidity Agent to DTFC and the Liquidity Lenders,
the obligations of all Liquidity Lenders under Section 3.6 and Section 3.8 to
make or continue any Liquidity Advance as, or to convert any Liquidity Advances
into, Eurodollar Advances shall forthwith be suspended until the Liquidity Agent
shall notify DTFC and the Liquidity Lenders that the circumstances causing such
suspension no longer exist.
SECTION 5.3. Increased Costs, etc. DTFC agrees to reimburse each
Liquidity Lender for any increase in the cost to such Liquidity Lender of, or
any reduction in the amount
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of any sum receivable by such Liquidity Lender in respect of, making, continuing
or maintaining (or of its obligation to make, continue or maintain) any
Liquidity Advances as, or of converting (or of its obligation to convert) any
Liquidity Advances into, Eurodollar Advances that arise in connection with any
change in, or the introduction, adoption, effectiveness, interpretation
reinterpretation or phase-in after the date hereof of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority,
except for such changes with respect to (i) increased capital costs which are
governed by Section 5.5, (ii) Taxes governed by Section 5.6 (including taxes
imposed by reason of any failure of such Liquidity Lender to comply with its
obligations under clause (b) of Section 5.6) and (iii) taxes imposed by a taxing
authority on or measured by the net income, overall receipts or capital of such
Liquidity Lender or any lending office, branch or any Affiliate thereof and any
franchise taxes or branch taxes imposed by a taxing authority on such Liquidity
Lender or any lending office, branch or any Affiliate thereof; provided,
however, that DTFC shall have no obligation to pay any such additional amount
under this Section 5.3 with respect to any such change unless such Liquidity
Lender shall have notified DTFC of its demand within 90 days after the date upon
which such Liquidity Lender has obtained audited financial statements with
respect to the fiscal year of such Liquidity Lender in which such change
occurred. Such Liquidity Lender shall promptly notify the Liquidity Agent and
DTFC in writing of the occurrence of any such reduction or increase (but in no
event later than the date by which such Liquidity Lender may demand
reimbursement therefor pursuant to the immediately preceding sentence), such
notice to state, in reasonable detail, the reasons therefor and the additional
amount required fully to compensate such Liquidity Lender on an after-tax basis
for such increased cost or reduced amount. Such additional amounts shall be
payable by DTFC directly to such Liquidity Lender within five Business Days of
its receipt of such notice, and such notice shall, in the absence of manifest
error, be conclusive and binding on DTFC.
SECTION 5.4. Funding Losses. In the event any Liquidity Lender shall
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Liquidity Lender to make, continue or maintain any portion of the principal
amount of any Liquidity Advance as, or to convert any portion of the principal
amount of any Liquidity Advance into, a Eurodollar Advance) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any Eurodollar Advance on a date other than the scheduled
last day of the Interest Period applicable thereto, whether pursuant to
Section 4.1 or otherwise;
(b) any Liquidity Advances not being made as Eurodollar
Advances in accordance with the Borrowing Request therefor; or
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(c) any Liquidity Advances not being continued as, or
converted into, Eurodollar Advances in accordance with the
Continuation/Conversion Notice therefor,
then, upon the written notice of such Liquidity Lender to DTFC (with a copy to
the Liquidity Agent), DTFC shall, within five Business Days of its receipt
thereof, pay directly to such Liquidity Lender such amount as will (in the
reasonable determination of such Liquidity Lender) reimburse such Liquidity
Lender for such loss or expense. Such written notice (which shall include
calculations in reasonable detail) shall, in the absence of manifest error, be
conclusive and binding on DTFC.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority affects or would affect the amount of capital
required or expected to be maintained by any Liquidity Lender or any Person
controlling such Liquidity Lender, and such Liquidity Lender determines (in its
sole and absolute discretion) that the rate of return on its or such controlling
Person's capital as a consequence of its Liquidity Commitment or the Liquidity
Advances made by such Liquidity Lender is reduced to a level below that which
such Liquidity Lender or such controlling Person could have achieved but for the
occurrence of any such circumstance, then, in any such case upon notice from
time to time by such Liquidity Lender to DTFC, DTFC shall pay directly to such
Liquidity Lender within five Business Days additional amounts sufficient to
compensate such Liquidity Lender or such controlling Person on an after-tax
basis for such reduction in rate of return; provided, however, that DTFC shall
have no obligation to pay any such additional amount under this Section 5.5 with
respect to any such change unless such Liquidity Lender shall have notified DTFC
of its demand within 90 days after the date upon which such Liquidity Lender or
controlling Person has obtained audited financial statements with respect to the
fiscal year of such Liquidity Lender or such controlling Person in which such
change occurred. Such Liquidity Lender or such controlling Person shall promptly
notify the Liquidity Agent and DTFC in writing of the occurrence of any such
reduction (but in no event later than the date by which such Liquidity Lender or
controlling Person may demand payment therefor pursuant to the immediately
preceding sentence). A statement of such Liquidity Lender as to any such
additional amount or amounts (including calculations thereof in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
DTFC. In determining such amount, such Liquidity Lender may use any method of
averaging and attribution that it (in its sole and absolute discretion) shall
deem applicable.
SECTION 5.6. Taxes.
(a) Except to the extent otherwise provided in the proviso to
clause (iii) of this Section 5.6(a) and the proviso to the sentence
immediately succeeding such clause (iii), all payments by DTFC of
principal of, and interest on, the Liquidity Advances and all
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other amounts payable hereunder (including fees) shall be made free and
clear of and without deduction for any present or future income,
excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any
taxing authority, but excluding (A) in the case of each Liquidity
Lender and the Liquidity Agent, taxes imposed on or measured by the net
income, overall receipts or capital of such Liquidity Lender (or any
lending office, branch or Affiliate of such Liquidity Lender) or the
Liquidity Agent and franchise taxes or branch taxes imposed on such
Liquidity Lender (or any lending office, branch or Affiliate of such
Liquidity Lender) or the Liquidity Agent, as the case may be, (x) by
the jurisdiction under the laws of which it is organized or any
political subdivision thereof or (y) by reason of any connection
between the jurisdiction imposing such tax and such Liquidity Lender
(or any lending office, branch or Affiliate thereof) or the Liquidity
Agent, as the case may be, other than a connection arising solely from
such Liquidity Lender (or such lending office, branch or Affiliate) or
the Liquidity Agent, as the case may be, having executed, delivered, or
performed its obligations under, or received payment under or enforced,
this Liquidity Agreement, any Liquidity Advance Notes or any other
Liquidity Document and, (B) in the case of each Liquidity Lender, taxes
imposed on or measured by the net income, overall receipts or capital
of such Liquidity Lender (or any lending office, branch or Affiliate of
such Liquidity Lender) and franchise taxes or branch taxes imposed on
such Liquidity Lender (or any lending office, branch or Affiliate of
such Liquidity Lender) by the jurisdiction in which such Liquidity
Lender's Domestic Office or Eurodollar Office, as the case may be, is
located or any political subdivision thereof (such non-excluded items
being called "Taxes"). In the event that any withholding or deduction
from any payment to be made by DTFC hereunder is required in respect of
any Taxes pursuant to any Applicable Law then DTFC will
(i) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(ii) promptly forward to the Liquidity Agent an
official receipt or other documentation satisfactory to the
Liquidity Agent evidencing such payment to such authority; and
(iii) pay to the Liquidity Agent for the account of
the Liquidity Lenders (or, if applicable, for its own account)
such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Liquidity Lender
and the Liquidity Agent will equal the full amount such
Liquidity Lender or the Liquidity Agent, as the case may be,
would have received had no such withholding or deduction been
required; provided, however, that DTFC shall be entitled to
deduct and withhold any Taxes and shall not be required to
increase any such amounts payable pursuant to this clause
(iii) to the Liquidity Agent for the account of any Liquidity
Lender (or, if applicable, for its own account) to
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the extent such Taxes are imposed as a result of the failure
of such Liquidity Lender or, as applicable, the Liquidity
Agent to comply with the requirements of clause (b) of this
Section 5.6.
Moreover, if any Taxes are directly asserted against the Liquidity Agent or any
Liquidity Lender with respect to any payment received by the Liquidity Agent or
such Liquidity Lender hereunder, the Liquidity Agent or such Liquidity Lender
may pay such Taxes and promptly notify DTFC of the nature and amount of such
payment and DTFC will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had no such Taxes been asserted; provided, however, that DTFC shall not be
required to pay any additional amounts pursuant to this sentence to the
Liquidity Agent for the account of any Liquidity Lender (or, if applicable, for
its own account), or to any Liquidity Lender, to the extent such Taxes are
imposed as a result of the failure of such Liquidity Lender or, as applicable,
the Liquidity Agent to comply with the requirements of clause (b) of this
Section 5.6.
If DTFC fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Liquidity Agent, for the account of the
respective Liquidity Lenders, the required receipts or other required
documentary evidence, DTFC shall indemnify the Liquidity Lenders for any
incremental Taxes, interest or penalties that may become payable by any
Liquidity Lender as a result of any such failure. For purposes of this Section
5.6, a distribution hereunder by the Liquidity Agent or any Liquidity Lender to
or for the account of any Liquidity Lender shall be deemed a payment by DTFC.
(b) Each Liquidity Lender that is not incorporated under the
laws of the United States (or any State thereof or the District of
Columbia) and, if the Liquidity Agent is not incorporated under the
laws of the United States (or any State thereof or the District of
Columbia), the Liquidity Agent shall:
(X)(i) on or before the date of any payment by DTFC
under this Liquidity Agreement, any Liquidity Advance Notes or
any other Liquidity Document for the account of such Liquidity
Lender or the Liquidity Agent, deliver to DTFC and the
Liquidity Agent (A) two duly completed copies of United States
Internal Revenue Service Form 1001 or 4224, or successor
applicable form, as the case may be, and such other forms and
certifications as may reasonably be required under applicable
law, in order to establish that as of the date thereof such
Liquidity Lender or the Liquidity Agent, as the case may be,
is entitled to receive all payments under this Liquidity
Agreement, any Liquidity Advance Notes or any other Liquidity
Document without deduction or withholding of any United States
federal income taxes and (B) an Internal
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Revenue Service Form W-8 or W-9, or successor applicable form,
as the case may be, certifying that such Liquidity Lender or
the Liquidity Agent, as the case may be, is entitled to an
exemption from United States backup withholding taxes;
(ii) deliver to DTFC and the Liquidity Agent two
further copies of any such form on or before the date that any
such form expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form
previously delivered by it to DTFC and the Liquidity Agent;
and
(iii) if necessary, obtain, at the expense of DTFC,
such extensions of time for delivery of such forms as may
reasonably be requested by DTFC; or
(Y) in the case of any such Liquidity Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A) of the
Code, (i) furnish to DTFC on or before the date of any payment
by DTFC, with a copy to the Liquidity Agent, (A) a certificate
substantially in the form of Exhibit G (any such certificate a
"U.S. Tax Compliance Certificate"), (B) two accurate and
complete original signed copies of Internal Revenue Service
Form W-8, or successor applicable form certifying to such
Liquidity Lender's entitlement as of the date of such form to
the exemption under Section 881(c) of the Code from U.S.
withholding tax on payments of interest under this Liquidity
Agreement, any Liquidity Advance Notes or any other Liquidity
Document (and deliver to DTFC and the Liquidity Agent two
further copies of such form on or before the date the most
recently delivered form expires or becomes obsolete and after
the occurrence of any event requiring a change in the most
recently delivered form and, if necessary, obtain, at the
expense of DTFC, any extensions of time reasonably requested
by DTFC for the delivery of such forms), and (C) in the case
of a Liquidity Lender that is entitled to receive payments
under this Liquidity Agreement, any Liquidity Advance Notes or
any other Liquidity Documents other than payments of interest,
two accurate and complete original signed copies of Internal
Revenue Service Form 1001, or successor applicable form
certifying to such Liquidity Lender's entitlement as of the
date of such form to receive payments other than payments of
interest under this Liquidity Agreement, any Liquidity Advance
Notes or any other Liquidity Documents without deduction or
withholding of any United States federal income taxes (and
deliver to DTFC and the Liquidity Agent two further copies of
such form on or before the date the most recently delivered
form expires or becomes obsolete and after the occurrence of
any event requiring a change in the most recently delivered
form and, if necessary, obtain at the expense of DTFC, any
extensions of time reasonably requested by DTFC for the
delivery of such forms); and (ii) agree, upon reasonable
request of DTFC, to provide to DTFC and the
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Liquidity Agent (for the benefit of DTFC and the Liquidity
Agent), such other forms as may be reasonably required under
Applicable Law in order to establish the legal entitlement of
such Liquidity Lender to an exemption from withholding of
Taxes with respect to any payments under this Liquidity
Agreement, any Liquidity Advance Notes and any other Liquidity
Document;
unless in any such case any change in treaty, law or regulation or any change in
any previously published ruling, notice or other similar official Internal
Revenue Service interpretation of a treaty, law or regulation has occurred after
the date such Person becomes a Liquidity Lender hereunder or the Liquidity
Agent, as the case may be, which renders all such forms inapplicable to such
Liquidity Lender or the Liquidity Agent or which would prevent such Liquidity
Lender or the Liquidity Agent from duly completing and delivering any such form
with respect to it and such Liquidity Lender or the Liquidity Agent promptly so
advises DTFC and the Liquidity Agent (in the case of a Liquidity Lender) in
writing. Each Person that shall become a Liquidity Lender or a Liquidity
Participant pursuant to Section 11.11.1 or 11.11.2 shall, upon the effectiveness
of the related transfer, be required to provide all of the forms, certifications
and statements required pursuant to this Section, provided that in the case of a
Liquidity Participant the obligations of such Liquidity Participant, pursuant to
this clause (b) shall be determined as if such Liquidity Participant were a
Liquidity Lender except that such Liquidity Participant shall furnish all such
required forms, certifications and statements to the Liquidity Lender from which
the related participation shall have been purchased.
SECTION 5.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by DTFC pursuant to this Liquidity Agreement, the
Liquidity Advance Notes and any other Liquidity Document shall be made by DTFC
to the Liquidity Agent for the pro rata account, on the basis of Liquidity
Advances Outstanding, or if no Liquidity Advances are outstanding, on the basis
of Liquidity Commitments, of the Liquidity Lenders entitled to receive such
payment. All such payments required to be made to the Liquidity Agent by DTFC
shall be made, without setoff, deduction or counterclaim, not later than 1:00
p.m. (New York City, New York time) on the date due, in same day or immediately
available funds, to the account established pursuant to Section 3.7(a) or such
other account as the Liquidity Agent shall specify from time to time by notice
to DTFC. Funds received after that time shall be deemed to have been received by
the Liquidity Agent on the next succeeding Business Day. The Liquidity Agent
shall promptly remit in same day funds to each Liquidity Lender its share, if
any, of such payments received by the Liquidity Agent for the account of such
Liquidity Lender. Whenever any payment to be made shall otherwise be due on a
day which is not a Business Day, such payment shall (except as otherwise
required by the second proviso of the definition of the term "Interest Period"
with respect to Eurodollar Advances) be made on the next succeeding Business Day
and such extension of time shall be included in computing interest and fees, if
any, in connection with such payment.
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SECTION 5.8. Sharing of Payments. If any Liquidity Lender shall obtain
any payment or other recovery (whether voluntary or involuntary) on account of
any Liquidity Advance (other than pursuant to the terms of Sections 5.3, 5.4,
5.5 and 5.6) in excess of its pro rata share of payments, on the basis of
Liquidity Advances Outstanding, or if no Liquidity Advances are outstanding, on
the basis of Liquidity Commitments, then or therewith obtained by all Liquidity
Lenders, such Liquidity Lender shall purchase from the other Liquidity Lenders
such participation in Liquidity Advances made by them as shall be necessary to
cause such purchasing Liquidity Lender to share the excess payment or other
recovery with each of them on a pro rata basis, computed on the basis of each
Liquidity Lender's Liquidity Advances Outstanding or Liquidity Commitment, as
the case may be, on the date of such computation; provided, however, that if all
or any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Liquidity Lender, the purchase shall be rescinded to the
extent of such recovery and each Liquidity Lender which has sold a participation
to the purchasing Liquidity Lender shall repay to the purchasing Liquidity
Lender the purchase price to the ratable extent of such recovery together with
an amount equal to such selling Liquidity Lender's ratable share (according to
the proportion of
(a) the amount of such selling Liquidity Lender's required
repayment to the purchasing Liquidity Lender
to
(b) the total amount so recovered from the purchasing
Liquidity Lender)
of any interest or other amount paid or payable by the purchasing Liquidity
Lender in respect of the total amount so recovered. DTFC agrees that any
Liquidity Lender so purchasing a participation from another Liquidity Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation as fully as if such
Liquidity Lender were the direct creditor of DTFC in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Liquidity Lender receives a secured claim to which this Section
applies, such Liquidity Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the rights
of the Liquidity Lenders entitled under this Section to share in the benefits of
any recovery on such secured claim.
SECTION 5.9. Replacement of Liquidity Lenders. (a) If at any time the
credit rating assigned to the short-term obligations of any Liquidity Lender (an
"Affected Liquidity Lender") is withdrawn or downgraded below the rating then
assigned by S&P, Moody's or DCR (if rated by DCR), respectively, to the
Commercial Paper Notes, DTFC may, upon five Business Days' prior written notice
given to the Liquidity Agent and such Affected Liquidity Lender acceptable to
the Liquidity Agent, replace such Affected Liquidity Lender with an Eligible
Liquidity Lender or a Liquidity Lender already party to this Liquidity Agreement
and
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such replacement shall be made in accordance with clause (a) of Section 11.11.1
and the proviso of clause (b) of this Section 5.9; provided, however, that
payment of the processing fee referred to in clause (B) of Section 11.11.1(a)
shall not be required; and provided further, however, no such replacement
pursuant to this clause (a) shall be effective unless S&P, Moody's and DCR shall
have confirmed in writing to DTFC and the Liquidity Agent that such replacement
(i) would not result in a withdrawal or reduction of the rating by S&P, Moody's
or DCR of the Commercial Paper Notes below the rating then assigned by such
Rating Agency to the Commercial Paper Notes or (ii) if the Commercial Paper
Notes are then rated less than A-1 by S&P, P-1 by Moody's or D-1 by DCR would
result in an upgrade of the rating by S&P, Moody's or DCR of the Commercial
Paper Notes over the rating then assigned by such Rating Agency to the
Commercial Paper Notes.
(b) In the event that (i) any Liquidity Lender shall have notified the
Liquidity Agent or DTFC (and shall not have retracted such notification) that
its compliance with any of its obligations hereunder would be unlawful, (ii) any
Liquidity Lender fails to extend its Liquidity Commitment upon request, (iii)
DTFC is required pursuant to Section 4.2.1(b) or Sections 5.3 through 5.6 to
make any payment to or on behalf of any Liquidity Lender (or would be so
required on or prior to the next following date on which a payment hereunder
(other than pursuant to Section 5.6) is required to be made to or for any such
Liquidity Lender) or (iv) any Liquidity Lender shall have failed to fund any
Liquidity Advance when required hereunder, then DTFC shall have the right, at
its own expense, upon notice to such Liquidity Lender and the Liquidity Agent,
to require such Liquidity Lender, and such Liquidity Lender hereby agrees, to
transfer and assign without recourse (in accordance with and subject to the
restrictions contained in Section 11.11) all the interests, rights and
obligations of such Liquidity Lender under the Liquidity Documents to an
Eligible Liquidity Lender provided by DTFC; provided, however, that (w) no such
assignment shall conflict with any law, rule, regulation or order of any
Governmental Authority, (x) such assignment shall be without recourse,
representation and warranty and shall be on terms and conditions reasonably
satisfactory to such replaced Liquidity Lender and such replacement Eligible
Liquidity Lender, (y) the purchase price paid by such replacement Eligible
Liquidity Lender shall be an amount equal to the aggregate amount of all
Liquidity Advances owed to such replaced Liquidity Lender, and (z) DTFC or such
Eligible Liquidity Lender, as the case may be, shall pay to such replaced
Liquidity Lender in same day funds on the date of such assignment the principal
of and interest accrued to the date of payment on the Liquidity Advances made by
such replaced Liquidity Lender hereunder and all other amounts accrued for such
replaced Liquidity Lender's account or owed to it hereunder, including those
amounts owed pursuant to Section 4.2.1(b) and Sections 5.3 through 5.6.
SECTION 5.10. Order and Priority. Notwithstanding any other provision
of this Liquidity Agreement (other than Section 4.2.2.), the Liquidity Agent and
the Liquidity Lenders agree that the Obligations of DTFC to the Liquidity Agent
and the Liquidity Lenders hereunder shall be payable in the order and priority
set forth in Section 2.01 and 5.02(b), as
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applicable, of the Collateral Agreement. The Liquidity Agent and the Liquidity
Lenders agree that, during any period that Commercial Paper Notes shall be
outstanding (any such period being a "Specified Period"), the Obligations shall
be due and payable only to the extent that DTFC's Assets and the Enhancement
Amount are sufficient to pay the same. If, during any Specified Period, the
Liquidity Lenders shall exercise their rights, pursuant to Section 9.2(ii), to
accelerate the Obligations, such acceleration shall have the limited effect of
(i) causing the interest rates contemplated in Section 4.2.2 to become effective
with respect to the outstanding Obligations and (ii) allowing the Liquidity
Lenders, in any determination of the Liquidity Lenders' allocative share of any
disbursement to be made to Secured Parties under the Collateral Agreement or
otherwise among creditors of DTFC, to treat all of the Obligations as then being
due and payable. No claims of the Liquidity Lenders arising under or in
connection with this Liquidity Agreement are intended to be impaired or waived
by this Section 5.10.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness. This Liquidity Agreement
shall become effective on the date (the "Closing Date") when all of the
conditions set forth in Section 6.1 have been satisfied (and each Liquidity
Lender's signature hereto evidences that such conditions have been satisfied
with respect to such Liquidity Lender).
