Exhibit 4.65
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AMENDED AND RESTATED ADDENDUM NO. 2 TO THE
AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT
among
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
as Master Servicer,
RENTAL CAR FINANCE CORP., as a grantor,
as a Financing Source and as a Beneficiary,
THRIFTY RENT-A-CAR SYSTEM, INC.,
as a grantor and as Servicer,
DOLLAR RENT A CAR SYSTEMS, INC.,
as a grantor and as Servicer,
VARIOUS FINANCING SOURCES PARTIES HERETO,
VARIOUS BENEFICIARIES PARTIES HERETO,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
formerly known as Bankers Trust Company
not in its individual capacity but solely
as Master Collateral Agent
Dated as of April 16, 2002
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AMENDED AND RESTATED ADDENDUM NO. 2 TO THE AMENDED AND RESTATED MASTER
COLLATERAL AGENCY AGREEMENT
This AMENDED AND RESTATED ADDENDUM NO. 2, dated as of April 16, 2002 (the
"Addendum"), to the AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT,
dated as of December 23, 1997, as amended by that certain Addendum to the
Amended and Restated Master Collateral Agency Agreement, dated as of March 6,
2001 and by that certain Addendum No. 2 to the Amended and Restated Master
Collateral Agency Agreement, dated as of January 31, 2002 (the "Existing
Agreement"), as the same may be further amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, among
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation ("DTAG"), as
master servicer (in such capacity, the "Master Servicer"), RENTAL CAR FINANCE
CORP., an Oklahoma corporation ("RCFC"), as a grantor, THRIFTY RENT-A-CAR
SYSTEM, INC., an Oklahoma corporation ("Thrifty"), as a grantor and servicer,
DOLLAR RENT A CAR SYSTEMS, INC., an Oklahoma corporation ("Dollar"), as a
grantor and servicer (together with Thrifty in the capacity as Servicer, the
"Servicers" and in the capacity as grantor, the "Lessee Grantors"), RCFC and
DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Bankers Trust Company
(in its capacity as trustee under the Indenture (such term and all other
capitalized terms used herein and not otherwise defined herein having the
meanings assigned thereto in Section 1 hereof) as a Financing Source, the
Trustee, and RCFC as a Beneficiary and DEUTSCHE BANK TRUST COMPANY AMERICAS,
formerly known as Bankers Trust Company, not in its individual capacity but as
agent for the Beneficiaries (in such capacity, the "Master Collateral Agent").
WHEREAS, RCFC, DTAG, Dollar and Thrifty desire to add provisions with
respect to the group of Master Collateral designated as the "Group II Master
Collateral;"
WHEREAS, RCFC expects to enter into a program for the exchange of like kind
property intended to qualify for deferral of gain and loss under Section 1031 of
the Code on certain vehicles that were tendered for such exchange from the Group
II Master Collateral;
WHEREAS, the parties to the Existing Agreement desire to set out certain
additional terms governing the Group II Master Collateral and the interests of
the Financing Sources and Beneficiaries having an interest therein, including
the Qualified Intermediary;
NOW THEREFORE, the parties hereto hereby agree as follows:
Section 1. Definitions. Capitalized terms used herein and not otherwise
defined herein shall have the meaning set forth therefor in the Existing
Agreement or if not defined therein, in the Base Indenture.
"Base Indenture" means the Base Indenture, dated as of December 13, 1995,
as amended by the amendment thereto dated as of December 23, 1997, between RCFC
and Bankers Trust Company, now known as Deutsche Bank Trust Company Americas, as
Trustee, as such agreement may be further amended modified or supplemented in
accordance with the terms thereof.
"Excess Funding Accounts" means, collectively, as of any date, the Series
1998-1 Excess Funding Account, the Series 2000-1 Excess Funding Account and the
corresponding account or accounts designated as such with respect to each
additional Group II Series of Notes as of such date.
