Exhibit 4.70
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AMENDED AND RESTATED
COLLATERAL ASSIGNMENT OF EXCHANGE AGREEMENT
This Amended And Restated Collateral Assignment of Exchange Agreement (the
"Assignment") is made and entered into as of June 4, 2002 by and among Rental
Car Finance Corp., a special purpose Oklahoma corporation ("RCFC"), Dollar Rent
A Car Systems, Inc., an Oklahoma corporation ("Dollar"), Thrifty Rent-A-Car
System, Inc., an Oklahoma corporation ("Thrifty"), 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, Dollar and Thrifty are each a party to that certain Master
Exchange and Trust Agreement, dated as of July 23, 2001 (as the same may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms thereof, the "Exchange Agreement"), by and among RCFC,
Dollar, Thrifty, Chicago Deferred Exchange Corporation ("CDEC"), VEXCO, LLC, a
Delaware limited liability company wholly owned by CDEC (the "Qualified
Intermediary"), and The Chicago Trust Company, an Illinois trust company.
WHEREAS, RCFC, Dollar and Thrifty are each a party to that certain Amended
and Restated Addendum, dated as of the date hereof (the "Group III Addendum")
and that certain Amended and Restated Addendum No. 2, dated as of April 16, 2002
(relating to the Series of Notes known as the Group II Notes) to the Amended and
Restated Master Collateral Agency Agreement, dated as of December 23, 1997 (as
the same may be further amended, supplemented, restated or otherwise modified
from time to time in accordance with the terms thereof, the "Existing
Agreement"), among Dollar Thrifty Automotive Group, Inc., a Delaware
corporation, as master servicer, RCFC, as a grantor, financing source and
beneficiary, Thrifty, as a grantor and servicer, Dollar, as a grantor and
servicer, various financing sources parties to the Existing Agreement, various
beneficiaries parties to the Existing Agreement and the Master Collateral Agent.
WHEREAS, RCFC is a party to that certain Series 2001-1 Supplement, dated as
of March 6, 2001, as amended by that certain Amendment No. 1, dated as of
December 21, 2001 (as so amended, and as the same may be further amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof, the "Series 2001-1 Supplement"), between RCFC and
Deutsche Bank Trust Company Americas, formerly known as Bankers Trust Company
(the "Trustee"), to the Base Indenture, dated as of December 13, 1995, between
RCFC and the Trustee, as amended by the Amendment to Base Indenture, dated as of
December 23, 1997 (as the same may be further amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Base Indenture"), between RCFC and the Trustee.
WHEREAS, RCFC is a party to that certain Series 2002-1 Supplement, dated as
of the date hereof (the "Series 2002-1 Supplement" and, together with the Series
2001-1 Supplement and any Series Supplement to the Base Indenture with respect
to the issuance of any additional Group III Series of Notes, the "Group III
Supplements"), between RCFC and the Trustee, to the Base Indenture.
WHEREAS, the parties hereto entered into that certain Collateral Assignment
of Exchange Agreement, dated as of July 23, 2001 (the "Existing Assignment"),
pursuant to which RCFC, Dollar and Thrifty assigned to the Master Collateral
Agent their respective right, title and interest in, to and under the Exchange
Agreement.
WHEREAS, the parties hereto wish to amend and restate the Existing
Assignment.
NOW THEREFORE, for good and valid consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions. Capitalized terms used herein and not
otherwise defined herein shall have the meaning set forth therefor in the Group
III Addendum or if not defined therein, in the Existing Agreement.
"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 III Replacement Vehicles.
"Exchange Proceeds" means as of any given time the sum of (i) the
money or other property from the sale of any Group III 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 III 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 III Exchanged
Vehicles; (iv) the money or other property from the sale of any Group III
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 III Exchanged
Vehicle held in the Master Collateral Account for the benefit of the Qualified
Intermediary as of such time.
"Financed Vehicles" shall have the meaning set forth in the Base
Indenture.
"Group III Collateral" shall have the meaning set forth in the Group
III Supplements.
"Group III Exchanged Vehicle" means a Group III 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
III Vehicle.
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"Group III Replacement Vehicle" means a Vehicle designated by the
Master Servicer as comprising Group III Collateral acquired in exchange for a
Group III Exchanged Vehicle in accordance with the terms of the Exchange
Agreement and under Section 1031 of the Code and the regulations promulgated
thereunder.
"Identification Period" shall mean with respect to each Group III
Exchanged Vehicle transferred, the period beginning on the date such Group III
Exchanged Vehicle is transferred and ending at midnight on the 45th day
thereafter, irrespective of whether such day is a weekend day or a holiday.
"Rapid Amortization Period" shall mean the Series 2001-1 Rapid
Amortization Period (as such term is defined in the Series 2001-1 Supplement),
the Series 2002-1 Rapid Amortization Period (as such term is defined in the
Series 2002-1 Supplement) and the corresponding period with respect to each
additional Group III Series of Notes.