SECTION 6.1.1. Organic Documents, Resolutions. The Liquidity Agent
shall have received: (i) a copy of DTFC's certificate of incorporation,
including all amendments thereto, certified as of a recent date by the Secretary
of State of the State of Oklahoma, and a certified copy of all other Organic
Documents of DTFC, and such certificate or other Organic Documents shall be in
form and substance satisfactory to the Liquidity Agent and its counsel, and a
certificate as to the good standing of DTFC as of a recent date, from such
Secretary of State; (ii) a certificate of the Secretary or Assistant Secretary
of DTFC dated the Closing Date and certifying (A) that attached thereto is a
true and complete copy of the Bylaws of DTFC as in effect on the Closing Date
and at all times since a date prior to the date of the resolutions described in
clause (B) below, (B) that attached thereto is a true and complete copy of
resolutions in form and substance reasonably satisfactory to the Liquidity Agent
and its counsel and duly adopted by the Board of Directors of DTFC authorizing
the execution, delivery and performance of this Liquidity Agreement and each of
the other CP Program Documents to which DTFC is a party and the transactions
contemplated hereby and thereby, and that such resolutions have not been
modified, rescinded or amended and are in full force and effect, (C) that the
certificate of incorporation of DTFC has not been amended since the date of the
last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above and (D) as to the incumbency and specimen signature
of each officer executing this Liquidity Agreement and each of the other CP
Program Documents to which DTFC is a party
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or any other document delivered in connection herewith or therewith on behalf of
DTFC; (iii) a certificate of another officer as to the incumbency and specimen
signature of the Secretary or Assistant Secretary executing the certificate
pursuant to clause (ii) above; and (iv) such other documents as the Liquidity
Agent may reasonably request.
SECTION 6.1.2. Liquidity Agreement. The Liquidity Agent shall have
received executed counterparts of this Liquidity Agreement, duly executed by
DTFC, the Liquidity Agent, and each Liquidity Lender.
SECTION 6.1.3. Liquidity Advance Notes. The Liquidity Agent shall have
received, for the account of each Liquidity Lender, such Liquidity Lender's
Liquidity Advance Note duly executed and delivered by DTFC.
SECTION 6.1.4. Collateral Agreement. (a) The Liquidity Agent shall have
received executed counterparts of the Collateral Agreement, dated as of the
Closing Date, duly executed by DTFC, the Collateral Agent, the Liquidity Agent,
the Depositary, each Dealer and the Series 1998-1 Letter of Credit Provider.
SECTION 6.1.5. Series 1998-1 Supplement. The Liquidity Agent shall have
received copies of the executed Series 1998-1 Supplement, dated as of the
Closing Date, duly executed by RCFC and Bankers Trust Company, as trustee and
enhancement agent, and all of the conditions to the effectiveness thereof and to
the issuance of the Series 1998-1 Notes set forth therein shall have been
satisfied in all respects.
SECTION 6.1.6. Series 1998-1 Notes. The Collateral Agent shall have
received, on behalf of the Secured Parties, the Series 1998-1 Notes, in an
aggregate face amount equal to $615,000,000, duly executed by RCFC and duly
authenticated by the Trustee.
SECTION 6.1.7. Master Lease. The Trustee shall have received the
original executed Master Lease, dated as of the Closing Date, duly executed by
RCFC, DTAG and each of the Lessees, and the Liquidity Agent shall have received
the executed Master Lease and copies of all documents and opinions required to
be delivered to RCFC thereunder, all conditions to the effectiveness thereof set
forth therein shall have been satisfied in all respects, provided that the
satisfaction of the conditions to the effectiveness thereof set forth therein
relating to the title of the Vehicles and the perfection of the security
interests in the Vehicles shall be satisfactory to the Liquidity Agent.
SECTION 6.1.8. Series 1998-1 Letter of Credit. The Series 1998-1 Letter
of Credit in an amount initially equal to $5,000,000 shall have been delivered
to the Enhancement Agent and shall be in form and substance satisfactory to the
Syndication Agent (as defined in the Credit Agreement), the Liquidity Agent and
the Collateral Agent and in full force and effect,
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and the Series 1998-1 Letter of Credit Provider shall have a short-term rating
not lower than A-1 from S&P, P-1 from Moody's and D-1 from DCR (if rated by
DCR).
SECTION 6.1.9. Depositary Agreement. The Liquidity Agent shall have
received executed counterparts of the Depositary Agreement, dated as of the
Closing Date, duly executed by DTFC and the Depositary, and all of the
conditions to the effectiveness thereof set forth therein shall have been
satisfied in all respects.
SECTION 6.1.10. Dealer Agreement. The Liquidity Agent shall have
received executed counterparts of the Dealer Agreement, dated as of the Closing
Date, duly executed by DTFC and each Dealer, and all of the conditions to the
effectiveness thereof set forth therein shall have been satisfied in all
respects.
SECTION 6.1.11. Absence of Certain Events; Accuracy of Liquidity
Agreement Representations and Warranties; Closing Date Certificate. (a) No
Liquidity Agreement Amortization Event, Limited Liquidity Agreement Amortization
Event or Lease Event of Default shall have occurred and be continuing, (b) the
representations and warranties set forth in Article VII shall be true and
correct (in all material respects to the extent any such representations and
warranties do not incorporate a materiality limitation in their terms) as of the
Closing Date and (c) the Liquidity Agent shall have received a Closing Date
Certificate, dated the Closing Date, duly executed and delivered by an
Authorized Officer of DTFC, in which DTFC shall have represented and warranted
that the representations and warranties of DTFC in the CP Program Documents are
true and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materiality limitation in
their terms) as of the Closing Date and that no Liquidity Agreement Amortization
Event, Limited Liquidity Agreement Amortization Event or, to the best of such
Authorized Officer's knowledge, Potential Liquidity Agreement Amortization Event
has occurred and is continuing, and, at the time such certificate is delivered,
the Liquidity Agent shall be satisfied that such statements are in fact true and
correct (in all material respects to the extent that any such statements do not
incorporate a materiality limitation in their terms).
SECTION 6.1.12. Accounts. The Commercial Paper Account, the Termination
Advance Account, the Collateral Account and the Master Collateral Account shall
have been established and shall be in full force and effect.
SECTION 6.1.13. Rating Letters. DTFC shall have received as of the
Closing Date (i) a rating letter from S&P to the effect that the Commercial
Paper Notes shall have been given a rating of at least A-1 by S&P, which rating
shall be in full force and effect, (ii) a rating letter from Moody's to the
effect that the Commercial Paper Notes shall have been given a rating of at
least P-1 by Moody's, which rating shall be in full force and effect, and (iii)
a rating letter from DCR to the effect that the Commercial Paper Notes shall
have been given a rating of at least D-1 by DCR, which rating shall be in full
force and effect.
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SECTION 6.1.14. Board of Directors. The Liquidity Agent shall consent
to the composition of DTFC's Board of Directors (including any Independent
Director), which consent shall not be unreasonably withheld.
SECTION 6.1.15. Solvency Certificate. The Liquidity Agent shall have
received a certificate, dated the Closing Date, and duly executed by a Financial
Officer of DTFC, in scope and substance satisfactory to the Liquidity Agent, to
the effect that DTFC will be solvent after giving effect to the transactions
contemplated by this Liquidity Agreement, each of the other CP Program Documents
and the issuance and sale of the Commercial Paper Notes.
SECTION 6.1.16. Closing Fees and Expenses. The Liquidity Agent shall
have received for its own account and for the account of the Liquidity Lenders
any fees and expenses due and payable pursuant to Sections 4.5 and 11.3 and any
fees and expenses due and payable pursuant to the Fee Letter or any other any
fee letters or commitment letters entered into with any Liquidity Lender and/or
the Liquidity Agent, including reasonable fees and expenses of counsel to the
Liquidity Agent.
SECTION 6.1.17. Certified Copies of Vehicle Disposition Programs. The
Liquidity Agent shall have received from RCFC a copy of each Vehicle Disposition
Program under which Group II Vehicles will be or have been purchased and an
Officer's Certificate of RCFC or the applicable Lessee, dated the Closing Date,
certifying that each such copy is true, correct and complete as of the Closing
Date.
SECTION 6.1.18. Opinions, Instruments, Certificates and Other
Documents. The Liquidity Agent shall have received opinions of counsel,
addressed to the Liquidity Agent and the Liquidity Lenders hereto, reasonably
satisfactory in form and substance to the Liquidity Agent and the Liquidity
Lenders, and the Liquidity Agent and each Liquidity Lender shall have received
such additional instruments, certificates and other documents as the Liquidity
Agent or such Liquidity Lender shall have reasonably requested in form and
substance reasonably satisfactory to the Liquidity Agent or such Liquidity
Lender.
SECTION 6.1.19. Notation of Liens. The Liquidity Agent shall have
received evidence (which, in the case of the filing of financing statements on
form UCC-1, may be telephonic confirmation of such filing) that all filings
(including filings of financing statements on form UCC-1) and recordings have
been accomplished as may be required by law to establish, perfect, protect and
preserve the rights, titles, interests, remedies, powers, privileges, licenses
and security interest of (a) the Master Collateral Agent in the Group II
Collateral and (b) the Collateral Agent in the Assigned Collateral for the
benefit of the Secured Parties.
SECTION 6.1.20. Offering Materials. Each offering circular, offering
memorandum (including, without limitation, the Offering Memorandum) or
information circular to be used
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by DTFC or the Dealers in connection with the offer or sale of Commercial Paper
Notes, insofar as it describes or refers to the Liquidity Agent or any Liquidity
Lender, shall be reasonably satisfactory to the Liquidity Agent or such
Liquidity Lender, respectively.
SECTION 6.1.21. Satisfactory Legal Form. This Liquidity Agreement, each
of the other CP Program Documents and all other documents executed or submitted
pursuant hereto or thereto by or on behalf of DTFC shall be reasonably
satisfactory in form and substance to the Liquidity Agent and its counsel; and
the Liquidity Agent and its counsel shall have received all information,
approvals, opinions, documents or instruments as the Liquidity Agent or its
counsel may have reasonably requested on the Closing Date.
SECTION 6.1.22. Credit Rating of Initial Liquidity Lenders. As of the
Closing Date, each initial Liquidity Lender shall have credit ratings assigned
to its short-term obligations of at least A-1 by S&P, P-1 by Moody's and D-1 by
DCR (if rated by DCR).
SECTION 6.1.23. Credit Agreement. (i) The Liquidity Agent and the
Collateral Agent shall have received copies of the executed Credit Agreement,
dated as of December 23, 1997, duly executed by DTAG, Dollar, Thrifty, the
financial institutions identified as the Lenders thereunder, the Administrative
Agent and the Syndication Agent, (ii) the Credit Agreement shall be in full
force and effect and (iii) no Event of Default (as defined in the Credit
Agreement) shall have occurred and be continuing.
SECTION 6.2. [Reserved].
SECTION 6.3. Conditions Precedent to the Making of Each Refunding
Advance. The obligation of any Liquidity Lender to make any Refunding Advance
(including any Commitment Termination Date Liquidity Advance) and of the Swing
Line Lender to make any Swing Line Advance shall be subject to the satisfaction
of the following conditions at the time of making of such Refunding Advance or
Swing Line Advance:
SECTION 6.3.1. No Bankruptcy. (i) No Event of Bankruptcy of the type
described in clauses (a) or (b) of the definition thereof with respect to DTFC
shall have occurred and be continuing and (ii) no Event of Bankruptcy of the
type described in clauses (a) or (b) of the definition thereof with respect to
the Series 1998-1 Letter of Credit Provider shall have occurred and be
continuing at any time prior to the funding in full of the Series 1998-1 Cash
Collateral Account.
SECTION 6.3.2. Availability. The Enhancement Amount shall not have been
reduced to zero.
SECTION 6.3.3. No Borrowing Base Deficiency. A Borrowing Base
Deficiency shall not exist after giving effect to the application of such
Refunding Advance or Swing Line
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Advance; provided, however, that this provision shall not release the Liquidity
Lenders from the obligation (upon receipt of a Borrowing Request in the
appropriate amount) to make Refunding Advances or Swing Line Advances up to the
amount of the then current Borrowing Base that would not cause a Borrowing Base
Deficiency to exist.
SECTION 6.3.4. Borrowing Request. The Liquidity Agent shall have
received a Borrowing Request for such Borrowing.
SECTION 6.3.5. Borrowing Base Certificate. The Liquidity Agent shall
have received an Officer's Certificate, dated the date of the making of such
Refunding Advance or Swing Line Advance, duly executed and delivered by an
Authorized Officer of DTFC, certifying the amount of the Borrowing Base as of
the close of business on the day immediately preceding such date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Liquidity Lenders and the Liquidity Agent to enter into
this Liquidity Agreement and to make Liquidity Advances hereunder, DTFC
represents and warrants to the Liquidity Agent and each Liquidity Lender as set
forth in this Article VII as of the making of each Liquidity Advance (except as
otherwise specified).
SECTION 7.1. Existence and Power. DTFC is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Oklahoma, is duly qualified to do business as a foreign corporation and in
good standing under the laws of each jurisdiction where the character of its
property, the nature of its business or the performance of its obligations make
such qualification necessary, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
There have been no amendments to the Organic Documents of DTFC since
the respective dates of the certified copies furnished to the Liquidity Agent
pursuant to Section 6.1.1, other than amendments, if any, not prohibited by this
Liquidity Agreement (copies of which have been furnished to the Liquidity
Agent).
SECTION 7.2. Authorization. The execution, delivery and performance by
DTFC of this Liquidity Agreement and each of the other CP Program Documents to
which it is a party are within DTFC's corporate powers and have been duly
authorized by all necessary corporate action. This Liquidity Agreement and each
other CP Program Document to which DTFC is a party have been duly executed and
delivered by DTFC.
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SECTION 7.3. Binding Effect. This Liquidity Agreement and each other CP
Program Document to which DTFC is a party constitutes a legal, valid and binding
obligation of DTFC enforceable against DTFC in accordance with its respective
terms (except as may be limited by bankruptcy, moratorium or other laws
affecting creditors' rights generally and subject to limitations imposed by
equitable principles).
SECTION 7.4. Financial Information; Financial Condition. All balance
sheets, all statements of operations, of shareholders' equity and of cash flow,
and other financial data (other than projections) which have been or shall
hereafter be furnished by DTFC to Liquidity Lenders pursuant to Section 8.1.1
have been and will be prepared in accordance with GAAP (to the extent
applicable) and do and will present fairly in all material respects the
financial condition of the entities involved as of the dates thereof and the
results of their operations for the periods covered thereby, subject, in the
case of all unaudited statements, to normal year-end adjustments and lack of
footnotes and presentation items.
SECTION 7.5. Litigation. There is no action, suit or proceeding pending
against or, to the knowledge of DTFC, threatened against DTFC before any court
or arbitrator or any Governmental Authority in which there is a reasonable
possibility of an adverse decision that could materially adversely affect the
consolidated financial position, consolidated results of operations, business,
properties, performance, prospects or condition (financial or otherwise) of DTFC
or which in any manner draws into question the validity or enforceability of
this Liquidity Agreement or any other CP Program Document or the ability of DTFC
to comply with any of the respective terms thereunder.
SECTION 7.6. No ERISA Plan. DTFC has not established and does not
maintain or contribute to any employee benefit plan that is covered by Title IV
of ERISA, and will not do so, so long as the Liquidity Commitment Termination
Date has not occurred, or any amount is owing to a Liquidity Lender hereunder.
SECTION 7.7. Tax Filings and Expenses. DTFC has filed all federal,
state and local tax returns and all other tax returns which, to the knowledge of
DTFC, are required to be filed (whether informational returns or not), and has
paid all taxes due, if any, pursuant to said returns or pursuant to any
assessment received by DTFC, except such taxes, if any, as are being contested
in good faith and for which adequate reserves have been set aside on its books.
DTFC has paid all fees and expenses required to be paid by it in connection with
the conduct of its business, the maintenance of its corporate existence and its
qualification as a foreign corporation authorized to do business in each State
in which it is required to so qualify, except where the failure to pay any such
fees and expenses is not reasonably likely to have a Material Adverse Effect.
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SECTION 7.8. Disclosure. The materials listed on Annex B hereto and
furnished to the Liquidity Agent or any Liquidity Lender in connection with this
Liquidity Agreement were at the time the same were so furnished, complete and
correct in all material respects.
SECTION 7.9. Investment Company Act; Securities Act. DTFC is not
controlled by an "investment company" and is not required to register as an
"investment company" under the Investment Company Act. The Commercial Paper
Notes are exempt from registration under Section 3(a)(3) of the Securities Act
of 1933, as amended. It is not necessary in connection with the issuance of the
Commercial Paper Notes under the circumstances contemplated by this Liquidity
Agreement and the other CP Program Documents to qualify any indenture under the
Trust Indenture Act of 1939, as amended.
SECTION 7.10. Margin Regulations. No proceeds of any Liquidity Advance
or the sale of any Commercial Paper Note will be used to purchase or carry any
"margin stock" (as defined or used in Regulation G, T, U or X of the F.R.S.
Board or any successor thereto) or to extend credit to others for such purpose.
DTFC is not engaged in the business of extending credit for the purpose of
purchasing or carrying any margin stock.
SECTION 7.11. No Consent. No consent, action by or in respect of,
approval or other authorization of, or registration, declaration or filing with,
any Governmental Authority or other Person is required for the valid execution
and delivery and performance of this Liquidity Agreement or any other CP Program
Document by DTFC for the payment of any amounts by DTFC hereunder or thereunder
or for the performance of any of DTFC's Obligations hereunder or thereunder
other than such consents, approvals, authorizations, registrations, declarations
or filings as shall have been obtained by DTFC prior to the Closing Date.
SECTION 7.12. No Violation of Laws, etc. The execution and delivery of
this Liquidity Agreement and each of the other CP Program Documents, compliance
with the provisions hereof and thereof and the consummation of the transactions
contemplated herein and therein will not result in (a) a breach or violation of,
and do not contravene, or constitute a default under, (i) any law or
governmental rule or regulation applicable to DTFC now in effect, (ii) any
provision of any Organic Document of DTFC, (iii) any judgment, injunction, order
or decree of any Governmental Authority against DTFC or any of its Assets, or
(iv) any agreement, contract or instrument to which DTFC is a party or by which
it or any of its Assets is bound, (b) the acceleration of any Obligations of
DTFC, or (c) the creation or imposition of any Lien on any Assets of DTFC other
than in favor of the Collateral Agent or as permitted by the CP Program
Documents.
SECTION 7.13. Ownership; Subsidiaries. As of the Closing Date, 100% of
the common stock of DTFC is owned by DTAG. As of the Closing Date, DTFC has no
Subsidiaries and owns no capital stock of, or other interest in, any other
Person.
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SECTION 7.14. Solvency. Both before and after giving effect to the
transactions contemplated by this Liquidity Agreement and the other CP Program
Documents, DTFC is solvent and DTFC is not the subject of any voluntary or
involuntary case or proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any bankruptcy or insolvency
law, or of any other Event of Bankruptcy.
SECTION 7.15. No Security Interest. (A) There is no effective financing
statement listing DTFC as debtor (other than any which may have been filed on
behalf of the Collateral Agent) covering any of the Assigned Collateral that is
on file in any public office; (B) at the date of each deposit of Deposited Funds
in the Commercial Paper Account there are no Liens on the Deposited Funds or the
Commercial Paper Account, except the assignment made pursuant to the Collateral
Agreement in favor of the Collateral Agent; and (C) DTFC is and will be the
lawful owner of (with good and marketable title to), and has and will have
beneficial ownership of (or the benefit, through the Enhancement Agent and the
Master Collateral Agent, of a first priority perfected security interest, in the
case of the Group II Vehicles and the Vehicle Disposition Programs), all
Assigned Collateral, free and clear of all Liens except Permitted Liens.
SECTION 7.16. Vehicle Disposition Programs. On the date of each
Borrowing, each Manufacturer from which Group II Vehicles are purchased and each
Vehicle Disposition Program covering Group II Vehicles shall be an Eligible
Manufacturer and Eligible Vehicle Disposition Program, respectively.
SECTION 7.17. Other Representations. All representations and warranties
of DTFC made in each CP Program Document to which it is a party are true and
correct (in all material respects to the extent any such representations and
warranties do not incorporate a materiality limitation in their terms) and are
repeated herein as though fully set forth herein.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. DTFC covenants and agrees with the
Liquidity Agent and each Liquidity Lender that, until all Liquidity Commitments
have terminated and all Obligations have been paid or performed in full, unless
the Majority Banks shall otherwise consent in writing, DTFC will perform the
covenants set forth in this Section 8.1.
SECTION 8.1.1. Information. DTFC will deliver to the Liquidity Agent
(with a copy for each Liquidity Lender), and each Rating Agency:
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(a) promptly upon the delivery by RCFC to DTFC, a copy of the
financial information and other materials required to be delivered by
DTAG to RCFC and the Collateral Agent pursuant to Section 24.4 of the
Master Lease (other than the VIN list as required by Section 24.4(f) of
the Master Lease);
(b) from time to time such additional information regarding
the financial position, results of operations or business of DTAG and
its Subsidiaries as the Liquidity Agent may reasonably request to the
extent that RCFC delivers such information to DTFC pursuant to Section
7.01(c) of the Note Purchase Agreement or that any of the Liquidity
Lenders reasonably requires and directs DTFC in its capacity as the
holder of the Series 1998-1 Notes in writing to request from RCFC
pursuant to Section 7.3(c) of the Base Indenture subject to the
reasonableness standard for requests for information set forth in such
section;
(c) as soon as available and in any event (i) within one
hundred ten (110) days after the end of each fiscal year of DTAG and
its Subsidiaries a consolidated balance sheet and statement of earnings
as at the end of such fiscal year and (ii) within forty-five (45) days
after the end of each fiscal quarter (except for the fourth fiscal
quarter) of DTAG and its Subsidiaries a consolidated balance sheet and
statement of earnings as at the end of such fiscal quarter;
(d) at the time of delivery of the items described in clause
(a) above, a certificate of an officer of DTFC that, except as provided
in any certificate delivered in accordance with Section 8.1.9, no
Liquidity Agreement Amortization Event, Lease Event of Default or (to
the best of such officer's knowledge) Potential Liquidity Agreement
Amortization Event or Potential Lease Event of Default has occurred or
is
continuing during such fiscal quarter;
(e) at the time of delivery of the items described in clause
(c)(i) above, a certificate of the chief financial officer of DTFC
certifying that (i) the ratings assigned by the Rating Agencies in
respect of the commercial paper issued by DTFC have not been withdrawn
or downgraded below A-1 by S&P, P-1 by Moody's and D-1 by DCR since the
date of this Liquidity Agreement, (ii) whether any Rating Agency has
determined that the Minimum Enhancement Amount must be increased, (iii)
no change in the Vehicle Disposition Program of any Manufacturer in
respect of any new model year shall have given rise to any request on
the part of the Rating Agencies that any modification be made to the
Master Lease or any other CP Program Document, and (iv) DTFC has
apprised the Rating Agencies of all material changes in the Vehicle
Disposition Programs occurring since the date of this Liquidity
Agreement;
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(f) promptly following the introduction of any prospective
material change in any Vehicle Disposition Program or the introduction
of any new Vehicle Disposition Program by an existing Manufacturer,
notice and a copy of the same;
(g) on or prior to the twentieth day of each month (or if such
day is not a Business Day, on the next succeeding Business Day), a copy
of the Monthly Vehicle Statement (excluding the VIN list) relating to
the Assigned Collateral as of the last Business Day of the immediately
preceding month delivered by DTAG pursuant to Section 24.4(f) of the
Master Lease;
(h) on each Business Day when any Liquidity Advance is
outstanding, DTFC shall cause the Collateral Agent to provide to the
Liquidity Agent a statement setting forth (A) the maturity date and
face amount of each outstanding Commercial Paper Note and (B) the
aggregate principal amount of outstanding Liquidity Advances (or, at
DTFC's option, a statement updating any statement previously provided
by DTFC to the Liquidity Agent which contained such information as of a
prior date); and
(i) furnish, or cause to be furnished to the Liquidity Agent
and each of the Rating Agencies, as soon as available and in any event
within 90 days after the end of each fiscal year of DTAG, (A) a copy of
the annual audit report for such fiscal year for DTAG and its
subsidiaries, including therein a consolidated balance sheet of DTAG
and its subsidiaries and a consolidating balance sheet of DTAG and its
direct subsidiaries (including DTFC), in each case as of the end of
such fiscal year, and consolidated statements of operations and cash
flow of DTAG and its subsidiaries and consolidating statements of
operations and cash flow of DTAG and its direct subsidiaries (including
DTFC), in each case for such fiscal year, in each case certified by
Deloitte & Touche or other nationally recognized independent public
accountants acceptable to the Liquidity Agent.