"Escrow Account" means a segregated trust account established, consistent
with the requirements of the "safe harbor" provisions of Treasury Regulations
▇▇.▇▇. 1.1031(k)-1(g)(4) and 1.1031(k)-1(g)(6), in accordance with the terms of
the Exchange Agreement and into which are deposited the Exchange Proceeds and
other funds with which to purchase Group II Replacement Vehicles.
"Exchange Agreement" means the agreement dated as of July 23, 2001 between
the Qualified Intermediary and RCFC pursuant to which, among other things, the
Qualified Intermediary holds the Exchange Proceeds in an Escrow Account
consistent with the requirements of the "safe harbor" provisions of Treasury
Regulations ▇▇.▇▇. 1.1031(k)-1(g)(4) and 1.1031(k)-1(g)(6), as the same
agreement may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms.
"Exchange Agreement Group II Rights Value" means the value of the Group II
Assignment of Exchange Agreement, which value shall be deemed to equal as of any
given time the amount of the Exchange Proceeds at such time.
"Exchange Proceeds" means as of any given time the sum of (i) the money or
other property from the sale of any Group II Exchanged Vehicle that is held in
an Escrow Account as of such time; (ii) any interest or other amounts earned on
the money or other property from the sale of any Group II Exchanged Vehicles
that is held in an Escrow Account as of such time; (iii) any amounts receivable
from Eligible Manufacturers and Eligible Vehicle Disposition Programs or from
auctions, dealers or other Persons on account of Group II Exchanged Vehicles;
(iv) the money or other property from the sale of any Group II Exchanged Vehicle
held in the Master Collateral Account for the benefit of the Qualified
Intermediary as of such time; and (v) any interest or other amounts earned on
the money or other property from the sale of any Group II Exchanged Vehicle held
in the Master Collateral Account for the benefit of the Qualified Intermediary
as of such time.
"Exchange Program" means a program under which RCFC will exchange Group II
Exchanged Vehicles for Group II Replacement Vehicles with the intent of
qualifying for deferral of gain and loss under Section 1031 of the Code.
"Group II Assignment of Exchange Agreement" means the Amended and Restated
Collateral Assignment of Exchange Agreement dated as of the date hereof by and
among RCFC, the Lessees and the Master Collateral Agent pursuant to which each
of RCFC and each Lessee assigns (consistent with the limitations on RCFC's or
such Lessee's, as the case may be, right to receive, pledge, borrow or otherwise
obtain the benefits of the Exchange Proceeds contained in the "safe harbor"
provisions of Treasury Regulation ss. 1.1031(k)-1(g)(6)), all of its right,
title and interest in, to and under the Exchange Agreement as it relates to
Group II Vehicles to the Master Collateral Agent, as the same agreement may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms.
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"Group II Collection Account" means that certain administrative sub-account
created by the Trustee within the Collection Account for the benefit of the
holders of Notes from a Series of Notes designated as "Group II" pursuant to the
Indenture.
"Group II Exchanged Vehicle" means a Group II Vehicle that is transferred
to the Qualified Intermediary in accordance with the "safe harbor" provisions of
Treasury Regulation ss. 1.1031(k)-1(g)(4) and pursuant to the procedures set
forth in the Exchange Agreement and thereby ceases to be a Group II Vehicle.
"Group II Master Collateral" means all right, title and interest of RCFC in
Group II Vehicles and proceeds thereof, the other Group II Master Collateral and
proceeds thereof, the Group II Assignment of Exchange Agreement, and any other
collateral or proceeds that the Master Collateral Agent has designated or
segregated for the benefit of the Group II Series of Notes; provided that
notwithstanding anything to the contrary in this Addendum and the Existing
Agreement, the Group II Master Collateral shall not include any QI Group II
Master Collateral, including Exchange Proceeds until such time as RCFC is
permitted to receive, pledge, borrow or otherwise obtain the benefits of such
Exchange Proceeds consistent with the limitations set forth in the "safe harbor"
provisions of Treasury Regulation ss.1.1031(k)-1(g)(6).