"Relinquished Property Agreement" shall mean each agreement relating
to the sale or disposition of a Group III Exchanged Vehicle, including but not
limited to agreements with any motor vehicle manufacturer, importer, distributor
or other supplier of vehicles.
"Replacement Property Agreement" shall mean each agreement relating to
the acquisition of a Group III Replacement Vehicle.
"Unused Exchange Proceeds" means the Exchange Proceeds that are not
used to acquire Group III Replacement Vehicles and which are transferred from an
Escrow Account to the Master Collateral Account for the benefit of RCFC, Dollar
or Thrifty in accordance with the terms of the Exchange Agreement.
Section 2. Collateral Assignment.
(a) RCFC hereby assigns, pledges and grants a continuing, first
priority security interest in all of RCFC's right, title and interest in, to and
under the Exchange Agreement and all proceeds thereof, including Unused Exchange
Proceeds, subject to the limitations on RCFC's right to receive, pledge, borrow
or otherwise obtain the benefits of the Exchange Proceeds contained in the "safe
harbor" provisions of Treasury Regulation ▇▇.▇▇. 1.1031(k)-1(g)(4)(ii) and
1.1031(k)-1(g)(6) and in the Exchange Agreement, to the Master Collateral Agent
and the Master Collateral Agent hereby accepts such assignment, pledge and
grant, including the limitations, which the Master Collateral Agent hereby
acknowledges. To the extent the foregoing relates to Group III Exchanged
Vehicles, the foregoing collateral shall be for the benefit of the Group III
Series of Notes (as such term is defined in the Group III Supplements) and
shall, together with any and all proceeds, products, offspring, rents or profits
of any and all of the foregoing, be included in Group III Master Collateral (as
such term is defined in the Group III Supplements).
(b) Dollar hereby assigns, pledges and grants a continuing,
first priority security interest in all of Dollar's rights, title and interest
in, to and under the Exchange Agreement with respect to Financed Vehicles and
all proceeds thereof, including Unused Exchange Proceeds, subject to the
limitations on Dollar's right to receive, pledge, borrow or otherwise obtain the
benefits of the Exchange Proceeds contained in the "safe harbor" provisions of
Treasury Regulation ▇▇.▇▇. 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) and in
the Exchange Agreement, to the Master Collateral Agent and the Master Collateral
Agent hereby accepts such assignment, pledge and grant, including the
limitations, which the Master Collateral Agent hereby acknowledges. To the
extent the foregoing relates to Group III Exchanged Vehicles, the foregoing
collateral shall be for the benefit of the Group III Series of Notes and shall,
together with any and all proceeds, products, offspring, rents or profits of any
and all of the foregoing, be included in Group III Master Collateral.
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(c) Thrifty hereby assigns, pledges and grants a continuing,
first priority security interest in all of Thrifty's rights, title and interest
in, to and under the Exchange Agreement with respect to Financed Vehicles and
all proceeds thereof, including Unused Exchange Proceeds, subject to the
limitations on Thrifty's right to receive, pledge, borrow or otherwise obtain
the benefits of the Exchange Proceeds contained in the "safe harbor" provisions
of Treasury Regulation ▇▇.▇▇. 1.1031(k)-1(g)(4)(ii) and 1.1031(k)-1(g)(6) and in
the Exchange Agreement, to the Master Collateral Agent and the Master Collateral
Agent hereby accepts such assignment, pledge and grant, including the
limitations, which the Master Collateral Agent hereby acknowledges. To the
extent the foregoing relates to Group III Exchanged Vehicles, the foregoing
collateral shall be for the benefit of the Group III Series of Notes and shall,
together with any and all proceeds, products, offspring, rents or profits of any
and all of the foregoing, be included in Group III Master Collateral.
Section 3. Representations and Covenants.
(a) RCFC hereby covenants and agrees that (i) it shall comply
with the reporting requirements set forth in Section 4 of the Addendum, Section
4.20 of the Series 2001-1 Supplement and Section 4.20 of the Series 2002-1
Supplement and any corresponding section in any Series Supplement with respect
to each additional Group III Series of Notes (ii) it shall report to the Master
Collateral Agent the balance of the amount of Exchange Proceeds as of a given
date within one (1) Business Day of the receipt by RCFC of a written request for
such information and (iii) it shall promptly deliver to the Qualified
Intermediary each notice contemplated to be delivered by it under Section 5.11
of the Exchange Agreement if such notice relates to a Group III Exchanged
Vehicle.