SECTION 8.1.2. Compliance with Covenants. DTFC will comply with all
covenants made by it and contained in each CP Program Document to which it is a
party.
SECTION 8.1.3. Payment of Obligations. DTFC will pay and discharge, at
or before maturity, all of its respective obligations and liabilities,
including, without limitation, tax liabilities and other governmental claims,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, in accordance with GAAP, reserves as appropriate for the
accrual of any of the same.
SECTION 8.1.4. Maintenance of Separate Existence. DTFC will (i)
maintain its existence as a corporation validly existing and in good standing
under the laws of the State of Oklahoma and duly qualified as a foreign
corporation licensed under the laws of each state in which the failure to so
qualify would have a Material Adverse Effect on the business and
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operations of DTFC, (ii) do all things necessary to maintain its corporate
existence separate and apart from that of DTAG and Affiliates of DTAG including,
without limitation, (A) practicing and adhering to corporate formalities, such
as maintaining appropriate corporate books and records; (B) maintaining at least
two corporate directors who are Independent Directors; (C) owning or leasing
(including through shared arrangements with Affiliates) all office furniture and
equipment necessary to operate its business; (D) not (I) guaranteeing or
otherwise becoming liable for any obligations of any of its Affiliates, (II)
having obligations guaranteed by any of its Affiliates, (III) holding itself out
as responsible for debts of any of its Affiliates or for decisions or actions
with respect to the affairs of any of its Affiliates and (IV) being directly or
indirectly named as a direct or contingent beneficiary or loss payee on any
insurance policy of any Affiliate other than as required by the CP Program
Documents with respect to insurance on the Vehicles; (E) other than as provided
in the CP Program Documents, maintaining its deposit and other bank accounts and
all of its Assets separate from those of any other Person; (F) maintaining its
financial records separate and apart from those of any other Person; (G)
compensating all its employees, officers, consultants and agents for services
provided to it by such Persons, or reimbursing any of its Affiliates in respect
of services provided to it by employees, officers, consultants and agents of
such Affiliate, out of its own funds; (H) maintaining office space separate and
apart from that of any of its Affiliates (even if such office space is subleased
from or is on or near premises occupied by any of its Affiliates) and a
telephone number separate and apart from that of any of its Affiliates; (I)
accounting for and managing all of its liabilities separately from those of any
of its Affiliates; (J) allocating, on an arm's-length basis, all shared
corporate operating services, leases and expenses, including, without
limitation, those associated with the services of shared consultants and agents
and shared computer and other office equipment and software; (K) refraining from
filing or otherwise initiating or supporting the filing of a motion in any
bankruptcy or other insolvency proceeding involving DTFC, DTAG or any Affiliate
of DTAG, to substantively consolidate DTFC with DTAG or any Affiliate; (L)
remaining solvent and (M) conducting all of its business (whether written or
oral) solely in its own name, (iii) maintain in place all policies and
procedures relating to DTFC, and take and continue to take all action relating
to DTFC, described in the factual assumptions set forth in that certain opinion
letter issued by Mayer, Brown & Platt, dated March 4, 1998, addressing the issue
of substantive consolidation as it may relate to DTAG, RCFC, the Lessees and
DTFC (a copy of which opinion letter DTFC hereby acknowledges it has received),
(iv) on a semi-annual basis, provide to the Liquidity Agent and each of the
Rating Agencies an Officer's Certificate of DTFC certifying that it is in
compliance with its obligations under clauses (ii) and (iii) of this Section
8.1.4 and (v) on an annual basis provide to the Liquidity Agent and each of the
Rating Agencies a letter of independent certified public accountants of
nationally recognized standing selected by DTFC, addressed to the Liquidity
Agent and each of the Rating Agencies, stating whether, in connection with their
audit of the consolidated financial statements of DTAG, anything came to their
attention that caused them to believe that DTFC failed to comply with the terms,
covenants, provisions or conditions of clauses (ii) and (iii) of this Section
8.1.4
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insofar as they relate to financial and accounting matters. DTFC will serve as
the agent for the Liquidity Agent and the Rating Agencies in coordinating
receipt of such letter.
SECTION 8.1.5. Compliance with Laws. DTFC will comply with all
Applicable Laws of Governmental Authorities (including, without limitation,
ERISA and the rules and regulations thereunder) except where the failure to
comply therewith is not reasonably likely to have a Material Adverse Effect on
the business and operations of DTFC.
SECTION 8.1.6. Inspection of Property, Books and Records. DTFC will
keep proper books of record and account in which full, true and correct entries
shall be made of all dealings and transactions in relation to its Assets,
business and activities in accordance with GAAP; and will permit representatives
of the Liquidity Agent and, if a Liquidity Agreement Amortization Event shall
have occurred and is continuing, representatives of any Liquidity Lender, at
DTFC's expense, to visit and inspect any of its properties, to examine and make
abstracts from any of its books and records and to discuss its affairs, finances
and accounts with its officers, directors, employees and independent public
accountants, all at such reasonable times and as often as the Liquidity Agent or
such Liquidity Lender may reasonably deem appropriate (but not more often than
once a month in the case (i) of any Liquidity Lender and (ii) of the Liquidity
Agent prior to the occurrence of a Liquidity Agreement Amortization Event).
SECTION 8.1.7. Absence of Certain Actions. DTFC will not take any
action which would permit any Lessee or DTAG to have the right to refuse to
perform any of its obligations under the Master Lease or permit RCFC to have the
right to refuse to perform any of its obligations under the Series 1998-1 Notes
or the Series 1998-1 Supplement.
SECTION 8.1.8. Notice of Default. Promptly upon becoming aware of any
Potential Liquidity Agreement Amortization Event, Potential Lease Event of
Default, Lease Event of Default, Liquidity Agreement Amortization Event,
Potential Event of Default (as defined in the CP Enhancement Letter of Credit
Application and Agreement) or Event of Default (as defined in the CP Enhancement
Letter of Credit Application and Agreement), DTFC shall give the Liquidity
Agent, the Liquidity Lenders, the Dealers and each Rating Agency notice thereof,
together with a certificate of the President, Vice President or the principal
financial officer of DTFC setting forth the details thereof and any action with
respect thereto taken or contemplated to be taken by DTFC.
SECTION 8.1.9. Notice of Material Proceedings. Promptly upon becoming
aware thereof, DTFC shall give the Liquidity Agent, the Dealers and each Rating
Agency written notice of the commencement or existence of any proceeding by or
before any Governmental Authority against or affecting DTFC which is reasonably
likely to have a Material Adverse Effect on the business, condition (financial
or otherwise), results of operations, properties or performance of DTFC or the
ability of DTFC to perform its Obligations under this Liquidity Agreement or
under any other CP Program Document to which it is a party.
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SECTION 8.1.10. Further Requests. DTFC will promptly furnish to the
Liquidity Agent and each Rating Agency such other information as, and in such
form as, the Liquidity Agent or any Rating Agency may reasonably request.
SECTION 8.1.11. Further Assurances. DTFC agrees to do such further acts
and things, and to execute and deliver to the Liquidity Agent such additional
assignments, agreements, powers and instruments, as the Liquidity Agent
reasonably determines to be necessary to carry into effect the purposes of this
Liquidity Agreement or to better assure and confirm unto the Liquidity Agent its
rights, powers and remedies hereunder.
SECTION 8.1.12. Vehicle Disposition Programs. DTFC agrees that it will
(i) provide the Liquidity Agent, the Dealers and each Rating Agency with at
least 30 days' prior written notice of its intention to make Advances to RCFC
under the Series 1998-1 Notes for the purchase or financing by RCFC of Vehicles
manufactured by any new Manufacturer, (ii) provide the Liquidity Agent, the
Dealers and each Rating Agency with a copy of the draft Vehicle Disposition
Program of such Manufacturer as it then exists at the time of such notice and a
copy of the final Vehicle Disposition Program promptly upon its being available
and (iii) certify to the Liquidity Agent and the Liquidity Lenders that such new
Manufacturer is an Eligible Manufacturer and that such Vehicle Disposition
Program is an Eligible Vehicle Disposition Program at such time. In no event
shall DTFC agree, to the extent any consent of DTFC is solicited or required by
the Manufacturer or any assignor of such Vehicle Disposition Program, to any
change in any Vehicle Disposition Program that is reasonably likely to
materially adversely affect its rights or the rights of the Secured Parties with
respect to any Vehicle previously purchased under such Vehicle Disposition
Program.
SECTION 8.1.13. Use of Proceeds of Commercial Paper Notes. DTFC shall
use the proceeds of the Commercial Paper Notes solely for one or more of the
following purposes: (a) to pay matured Commercial Paper Notes when due, in
accordance with the Depositary Agreement; (b) to fund advances under the Series
1998-1 Notes; and (c) to pay principal of, or interest on, any Liquidity Advance
or any other amount payable by DTFC under this Liquidity Agreement or to
reimburse the Series 1998-1 Letter of Credit Provider for any LOC Liquidity
Disbursement and any interest thereon or the Series 1998-1 Cash Collateral
Account for any LOC Liquidity Disbursement and any interest thereon.
Notwithstanding any provision of this Liquidity Agreement, on any day
when any Liquidity Advance is outstanding, DTFC shall not use the net proceeds
of the issuance of Commercial Paper Notes to fund further advances under the
Series 1998-1 Notes.
SECTION 8.1.14. Vehicles. DTFC shall use commercially reasonable
efforts to cause (i) each applicable Lessee to maintain good, legal and
marketable title to the Existing Fleet and the Financed Vehicles that are Group
II Vehicles owned by such Lessee, free and clear of all Liens except for
Permitted Liens and (ii) to cause RCFC to maintain good, legal and
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marketable title to the Acquired Vehicles that are Group II Vehicles, free and
clear of all Liens except for Permitted Liens.
SECTION 8.2. Negative Covenants. DTFC covenants and agrees with the
Liquidity Agent and each Liquidity Lender that until all Liquidity Commitments
have been terminated and all Obligations have been paid or performed in full,
unless the Majority Banks otherwise consent in writing, DTFC will perform the
Obligations set forth in this Section 8.2.
SECTION 8.2.1. Liens. DTFC will not create, incur, assume or permit to
exist any Lien upon any of its Assets (including the Assigned Collateral), the
Accounts, the Commercial Paper Account, the Series 1998-1 Cash Collateral
Account or the Deposited Funds, other than Liens created by or permitted under
the CP Program Documents.
SECTION 8.2.2. Other Indebtedness. Without (a) the prior written
consent of the Majority Banks and (b) the prior receipt of written confirmation
of the Rating Agencies that any such action will not result in the downgrading
or withdrawal of the then current ratings of the Commercial Paper Notes by the
Rating Agencies, DTFC will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness other than
Indebtedness under this Liquidity Agreement, Indebtedness evidenced by the
Commercial Paper Notes and Indebtedness under or permitted under any other CP
Program Document.
SECTION 8.2.3. Consolidations and Mergers . DTFC will not, except as
may be permitted by the express written approval of the Majority Banks and upon
the receipt of written confirmation of each Rating Agency that such action will
not result in the downgrading or withdrawal of its then current ratings of the
Commercial Paper Notes, merge with or into, enter into any joint venture or
other association with, or consolidate with, any other Person.
SECTION 8.2.4. Sales of Assets. DTFC will not sell, lease, transfer,
liquidate or otherwise dispose of any Assets, except as contemplated by the CP
Program Documents and provided that the proceeds thereof are paid directly to
the Collateral Account.
SECTION 8.2.5. Acquisition of Assets. DTFC will not acquire, by
long-term or operating lease or otherwise, any Assets, except pursuant to the
terms of the CP Program Documents.
SECTION 8.2.6. Dividends, Officers' Compensation, etc. DTFC will not
declare or pay any dividends on any shares of its capital stock or make any
other distribution on, or any purchase, redemption or other acquisition of, any
shares of its capital stock except out of any source legally available therefor.
SECTION 8.2.7. Name; Chief Executive Office. DTFC will neither (i)
change the location of its chief executive office (within the meaning of the
UCC) without sixty (60) days'
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prior notice to the Collateral Agent, the Liquidity Agent and each Rating Agency
nor (ii) change its name without prior notice to the Collateral Agent, the
Liquidity Agent and each Rating Agency sufficient to allow the Collateral Agent
to make all filings (including filings of financing statements on form UCC-1)
and recordings necessary to perfect the interest of the Collateral Agent in the
Assigned Collateral pursuant to the Collateral Agreement.
SECTION 8.2.8. Organic Documents. DTFC will not amend any of its
Organic Documents without the written consent of the Majority Banks and each of
the Rating Agencies.
SECTION 8.2.9. Investments. DTFC will not make, incur, or suffer to
exist any loan, advance, extension of credit to, or other investment in, any
Person other than pursuant to the Series 1998-1 Notes and with respect to
Eligible Investments.
SECTION 8.2.10. No Other Agreements; Amendments to CP Program
Documents. DTFC will not, without the prior written consent of the Majority
Banks and the Series 1998-1 Letter of Credit Provider, (i) enter into or be a
party to any material agreement or instrument other than any CP Program Document
or documents and agreements incidental thereto or (ii) amend, modify, waive or
give any approval, consent or permission under, any provision of any CP Program
Document to which it is a party other than, in the case of the Credit Agreement
or the Depositary Agreement, such amendments that relate to minor administrative
matters that do not amend or modify (A) the amount or timing of any payments (or
priorities for payments) to be made under the CP Program Documents, (B) any
rights in the Assigned Collateral (or any priorities or rights or restrictions
on encumbrances with respect thereto), or (C) any prohibition or restriction on
the incurrence of any Indebtedness under the CP Program Documents.
Notwithstanding the foregoing provisions of this Section 8.2.10, DTFC may, at
any time and from time to time, without the consent of the Majority Banks, enter
into any amendment, supplement or other modification to any CP Program Document,
in form and substance satisfactory to the Liquidity Agent, to cure any apparent
ambiguity or to correct or supplement any inconsistent provisions therein;
provided, however, that (i) any such action shall not have a Material Adverse
Effect on the interests of the Liquidity Lenders and (ii) a copy of such
amendment, supplement or other modification is furnished to the Liquidity
Lenders and each of the Rating Agencies in accordance with the notice provisions
hereof not later than ten days prior to the execution thereof.
SECTION 8.2.11. Other Business. DTFC will not engage in any business or
enterprise or enter into any transaction other than the making of advances to
RCFC under the Series 1998-1 Notes, the related exercise of its rights as a
secured creditor, the issuance of Commercial Paper Notes, the incurrence of
Indebtedness under this Liquidity Agreement and the Series 1998-1 Letter of
Credit, the incurrence and payment of ordinary course operating expenses and as
otherwise contemplated by the CP Program Documents.
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SECTION 8.2.12. Offering Document. DTFC will not include in any
offering document for the Commercial Paper Notes any information regarding any
Liquidity Lender which was not approved or furnished by such Liquidity Lender.
ARTICLE IX
LIQUIDITY AGREEMENT AMORTIZATION EVENTS
SECTION 9.1. Liquidity Agreement Amortization Event. Each of the
following events or occurrences described in this Section 9.1 shall constitute a
"Liquidity Agreement Amortization Event".
SECTION 9.1.1. Non-Payment of Obligations. DTFC shall (a) fail to repay
maturing Commercial Paper Notes when due; (b) fail to make a payment on the
Scheduled Maturity Date or date of prepayment (as a result of a mandatory
prepayment requirement under Section 4.1.2) of principal of any Liquidity
Advance on of the date on which such payment is due; or (c) fail to make a
payment of any interest on any Liquidity Advance, any fees or any other amounts
payable hereunder within three Business Days of the date on which such payment
is due.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty made
by DTFC herein or in any other CP Program Document to which it is a party shall
have been incorrect in any material respect (to the extent that any such
representation or warranty does not incorporate a materiality limitation in its
terms) as of the date such representation or warranty is made and, such
representation or warranty continues to be incorrect in any material respect (to
the extent that any such representation or warranty does not incorporate a
materiality limitation in its terms) for a period of 30 days after the earlier
of (i) the date on which written notice thereof shall have been given to DTFC by
the Liquidity Agent or any Liquidity Lender and (ii) the date on which DTFC
obtains actual knowledge thereof, or any certificate, financial statement or any
other material writing furnished by DTFC pursuant to this Liquidity Agreement or
any such other CP Program Document shall have been incorrect in any material
respect when made (or deemed made) and, such certificate, financial statement or
other material writing continues to be incorrect in any material respect for a
period of 10 days (other than with respect to any Officer's Certificate
delivered with respect to the Borrowing Base, for which such period is one
Business Day) after the earlier of (a) the date on which written notice thereof
shall have been given to DTFC by the Liquidity Agent or any Liquidity Lender and
(b) the date on which DTFC obtains actual knowledge thereof.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations.
DTFC shall default in the due performance and observance of any of its
Obligations under Section 8.2 and such default shall continue unremedied for a
period of ten days after the earlier of (i) the
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date on which written notice thereof shall have been given to DTFC by the
Liquidity Agent or any Liquidity Lender and (ii) the date on which DTFC obtains
actual knowledge thereof.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations. DTFC
shall default in the due performance and observance of any covenant or agreement
contained herein or in any other CP Program Document to which it is a party
(other than those specified in Sections 9.1.1, 9.1.2 and 9.1.3), and, in the
case of defaults other than with respect to Section 8.1.8 or 8.1.9, such default
shall continue unremedied for a period of 30 days after notice thereof shall
have been given to DTFC by the Liquidity Agent or any Liquidity Lender or, in
the case of Section 8.1.8 or 8.1.9, such default shall continue unremedied for a
period of 30 days after DTFC initially becomes aware of such failure to perform
or comply with such covenant.
SECTION 9.1.5. Judgments. Any final and unappealable (or, if capable of
appeal, such appeal is not being diligently pursued or enforcement thereof has
not been stayed) judgment or order for the payment of money in excess of
$100,000, shall be rendered against DTFC or RCFC and such judgment or order
shall continue unsatisfied and unstayed for a period of 60 days.
SECTION 9.1.6. Bankruptcy, Insolvency, etc. The occurrence of any Event
of Bankruptcy with respect to DTFC, RCFC or the Master Servicer.
SECTION 9.1.7. Independent Directors. DTFC shall fail to have two or
more Independent Directors on its board and such failure shall have continued
for a period of 30 days.
SECTION 9.1.8. Enforceability of or Default under CP Program Documents.
(a) Any of the CP Program Documents or any portion thereof shall not be in full
force and effect or enforceable in accordance with its terms or DTFC, RCFC, DTAG
or any Manufacturer shall so assert in writing, (b) any Lease Event of Default
shall occur under the Master Lease, (c) any Amortization Event with respect to
the Series 1998-1 Notes, as defined in Section 8.1 of the Base Indenture and
Section 5.1 of the Series 1998-1 Supplement, shall occur or (d) any Event of
Default (as defined in the Credit Agreement) set forth in Sections 9.1.9(a)
through (d) of the Credit Agreement shall have occurred or any Event of Default
set forth in Section 9.1.9 of the Credit Agreement other than those set forth in
Sections 9.1.9(a) through (d) shall have occurred and the Administrative Agent
shall have declared all or any portion of the Obligations (as defined in the
Credit Agreement) to be due and payable and/or the Commitments (as defined in
the Credit Agreement) to be terminated.
SECTION 9.1.9. Investment Company. DTFC shall have become an
"investment company" or shall have become under the "control" of an "investment
company" under the Investment Company Act.
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SECTION 9.1.10. Program Downgrade. The rating on the Commercial Paper
Notes shall have been downgraded to A-2 by S&P, P-2 by Moody's or D-1- by DCR,
or less, or withdrawn and all of the Liquidity Lenders shall have a rating of
A-1, or better, by S&P, P-1, or better, by Moody's and, if rated by DCR, D-1, or
better, by DCR.
SECTION 9.1.11. Termination of Liquidity Commitments or Reduction of
Aggregate Liquidity Commitment. The Liquidity Commitment Termination Date with
respect to all Liquidity Lenders shall have occurred or the Aggregate Liquidity
Commitment is reduced due to the failure of certain Liquidity Lenders to renew
their Liquidity Commitments on any date to 50% or less of the Aggregate
Liquidity Commitment in effect immediately prior to such reduction.
SECTION 9.1.12. Liquidity Advance under Section 3.6.1(b). Liquidity
Advances are made pursuant to Section 3.6.1(b).
SECTION 9.1.13. Series 1998-1 Enhancement Deficiency. A Series 1998-1
Enhancement Deficiency shall occur and continue for at least one (1) Business
Day after the Master Servicer obtains actual knowledge thereof; provided,
however, that such event or condition shall not be a Liquidity Agreement
Amortization Event if within such one (1) Business Day period DTAG shall have
taken any of the actions described in the proviso to Section 5.1(a) of the
Series 1998-1 Supplement such that the Series 1998-1 Enhancement Deficiency no
longer exists and such action is in accordance with the terms of Section
4.7(d)(v) of the Series 1998-1 Supplement.