"Group II Replacement Vehicle" means a Vehicle designated by the Master
Servicer as comprising Group II Collateral acquired in exchange for a Group II
Exchanged Vehicle in accordance with the terms of the Exchange Agreement and
under Section 1031 of the Code and the regulations promulgated thereunder.
"QI Group II Master Collateral" shall have the meaning specified in Section
2 of this Addendum.
"Qualified Intermediary" means such entity that (a) will be acting in
connection with the Exchange Program so as to permit RCFC to make use of the
"qualified intermediary" safe harbor of Treasury Regulation ss.1.1031(k)-1(g)(4)
and (b) is acceptable to the Group II Required Noteholders and the Rating
Agencies.
"Substitute Group II Exchanged Vehicle Proceeds" means funds in the amount
of the Net Book Value of Group II Exchanged Vehicles transferred by RCFC, at the
direction of the Master Servicer, from (i) the Substitute Group II Exchanged
Vehicle Proceeds Amount, (ii) the Retained Distribution Account or (iii) RCFC's
capital and deposited into the Group II Collection Account to be treated as
Disposition Proceeds of such Group II Exchanged Vehicles.
"Substitute Group II Exchanged Vehicle Proceeds Amount" means, at any time,
funds, if any, set aside by RCFC in an Excess Funding Account in respect of
Group II Exchanged Vehicles for use as Substitute Group II Exchanged Vehicle
Proceeds.
"Unused Exchange Proceeds" means the Exchange Proceeds that are not used to
acquire Group II Replacement Vehicles and which are transferred from an Escrow
Account to RCFC in accordance with the terms of the Exchange Agreement.
Section 2. Qualified Intermediary as Beneficiary. The Qualified
Intermediary is designated (pursuant to a Financing Source and Beneficiary
Supplement executed by the Qualified Intermediary) as a Beneficiary of any
Master Collateral Vehicle that is a Group II Exchanged Vehicle, any funds in the
Master Collateral Account that are proceeds of any Group II Exchanged Vehicle,
any receivables in respect of disposition of any Group II Exchanged Vehicle and
any other collateral pledged to the Master Collateral Agent that is designated
on the Master Servicer's computer system as Related Master Collateral for the
Qualified Intermediary as Beneficiary in accordance with Section 2.2 of the
Existing Agreement (collectively, the "QI Group II Master Collateral"). No other
Beneficiary hereunder or under the Existing Agreement shall have any right,
title, or interest in, claim to or lien on the QI Group II Master Collateral.
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Section 3. Reporting; Designation. In connection with the identification
of one or more Group II Exchanged Vehicles proposed to be redesignated to the
Qualified Intermediary under an Exchange Program, the Master Servicer shall
prepare the information for reporting on the Reporting Date and upon the
exchange of Group II Exchanged Vehicles make the designations in the Master
Servicer's computer system and, if necessary, instruct the Trustee in writing
under items (c) and (f) below as to the following:
(a) the VIN and current Net Book Value of each proposed Group II
Exchanged Vehicle;
(b) the VIN and Capitalized Cost or Net Book Value of each Vehicle,
including Group II Replacement Vehicles, if any, to be designated as belonging
to Group II and as related to the Financing Source and Beneficiaries in
substitution for the proposed Group II Exchanged Vehicles;
(c) the amount of Substitute Group II Exchanged Vehicle Proceeds to be
transferred from each Excess Funding Account for a Group II Series of Notes to
the Collection Account for each such Series of Notes;
(d) the increase in Exchange Agreement Group II Rights Value to be
designated to the Financing Source and Beneficiaries in substitution for the
proposed Group II Exchanged Vehicles, and the amount by which Disposition
Proceeds received in respect of Group II Exchanged Vehicles that had comprised
Group II Collateral are less than the Net Book Value, (such amount, if positive
to be treated as Losses under Financing Documents for Group II Series of Notes)
of such Group II Exchanged Vehicles;
(e) a calculation setting forth the sum of items (b), (c) and (d) as at
least equaling the aggregate Net Book Values of the proposed Group II Exchanged
Vehicles under item (a); plus any Losses identified in item (d); and
(f) an instruction to the Trustee to make the transfers in item (c)
above and to the Master Collateral Agent and Servicers on its behalf (pursuant
to Section 2.7 of the Existing Agreement) to release its lien on the Group II
Exchanged Vehicles and any Certificates of Title related thereto at the time of
the transfers and designations in items (b), (c) and (d) above.