(b) RCFC hereby covenants and agrees that during any Rapid
Amortization Period, (i) the rights assigned to the Qualified Intermediary under
each Replacement Property Agreement and Relinquished Property Agreement to which
RCFC is a party shall be revoked and no further Group III Collateral shall be
transferred from the Master Collateral Account to an Escrow Account and (ii)
RCFC shall revoke the identification of all Group III Replacement Vehicles to be
acquired in exchange for Group III Exchanged Vehicles transferred by RCFC in
cases where the Identification Period for such Group III Exchanged Vehicles does
not end prior to the first day of any Rapid Amortization Period. RCFC represents
that its performance of the covenants set forth in the first sentence of this
Section 3(b) is consistent with RCFC's rights to the Exchange Proceeds under the
Exchange Agreement.
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(c) Dollar hereby covenants and agrees that during any Rapid
Amortization Period, (i) the rights assigned to the Qualified Intermediary under
each Replacement Property Agreement and Relinquished Property Agreement to which
Dollar is a party shall be revoked and no further Group III Collateral shall be
transferred from the Master Collateral Account to an Escrow Account and (ii)
Dollar shall revoke the identification of all Group III Replacement Vehicles to
be acquired in exchange for Group III Exchanged Vehicles transferred by Dollar
in cases where the Identification Period for such Group III Exchanged Vehicles
does not end prior to the first day of any Rapid Amortization Period. Dollar
represents that its performance of the covenants set forth in the first sentence
of this Section 3(c) is consistent with Dollar's rights to the Exchange Proceeds
under the Exchange Agreement.
(d) Thrifty hereby covenants and agrees that during any Rapid
Amortization Period, (i) the rights assigned to the Qualified Intermediary under
each Replacement Property Agreement and Relinquished Property Agreement to which
Thrifty is a party shall be revoked and no further Group III Collateral shall be
transferred from the Master Collateral Account to an Escrow Account and (ii)
Thrifty shall revoke the identification of all Group III Replacement Vehicles to
be acquired in exchange for Group III Exchanged Vehicles transferred by Thrifty
in cases where the Identification Period for such Group III Exchanged Vehicles
does not end prior to the first day of any Rapid Amortization Period. Thrifty
represents that its performance of the covenants set forth in the first sentence
of this Section 3(d) is consistent with Thrifty's rights to the Exchange
Proceeds under the Exchange Agreement.
Section 4. Amendment to Exchange Agreement.
(a) RCFC hereby agrees that its rights under the Exchange
Agreement will not be modified without the prior written consent of the Master
Collateral Agent; provided, however, that the Master Collateral Agent hereby
consents to any modifications to the following Exhibits to the Exchange
Agreement: (i) Exhibit 2.2(d) (relating to the revocation of the assignment of a
Relinquished Property Agreement to the Qualified Intermediary); (ii) Exhibit
4.2(d) (relating to the revocation of the assignment of a Replacement Property
Agreement to the Qualified Intermediary); Exhibit 5.2 (setting forth the names
of each Escrow Account); Exhibit 5.7 (setting forth notification information)
and Exhibit 8.8 (setting forth notification information). Dollar hereby agrees
that its rights under the Exchange Agreement will not be modified without the
prior written consent of the Master Collateral Agent if such modification would
cause the representation set forth in the last sentence of Section 3(c) to be
false. Thrifty hereby agrees that its rights under the Exchange Agreement will
not be modified without the prior written consent of the Master Collateral Agent
if such modification would cause the representation set forth in the last
sentence of Section 3(d) to be false.
(b) Each of RCFC, Dollar and Thrifty hereby severally (and not
jointly) agrees that (i) it will not agree to modify, amend or supplement the
Exchange Agreement in a manner which would adversely affect the interests of the
Group III Noteholders without the prior written consent of the Required
Noteholders of all Group III Notes and (ii) a copy of any amendment,
modification or supplement to the Exchange Agreement will be provided to the
Group III Noteholders at least ten (10) days prior to the execution of any
amendment, modification or supplement to the Exchange Agreement, other than a
modification, amendment or supplement to the following Exhibits to the Exchange
Agreement: (i) Exhibit 2.2(d) (relating to the revocation of the assignment of a
Relinquished Property Agreement to the Qualified Intermediary); (ii) Exhibit
4.2(d) (relating to the revocation of the assignment of a Replacement Property
Agreement to the Qualified Intermediary); Exhibit 5.2 (setting forth the names
of each Escrow Account); Exhibit 5.7 (setting forth notification information)
and Exhibit 8.8 (setting forth notification information).
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Section 5. Severability. Any provision of this Assignment 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 Assignment 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. Binding Effect. This Assignment 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 Assignment or the Group III Master
Collateral.
Section 8. 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 Assignment as of
the day and year first above written.
RENTAL CAR FINANCE CORP.
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President and Treasurer
DOLLAR RENT A CAR SYSTEMS, INC.
By:_____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Treasurer
THRIFTY RENT-A-CAR SYSTEM, INC.,
By:_____________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but
solely as Master Collateral Agent
By:_____________________________________
Name:
Title:
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