SECTION 9.2. Action if Liquidity Agreement Amortization Event. If any
Liquidity Agreement Amortization Event set forth in Sections 9.1.1, 9.1.5,
9.1.7, 9.1.9, 9.1.10 or 9.1.11 shall have occurred and be continuing, the
Collateral Agent, upon having actual knowledge thereof, without the request or
consent of the Liquidity Agent or the Majority Banks, in every such event and at
any time thereafter during the continuance of such event, shall, and if any
Liquidity Agreement Amortization Event has occurred, the Collateral Agent, at
the request or with the consent of the Majority Banks conveyed through the
Liquidity Agent, shall, in every such event and at any time thereafter during
the continuance of such event, by notice to DTFC and DTAG, at the same or
different times, notify the Depositary and the Dealers of the occurrence of such
Liquidity Agreement Amortization Event, and instruct DTFC and the Depositary to
cease issuing Commercial Paper Notes and the right of DTFC to issue Commercial
Paper Notes shall automatically terminate. If any Liquidity Agreement
Amortization Event occurs under Section 9.1.6, without giving effect to any
grace periods included in the definition of Event of Bankruptcy, the Liquidity
Agent will instruct the Depositary and DTFC in writing to cease issuing
Commercial Paper Notes. In addition, the Liquidity Agent shall, (i) upon the
occurrence of any Liquidity Agreement Amortization Event, terminate the
Liquidity Commitments hereunder if such Liquidity Agreement Amortization Event
is pursuant to Section 9.1.6 with respect to DTFC; (ii) upon the
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occurrence of any event specified in Sections 9.1.1 through 9.1.10 at the
request, or with the consent, of Liquidity Lenders then holding, in the
aggregate, Liquidity Commitments in excess of 50% of the Aggregate Liquidity
Commitment (or, if the Aggregate Liquidity Commitment shall have been
terminated, Liquidity Lenders then holding, in the aggregate, in excess of 50%
of the principal amount of Liquidity Advances then outstanding), by notice to
DTFC, declare the aggregate principal amount of any Liquidity Advances then
outstanding, together with accrued interest and all fees and other Obligations
hereunder, immediately due and payable whereupon all such principal, accrued
interest, fees and other Obligations hereunder shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by DTFC; provided, however, that in the
case of any Liquidity Agreement Amortization Event under Section 9.1.6 with
respect to DTFC, (A) the Liquidity Commitment of each Liquidity Lender shall
automatically be terminated and (B) all such principal, interest, fees and other
Obligations shall automatically become and be due and payable, without
presentment, demand, protest or any notice of any kind, all of which are hereby
expressly waived by DTFC; (iii) instruct DTFC in writing to cease making
Advances under the Series 1998-1 Notes; and (iv) pursue any other right or
remedy under this Liquidity Agreement and the other CP Program Documents or
under Applicable Law or otherwise.
SECTION 9.3. Limited Liquidity Agreement Amortization Events. Each of
the following events or occurrences described in this Section 9.3 shall
constitute a "Limited Liquidity Agreement Amortization Event".
SECTION 9.3.1. Ineligibility of Manufacturer or Repurchase Program. (a)
Any Manufacturer or any Vehicle Disposition Program shall cease to be an
Eligible Manufacturer or an Eligible Vehicle Disposition Program, respectively,
(b) any Manufacturer, pursuant to its Vehicle Disposition Program, shall fail to
pay an aggregate amount equal to the aggregate amount of repurchase obligations
of such Manufacturer under its Vehicle Disposition Program in respect of Group
II Vehicles (or such other amount as shall have been agreed to for this purpose
by DTFC and the Majority Banks at the time that DTFC proposes such Manufacturer
for consideration as an "Eligible Manufacturer" under the CP Program Documents),
in each case, owed by it in respect of any Group II Vehicles turned back in
accordance with the terms of the related Vehicle Disposition Program and such
failure shall continue for 90 days after such aggregate amount shall have become
due and payable or (c) any Event of Bankruptcy shall have occurred with respect
to any Manufacturer.
SECTION 9.3.2. Termination of Liquidity Commitment. The Liquidity
Commitment of any Liquidity Lender shall have been terminated and DTFC shall
have failed to replace any such Liquidity Lender within the time period required
by Section 5.9.
SECTION 9.3.3. Rating Downgrade of Liquidity Lender. A Rating Downgrade
below A-2 by S&P, P-2 by Moody's or D-1- by DCR (if rated by DCR) shall occur
and be
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continuing for 60 days (or such other period permitted by the Rating Agencies)
with respect to any Liquidity Lender and such Liquidity Lender shall not have
been replaced pursuant to Section 5.9 hereof.
SECTION 9.4. Action Upon Limited Liquidity Agreement Amortization
Event.
(a) If any Limited Liquidity Agreement Amortization Event set
forth in Section 9.3.1 shall have occurred and be continuing with
respect to any Manufacturer, DTFC shall not make any further advances
under the Series 1998-1 Notes to fund the purchase or financing of
Vehicles of such Manufacturer and no Commercial Paper Notes shall be
issued to finance any such purchase or financing.
(b) If any Limited Liquidity Agreement Amortization Event set
forth in Section 9.3.2 shall have occurred and be continuing, then DTFC
shall not issue Commercial Paper Notes to the extent that after giving
effect to such issuance (and the use of proceeds thereof), the
Aggregate Face Amount shall exceed the Program Size (reduced by the
aggregate Liquidity Commitments of the Liquidity Lenders that have been
terminated).
(c) If any Limited Liquidity Agreement Amortization Event set
forth in Section 9.3.3 shall have occurred and be continuing, then DTFC
shall not issue Commercial Paper Notes to the extent that after giving
effect to such issuance (and the use of proceeds thereof), the
Aggregate Face Amount shall exceed the Program Size (reduced by the
aggregate Liquidity Commitments of the Affected Liquidity Lenders).
ARTICLE X
THE LIQUIDITY AGENT
SECTION 10.1. Actions. Each Liquidity Lender hereby appoints CSFB as
its Liquidity Agent under and for purposes of this Liquidity Agreement, the
Liquidity Advance Notes and each other CP Program Document. Each Liquidity
Lender hereby authorizes the Liquidity Agent to act on behalf of such Liquidity
Lender under this Liquidity Agreement, the Liquidity Advance Notes and each
other CP Program Document and, in the absence of other written instructions from
the Majority Banks received from time to time by the Liquidity Agent (with
respect to which the Liquidity Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Liquidity Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Each Liquidity Lender
hereby indemnifies (which indemnity shall survive any termination of this
Liquidity Agreement) the Liquidity Agent, pro rata according to such
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Liquidity Lender's Percentage, from and against any and all liabilities,
obligations, losses, damages, claims, costs or expenses of any kind or nature
whatsoever which may at any time be imposed on, incurred by, or asserted
against, the Liquidity Agent in any way relating to or arising out of this
Liquidity Agreement, the Liquidity Advance Notes and any other CP Program
Document, including reasonable attorneys' fees (including the allocated costs of
in-house counsel), and as to which the Liquidity Agent is not reimbursed by
DTFC; provided, however, that no Liquidity Lender shall be liable for the
payment of any portion of such liabilities, obligations, losses, damages,
claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the Liquidity Agent's
gross negligence or wilful misconduct. The Liquidity Agent shall not be required
to take any action hereunder, under the Liquidity Advance Notes or under any
other CP Program Document, or to prosecute or defend any suit in respect of this
Liquidity Agreement, the Liquidity Advance Notes or any other CP Program
Document, unless it is indemnified hereunder to its satisfaction. If any
indemnity in favor of the Liquidity Agent shall be or become, in the Liquidity
Agent's determination, inadequate, the Liquidity Agent may call for additional
indemnification from the Liquidity Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION 10.2. Collateral Agreement. Without limiting the authorizations
otherwise set forth in this Article X, each Liquidity Lender hereby authorizes
the Liquidity Agent to execute and deliver the Collateral Agreement and each of
the other CP Program Documents as Liquidity Agent and on behalf of such
Liquidity Lender, with the same effect as if such Liquidity Lender had executed
the Collateral Agreement or such CP Program Document in its own name. Each
Liquidity Lender acknowledges that the Collateral Agreement contains certain
provisions, including, without limitation, Section 7.02 thereof, which give rise
to indemnification obligations in respect of the Collateral Agent on the part of
such Liquidity Lender and such Liquidity Lender hereby agrees to be bound by
such provisions, as the same may from time to time be modified in accordance
with the terms of the Collateral Agreement and this Liquidity Agreement.
SECTION 10.3. Exculpation. Neither the Liquidity Agent nor any of its
directors, officers, employees or agents shall be liable to any Liquidity Lender
for any action taken or omitted to be taken by it under this Liquidity Agreement
or any other CP Program Document, or in connection herewith or therewith, except
for its own wilful misconduct or gross negligence, nor responsible for any
recitals or warranties herein or therein, nor for the effectiveness,
enforceability, validity or due execution of this Liquidity Agreement or any
other CP Program Document, nor for the creation, perfection or priority of any
Liens purported to be created by any of the CP Program Documents, or the
validity, genuineness, enforceability, existence, value or sufficiency of any
collateral security, nor to make any inquiry respecting the performance by DTFC
of its Obligations hereunder or under any other CP Program Document. Any such
inquiry which may be made by the Liquidity Agent shall not obligate it to make
any further inquiry or to take any action. The Liquidity Agent shall be
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entitled to rely upon advice of counsel concerning legal matters and upon any
notice, consent, certificate, statement or writing which the Liquidity Agent
believes to be genuine and to have been presented by a proper Person. As to any
matters not expressly provided for in this Liquidity Agreement or any other CP
Program Document, the Liquidity Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Majority Banks.
SECTION 10.4. Successor. The Liquidity Agent may resign as such at any
time upon at least 30 days' prior written notice to DTFC and all Liquidity
Lenders, and the Liquidity Agent may be removed at any time with cause by the
Majority Banks. If the Liquidity Agent at any time shall resign or be removed,
the Majority Banks may appoint (with, if no Potential Liquidity Agreement
Amortization Event or Liquidity Agreement Amortization Event (other than a
Scheduled Liquidity Agreement Amortization Event) then exists, the consent of
DTFC, which consent shall not be unreasonably withheld or delayed) another
Liquidity Lender as a successor Liquidity Agent which shall thereupon become the
Liquidity Agent hereunder. If no successor Liquidity Agent shall have been so
appointed by the Majority Banks, and shall have accepted such appointment,
within 30 days after the retiring Liquidity Agent's giving notice of resignation
or the Majority Banks' removal of the retiring Liquidity Agent, then the
retiring Liquidity Agent may, on behalf of the Liquidity Lenders, appoint a
successor Liquidity Agent, which shall be one of the Liquidity Lenders or an
Eligible Liquidity Lender. The resignation or removal of the Liquidity Agent
shall not become effective until a successor Liquidity Agent has been appointed
and shall have accepted such appointment. Upon the acceptance of any appointment
as Liquidity Agent hereunder by a successor Liquidity Agent, such successor
Liquidity Agent shall be entitled to receive from the retiring Liquidity Agent
such documents of transfer and assignment as such successor Liquidity Agent may
reasonably request, and shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Liquidity Agent, and the
retiring Liquidity Agent shall be discharged from its duties and obligations
under this Liquidity Agreement and all other CP Program Documents. After any
retiring Liquidity Agent's resignation or removal hereunder as the Liquidity
Agent, the provisions of
(a) this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Liquidity
Agent under this Liquidity Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to
its benefit.
SECTION 10.5. Liquidity Advances by CSFB. CSFB (and any successor
thereto in its capacity as Liquidity Agent, that is also a Liquidity Lender)
shall have the same rights and powers with respect to (x) the Liquidity Advances
made by it or any of its Affiliates, and (y) the Liquidity Advance Notes held by
it or any of its Affiliates as any other Liquidity Lender and may exercise the
same as if it were not the Liquidity Agent. CSFB (and such
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successor) and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with DTFC or any Affiliate of DTFC as
if CSFB (and such successor) were not the Liquidity Agent hereunder.
SECTION 10.6. Credit Decisions. Each Liquidity Lender acknowledges that
it has, independently of the Liquidity Agent and each other Liquidity Lender,
and based on such Liquidity Lender's review of the financial information of
DTFC, RCFC, the Lessees and DTAG, this Liquidity Agreement, the other CP Program
Documents (the terms and provisions of which being satisfactory to such
Liquidity Lender) and such other documents, information and investigations as
such Liquidity Lender has deemed appropriate, made its own credit decision to
extend its Liquidity Commitment. Each Liquidity Lender also acknowledges that it
will, independently of the Liquidity Agent and each other Liquidity Lender, and
based on such other documents, information and investigations as it shall deem
appropriate at any time, continue to make its own credit decisions as to
exercising or not exercising from time to time any rights and privileges
available to it under this Liquidity Agreement or any other CP Program Document.
SECTION 10.7. Copies, etc. The Liquidity Agent shall give prompt notice
to each Liquidity Lender of each notice or request required or permitted to be
given to the Liquidity Agent by DTFC pursuant to the terms of this Liquidity
Agreement (unless concurrently delivered to the Liquidity Lenders by DTFC). The
Liquidity Agent will distribute to each Liquidity Lender each document or
instrument received for its account and copies of all other communications
received by the Liquidity Agent from DTFC for distribution to the Liquidity
Lenders by the Liquidity Agent in accordance with the terms of this Liquidity
Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. (a) The provisions of this
Liquidity Agreement and each other CP Program Document to which DTFC is a party
may from time to time be amended, modified or waived, if (i) prior written
notice of such amendment, modification or waiver is given to each of the Rating
Agencies and the Dealers, (ii) subject to Section 8.2.10 hereof as it relates to
amendments of the CP Program Documents other than this Liquidity Agreement, such
amendment, modification or waiver is in writing and consented to in writing by
DTFC, the Series 1998-1 Letter of Credit Provider and the Majority Banks and
(iii) such amendment, modification or waiver shall not, as evidenced by written
confirmation of the Rating Agencies, result in the downgrading or withdrawal of
the then current ratings of the Commercial Paper Notes by the Rating Agencies;
provided, however, that such written confirmation and consent will not be
required in connection with the extension of a Liquidity Lender's Scheduled
Liquidity Commitment Termination Date pursuant
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to Section 3.5; provided further, however, that any modification of Section 6.3
or this Section 11.1, any requirement hereunder that any particular action be
taken by all the Liquidity Lenders or by the Majority Banks or any change in the
definition of the term "Required Liquidity Providers", "Borrowing Base
Deficiency", "Eligible Manufacturer" (with respect to the Series 1998-1 Notes),
"Eligible Vehicle Disposition Program" (with respect to the Series 1998-1
Notes), "Event of Bankruptcy" or "Majority Banks" or any defined term used for
the purpose of any such definition shall require the consent of each Liquidity
Lender and the Series 1998-1 Letter of Credit Provider; and further provided
that any amendment, waiver or other modification that would
(i) increase the Liquidity Commitment or the Percentage of any
Liquidity Lender or reduce any fees described in Article IV payable to
any Liquidity Lender shall require the consent of such Liquidity
Lender;
(ii) amend the definition of the Scheduled Maturity Date, the
Scheduled Liquidity Commitment Termination Date, or the Liquidity
Commitment Termination Date shall require the consent of each Liquidity
Lender affected thereby;
(iii) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Liquidity Advance of any Liquidity Lender (or reduce the principal
amount of or rate of interest on any Liquidity Advance of any Liquidity
Lender) shall require the consent of each Liquidity Lender affected
thereby;
(iv) modify or waive the conditions precedent to the
effectiveness of this Liquidity Agreement set forth in Article VI shall
require the consent of each Liquidity Lender;
(v) approve the assignment or transfer by DTFC of any of its
rights or Obligations hereunder or under any other CP Program Document
to which it is a party except pursuant to the express terms hereof or
thereof shall require the consent of each Liquidity Lender;
(vi) release any of the Assigned Collateral from the Lien
under the Collateral Agreement or the Master Collateral Agency
Agreement, or release any obligor under any CP Program Document to
which it is a party except pursuant to the express terms of such CP
Program Document shall require the consent of each Liquidity Lender,
provided, however, that the Master Collateral Agent shall release liens
on Group II Vehicles in accordance with the Master Collateral Agency
Agreement and the Base Indenture;
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(vii) affect adversely the interests, rights or obligations of
any Liquidity Lender individually in comparison to other Liquidity
Lenders shall require the consent of such Liquidity Lender;
(viii) affect adversely the interests, rights or obligations
of either the Liquidity Agent or the Collateral Agent in its capacity
as such shall require the consent of the Liquidity Agent or the
Collateral Agent, as the case may be;
(ix) amend or otherwise modify any Liquidity Agreement
Amortization Event shall require the consent of each Liquidity Lender;
or
(x) amend or waive any condition precedent to the issuance of
the Commercial Paper Notes set forth in Section 2.2 shall require
written confirmation from each of S&P, Moody's and DCR that such
amendment or waiver will not result in the downgrading or withdrawal of
the then current ratings of the Commercial Paper Notes by each of S&P,
Moody's and DCR.
(b) Notwithstanding the foregoing provisions of this Section 11.1, DTFC
and the Liquidity Agent may, at any time and from time to time, without the
consent of the Liquidity Lenders, enter into any amendment, supplement or other
modification to this Liquidity Agreement to cure any apparent ambiguity or to
correct or supplement any provision in this Liquidity Agreement that may be
inconsistent with any other provision herein; provided, however, that (i) any
such action shall not have a materially adverse effect on the interests of the
Liquidity Lenders and (ii) a copy of such amendment, supplement or other
modification is furnished to each Liquidity Lender and each Rating Agency in
accordance with the notice provisions hereof not later than ten days prior to
the execution thereof by DTFC and the Liquidity Agent.
(c) To the extent Noteholder consent is required for an amendment or
waiver of the provisions of the CP Program Documents such consent with respect
to the Series 1998-1 Notes shall be given or withheld by the Collateral Agent in
accordance with Section 4.04 of the Collateral Agreement.
(d) No failure or delay on the part of the Liquidity Agent, any
Liquidity Lender or the holder of any Liquidity Advance Note in exercising any
power or right under this Liquidity Agreement or any other CP Program Document
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power or right preclude any other or further exercise thereof or the
exercise of any other power or right. No notice to or demand on DTFC in any case
shall entitle it to any notice or demand in similar or other circumstances. No
waiver or approval by the Liquidity Agent, any Liquidity Lender or the holder of
any Liquidity Advance Note under this Liquidity Agreement or any other CP
Program Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No
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waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 11.2. Notices. All notices, instructions, amendments, waivers,
consents and other communications provided to any party hereto under this
Liquidity Agreement or any other CP Program Document shall be in writing and
addressed, delivered or transmitted to such party at its address or facsimile
number set forth below its signature hereto or set forth in the Liquidity Lender
Assignment Agreement or at such other address or facsimile number as may be
designated by such party in a notice to the other parties. Any notice, if mailed
and properly addressed with postage prepaid or if properly addressed and sent by
pre-paid courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted upon receipt of
electronic confirmation of transmission. Notices to Standard & Poor's will be
sent as follows: Standard & Poor's Ratings Services, 26 Broadway, 15th Floor,
New York, New York 10004, Attention: Asset Backed Surveillance Department,
telephone: (212) 208-8000, telecopier: (212) 412-0225. Notices to Moody's will
be sent as follows: Moody's Investors Service, Inc., 99 Church Street, New York,
New York 10007, Attention: ABS Monitoring Department, Telephone: (212) 553-0300,
telecopier: (212) 553-4600. Notices to DCR will be sent as follows: Duff and
Phelps Credit Rating Co., 55 East Monroe Street, Suite 3800, Chicago, Illinois,
Attention: John Bella, Telephone: (312) 368- 3100, Telecopier: (312) 263-2852.
SECTION 11.3. Payment of Costs and Expenses. DTFC agrees to pay on
demand all reasonable expenses of the Liquidity Agent (including the reasonable
fees and out-of-pocket expenses of counsel to the Liquidity Agent and of local
counsel, if any, who may be retained by counsel to the Liquidity Agent) in
connection with
(a) the negotiation, preparation, execution, delivery and
administration of this Liquidity Agreement and of each other CP Program
Document, including schedules and exhibits, and any amendments,
waivers, consents, supplements or other modifications to this Liquidity
Agreement or any other CP Program Document as may from time to time
hereafter be required, whether or not the transactions contemplated
hereby or thereby are consummated,
(b) the filing, recording, refiling or rerecording of the
Collateral Agreement and/or any UCC financing statements relating
thereto and all amendments, supplements and modifications to any
thereof and any and all other documents or instruments of further
assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or of the Collateral Agreement,
(c) the preparation and review of the form of any document or
instrument relevant to this Liquidity Agreement or any other CP Program
Document,
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(d) the transactions contemplated by this Liquidity Agreement
and any of the other CP Program Documents, and
(e) the preparation and negotiation of the legal opinions of
counsel to each Liquidity Lender, to the extent required by the Rating
Agencies, up to $2,500 per Liquidity Lender.
DTFC further agrees to pay, and to save the Liquidity Agent and the Liquidity
Lenders harmless from all liability for, (i) any breach by DTFC of any of its
Obligations under this Liquidity Agreement, (ii) all reasonable costs incurred
by the Liquidity Agent or the Liquidity Lenders in enforcing this Liquidity
Agreement against DTFC or its Affiliates and (iii) any stamp, documentary or
other taxes which may be payable in connection with the execution or delivery of
this Liquidity Agreement, any Borrowing hereunder, or the issuance of the
Liquidity Advance Notes or any other CP Program Documents. DTFC also agrees to
reimburse the Liquidity Agent or such Liquidity Lender upon demand for all
reasonable out-of-pocket expenses incurred by the Liquidity Agent or such
Liquidity Lender in connection with (x) the negotiation of any restructuring or
"work-out", whether or not consummated, of any Obligations and (y) the
enforcement of any Obligations.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Liquidity Agreement by each Liquidity Lender and the extension
of the Liquidity Commitments, DTFC hereby indemnifies and holds the Liquidity
Agent and each Liquidity Lender and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties")
harmless from and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and reasonable expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought and including, without
limitation, any liability in connection with the offering and sale of the
Commercial Paper Notes), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Liquidity
Advance; or
(b) the entering into and performance of this Liquidity
Agreement and any other CP Program Document by any of the Indemnified
Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or willful misconduct or a breach by such Indemnified Party (or its
agents or employees or any other Person under its control) of any of its
obligations under this Liquidity Agreement, as determined by a final judgment of
a court of competent jurisdiction. If and to the extent that the foregoing
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undertaking may be unenforceable for any reason, DTFC hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under Applicable Law. The indemnity set forth
in this Section 11.4 shall in no event include indemnification for any Taxes
(which indemnification is provided in Section 5.6). DTFC shall give notice to
the Rating Agencies of any claim for Indemnified Liabilities made under this
Section.