Upon satisfaction of the foregoing, the Master Servicer shall designate the
substitute Vehicles, including Group II Replacement Vehicles, and Exchange
Agreement Group II Rights Value in its computer system as Group II Master
Collateral related to the Financing Source and Beneficiaries tendering the Group
II Exchanged Vehicles, while simultaneously designating the Group II Exchanged
Vehicles and all proceeds thereof as QI Group II Master Collateral related to
the Qualified Intermediary as Beneficiary.
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Aggregate information with respect to the above will be reported to the
Trustee, the Master Collateral Agent and others specified in the Financing
Documents for Group II Series of Notes on the monthly Reporting Date.
Section 4. Acceptance and Affirmation. The Master Collateral Agent
hereby accepts the grants and undertakes the duties and obligations set forth in
this Addendum, subject to the limitations on liability, standard of care and
indemnities contained in the Existing Agreement. All of the terms and provisions
of the Existing Agreement are hereby affirmed and this Addendum shall be
supplemental to such terms and provisions.
Section 5. Severability. Any provision of this Addendum that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 6. Counterparts. This Addendum may be executed in separate
counterparts and by the different parties on different counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
Section 7. Conflicts with Financing Documents; Reservation of Rights.
The parties agree that in the event of any conflict between the provisions of
this Addendum and the provisions of any Financing Documents, the provisions of
this Addendum shall control. Except as expressly provided herein, nothing
contained in this Addendum is intended to affect or limit, in any way, the
rights that each of the Beneficiaries has insofar as the rights of such parties
and third parties are involved. Except as expressly provided herein, the
Beneficiaries specifically reserve all their respective rights against each
Lessee Grantor, any Financing Source and/or any third party.
Section 8. Binding Effect. This Addendum shall be binding upon and inure
to the benefit of each of the parties hereto, each Financing Source and
Beneficiary and their respective successors and assigns. Nothing herein is
intended or shall be construed to give any other Person any right, remedy or
claim under, to or in respect of this Addendum or the Group II Master
Collateral.
Section 9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
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IN WITNESS WHEREOF, each party hereto has executed this Addendum or caused
this Addendum to be duly executed by its officer thereunto duly authorized as of
the day and year first above written.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
as Master Servicer
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
RENTAL CAR FINANCE CORP., as grantor
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President and Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC., as
grantor and as servicer
By:_____________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇
Treasurer
DOLLAR RENT A CAR SYSTEMS, INC., as
grantor and as servicer
By:_____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Treasurer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Master Collateral Agent and
as Trustee
By:_____________________________________
Name:
Title:
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Acknowledged and consented to by:
BANK ONE, NA, as the Managing Agent for the Bank One Ownership Group
By:_____________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA, as the Managing Agent for the BNS Ownership Group
By:_____________________________________
Name:
Title:
DRESDNER BANK AG, as the Managing Agent for the Dresdner Ownership Group
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
ING CAPITAL MARKETS LLC, as the Managing Agent for the ING Ownership Group
By:_____________________________________
Name:
Title:
DOLLAR THRIFTY FUNDING CORP., as sole holder of the Series 1998-1 Note
By:_____________________________________
Name:
Title:
Credit Suisse First Boston, NEW YORK BRANCH, as a Subordinated Beneficiary
By:_____________________________________
Name:
Title:
7
By:_____________________________________
Name:
Title:
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VEXCO, LLC, as a Financing Source and Beneficiary
By:_____________________________________
Name:
Title:
BANK ONE, NA, as a Financing Source and Beneficiary
By:_____________________________________
Name:
Title:
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