SECTION 11.5. Survival. The Obligations of DTFC under Sections 5.3,
5.4, 5.5, 5.6, 11.3 and 11.4, and the obligations of the Liquidity Lenders under
Sections 10.1 and 10.2, shall in each case survive any termination of this
Liquidity Agreement, the payment in full of all the Obligations and the
termination of all Liquidity Commitments.
SECTION 11.6. Severability. Any provision of this Liquidity Agreement
or any other CP Program Document which is prohibited or unenforceable in any
jurisdiction shall, as to such provision and such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions of this Liquidity Agreement or such CP Program Document or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 11.7. Headings. The various headings of this Liquidity
Agreement and of each other CP Program Document are inserted for convenience
only and shall not affect the meaning or interpretation of this Liquidity
Agreement or such other CP Program Document or any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts. This Liquidity Agreement may
be executed by the parties hereto in several counterparts, each of which shall
be executed by DTFC and the Liquidity Agent and be deemed to be an original and
all of which shall constitute together but one and the same agreement.
SECTION 11.9. Governing Law; Entire Agreement. THIS LIQUIDITY AGREEMENT
AND EACH OTHER CP PROGRAM DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. This Liquidity Agreement, the Liquidity Advance Notes and the other CP
Program Documents constitute the entire understanding among the parties hereto
with
respect to the subject matter hereof and supersede any prior agreements, written
or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Liquidity Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that:
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(a) DTFC may not assign or transfer its rights or Obligations
hereunder, other than pursuant to the Collateral Agreement, without (i)
the prior written consent of the Liquidity Agent and all Liquidity
Lenders and (ii) written confirmation from each of the Rating Agencies
that its then current rating of the Commercial Paper Notes will not be
reduced or withdrawn as a result thereof; and
(b) the rights of sale, assignment and transfer of the
Liquidity Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Liquidity Advances and Notes;
Participations in Loans and Notes. Each Liquidity Lender may assign, or sell
participations in, its Liquidity Advances and Liquidity Commitment to one or
more other Persons in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. (a) Any Liquidity Lender,
(i) with notice to the Dealers, written confirmation from each
of the Rating Agencies that its then current rating of the Commercial
Paper Notes will not be reduced or withdrawn as a result thereof and
the written consent of DTFC (which consent shall not be unreasonably
withheld), the Liquidity Agent (which consent shall not be unreasonably
withheld) may at any time assign and delegate to an Eligible Liquidity
Lender, and
(ii) with ten days' prior notice to the Rating Agencies, DTFC,
the Liquidity Agent and the Dealers, may assign and delegate to any of
its Affiliates with a credit rating assigned to its short-term
obligations by each Rating Agency that is not lower than the rating
then assigned by such Rating Agency to the Commercial Paper Notes, and
with the written consent of DTFC (which consent shall not be
unreasonably withheld) may at any time assign and delegate to any other
Liquidity Lender
(each Person described in either of the foregoing clauses as the Person to whom
such assignment and delegation is to be made, being hereinafter referred to as
an "Assignee Lender"), all or any fraction of such Liquidity Lender's total
Liquidity Advances and Liquidity Commitment (which assignment and delegation
shall be of a constant, and not a varying, percentage of all the assigning
Liquidity Lender's Liquidity Advances and Liquidity Commitment) in a minimum
aggregate amount of $5,000,000; provided, however, that (x) any such Assignee
Lender will comply, if applicable, with the provisions contained in the last
sentence of Section 5.6 and (y) the minimum aggregate amount of total Liquidity
Commitment and Liquidity Advances, if any, retained by such Liquidity Lender
shall be $5,000,000; provided further, however, that, DTFC and the Liquidity
Agent shall be entitled to continue to deal solely and directly with such
Liquidity Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
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(A) such Assignee Lender shall have executed and delivered to
DTFC and the Liquidity Agent a Liquidity Lender Assignment Agreement,
accepted by the Liquidity Agent;
(B) the processing fees described below shall have been paid;
and
(C) such Assignee Lender shall have delivered an opinion of
counsel acceptable to the Rating Agencies regarding the enforceability
of such Assignee Lender's Liquidity Commitment.
From and after the date that the Liquidity Agent accepts such Liquidity Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Liquidity Lender Assignment Agreement, shall have the
rights and obligations of a Liquidity Lender hereunder and under the other CP
Program Documents, and (y) the assignor Liquidity Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it in
connection with such Liquidity Lender Assignment Agreement, shall be released
from its obligations hereunder and under the other CP Program Documents. Within
five Business Days after its receipt of notice that the Liquidity Agent has
received an executed Liquidity Lender Assignment Agreement, DTFC shall, upon
receipt of the Liquidity Advance Notes evidencing such assignor Liquidity
Lender's Liquidity Advance and Liquidity Commitment, execute and deliver to the
Liquidity Agent (for delivery to the relevant Assignee Lender) new Liquidity
Advance Notes evidencing such Assignee Lender's assigned Liquidity Advances and
Liquidity Commitment and, if the assignor Liquidity Lender has retained a
portion of its Liquidity Advances and Liquidity Commitment hereunder,
replacement Liquidity Advance Notes in the principal amount of the Liquidity
Advances and Liquidity Commitment so retained by the assignor Liquidity Lender
hereunder (such Liquidity Advance Notes to be in exchange for, but not in
payment of, those Liquidity Advance Notes then held by such assignor Liquidity
Lender). Each such Liquidity Advance Note shall be dated the date of the
predecessor Liquidity Advance Notes. The assignor Liquidity Lender shall mark
the predecessor Liquidity Advance Notes "exchanged" and deliver them to DTFC.
Accrued interest on that part of the predecessor Liquidity Advance Notes
evidenced by the new Liquidity Advance Notes, and accrued fees, shall be paid as
provided in the Liquidity Lender Assignment Agreement. Accrued interest on that
part of the predecessor Liquidity Advance Notes evidenced by the replacement
Liquidity Advance Notes shall be paid to the assignor Liquidity Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
the predecessor Liquidity Advance Notes and in this Liquidity Agreement. Such
assignor Liquidity Lender or such Assignee Lender must also pay a processing fee
to the Liquidity Agent upon delivery of any Liquidity Lender Assignment
Agreement in the amount of $2,500. Such assignor Liquidity Lender and such
Assignee Lender (and not DTFC) shall pay any legal expenses incurred by the
Liquidity Agent in the
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review, documentation and closing of such assignment. Any attempted assignment
and delegation not made in accordance with this Section 11.11.1 shall be null
and void.
(b) Notwithstanding any other provision set forth in this Liquidity
Agreement, any Liquidity Lender may at any time create a security interest in
all or any portion of its rights under this Liquidity Agreement (including,
without limitation, the Liquidity Advances owing to it and the Liquidity Advance
Notes held by it) in favor of any Federal Reserve Bank in accordance with
Regulation A of the Board of Governors of the Federal Reserve System.
SECTION 11.11.2. Participations. Any Liquidity Lender may at any time
sell to one or more commercial banks or other financial institutions (each of
such commercial banks and financial institutions being herein called a
"Liquidity Participant") participating interests in any of the Liquidity
Advances, Liquidity Commitment or other interests of such Liquidity Lender
hereunder; provided, however, that
(a) no participation contemplated in this Section 11.11.2
shall relieve such Liquidity Lender from its Liquidity Commitment or
its other obligations hereunder or under any other CP Program Document
to which such Liquidity Lender is a party;
(b) each participation shall be in a minimum aggregate amount
of $5,000,000 or a smaller amount as may be agreed to by DTFC and the
Liquidity Agent;
(c) such Liquidity Lender shall remain solely responsible for
the performance of its Liquidity Commitment and such other obligations;
(d) DTFC and the Liquidity Agent shall continue to deal solely
and directly with such Liquidity Lender in connection with such
Liquidity Lender's rights and obligations under this Liquidity
Agreement and each of the other CP Program Documents to which such
Liquidity Lender is a party;
(e) no Liquidity Participant, unless such Liquidity
Participant is an Affiliate of such Liquidity Lender, or is itself a
Liquidity Lender, shall be entitled to require such Liquidity Lender to
take or refrain from taking any action hereunder or under any other CP
Program Document, except that such Liquidity Lender may agree with any
Liquidity Participant that such Liquidity Lender will not, without such
Liquidity Participant's consent, take any actions of the type described
in the first proviso of Section 11.1(a) or clauses (i) through (vii)
and clauses (ix) and (x) of Section 11.1(a);
(f) DTFC shall not be required to pay any amount under this
Liquidity Agreement that is greater than the amount which it would have
been required to pay had no participating interest been sold; and
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(g) such Liquidity Lender shall comply with any obligation to
withhold taxes or any filing or reporting requirements imposed under
Applicable Law relating to such Liquidity Participant and DTFC and
Liquidity Agent shall continue to deal solely and directly with such
Liquidity Lender in connection with such matters.
DTFC acknowledges and agrees that, to the extent permitted by Applicable Law,
each Liquidity Participant, subject to clauses (d) and (f) above, for purposes
of Sections 5.3, 5.4, 5.5, 5.6, 5.8, 11.3, 11.4, 11.13 and 11.16 shall be
considered a Liquidity Lender; provided, that no Liquidity Participant shall be
entitled to receive any greater payment under Section 5.3, 5.4 or 5.5 than the
Liquidity Lender that transferred such rights to such Liquidity Participant
would have been entitled to receive with respect to such rights, unless such
transfer is made with DTFC's prior written consent. No Liquidity Participant
shall have direct rights against DTFC.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude the Liquidity Agent or any other Liquidity Lender from engaging in any
transaction, in addition to those contemplated by this Liquidity Agreement or
any other CP Program Document, with DTFC or any of its Affiliates in which DTFC
or such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13. Bankruptcy Petition Against DTFC. The Liquidity Agent
and each Liquidity Lender hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all Commercial Paper
Notes Outstanding, it will not institute against, or join any other Person in
instituting against, DTFC or RCFC, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States. In the event that any
Liquidity Lender takes action in violation of this Section 11.13, DTFC agrees,
for the benefit of the Holders, that it shall file an answer with the bankruptcy
court or otherwise properly contest the filing of such a petition by the
Liquidity Lender against DTFC or the commencement of such action and raise the
defense that such Liquidity Lender has agreed in writing not to take such action
and should be estopped and precluded therefrom and such other defenses, if any,
as its counsel advises that it may assert; and such Liquidity Lender acting in
violation of this Section 11.13 shall be liable for and pay the costs and
expenses of DTFC incurred in connection therewith. The provisions of this
Section 11.13 shall survive the termination of this Liquidity Agreement, and,
with respect to the Liquidity Agent, the resignation or removal of the Liquidity
Agent and, with respect to any Liquidity Lender, the replacement of such
Liquidity Lender.
SECTION 11.14. Limited Recourse to DTFC; No Recourse. (a) The Liquidity
Agent and each Liquidity Lender agree that the Obligations of DTFC to the
Liquidity Agent and such Liquidity Lender hereunder shall be payable in the
order and priority set forth in Section 2.01 and 5.02(b), as applicable, of the
Collateral Agreement. Such Obligations shall be due and
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70
payable only to the extent that DTFC's Assets and the Series 1998-1 Letter of
Credit are sufficient to pay such Obligations. No claims of the Liquidity Agent
or any Liquidity Lender arising under or in connection with the Collateral
Agreement are intended to be impaired or waived by this Section 11.14(a).
(b) Without limitation to the Obligations of DTFC hereunder, no
recourse shall be had for the payment of any amount owing in respect of
Liquidity Advances or for the payment of any fee hereunder or any other
obligation or claim arising out of or based upon this Liquidity Agreement, the
Liquidity Advance Notes or any other CP Program Document against any
stockholder, employee, officer, director, Affiliate or incorporator of DTFC
based on their status as such or their actions in connection therewith. The
provisions of this Section 11.14(b) shall survive the termination of this
Liquidity Agreement, and with respect to the Liquidity Agent the resignation or
removal of the Liquidity Agent and with respect to any Liquidity Lender the
replacement of such Liquidity Lender.
SECTION 11.15. Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made by DTFC herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Liquidity Agreement or any other CP Program Document shall
be considered to have been relied upon by the Liquidity Lenders and shall
survive the execution and delivery of this Liquidity Agreement and the making by
the Liquidity Lenders of the Liquidity Advances, and the execution and delivery
to the Liquidity Lenders of the Liquidity Advance Notes evidencing such
Liquidity Advances, regardless of any investigation made by the Liquidity
Lenders or on their behalf and shall continue so long as and until such time as
all Obligations hereunder and all Indebtedness under the Commercial Paper Notes
shall have been paid in full and the Liquidity Lenders no longer have any
Liquidity Commitments hereunder.
SECTION 11.16. Confidentiality. Each Liquidity Lender agrees that it
shall not disclose any Confidential Information to any Person without the prior
written consent of DTFC or DTAG, other than (a) to the Liquidity Lender's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process of which DTFC or DTAG, as the case may be, has knowledge (and DTFC and
DTAG shall be deemed to have knowledge of any general requirement that a
Liquidity Lender disclose Confidential Information to bank examiners or other
regulatory agencies having jurisdiction over the Liquidity Lender); provided
that a Liquidity Lender may disclose Confidential Information as required by any
law, rule or regulation or judicial process of which DTFC or DTAG, as the case
may be, does not have knowledge if such Liquidity Lender is prohibited by law
from disclosing such requirement to DTFC or DTAG, as the case may be, or (c) in
the course of litigation with DTFC or DTAG, the Liquidity Agent or any other
Liquidity Lender.
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"Confidential Information" means information that DTFC or DTAG
furnishes to a Liquidity Lender on a confidential basis, but does not include
any such information that is or becomes generally available to the public other
than as a result of a disclosure by any Liquidity Lender or other Person to
which a Liquidity Lender delivered such information or that is or becomes
available to such Liquidity Lender from a source other than DTFC or DTAG,
provided that such source is not (1) known to such Liquidity Lender to be bound
by a confidentiality agreement with DTFC or DTAG, as the case may be, or (2)
known to such Liquidity Lender to be otherwise prohibited from transmitting the
information by a contractual, legal or fiduciary obligation.
SECTION 11.17. Jurisdiction; Consent to Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST DTFC OR ANY LIQUIDITY LENDER WITH RESPECT
TO THIS LIQUIDITY AGREEMENT OR ANY OTHER CP PROGRAM DOCUMENT MAY BE BROUGHT IN
ANY STATE OR (TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS
LIQUIDITY AGREEMENT, DTFC AND THE LIQUIDITY LENDERS EACH ACCEPTS FOR ITSELF AND
IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE
NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS LIQUIDITY
AGREEMENT. DTFC DESIGNATES AND APPOINTS CT CORPORATION, 1633 BROADWAY, NEW YORK,
NEW YORK 10019, AND EACH LIQUIDITY LENDER DESIGNATES AND APPOINTS ITS UNITED
STATES DOMESTIC OFFICE SPECIFIED ON THE SIGNATURE PAGES HEREOF, AND SUCH OTHER
PERSONS AS MAY HEREAFTER BE SELECTED BY DTFC OR SUCH LIQUIDITY LENDER
IRREVOCABLY AGREEING IN WRITING TO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF,
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY DTFC AND EACH LIQUIDITY LENDER TO BE EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE
MAILED BY REGISTERED MAIL TO DTFC OR SUCH LIQUIDITY LENDER SO SERVED AT ITS
ADDRESS PROVIDED IN THE APPLICABLE SIGNATURE PAGE HERETO, EXCEPT THAT, UNLESS
OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT
AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY DTFC OR
SUCH LIQUIDITY LENDER REFUSES TO ACCEPT SERVICE, DTFC AND EACH LIQUIDITY LENDER
HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE.
NOTHING HEREIN SHALL AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY
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LIQUIDITY LENDER OR THE COLLATERAL AGENT TO BRING PROCEEDINGS AGAINST DTFC IN
THE COURTS OF ANY OTHER JURISDICTION.
SECTION 11.18. Waiver of Jury Trial. THE LIQUIDITY AGENT, THE LIQUIDITY
LENDERS AND DTFC HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS LIQUIDITY
AGREEMENT OR ANY OTHER CP PROGRAM DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE COLLATERAL
AGENT, THE LIQUIDITY LENDERS OR DTFC IN CONNECTION HEREWITH OR THEREWITH. DTFC
ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION
FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER CP PROGRAM DOCUMENT
TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LIQUIDITY AGENT AND THE LIQUIDITY LENDERS ENTERING INTO THIS LIQUIDITY AGREEMENT
AND EACH SUCH OTHER CP PROGRAM DOCUMENT.
SECTION 11.19. Waiver of Set-Off. Each Liquidity Lender hereby waives
and relinquishes any right that it has or may have to set-off or to exercise any
banker's lien or any right of attachment or garnishment with respect to any
funds at any time and from time to time on deposit in, or otherwise to the
credit of, any account and any claims of DTFC therein or with respect to any
right to payment from DTFC, it being understood, however, that nothing contained
in this Section 11.19 shall, or is intended to, derogate from the assignment and
security interest granted to the Collateral Agent under the Collateral Agreement
or impair any rights of the Liquidity Lenders, the Liquidity Agent or the
Collateral Agent thereunder.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Liquidity
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------------------
Name:
Title:
Address: 5330 East 31st Street
Tulsa, Oklahoma 74135
Attention: Michael H. McMahon
Facsimile No.: (918) 669-2925
Telephone No.: (918) 669-3914
CREDIT SUISSE FIRST BOSTON
as Liquidity Agent
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
Address: Eleven Madison Avenue
New York, New York 10010-3629
Attention: Asset Finance Department
Facsimile No.: (212) 325-6677
Telephone No.: (212) 325-9078
-65-
74
LIQUIDITY COMMITMENT LIQUIDITY LENDER
By:
-------------------------------------
Name:
Title:
Domestic
Office:
Attention:
Facsimile No.:
Telephone No.:
Eurodollar
Office:
Attention:
Facsimile No.:
Telephone No.:
-66-
75
EXHIBIT A
TO THE
LIQUIDITY AGREEMENT
FORM OF LIQUIDITY ADVANCE NOTE
$[ ] March 4, 1998
FOR VALUE RECEIVED, the undersigned, DOLLAR THRIFTY FUNDING CORP., an Oklahoma
corporation ("DTFC"), promises to pay to the order of [ ] (the "Liquidity
Lender") for the account of its applicable lending office specified in the books
and records of the Liquidity Agent for Eurodollar Advances and Base Rate
Advances (as such terms are defined in the Liquidity Agreement referred to
below) the principal sum of [ ] DOLLARS ($[ ]) or, if less, the aggregate unpaid
principal amount of all Liquidity Advances shown on the schedule attached hereto
(and any continuation thereof) made by the Liquidity Lender pursuant to that
certain Liquidity Agreement, dated as of March __, 1998 (together with all
amendments, supplements, amendments and restatements and other modifications, if
any, from time to time thereafter made thereto in accordance with the terms
thereof, the "Liquidity Agreement"), among DTFC, the various financial
institutions (including the Liquidity Lender) as are or may become parties
thereto (collectively, the "Liquidity Lenders") and Credit Suisse First Boston,
as liquidity agent (in such capacity, the "Liquidity Agent") for the Liquidity
Lenders. Unless otherwise defined herein or the context otherwise requires,
terms used herein have the meanings provided in the Definitions List annexed as
Annex A to the Liquidity Agreement.
DTFC also promises to pay interest on the unpaid principal amount hereof from
time to time outstanding from the date hereof until maturity (whether by
acceleration or otherwise) and, after maturity, until paid, at the rates per
annum and on the dates specified in the Liquidity Agreement.
Payments of both principal and interest are to be made in lawful money of the
United States in same day or immediately available funds to the account
designated by the Liquidity Agent pursuant to the Liquidity Agreement.
This Liquidity Advance Note is one of the Liquidity Advance Notes referred to
in, and evidences indebtedness incurred under, the Liquidity Agreement, which
indebtedness is secured pursuant to the Collateral Agreement to which reference
is made for a description of the security for this Liquidity Advance Note, and
reference is made to the Liquidity Agreement
76
for a statement of the terms and conditions on which DTFC is permitted and
required to make prepayments and repayments of principal of the Indebtedness
evidenced by this Liquidity Advance Note and on which such Indebtedness may be
declared to be immediately due and payable.
All parties hereto, whether as makers, endorsers, or otherwise, severally waive
presentment for payment, demand, protest and notice of dishonor.
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THIS LIQUIDITY ADVANCE NOTE HAS BEEN DELIVERED IN NEW YORK, NEW YORK AND SHALL
BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------------------
Name:
Title:
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78
LOANS AND PRINCIPAL PAYMENTS
========================================================================================================
Amount of Loan Amount of Principal Unpaid Principal
Made Repaid Balance
----------------- ------------------- ----------------
Euro- Interest Euro- Euro-
Base dollar Period (if Base dollar Base dollar Notation
Date Rate Rate applicable) Rate Rate Rate Rate Total Made By
========================================================================================================
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------
========================================================================================================
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79
EXHIBIT B
TO THE
LIQUIDITY
AGREEMENT
FORM OF BORROWING REQUEST
Credit Suisse First Boston
as Liquidity Agent
Eleven Madison Avenue
New York, New York 10010-3629
Attention: [ ]
Re: Dollar Thrifty Funding Corp.
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section[s]
[3.6.1] [3.6.2] of that certain Liquidity Agreement, dated as of March 4, 1998
(as amended, supplemented, amended and restated or otherwise modified from time
to time in accordance with the terms thereof or, the "Liquidity Agreement"),
among Dollar Thrifty Funding Corp. ("DTFC"), an Oklahoma corporation, certain
financial institutions as are or may become parties thereto (collectively, the
"Liquidity Lenders") and Credit Suisse First Boston, as liquidity agent (in such
capacity, the "Liquidity Agent") for the Liquidity Lenders. Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in the Definitions List annexed as Annex A to the Liquidity
Agreement.
DTFC hereby requests that a [Refunding] [Swing Line] Advance be made in
the aggregate principal amount of $_________ on _____________, 19__ as a [Base
Rate Advance] [Eurodollar Advance] having an Interest Period of __ month(s)].
DTFC agrees that if prior to the time of the Borrowing requested hereby
any matter certified to herein by it will not be true and correct at such time
as if then made, it will immediately so notify the Liquidity Agent. Except to
the extent, if any, that prior to the time of the Borrowing requested hereby the
Liquidity Agent shall receive written notice to the contrary from DTFC, each
matter certified to herein shall be deemed once again to be certified as true
and correct at the date of such Borrowing as if then made.
80
Please wire transfer the proceeds of the Borrowing to the accounts of
the following persons at the financial institutions indicated respectively:
Person to be Paid
Amount to be Names Address, etc. Account No.
Transferred Name of Transferee Lender
$
----------- ---------------------------------- -------------------------
----------------------------------
Attention:
----------------------------------------------------
$
----------- ---------------------------------- -------------------------
----------------------------------
Attention:
----------------------------------------------------
Balance of DTFC
such proceeds ------------------------ -------------------------
----------------------------------
Attention:
----------------------------------------------------
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[DTFC] or [_____________, as Attorney-in-Fact for DTFC],has caused this
Borrowing Request to be executed and delivered, and the certification and
warranties contained herein to be made, by its duly Authorized Officer this ____
day of __________, 19__.
DOLLAR THRIFTY FUNDING CORP.
By
---------------------------------------
Name:
Title:
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82
EXHIBIT C
TO THE
LIQUIDITY
AGREEMENT
FORM OF CONTINUATION/CONVERSION NOTICE
Credit Suisse First Boston
as Liquidity Agent
Eleven Madison Avenue
New York, New York 10010-3629
Attention: [ ]
DOLLAR THRIFTY FUNDING CORP.
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to Section
3.8 of that certain Liquidity Agreement, dated as of March 4, 1998 (as amended,
supplemented, amended and restated or otherwise modified from time to time in
accordance with the terms thereof, the "Liquidity Agreement"), among Dollar
Thrifty Funding Corp., an Oklahoma corporation ("DTFC"), the various financial
institutions as are or may become parties thereto (collectively, the "Liquidity
Lenders") and Credit Suisse First Boston as liquidity agent (in such capacity,
the "Liquidity Agent") for the Liquidity Lenders. Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Definitions List, annexed as Annex A to the Liquidity Agreement.
DTFC hereby requests that on ____________, 19__,
(1) $ of the presently outstanding principal amount of
the [Refunding] [Swing Line] Advances originally made
on ____________, 19__, which are presently being
maintained as [Base Rate Advances] [Eurodollar
Advances],
(2) be [converted into] [continued as],
83
(3) [Base Rate Advances having an Interest Period of
______] [Eurodollar Advances having an Interest
Period of ______].
(1) DTFC hereby:
(a) certifies and warrants that no Liquidity Agreement
Amortization Event has occurred and is continuing;
and
(b) agrees that if prior to the time of such continuation
or conversion any matter certified to herein by it
will not be true and correct in all material respects
at such time as if then made, it will immediately so
notify the Liquidity Agent.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Liquidity Agent shall receive written notice to
the contrary from DTFC, each matter certified to herein shall be deemed to be
certified at the date of such continuation or conversion as if then made.
DTFC has caused this Continuation/Conversion Notice to be executed and
delivered, and the certification and warranties contained herein to be made, by
its Authorized Officer this ___ day of __________________, 19__.
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------------------
Name:
Title:
- --------
(1) Use only if converting into or continuing as Eurodollar Advances.
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84
EXHIBIT D
TO THE
LIQUIDITY
AGREEMENT
FORM OF LIQUIDITY LENDER ASSIGNMENT AGREEMENT
To: Dollar Thrifty Funding Corp.
5330 East 31st Street
Tulsa, Oklahoma 74135
Attention:
Credit Suisse First Boston,
as Liquidity Agent
Eleven Madison Avenue
New York, New York 10010-3629
Attention:
DOLLAR THRIFTY FUNDING CORP.
Gentlemen and Ladies:
We refer to that certain Liquidity Agreement, dated as of March 4, 1998
(as such agreement may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Liquidity Agreement"), among Dollar Thrifty Funding Corp., an Oklahoma
corporation ("DTFC"), certain financial institutions as are or may become
parties thereto (collectively, the "Liquidity Lenders") and Credit Suisse First
Boston, as liquidity agent (in such capacity the "Liquidity Agent") for the
Liquidity Lenders. As used in this letter unless the context requires a
different meaning, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Definitions List, annexed to the
Liquidity Agreement as Annex A thereto, as in effect on the date thereof and as
such Annex A may be amended, supplemented or otherwise modified in accordance
with the terms of the Liquidity Agreement.
This liquidity agreement is delivered to you pursuant to clause (a) of
Section 11.11.1 of the Liquidity Agreement, and constitutes notice to each of
you, of the assignment and delegation to _______________ (the "Assignee") of
___% (which is $_________) of the Liquidity Commitment of _____________ (the
"Assignor") and $________ of the Liquidity Advances of the Assignor (such
assigned Liquidity Commitment and Liquidity Advances being collectively referred
to herein as the "Assigned Share"), outstanding under the Liquidity
85
Agreement on the date hereof. After giving effect to the foregoing assignment
and delegation, (i) the Liquidity Commitments of the Assignor and the Assignee
for the purposes of the Liquidity Agreement shall be as set forth on the
signature pages hereof and (ii) the Assignor shall be in compliance with the
requirements of Section 11.11.1.
The Assignee hereby acknowledges and confirms that (i) it has received
a copy of the Liquidity Agreement and the exhibits related thereto, together
with copies of the documents which were required to be delivered under the
Liquidity Agreement as a condition to the making of the effectiveness thereof
and (ii) it has made, independently and without reliance upon the Assignor, the
Liquidity Agent or any Liquidity Lender, and based upon such financial
statements and other documents and information as it has deemed appropriate, its
own credit analysis and decision to enter into this Liquidity Lender Assignment
Agreement. The Assignee further confirms and agrees that in becoming a Liquidity
Lender and in making its Liquidity Commitment and Liquidity Advances under the
Liquidity Agreement, such actions have and will be made without recourse to, or
representation or warranty by, the Liquidity Agent or any other Liquidity
Lender.
Except as otherwise provided in the Liquidity Agreement, effective upon
the date the Liquidity Agent accepts the Liquidity Lender Assignment Agreement
(the "Assignment Effective Date"),
(a) the Assignee
(i) shall be deemed automatically to have become a
party to the Liquidity Agreement and to have all the rights
and obligations of a "Liquidity Lender" under the Liquidity
Agreement and the other CP Program Documents as if it were an
original signatory thereto or beneficiary thereof to the
extent of the Assigned Share; and
(ii) agrees to be bound by the terms and conditions
set forth in the Liquidity Agreement and the other CP Program
Documents as if it were an original signatory thereto;
(b) the Assignor shall be released from its obligations under
the Liquidity Agreement and the other CP Program Documents to the
extent of the Assigned Share; and
(c) the Liquidity Agent shall make all payments in respect of
the Assigned Share (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the
Assignee.
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86
The Assignee and the Assignor will make all appropriate adjustments
with respect to the payment of all accrued and unpaid interest on the Liquidity
Advances prior to the Assignment Effective Date pursuant to the terms of a
separate agreement between the Assignor and the Assignee.
The Assignor and the Assignee hereby agree that the [Assignor]
[Assignee] will pay to the Liquidity Agent the processing fee referred to in
Section 11.11.1 of the Liquidity Agreement upon the delivery hereof.
The Assignee hereby advises each of you of the following administrative
details with respect to the assigned Commitment and Liquidity Advances and
requests the Liquidity Agent to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Eurodollar Office:
Telephone:
Facsimile:
(B) Payment Instructions:
The Assignee agrees to furnish the tax form(s) required by Section 5.6
(if so required) of the Liquidity Agreement no later than the date of acceptance
hereof by the Liquidity Agent.
This Liquidity Agreement may be executed by the Assignor and Assignee
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.
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87
Adjusted Liquidity Commitment and
Amount of Liquidity Advances
[ASSIGNOR]
Commitment
$_________ By:_______________________
Title:
[ASSIGNEE]
Commitment
$_________ By:_______________________
Title:
Acknowledged and Agreed:
CREDIT SUISSE FIRST BOSTON,
as Liquidity Agent
By:___________________________
Name:
Title:
DOLLAR THRIFTY FUNDING CORP.
By:___________________________
Name:
Title:
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88
EXHIBIT E
TO THE
LIQUIDITY AGREEMENT
FORM OF DOLLAR THRIFTY FUNDING CORP.
CLOSING DATE CERTIFICATE
The undersigned, the ____________ of Dollar Thrifty Funding Corp., an
Oklahoma corporation ("DTFC"), pursuant to Section 6.1.11 of that certain
Liquidity Agreement, dated as of March 4, 1998 (the "Liquidity Agreement"),
among DTFC, certain financial institutions which are or may become party thereto
and Credit Suisse First Boston, as liquidity agent, does hereby certify that as
of the date hereof:
1. The representations and warranties of DTFC in each of the CP Program
Documents to which DTFC is a party are true and correct (in all material
respects to the extent such representations and warranties do not incorporate a
materiality limitation in their terms) on the date hereof as though made on and
as of the date hereof. DTFC has duly performed, in all material respects, all
obligations required to be performed by it on or prior to the date hereof, and
has satisfied, in all material respects, all conditions to be satisfied by it,
in each case, pursuant to the terms of each of the CP Program Documents to which
DTFC is a party.
2. No Liquidity Agreement Amortization Event, Limited Liquidity
Agreement Amortization Event or, to the best of the undersigned's knowledge,
Potential Liquidity Agreement Amortization Event, has occurred and is
continuing.
Capitalized terms used herein and not defined herein shall have the
meaning assigned to such terms in the Definitions List, annexed as Annex A to
the Liquidity Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
this __ day of March ___, 1998.
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------------------
Name:
Title:
89
EXHIBIT F
TO THE
LIQUIDITY AGREEMENT
FORM OF LIQUIDITY COMMITMENT AGREEMENT
To: Dollar Thrifty Funding Corp.
5330 East 31st Street
Tulsa, Oklahoma 74135
Attention:
Credit Suisse First Boston
as Liquidity Agent
Eleven Madison Avenue
New York, New York 10010-3629
Attention:
DOLLAR THRIFTY FUNDING CORP.
Gentlemen and Ladies:
We refer to that certain Liquidity Agreement, dated as of March 4, 1998
(as such agreement may be amended, supplemented, amended and restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Liquidity Agreement"), among Dollar Thrifty Funding Corp., an Oklahoma
corporation ("DTFC"), certain financial institutions as are or may become
parties thereto (collectively, the "Liquidity Lenders") and Credit Suisse First
Boston, as liquidity agent (in such capacity the "Liquidity Agent") for the
Liquidity Lenders. As used in this letter unless the context requires a
different meaning, capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Definitions List, annexed to the
Liquidity Agreement as Annex A thereto, as in effect on the date thereof and as
such Annex A may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof.
This liquidity agreement is delivered to you pursuant to clause (b) of
Section 3.4 of the Liquidity Agreement, and constitutes notice to each of you,
of the [increase of the Liquidity Lender Commitment of ________ (the "Existing
Bank")] [addition of _________________ as an Eligible Liquidity Lender (the "New
Bank")]. The [Existing Bank] [New Bank] desires to assume a Liquidity Commitment
on the Commitment Effective Date (as defined below) such that after
90
giving effect to the assumption hereinafter provided, the [Existing Bank] [New
Bank]'s Liquidity Commitment shall equal $ and its Percentage of the Aggregate
Liquidity Commitment (as such Aggregate Liquidity Commitment is increased by
such [increase in] [additional] Liquidity Commitment) shall equal % (such new
Liquidity Commitment is referred to herein as the "New Share"). After giving
effect to the [increase of the Existing Bank's Liquidity Commitment][addition of
the New Bank] the Liquidity Commitment of the [Existing Bank][New Bank] for the
purposes of the Liquidity Agreement shall be as set forth on the signature pages
hereof.
The [Existing Bank][New Bank] hereby acknowledges and confirms that (i)
it has received a copy of the Liquidity Agreement and the exhibits related
thereto, together with copies of the documents which were required to be
delivered under the Liquidity Agreement as a condition to the making of the
effectiveness thereof and (ii) it has made, independently and without reliance
upon the Liquidity Agent or any Liquidity Lender, and based upon such financial
statements and other documents and information as it has deemed appropriate, its
own credit analysis and decision to enter into this Liquidity Commitment
Agreement. The [Existing Bank][New Bank] further confirms and agrees that [by
increasing and making] [in becoming a Liquidity Lender and in making] its
Liquidity Commitment and Liquidity Advances under the Liquidity Agreement, such
actions have and will be made without recourse to, or representation or warranty
by, the Liquidity Agent or any other Liquidity Lender.
Except as otherwise provided in the Liquidity Agreement, effective upon
the date the Liquidity Agent and DTFC accept this Liquidity Commitment Agreement
(the "Commitment Effective Date"), the [Existing Bank][New Bank]:
(a) hereby assumes the New Share and shall be deemed automatically to
have become a party to the Liquidity Agreement and to have all the
rights and obligations of a "Liquidity Lender" under the Liquidity
Agreement and the other CP Program Documents as if it were an original
signatory thereto or beneficiary thereof to the extent of the New
Share; and
(b) agrees to be bound by the terms and conditions set forth in the
Liquidity Agreement and the other CP Program Documents as if it were an
original signatory thereto.
The [Existing Bank][New Bank] hereby agrees that the [Existing
Bank][New Bank] will pay to the Liquidity Agent the processing fee referred to
in Section 11.11.1 of the Liquidity Agreement upon the delivery hereof.
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The [Existing Bank][New Bank] hereby advises each of you of the
following administrative details with respect to the [increase of the Existing
Banks Liquidity Commitment][addition of the New Bank] and requests the Liquidity
Agent to acknowledge receipt of this document:
(A) Address for Notices:
Institution Name:
Attention:
Domestic Office:
Telephone:
Facsimile:
Eurodollar Office:
Telephone:
Facsimile:
(B) Payment Instructions:
The [Existing Bank][New Bank] agrees to furnish the tax form(s)
required by Section 5.6 (if so required) of the Liquidity Agreement no later
than the date of acceptance hereof by the Liquidity Agent.
This Liquidity Agreement may be executed 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.
[Adjusted] Liquidity Commitment and [Existing Bank][New Bank]
Amount of Liquidity Advances
Commitment [Name of [Existing Bank] [New Bank]]
$_________ By: _______________________
Title:
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Acknowledged and Agreed:
CREDIT SUISSE FIRST BOSTON, as Liquidity Agent
By:__________________________________
Name:
Title:
DOLLAR THRIFTY FUNDING CORP.
By:__________________________________
Name:
Title:
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EXHIBIT G
TO THE
LIQUIDITY
AGREEMENT
FORM OF U.S. TAX COMPLIANCE CERTIFICATE
Reference is made to the Liquidity Agreement (as amended, supplemented,
waived or otherwise modified from time to time, the "Liquidity Agreement"),
dated as of March 4, 1998 among Dollar Thrifty Funding Corp., an Oklahoma
corporation ("DTFC"), certain financial institutions as are or may become
parties thereto (collectively, the "Liquidity Lenders") and Credit Suisse First
Boston, as liquidity agent (in such capacity the "Liquidity Agent") for the
Liquidity Lenders. The undersigned hereby certifies that:
(1) The undersigned is the beneficial owner of the Liquidity Advance(s)
(as well as any Liquidity Advance Note(s) evidencing such Liquidity Advance(s))
registered in its name;
(2) The income from the Liquidity Advance(s) held by the undersigned is
not effectively connected with the conduct of a trade or business within the
United States; and
(3) The undersigned is not a bank (as such term is used in Section
881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the "Code")), is
not subject to regulatory or other legal requirements as a bank in any
jurisdiction, and has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any governmental authority,
any application made to a rating agency or any qualification for any exemption
from any tax, securities law or other legal requirements.
We have furnished you with a certificate of our non-U.S. status on
Internal Revenue Service Form W-8. By executing this certificate, the
undersigned agrees that (1) if the information provided on this certificate
changes, the undersigned shall so inform DTFC (for the benefit of DTFC and the
Liquidity Agent) in writing within thirty days of such change and (2) the
undersigned shall furnish to DTFC (for the benefit of DTFC and the Liquidity
Agent) a properly completed and currently effective certificate in either the
calendar year in which payment is to be made by DTFC to the undersigned, or in
either of the two calendar years preceding such payment.
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Unless otherwise defined herein, terms defined in the Liquidity
Agreement or in the Definitions List attached as Annex A to the Liquidity
Agreement, as applicable, and used herein shall have the meanings given to them
in the Liquidity Agreement or in the Definitions List attached as Annex A to the
Liquidity Agreement, as applicable .
[NAME OF LIQUIDITY LENDER]
By:_______________
[Address]
Dated: __________, 199_
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ANNEX A
TO THE
LIQUIDITY AGREEMENT
DEFINITIONS LIST
Dated as of March 4, 1998
"Accounts" is defined in Section 5.01 of the Collateral Agreement.
"Advance" has the meaning set forth in paragraph 2 of the preamble to
the Note Purchase Agreement.
"Affected Liquidity Lender" is defined in clause (a) of Section 5.9
of the Liquidity Agreement.
"Affiliate" means, with respect to any specified Person, another
Person that directly, or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with the Person specified. For
purposes of this definition, "control" means (a) the power to direct the
management and policies of a Person, directly or indirectly, whether through
ownership of voting securities, by contract or otherwise or (b) beneficial
ownership of 10% or more of the voting common equity of a Person; and
"controlled" and "controlling" have meanings correlative to the foregoing.
"Aggregate Face Amount" means, on any date, with respect to
Commercial Paper Notes issued at a discount, the aggregate face amount of all
such Commercial Paper Notes Outstanding on such date and, with respect to
interest bearing Commercial Paper Notes, the aggregate face amount of all such
Commercial Paper Notes Outstanding on such date plus the accrued and unpaid
interest thereon and interest that will accrue prior to maturity.
"Aggregate Liquidity Commitment" means, as of any date of
determination, the sum of the Liquidity Lenders' Liquidity Commitments on such
date.
"Aggregate Outstanding CP" means, as of any date, the Aggregate Face
Amount of Commercial Paper Notes Outstanding on such date, net of any amounts on
deposit on such date in the Collateral Account and/or the Commercial Paper
Account and/or the Termination Advance Account, set aside for the repayment of
the principal of, or interest on, Commercial Paper Notes.
96
"Aggregate Outstandings" means, as of any date, the sum of (i) the
aggregate principal amount of and accrued interest on all Liquidity Advances
Outstanding on such date, (ii) the aggregate principal amount of and accrued
interest on LOC Liquidity Disbursements Outstanding on such date and (iii) the
Aggregate Outstanding CP on such date, net of any amounts on deposit on such
date in the Collateral Account set aside for the repayment of the principal of,
or interest on, Liquidity Advances or LOC Liquidity Disbursements.
"Amortization Commencement Date" means the earlier to occur of (a)
the occurrence of a Liquidity Agreement Amortization Event described in Section
9.1.6 with respect to DTFC, or Section 9.1.11, in each case, of the Liquidity
Agreement, or (b) the date of declaration of the commencement of the
Amortization Period by written notice to DTFC pursuant to Section 9.2 of the
Liquidity Agreement.
"Amortization Period" means the period commencing on the Amortization
Commencement Date and ending on the date all Liquidity Commitments have been
terminated and all amounts due and payable to the Liquidity Agent, the Liquidity
Lenders, the Series 1998-1 Letter of Credit Provider (with respect to LOC Credit
Disbursements and LOC Liquidity Disbursements and other amounts payable by DTFC
to the Series 1998-1 Letter of Credit Provider under the CP Enhancement Letter
of Credit Application and Agreement) and the Holders with respect to the
Commercial Paper Notes have been paid in full.
"Applicable Law" means all applicable provisions of all (a)
constitutions, statutes, treaties, rules, regulations, requirements, ordinances
and orders of governmental bodies, (b) governmental approvals and (c) orders,
decisions, judgments and decrees of all courts and arbitrators.
"Assets" means any interest of any kind in any assets or property of
any kind, tangible or intangible, real, personal or mixed, now owned or
hereafter acquired by DTFC or such other Person as the context may require.
"Assigned Collateral" is defined in Section 4.01 of the Collateral
Agreement.
"Assignee Lender" is defined in Section 11.11.1 of the Liquidity
Agreement.
"Authorized Officer" means (a) those officers, employees and agents
of DTFC whose signatures and incumbency shall have been certified to the
Liquidity Agent and the Liquidity Lenders pursuant to Section 6.1.1 of the
Liquidity Agreement or in such other certificates as may be delivered by DTFC to
the Liquidity Agent and the Depositary from time to time as duly authorized to
execute and deliver the Liquidity Agreement, any other Liquidity Document and
any other CP Program Document to which DTFC is a party and any instruments or
documents in connection therewith on behalf of DTFC and to take, from time to
time, all other actions on behalf of DTFC in connection therewith.
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"Authorized Representatives" is defined in Section 2 of the
Depositary Agreement.
"Authorized Signatories" is defined in Section 2 of the Depositary
Agreement.
"Base Rate" means, on any date and with respect to any Base Rate
Advance, a fluctuating rate of interest per annum equal to the higher of
(a) the Prime Rate for such day; and
(b) the Federal Funds Rate plus 0.50% per annum.
Changes in the rate of interest on that portion of any Liquidity Advance or LOC
Disbursement maintained as Base Rate Advances will take effect simultaneously
with each change in the Base Rate. The Liquidity Agent will give notice promptly
to DTFC, the Series 1998-1 Letter of Credit Provider and the Liquidity Lenders
of changes in the Base Rate.
"Base Rate Advance" means Liquidity Advance under the Liquidity
Agreement or an LOC Disbursement under the Series 1998-1 Letter of Credit
bearing interest at a fluctuating rate determined by reference to the Base Rate.
"Base Rate Tranche" means that portion of the Series 1998-1 Invested
Amount purchased or maintained with Advances which bear interest by reference to
the Base Rate.
"Book Entry CP Holder" is defined in Section 6(e) of the Depositary
Agreement.
"Book Entry CP Notes" is defined in Section 6(a) of the Depositary
Agreement.
"Book Entry Issuance Instruction" is defined in Section 3(a)(ii) of
the Depositary Agreement.
"Book Entry Procedures" is defined in Section 6(a) of the Depositary
Agreement.
"Borrowing" means the Liquidity Advances of the same type and, in the
case of Eurodollar Advances, having the same Interest Period, and either (i)
made by all Liquidity Lenders on the same Business Day pursuant to the same
Borrowing Request in accordance with Section 3.1.1 of the Liquidity Agreement or
(ii) made by the Swing Line Lender pursuant to a Borrowing Request in accordance
with Section 3.1.2 of the Liquidity Agreement.
"Borrowing Base" means, as of any date of determination, an amount
equal to the sum of (without duplication): (a) the Series 1998-1 Invested Amount
as of such date, plus (b) in the case of that portion, if any, of the principal
amount of the Series 1998-1 Notes funded by Commercial Paper Notes, interest
accrued and unpaid as of such date on such portion and
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interest that will accrue through the maturity date of the Commercial Paper
Notes issued to fund such portion of such principal amount, plus (c) in the case
of that portion, if any, of the principal amount of the Series 1998-1 Notes not
funded by Commercial Paper Notes, interest accrued and unpaid on such portion of
such principal amount as of such date, plus (d) the outstanding principal amount
of Eligible Investments and cash (other than any amounts on deposit on such date
in the Series 1998-1 Collection Account or the Collateral Account, in each case
to the extent such amounts shall have been set aside for the repayment of the
principal of, or interest on, Liquidity Advances, LOC Liquidity Disbursements or
Commercial Paper Notes) then held by the Trustee in the Series 1998-1 Collection
Account and the Collateral Agent in the Collateral Account.
"Borrowing Base Deficiency" means, with respect to any date of
determination, the amount by which the Aggregate Outstandings on such date
exceeds the Borrowing Base on such date.
"Borrowing Request" means a request and certificate for Liquidity
Advances, substantially in the form of Exhibit B to the Liquidity Agreement.
"Business Day" means
(a) any day other than a Saturday, Sunday or other day on
which banks are authorized or required by law to be closed in New
York, New York; and
(b) relative to the making, continuing, prepaying or
repaying of Eurodollar Advances, any day on which dealings in Dollars
are carried on in the London interbank market.
"Certificated Notes" is defined in Section 2 of the Depositary
Agreement.
"Closing Date" means the date the Liquidity Agreement becomes
effective in accordance with its terms and the Series 1998-1 Letter of Credit is
issued.
"Closing Date Certificate" means a certificate, substantially in the
form of Exhibit E to the Liquidity Agreement, duly completed and executed by an
Authorized Officer of DTFC, addressed to the Liquidity Lenders, the Liquidity
Agent, the Depositary and the Series 1998-1 Letter of Credit Provider.
"Collateral Account" is defined in Section 5.01 of the Collateral
Agreement.
"Collateral Agent" means Bankers Trust Company in its capacity as
collateral agent under the Collateral Agreement, and any successor thereto.
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"Collateral Agreement" means the Collateral Agreement, dated as of
March 4, 1998, among DTFC, the Collateral Agent, the Liquidity Agent, the
Depositary, CSFB, in its capacity as a dealer, and the Series 1998-1 Letter of
Credit Provider, as such agreement may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof and of
the Liquidity Agreement.
"Commercial Paper Account" is defined in Section 2.4 of the Liquidity
Agreement.
"Commercial Paper Deficit" is defined in Section 3.6.1(a) of the
Liquidity Agreement.
"Commercial Paper Notes" means the promissory notes of DTFC issued by
DTFC in the commercial paper market pursuant to the Depositary Agreement.
"Commitment Fee" is defined in Section 4.5(a) of the Liquidity
Agreement.
"Commitment Termination Date Liquidity Advance" means a Liquidity
Advance made by a Liquidity Lender on the Scheduled Liquidity Commitment
Termination Date with respect to such Liquidity Lender, pursuant to Section
3.6.3 of the Liquidity Agreement.
"Confidential Information" (a) for purposes of the Liquidity
Agreement, has the meaning specified in Section 11.16 of the Liquidity Agreement
and (b) for purposes of the Note Purchase Agreement, has the meaning set forth
in Section 8.11 of the Note Purchase Agreement.
"Consolidated Subsidiary" means, at any time, with respect to DTAG,
any Subsidiary or other entity the accounts of which are consolidated with those
of DTAG, in its consolidated financial statements as of such time.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate, duly executed by an Authorized Officer of DTFC,
substantially in the form of Exhibit C to the Liquidity Agreement.
"CP Borrowing Base" means, as of any date of determination, an amount
equal to (i) the Borrowing Base as of such date, (ii) plus any amounts on
deposit in the Series 1998-1 Pledge Account on such date, (iii) minus, as of
each Payment Date, the Series 1998-1 Invested Percentage (as defined in the
Series 1998-1 Supplement) (for allocations with respect to Losses) of the amount
owed by any Manufacturer under an Eligible Vehicle Disposition Program with
respect to Program Vehicles leased under the Master Lease that remained unpaid
more than ten (10) days but less than or equal to one hundred (100) days after
the Due Date as of the last day of the Related Month.
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"CP Borrowing Base Deficiency" means, with respect to any date of
determination, the amount by which the Aggregate Outstanding CP on such date
exceeds the CP Borrowing Base on such date.
"CP Market Disruption Event" means, at any time for any reason
whatsoever, DTFC shall be unable to raise, or shall be precluded or prohibited
from raising, funds through the issuance of Commercial Paper Notes in the United
States' commercial paper market at such time.
"CP Memorandum" means the private placement memorandum currently in
use by the Dealers and approved by DTAG for the offer and sale of Commercial
Paper Notes.
"CP Program Documents" means the Depositary Agreement, the Collateral
Agreement, the Dealer Agreement, the Liquidity Agreement, the Series 1998-1
Letter of Credit, the CP Enhancement Letter of Credit Application and Agreement
and the CP Memorandum, as such documents may be amended, modified or
supplemented.
"CP Rate" means, for any Fixed Period, if DTFC funds the Series
1998-1 Invested Amount of the Series 1998-1 Notes for such Fixed Period through
the issuance of Commercial Paper Notes, a rate per annum to be calculated by
DTFC equal to the sum of (i) the rate (or, if more than one rate, the weighted
average of the rates) at which Commercial Paper Notes having a term equal to
such Fixed Period and issued to fund the Series 1998-1 Notes may be sold by any
placement agent or commercial paper dealer selected by the Collateral Agent, as
notified by the Collateral Agent to the Master Servicer, provided that if such
rate is a discount rate (or rates), then such rate shall be the rate (or
weighted average of the rates, as applicable) resulting from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum; plus
(ii) .05%.
"CP Stop Issuance Event" means (i) a Lease Event of Default under
Section 17.1 of the Lease or (ii) an Amortization Event under Article 5 of the
Series 1998-1 Supplement.
"CP Tranche" means that portion of the Series 1998-1 Invested Amount
purchased or maintained with Advances which bear interest by reference to the CP
Rate.
"Credit Agreement" means the Credit Agreement, dated as of December
23, 1997, among DTAG, Dollar and Thrifty, as borrowers, the financial
institutions from time to time party thereto, as lenders, CSFB, as
administrative agent for the lenders, The Chase Manhattan Bank, as syndication
agent for the lenders, and CSFB and Chase Securities Inc. as co- arrangers, as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms.
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"CSFB" means Credit Suisse First Boston, a banking corporation
established under the laws of Switzerland.
"DCR" means Duff & Phelps Credit Rating Co.
"Dealer" means Credit Suisse First Boston Corporation, a
Massachusetts corporation, or Chase Securities Inc., a Delaware corporation, and
any successor thereto or any additional dealer executing the Dealer Agreement.
"Dealer Agreement" means the Dealer Agreement, dated as of March 4,
1998, among the Dealers and DTFC, as amended, supplemented, restated or
otherwise modified from time to time in accordance with its terms.
"Definitions List" means this Definitions List, as the same may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms of the Liquidity Agreement.
"Depositary" means Bankers Trust Company, or such other banking
institution as DTFC shall appoint, with the prior written consent of the
Required Liquidity Providers (which consent shall not be unreasonably withheld
or delayed), as issuing and paying agent for Commercial Paper Notes under the
Depositary Agreement and as agent for the Holders.
"Depositary Agents" means those officers, employees and agents of the
Depositary whose signatures and incumbency shall have been certified to the
Collateral Agent pursuant to clause (b) of Section 3.01 of the Collateral
Agreement or in such other certificates as may be delivered by the Depositary to
the Collateral Agent from time to time as duly authorized to act, and to give
instructions and notices, on behalf of the Depositary, under the Collateral
Agreement.
"Depositary Agreement" means the Depositary Agreement, dated as of
March 4, 1998, between DTFC and the Depositary, as amended, supplemented,
restated or otherwise modified from time to time in accordance with its terms.
"Depositary Incumbency Certificate" is defined in Section 3.01(b) of
the Collateral Agreement.
"Deposited Funds" is defined in Section 5.01 of the Collateral
Agreement.
"Designated Persons" is defined in Section 2 of the Depositary
Agreement.
"DCR" means Duff & Phelps Credit Rating Co.
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"Dollar" and the symbol "$" mean the lawful currency of the United
States.
"Domestic Office" shall mean, relative to any Liquidity Lender or the
Series 1998-1 Letter of Credit Provider, as the case may be, the office of such
Liquidity Lender or the Series 1998-1 Letter of Credit Provider, as the case may
be, designated as such below its signature to the Liquidity Agreement or the
Credit Agreement, as applicable, or such other office of such Liquidity Lender
or Series 1998-1 Letter of Credit Provider, as the case may be, within the
United States as may be designated from time to time by notice from such
Liquidity Lender or the Series 1998-1 Letter of Credit Provider, as the case may
be, to each other Person party to the Liquidity Agreement or the Credit
Agreement, as applicable.
"DTAG" means Dollar Thrifty Automotive Group, Inc., a Delaware
corporation, and its permitted successors.
"DTC" means The Depository Trust Company.
"DTFC" means Dollar Thrifty Funding Corp., an Oklahoma corporation.
"DTFC Agent" means those officers, employees and agents of DTFC whose
signatures and incumbency shall have been certified to the Collateral Agent
pursuant to clause (a) of Section 3.01 of the Collateral Agreement or in such
other certificates as may be delivered by DTFC to the Collateral Agent from time
to time as duly authorized to act, and to give instructions and notices, on
behalf of DTFC, under the Collateral Agreement.
"DTFC Agreements" means the Series 1998-1 Notes, the Series 1998-1
Supplement, the Liquidity Agreement, and any other CP Program Document to which
DTFC is a party.
"DTFC Obligations" is defined in Section 2.01 of the Collateral
Agreement.
"Due Date" means, with respect to any payment due from a Manufacturer
or auction dealer in respect of a Program Vehicle disposed of pursuant to the
terms of the related Vehicle Disposition Program, the thirtieth (30th) day after
the Disposition Date for such Vehicle.
"Eligible Investments" means
(a) Government Obligations;
(b) Participation certificates (excluding strip mortgage
securities which are purchased at prices exceeding their principal
amounts) and senior debt obligations of the Federal Home Loan
Mortgage Corporation, consolidated system wide bonds and notes of the
Farm Credit System, senior debt obligations and mortgage-backed
securities (excluding stripped mortgage securities which are
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purchased at prices exceeding their principal amounts) of the Federal
Mortgage Association which, in the case of mortgage-backed
securities, are rated at least AA by S&P and Aa by Moody's, senior
debt obligations (excluding securities that have no fixed value
and/or whose terms do not promise a fixed dollar amount at maturity
or call date) of the Student Loan Marketing Association and debt
obligations of the Resolution Funding Corp. (collectively, "Agency
Obligations");
(c) Direct obligations of any state of the United States
of America or any subdivision or agency thereof whose short-term
unsecured general obligation debt has ratings from S&P of at least
A-1 and Moody's of at least P-1 or any obligation that has ratings
from S&P and Moody's at least equivalent to A-1 and P-1,
respectively, and which is fully and unconditionally guaranteed by
any state, subdivision or agency whose short term, unsecured general
obligation debt has ratings from S&P and Moody's at least equivalent
to A-1 and P-1, respectively;
(d) Commercial paper maturing in not more that three
hundred sixty-five (365) days and having ratings from S&P and Moody's
at least equivalent to A-1 and P-1, respectively;
(e) Deposits (including Eurodollar time deposits), federal
funds or bankers acceptances (maturing in not more that three hundred
sixty-five (365) days) of any domestic bank (including a branch
office of a foreign bank which branch office is located in the United
States), which:
(i) has an unsecured, uninsured and
unguaranteed obligation which has ratings from S&P and
Moody's at least equivalent to A-1 and P-1, respectively,
or
(ii) is the lead bank of a parent bank holding
company with an uninsured, unsecured and unguaranteed
obligation meeting the rating requirements in (i) above;
(f) Deposits of any bank or savings and loan association
which has combined capital, surplus and undivided profits of not less
than $100 million, provided such deposits are fully insured by the
Federal Deposit Insurance Corporation, the Banking Insurance Fund or
the Savings Association Insurance Fund;
(g) Investments in a money-market fund which may be a
12b-1 fund as registered under the Investment Company Act and is
rated at least the equivalent of AAm or AAm-G by S&P and P-1 by
Moody's;
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(h) Repurchase agreements with a term of six (6) months or
less with any institution having short-term, unsecured debt rated at
least the equivalent of A-1 by S&P and P-1 by Moody's;
(i) Repurchase agreements collateralized by Government
Obligations or Agency Obligations (the "Collateral Securities") with
any registered broker-dealer which is under the jurisdiction of the
Securities Investors Protection Corp. or any commercial bank, if such
broker-dealer or bank has uninsured, unsecured and unguaranteed debt
rated at least the equivalent of A-1 by S&P and P-1 by Moody's,
provided that:
(A) a master repurchase agreement or
other specific written repurchase
agreement governs the transaction;
(B) the Collateral Securities are held
free and clear of any other lien by
the Collateral Agent or an
independent third party acting
solely as agent for the Collateral
Agent, provided that any such third
party (A) is (1) a Federal Reserve
bank, (2) a bank which is a member
of the Federal Deposit Insurance
Corporation and which has combined
capital, surplus and undivided
profits of not less than $25
million, or (3) a bank approved in
writing for such purpose by the
Required Liquidity Providers, and
(B) certifies in writing to the
Collateral Agent (or delivers to the
Collateral Agent a written opinion
of counsel to such third party) that
such third party holds the
Collateral Securities free and clear
of any lien, as agent for the
Collateral Agent;
(C) a perfected first security interest
under the Uniform Commercial Code is
created in, or book entry procedures
prescribed at 31 C.F.R. 306.1 et
seq. or 31 C.F.R. 350.0 et seq. are
followed with respect to, the
Collateral Securities for the
benefit of the Collateral Agent;
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(D) such repurchase agreement has a term
of thirty (30) days or less, or the
Collateral Agent will value the
Collateral Securities no less
frequently than monthly and will
liquidate the Collateral Securities
if any deficiency in the required
collateral percentage is not
restored within two (2) business
days of such valuation;
(E) such repurchase agreement matures
(or permits the Collateral Agent to
withdraw all or any portion of the
invested funds) at least ten (10)
days (or other appropriate
liquidation period) prior to each
Payment Date;
(F) the fair market value of the
Collateral Securities in relation to
the amount of the repurchase
obligation, including principal and
interest, is equal to at least one
hundred and three percent (103%);
and
(G) the Collateral Agent obtains an
opinion of counsel to such
broker-dealer or bank to the effect
that such repurchase agreement is a
legal, valid, binding and
enforceable agreement of such
broker-dealer or bank (and, in the
case of a bank which is a branch of
a foreign bank, of such foreign
bank) in accordance with its terms;
and
(j) Other investment instruments approved in writing by
the Majority Banks and offered by financial institutions that have a
combined capital and surplus and undivided profits of not less than
$250,000,000 and with respect to which the Collateral Agent shall
have received written confirmation of the Rating Agencies that
inclusion of any such investment instrument as an Eligible Investment
will not result in the downgrading or withdrawal of the then current
ratings of the Commercial Paper Notes by the Rating Agencies.
"Eligible Liquidity Lender" means (a) a commercial bank having total
assets in excess of $500,000,000, (b) a finance company, insurance company or
other financial institution that in the ordinary course of business enters into
transactions of a type similar to that entered into
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by the Liquidity Lenders under the Liquidity Agreement and has total assets in
excess of $200,000,000, and whose becoming an assignee would not constitute a
prohibited transaction under Section 4975 of ERISA and (c) any other financial
institution satisfactory to DTFC, the Series 1998-1 Letter of Credit Provider
and the Liquidity Agent, in each case having a short-term rating or an
equivalent long-term debt rating from S&P, Moody's and DCR (if rated by DCR) at
least equal to the then current rating of the Commercial Paper Notes, but in any
event not less than a rating of A-1 by S&P, P-1 by Moody's and D-1 by DCR (if
rated by DCR); provided, however, that any Person who does not have either a
short-term rating from S&P, Moody's or DCR (if applicable) shall be deemed to
have the required rating set forth above if such Rating Agency confirms in
writing that such Person, if its short-term debt obligations were rated, would
be assigned such required rating.
"Eurodollar Advance" means a Liquidity Advance under the Liquidity
Agreement or LOC Liquidity Disbursement bearing interest, at all times during
the Interest Period applicable thereto at a fixed rate of interest determined by
reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Office" means, relative to any Reference Lender,
Liquidity Lender, the Collateral Agent or Series 1998-1 Letter of Credit
Provider, as the case may be, the office of such Reference Lender, Liquidity
Lender, the Collateral Agent or Series 1998-1 Letter of Credit Provider, as the
case may be, designated as such below its signature to the Liquidity Agreement
or the CP Enhancement Letter of Credit Application and Agreement, respectively,
or such other office of such Reference Lender, Liquidity Lender, the Collateral
Agent or Series 1998-1 Letter of Credit Provider, as the case may be, as
designated from time to time by notice from such Reference Lender, Liquidity
Lender, the Collateral Agent or Series 1998- 1 Letter of Credit Provider, as the
case may be, to DTFC and the Liquidity Agent, whether or not outside the United
States, which shall be making or maintaining Eurodollar Advances of such
Reference Lender, Liquidity Lender or Series 1998-1 Letter of Credit Provider,
as the case may be, under the Liquidity Agreement or the Series 1998-1 Letter of
Credit, respectively.
"Eurodollar Rate" means, relative to any Fixed Period, an interest
rate per annum equal to the average (rounded upward to the nearest whole
multiple of 1/100 of 1% per annum, if such average is not such a multiple) of
the rates per annum at which deposits in U.S. Dollars in immediately available
funds are offered by the Eurodollar Office of Credit Suisse First Boston in
London, England to prime banks in the London interbank market at or about 11:00
a.m. (London, England time) two Business Days before the first day of such Fixed
Period in an amount substantially equal to the amount of the [Eurodollar
Tranche] to be outstanding during such Fixed Period and for a period equal to
such Fixed Period.
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"Eurodollar Rate (Reserve Adjusted)" means, for any Fixed Period, an
interest rate per annum (rounded upward to the nearest 1/100th of 1%) determined
pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
-------------------------
+ 0.75
(Reserve Adjusted) 1.00 - Eurodollar Reserve
Percentage
"Eurodollar Reserve Percentage" means, for any Fixed Period, the
reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal and
other reserves and taking into account any transitional adjustments or other
scheduled changes in reserve requirements) specified under regulations issued
from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities", as currently
defined in Regulation D of the F.R.S. Board, having a term approximately equal
or comparable to such Fixed Period.
"Eurodollar Tranche" means that portion of the Series 1998-1 Invested
Amount purchased or maintained with Advances which bear interest by reference to
the Eurodollar Rate.
"Event of Bankruptcy" shall be deemed to have occurred with respect
to a Person if either:
(a) a case or other proceeding shall be commenced, without
the application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding
up, or composition or readjustment of debts of such Person, the
appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or all or any substantial
part of its assets, or any similar action with respect to such Person
under any law relating to bankruptcy, insolvency, reorganization,
winding up or composition or adjustment of debts, and such case or
proceeding shall continue undismissed, or unstayed and in effect, for
a period of 60 consecutive days; or an order for relief in respect of
such Person shall be entered in an involuntary case under the federal
bankruptcy laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency,
reorganization, debt arrangement, dissolution or other similar law
now or hereafter in effect, or shall consent to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee,
custodian, sequestrator (or other similar official) for such Person
or for any
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substantial part of its property, or shall make any general
assignment for the benefit of creditors; or,
(c) in the case of a corporation or similar entity, its
board of directors shall vote to implement any of the actions set
forth in clause (b) above.
"Federal Funds Rate" means, for any day, the per annum rate set forth
in the weekly statistical release designated as H.15(519) or any successor
publication, published by the Federal Reserve Board for such day opposite the
caption "Federal Funds (Effective)"; provided, that if on any relevant date such
rate is not yet published in such release, then the Federal Funds Rate for such
day will be the weighted average of the rates on overnight funds transactions
with members of the Federal Reserve System published by the Federal Reserve Bank
of New York for such day; provided that if neither of the foregoing rates is
published for any day which is a Business Day, the Federal Funds Rate will be
the average of the quotations for transactions in overnight Federal funds
received on that day by the Collateral Agent from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain fee letter dated November 19,1997
among DTAG, Dollar, Thrifty, Credit Suisse First Boston, The Chase Manhattan
Bank and Chase Securities Inc.
"Financial Officer" means, with respect to any corporation, the chief
financial officer, vice-president-finance, principal accounting officer,
controller or treasurer of such corporation.
"Financial Statements" has the meaning set forth in Section 5.02(b)
of the Note Purchase Agreement.
"Fixed Period" means a Series 1998-1 Interest Period (as defined in
the Series 1998-1 Supplement) provided that
(i) any Fixed Period in respect of which interest is
computed by reference to the CP Rate may be terminated at the
election of, and upon notice thereof to RCFC and the Servicer by, the
Collateral Agent any time upon the occurrence and during the
continuance of a CP Market Disruption Event;
(ii) if at any time any Fixed Period is terminated
pursuant to clause (i) above, the Series 1998-1 Invested Amount
previously allocated to such terminated Fixed Period shall be
allocated to a new Fixed Period to commence on such date and end on
the next succeeding Payment Date; and
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(iii) upon the occurrence and during the continuance of a
Series 1998-1 Rapid Amortization Period, any Fixed Period in respect
of which interest is computed by reference to the CP Rate or the
Eurodollar Rate may be terminated at the election of, and upon notice
thereof to RCFC and the Servicer by, the Collateral Agent, and
interest on the applicable CP Tranches and Eurodollar Tranches shall
form part of the Base Rate Tranche for the remainder of such Fixed
Period and each Fixed Period commencing thereafter until payment in
full of the Series 1998-1 Notes.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" means the generally accepted accounting principles promulgated
or adopted by the Financial Accounting Standards Board and its predecessors and
successors from time to time.
"Government Obligations" means direct obligations of, or obligations
the timely payment of principal of and interest on which is fully and
unconditionally guaranteed by, the United States of America and U.S. Treasury
REFCORPS.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental department, commission, board, bureau, agency, authority,
instrumentality or other administrative or regulatory body.
"Guarantor" is defined in the preamble to the Master Lease.
"herein", "hereof", "hereto", "hereunder" and similar terms contained
in any CP Program Document refer to such CP Program Document as a whole and not
to any particular Section, paragraph or provision of such CP Program Document.
"Holder" means the holder from time to time of any Commercial Paper
Note.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of each CP Program Document,
the parties thereto agree that the rule of ejusdem generis shall not be
applicable to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"Incumbency Certificate" is defined in Section 2 of the Depositary
Agreement.
"Indemnified Liabilities" is defined for purposes of the Liquidity
Agreement in Section 11.4 thereof.
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"Indemnified Parties" is defined in Section 11.4 of the Liquidity
Agreement.
"Indebtedness", as applied to any Person, means, without duplication,
(a) all indebtedness for borrowed money, (b) that portion of obligations with
respect to any lease of any property (whether real, personal or mixed) that is
properly classified as a liability on a balance sheet in conformity with GAAP,
(c) notes payable and drafts accepted representing extensions of credit whether
or not representing obligations for borrowed money, (d) any obligation owed for
all or any part of the deferred purchase price for property or services, which
purchase price is (i) due more than six months from the date of incurrence of
the obligation in respect thereof or (ii) evidenced by a note or similar written
instrument, (e) all indebtedness secured by any Lien on any property or asset
owned by that Person regardless of whether the indebtedness secured thereby
shall have been assumed by that Person or is nonrecourse to the credit of that
Person and (f) all Contingent Obligations of such Person in respect of any of
the foregoing.
"Independent Director" means a director who is not, and never was,
(a) a stockholder, director, officer, employee, affiliate, associate, advisor or
supplier of goods or services exceeding One Hundred Thousand Dollars
($100,000.00) annually (a "Supplier") of, or any person that has received any
benefit (excluding, however, any compensation received by the Independent
Director, in such person's capacity as such Independent Director and any benefit
received by an affiliate or associate of such person where there was no direct
benefit received by such person) in any form whatsoever from, or any person that
has provided any service (excluding, however, any service provided by the
Independent Director, in such person's capacity as such Independent Director and
service provided by an affiliate or associate of such person where there was no
direct or personal service provided by such person) in any form whatsoever to,
DTAG or any of its affiliates or associates, or (b) any person owning
beneficially, directly or indirectly, any outstanding shares of common stock of
DTAG or any of its affiliates, or a stockholder, director, officer, employee,
affiliate, associate, or Supplier of, or any person that has received any
benefit (excluding, however, any compensation received by the Independent
Director, in such person's capacity as such Independent Director) in any form
whatsoever from, or any person that has provided any service (excluding,
however, any service provided by the Independent Director, in such person's
capacity as such Independent Director) in any form whatsoever to, such
beneficial owner or any of such beneficial owner's affiliates or associates,
provided that ownership comprising up to one percent (1%) of an Independent
Director's net worth, from time to time, of any class of stock of DTAG, so long
as it remains listed on a national securities exchange, shall not prevent an
individual from meeting the requirements of Article SIXTH of DTFC's Certificate
of Incorporation, and provided further that indirect stock ownership of DTAG or
any of its affiliates by any person through a mutual fund or similar diversified
investment pool shall not disqualify such person from being an Independent
Director unless such person maintains direct or indirect control of the
investment decisions of such mutual fund or similar diversified
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investment pool, or (c) a person related to any person referred to in clauses
(a) or (b), or (d) a trustee, conservator or receiver for DTAG or any of its
affiliates other than DTFC.
"Initial Advance" means the Advance made under the Liquidity
Agreement as part of the initial Borrowing.
"Interest Period" means, (a) with respect to any Eurodollar Advance,
a one-week (only in the case of Swing Line Advances), or a one-,two-, three- or
six-month period commencing on the date of such Eurodollar Advance, as selected
by DTFC in its Borrowing Request; and (b), with respect to any Base Rate
Advance, a period commencing on the date of such Base Rate Advance and ending on
a Business Day no later than 180 days after such date, as selected by DTFC in
its Borrowing Request; provided, however, that if any such period would
otherwise end on a day which is not a Business Day, the Interest Period shall
instead end on the next succeeding Business Day; and provided, further, that in
the case of the Interest Period for a Eurodollar Advance, if such extension
would cause the last day of such Interest Period to occur in the next following
calendar month, the last day of such Interest Period shall occur on the next
preceding Business Day.
"Issuer" means DTFC, in its capacity as the issuer under the
Depositary Agreement.
"L.A. Agents" means those officers, employees and agents of the
Liquidity Agent whose signatures and incumbency shall have been certified to the
Collateral Agent pursuant to Section 3.01(c) of the Collateral Agreement or in
such other certificates as may be delivered by the Liquidity Agent to the
Collateral Agent from time to time as duly authorized to act, and to give
instructions and notices, on behalf of the Liquidity Agent, under the Collateral
Agreement.
"Letter" is defined in Section 6(a) of the Depositary Agreement.
"Lien" means, when used with respect to any Person, any interest in
any real or personal property, asset or other right held, owned or being
purchased or acquired by such Person which secures payment or performance of any
obligation, and shall include any mortgage, lien, pledge, encumbrance, charge,
retained security title of a conditional vendor or lessor, or other security
interest of any kind, whether arising under a security agreement, mortgage,
lease, deed of trust, chattel mortgage, assignment, pledge, retention or
security title, financing or similar statement, or notice or arising as a matter
of law, judicial process or otherwise.
"Limited Liquidity Agreement Amortization Event" is defined in
Section 9.3 of the Liquidity Agreement.
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"Liquidation Event of Default" means (a) any event or condition with
respect to DTFC or the type described in Section 9.1.6 of the Liquidity
Agreement, (b) any event or condition with respect to DTFC pursuant to Section
9.1.1(b) of the Liquidity Agreement (but only if so declared with respect to
each Series 1998-1 Note by Liquidity Lenders evidencing commitments exceeding
75% of the aggregate liquidity commitment in respect of the Series 1998-1 Notes)
or (c) any "Liquidation Event of Default", as defined in the Series 1998-1
Supplement.
"Liquidity Advance" means any Refunding Advance, any Commitment
Termination Date Liquidity Advance or any Swing Line Advance, or any combination
thereof, as the context may require.
"Liquidity Advance Note" means, with respect to any Liquidity Lender,
a promissory note issued to such Liquidity Lender by DTFC, substantially in the
form of Exhibit A to the Liquidity Agreement, evidencing the Liquidity Advances
by such Liquidity Lender to DTFC, and all other promissory notes accepted from
time to time in substitution therefor or renewal thereof.
"Liquidity Agent" means CSFB, as agent for the Liquidity Lenders, or
such other Person as shall have subsequently been appointed as the successor
Liquidity Agent pursuant to Section 10.4 of the Liquidity Agreement.
"Liquidity Agent Incumbency Certificate" is defined in Section
3.01(c) of the Collateral Agreement.
"Liquidity Agreement" means the Liquidity Agreement, dated as of
March 4, 1998, among DTFC, the Liquidity Lenders and the Liquidity Agent, as
such agreement may be amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms thereof.
"Liquidity Agreement Amortization Event" is defined in Section 9.1 of
the Liquidity Agreement.
"Liquidity Commitment" means, as to any Liquidity Lender, the amount
set forth on the signature pages of the Liquidity Agreement for such Liquidity
Lender as its Liquidity Commitment or set forth in its Liquidity Lender
Assignment Agreement, as such amount may be increased or decreased from time to
time pursuant to Section 3.3, 3.4, 5.9 or 11.11.1 of the Liquidity Agreement.
"Liquidity Commitment Agreement" means a Liquidity Commitment
Agreement substantially in the form of Exhibit F to the Liquidity Agreement.
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"Liquidity Commitment Termination Date" means the earlier to occur of
(a) the date on which the Aggregate Liquidity Commitment
has been terminated in full or reduced to zero pursuant to Section
3.3 or 9.2 of the Liquidity Agreement; and
(b) the Scheduled Liquidity Commitment Termination Date.
"Liquidity Deficiency" is defined in the Certificate of Liquidity
Demand attached as Annex B to the Series 1998-1 Letter of Credit.
"Liquidity Documents" means the Liquidity Agreement, the Liquidity
Advance Notes, any Borrowing Request, any Continuation/Conversion Notice, any
Liquidity Commitment Agreement, any Liquidity Lender Assignment Agreement, the
Closing Date Certificate, and each other agreement, instrument, certificate or
other document delivered in
connection therewith.
"Liquidity Lender Account" means the account established pursuant to
Section 5.01 of the Collateral Agreement.
"Liquidity Lender Assignment Agreement" means a Liquidity Lender
Assignment Agreement substantially in the form of Exhibit D to the Liquidity
Agreement.
"Liquidity Lenders" is defined in the preamble of the Liquidity
Agreement, and, unless otherwise indicated, shall include any Liquidity Lender
acting in the capacity of Swing Line Lender.
"Liquidity Participant" is defined in Section 11.11.2 of the
Liquidity Agreement.
"Majority Banks" means, at any time, Liquidity Lenders holding, in
the aggregate, Liquidity Commitments equaling or exceeding 66-2/3% of the
Aggregate Liquidity Commitment; provided, however, that any Liquidity Lender
that has defaulted in making a Liquidity Advance shall (if such default is then
continuing) be considered to have a Liquidity Commitment equal to its
unreimbursed Liquidity Advances; provided, further, that the Liquidity
Commitment of any Liquidity Lender whose Liquidity Commitment has been drawn,
terminated and not repaid shall equal the unpaid or unreimbursed balance of its
Liquidity Advances.
"Master Note" means the form of Commercial Paper Note attached to the
Depositary Agreement as Exhibit E thereto.
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"Material Adverse Effect" means, with respect to any occurrence,
event or condition:
(i) a material adverse effect on the financial
condition, business, assets, operations or business prospects of DTAG
and its Consolidated Subsidiaries taken as a whole, other than a
materially adverse effect on the business prospects of DTAG and its
Consolidated Subsidiaries taken as a whole that have similarly
affected DTAG's major competitors;
(ii) a materially adverse effect on the ability
of (a) DTAG to perform its material obligations under any of the CP
Program Documents or (b) DTFC to perform its material obligations
under any of the CP Program Documents; or
(iii) an adverse effect on (a) the
enforceability of the Master Lease or the Series 1998-1 Notes or (b)
on the priority or perfection of the Collateral Agent's or the
Trustee's Lien on a material portion of the Assigned Collateral or
the Group II Collateral.
"Moody's" means Moody's Investors Service, Inc.
"Note Purchase Agreement" means the Note Purchase Agreement dated as
of March 4, 1998 among RCFC, DTAG, as Servicer and DTFC, as Note Purchaser, as
the same may be amended, supplemented or otherwise modified from time to time in
accordance with the terms thereof.
"Note Purchase Commitment Amount" means, as to the Note Purchaser,
the dollar amount set forth under its name on the signature pages hereof.
"Note Purchaser" means DTFC, together with any successors and
assigns.
"Obligations" means all obligations (monetary or otherwise, including
fixed and contingent obligations) of DTFC arising under or in connection with
the Liquidity Agreement, the Liquidity Advance Notes, each other Liquidity
Document and the CP Enhancement Letter of Credit Application and Agreement.
"Offering Memorandum" means the offering memorandum of DTFC used by
DTFC and the Dealers from time to time in connection with the offering and sale
of the Commercial Paper Notes, as the same may be amended, supplemented or
modified.
"Officer's Certificate" means a certificate signed by an Authorized
Officer of DTFC or DTAG, as appropriate.
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"Organic Document" means, with respect to any Person, its certificate
or articles of incorporation, its bylaws and all shareholder agreements, voting
trusts and similar arrangements applicable to any of its authorized shares of
capital stock.
"Outstanding" means (a) with respect to Commercial Paper Notes, all
Commercial Paper Notes issued at any time under the Depositary Agreement, except
(i) Commercial Paper Notes which have been paid through the Depositary, (ii)
matured Commercial Paper Notes which have not been presented for payment but
funds for the payment of which are on deposit in the Commercial Paper Account
established with respect thereto and are available for payment of such
Commercial Paper Notes or (iii) matured Commercial Paper Notes with respect to
which a Borrowing Request has been honored but funds for the payment of which
have not yet been deposited in the Commercial Paper Account; (b) with respect to
Liquidity Advances and LOC Liquidity Disbursements, all Liquidity Advances or
LOC Liquidity Disbursements made or deemed made by the Liquidity Lenders or the
Series 1998-1 Letter of Credit Provider, as the case may be, pursuant to the
Liquidity Agreement or the Series 1998-1 Letter of Credit, and not repaid by
DTFC, except Liquidity Advances or LOC Liquidity Disbursements to be repaid from
the proceeds of Commercial Paper Notes being issued on the date of such
repayment; (c) with respect to LOC Credit Disbursements, all LOC Credit
Disbursements made or deemed made by the Series 1998-1 Letter of Credit Provider
pursuant to the Series 1998-1 Letter of Credit, and not repaid by the Lessees or
DTAG; (d) with respect to a LOC Termination Disbursement, the LOC Termination
Disbursement made or deemed to be made by the Series 1998-1 Letter of Credit
Provider pursuant to the Series 1998-1 Letter of Credit, and not repaid by DTFC,
the Lessees or DTAG; and (e) with respect to Base Rate Advances or Eurodollar
Advances, Base Rate Advances or Eurodollar Advances made or deemed to be made by
the Series 1998-1 Letter of Credit Provider and not repaid by DTFC, the Lessees
or DTAG.
"Overall Percentage" means, relative to any Liquidity Lender or the
Series 1998-1 Letter of Credit Provider, a fraction (expressed as a percentage),
the numerator of which is the Liquidity Commitment or the Series 1998-1 Letter
of Credit Commitment, respectively, of such Person, and the denominator of which
is the sum of the Aggregate Liquidity Commitment and the Series 1998-1 Letter of
Credit Commitment.
"Percentage" means, relative to any Liquidity Lender, a fraction
(expressed as a percentage) obtained by dividing (i) the Liquidity Commitment of
such Liquidity Lender by (ii) the Aggregate Liquidity Commitment.
"Permitted Liens" means: (i) Liens for current taxes not delinquent
or for taxes being contested in good faith and by appropriate proceedings, and
with respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP, and (ii) obligations not exceeding in the
aggregate an amount equal to 3/4 of 1% of the Program Size in effect from time
to time, secured by (a) Liens, including judgment liens, arising in the
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ordinary course of business being contested in good faith and by appropriate
proceedings, and with respect to which adequate reserves have been established,
and are being maintained, in accordance with GAAP, or for sums not due, (b)
Liens incurred in the ordinary course of business in connection with worker's
compensation, unemployment insurance or benefits, and (c) mechanics',
materialmen's landlord's, warehousemen's and carrier's Liens, and other Liens
imposed by law, securing obligations arising in the ordinary course of business
that are not more than thirty days past due or are being contested in good faith
and by appropriate proceedings and with respect to which adequate reserves have
been established, and are being maintained, in accordance with GAAP and (iii)
Liens in favor of the holders of the Obligations.
"Potential Liquidity Agreement Amortization Event" means any
occurrence or event which, after notice or lapse of time or both, would
constitute a Liquidity Agreement Amortization Event.
"Prime Rate" means the rate of interest most recently announced by
CSFB at its Domestic Office as its "reference rate"; provided, however, that the
Prime Rate is not necessarily intended to be the lowest rate of interest
determined by CSFB in connection with extensions of credit.
"Program Size" means, as of any date of determination (a) the
Aggregate Liquidity Commitment on such date (or, if the Liquidity Commitments of
the Liquidity Lenders shall have been terminated pursuant to Section 9.2 of the
Liquidity Agreement, the Aggregate Liquidity Commitment in effect immediately
prior to such termination), plus (b) the stated amount of the Series 1998-1
Letter of Credit.
"Program Support Provider" means and includes any financial
institutions party to the Liquidity Agreement and any other or additional Person
now or hereafter extending credit or having a commitment to extend credit to or
for the account of, and to make purchases from, DTFC or issuing a letter of
credit or surety bond or other instrument to support any obligations arising
under or in connection with DTFC's securitization program.
"Rating Agencies" means, collectively, S&P, Moody's, DCR and any
other nationally recognized rating agency approved by the Liquidity Agent, the
Series 1998-1 Letter of Credit Provider, DTAG and the Required Liquidity
Providers.
"Rating Downgrade" means, with respect to any Person, that the
rating, if any, assigned to such Person's short-term unsecured debt securities
or short-term deposits by any Rating Agency shall be lower than the rating then
assigned by such Rating Agency to the Commercial Paper Notes, or in any event, a
rating lower than A-2 by S&P, P-2 by Moody's or D-1- by DCR (if such Person is
rated by DCR).
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"Reference Lenders" means Credit Suisse First Boston and any other
commercial bank designated by DTFC and approved by the Liquidity Agent as
constituting a "Reference Lender" hereunder.
"Refunding Advance" is defined in Section 3.1.1 of the Liquidity
Agreement.
"Required Liquidity Providers" means, at any time, Liquidity Lenders
and Series 1998-1 Letter of Credit Provider holding, in the aggregate, Liquidity
Commitments and Series 1998-1 Letter of Credit Commitments, respectively, such
that the aggregate amount of such commitments equals or exceeds 66-2/3% of the
sum of the Aggregate Liquidity Commitment and the Series 1998-1 Letter of Credit
Commitment; provided, however, that any Liquidity Lender or Series 1998-1 Letter
of Credit Provider that has defaulted in making a Liquidity Advance or making
LOC Disbursement (if at such time such default is continuing), shall be
considered to have a Liquidity Commitment or Series 1998-1 Letter of Credit
Commitment equal to the unpaid or unreimbursed balance of its Liquidity Advances
or LOC Disbursements, as applicable; and provided, further, that the Liquidity
Commitment or Series 1998-1 Letter of Credit Commitment of any Liquidity Lender
or Series 1998-1 Letter of Credit Provider whose commitment has been drawn,
terminated and not repaid, shall equal the unpaid or unreimbursed balance of its
Liquidity Advances or LOC Disbursements, as applicable.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw-Hill Companies, Inc.
"Scheduled Liquidity Agreement Amortization Event" means any
Liquidity Agreement Amortization Event set forth in Section 9.1.11 of the
Liquidity Agreement.
"Scheduled Liquidity Commitment Termination Date" means, for any
Liquidity Lender, March 4, 1999, as such date may be extended from time to time
pursuant to Section 3.5 of the Liquidity Agreement.
"Scheduled Maturity Date" means,
(i) except in the case of any Commitment
Termination Date Liquidity Advance, with respect to any Liquidity
Advances, the last day of the relevant Interest Period, but in any
event not later than, in the case of Liquidity Advances, the date
eighteen (18) months after the applicable Scheduled Liquidity
Commitment Termination Date; provided, however, that after the
occurrence of a Liquidity Agreement Amortization Event, the Scheduled
Maturity Date shall mean the date eighteen (18) months after the
Amortization Commencement Date; and
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(ii) with respect to any Commitment
Termination Date Liquidity Advance, the date eighteen (18) months
after the date on which such Commitment Termination Date Liquidity
Advance is made.
"Secured Parties" is defined in Section 4.01 of the Collateral
Agreement.
"Series 1998-1 Pledge Account" is defined in Section 5.01 of the
Collateral Agreement.
"Shortfall" means (a) if a Borrowing Request is submitted for
Revolving Advances, the aggregate amount of the proposed Borrowing requested
with respect thereto in such Borrowing Request; provided, however, that such
Shortfall shall not exceed the aggregate principal amount of advances to be made
under the Series 1998-1 Notes on the date such Borrowing is to be made; or (b)
if a Borrowing Request is submitted for Refunding Advances, the aggregate amount
of the proposed Borrowing requested with respect thereto in such Borrowing
Request; provided, however, that such Shortfall shall not exceed the Commercial
Paper Deficit on the date such Borrowing is to be made.
"Specified Period" is defined in Section 5.10 of the Liquidity
Agreement.
"Swing Line Advance" means any Refunding Advance made pursuant to
Section 3.1.2 of the Liquidity Agreement by the Swing Line Lender, in its
capacity as the Swing Line Lender (or any successor thereto in such capacity).
"Swing Line Lender" means Credit Suisse First Boston, in its capacity
as swing line lender, or any successor thereto in such capacity.
"Taxes" has the meaning specified in Section 5.6 of the Liquidity
Agreement.
"Termination Advance Account" is defined in Section 5.01 of the
Collateral Agreement.
"Termination Demand" means a demand for LOC Termination Disbursement
under the Series 1998-1 Letter of Credit pursuant to a Certificate of
Termination Demand.
"type" means, relative to any Liquidity Advance under the Liquidity
Agreement or any Disbursement under the Series 1998-1 Letter of Credit, the
portion thereof, if any, being maintained as a Base Rate Advance or a Eurodollar
Advance.
"Upfront Fee" is defined in Section 4.5(b) of the Liquidity
Agreement.
"written" or "in writing" means any form of written communication,
including, without limitation, by means of telex, telecopier device, telegraph
or cable.
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ANNEX B
TO THE
LIQUIDITY
AGREEMENT
Disclosure Materials
1. Registration Statement on Form S-1 of Dollar Thrifty Automotive
Group, Inc., Registration Number 333-39661, including all exhibits
and amendments thereto.
2. All information furnished to prepare, and the contents of, the
Confidential Memorandum of Dollar Thrifty Automotive Group, Inc.
dated November 1997 furnished to prospective participants in the
revolving credit facility and the liquidity facility.
3. Disclosure Schedule attached hereto as Annex B-1.