Exhibit 4.69
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AMENDED AND RESTATED ADDENDUM 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 June 4, 2002
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AMENDED AND RESTATED ADDENDUM TO THE AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
This AMENDED AND RESTATED ADDENDUM, dated as of June 4, 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 (the "Original Group III Addendum"), and by that certain Amended and
Restated Addendum No. 2 (relating to the Series of Notes known as the Group II
Notes) to the Amended and Restated Master Collateral Agency Agreement, dated as
of April 16, 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
Base 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, the parties hereto entered into the Original Group III Addendum to
add provisions with respect to the group of Master Collateral designated as the
"Group III Master Collateral;" and
WHEREAS, the parties hereto desire to amend and restate the Original Group
III Addendum to set out certain additional terms governing the Group III 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.
"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.
"Excess Funding Accounts" means, collectively, as of any date, the Series
2001-1 Excess Funding Account, the Series 2002-1 Excess Funding Account and the
corresponding account or accounts designated as such with respect to each
additional Group III Series of Notes as of such date.
"Exchange Agreement" means the Master Exchange and Trust Agreement dated as
of July 23, 2001 among the Qualified Intermediary, the Lessees, RCFC, The
Chicago Trust Company and Chicago Deferred Exchange Corporation 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 III Rights Value" means the value of the Group
III 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 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.
"Exchange Program" means a program under which RCFC will exchange Group III
Exchanged Vehicles for Group III Replacement Vehicles with the intent of
qualifying for deferral of gain or loss under Section 1031 of the Code.
"Group III 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 III Vehicles, including any Unused Exchange Proceeds released from an
Escrow Account, 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 III 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 III"
pursuant to the Indenture.
"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.
"Group III Master Collateral" means all right, title and interest of RCFC
or a Lessee in (i) Group III Vehicles and proceeds thereof, (ii) the other Group
III Master Collateral described in the Existing Agreement and proceeds thereof,
(iii) the Group III Assignment of Exchange Agreement, and (iv) any other
collateral or proceeds that the Master Collateral Agent has designated or
segregated for the benefit of the Group III Series of Notes; provided that
notwithstanding anything to the contrary in this Addendum and the Existing
Agreement, the Group III Master Collateral shall not include any QI Group III
Master Collateral, including Exchange Proceeds until such time as RCFC or the
applicable Lessee, as the case may be, 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 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.
"QI Group III 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 and the Lessees 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 III Required Noteholders
and the Rating Agencies.
"Substitute Group III Exchanged Vehicle Proceeds" means funds in the amount
of the Net Book Value of Group III Exchanged Vehicles transferred by RCFC, at
the direction of the Master Servicer, from (i) the Substitute Group III
Exchanged Vehicle Proceeds Amount, (ii) the Retained Distribution Account or
(iii) RCFC's capital and deposited into the Group III Collection Account to be
treated as Disposition Proceeds of such Group III Exchanged Vehicles.
"Substitute Group III Exchanged Vehicle Proceeds Amount" means, at any
time, funds, if any, set aside by RCFC in an Excess Funding Account in respect
of Group III Exchanged Vehicles for use as Substitute Group III Exchanged
Vehicle Proceeds.
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"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 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 (i) any
Master Collateral Vehicle that is a Group III Exchanged Vehicle, (ii) any funds
in the Master Collateral Account that are proceeds of any Group III Exchanged
Vehicle, (iii) any receivables in respect of disposition of any Group III
Exchanged Vehicle and (iv) 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 III
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 III Master Collateral.
Section 3. Reporting; Designation. In connection with the
identification of one or more Group III 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 III 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 III
Exchanged Vehicle;
(b) the VIN and Capitalized Cost or Net Book Value of each Vehicle,
including Group III Replacement Vehicles, if any, to be designated as belonging
to Group III and as related to the Financing Source and Beneficiaries in
substitution for the proposed Group III Exchanged Vehicles;
(c) the amount of Substitute Group III Exchanged Vehicle Proceeds to be
transferred from each Excess Funding Account for a Group III Series of Notes to
the Collection Account for each such Series of Notes;
(d) the increase in Exchange Agreement Group III Rights Value to be
designated to the Financing Source and Beneficiaries in substitution for the
proposed Group III Exchanged Vehicles, and the amount by which Disposition
Proceeds received in respect of Group III Exchanged Vehicles are less than the
Net Book Value, (such amount, if positive to be treated as Losses under
Financing Documents for Group III Series of Notes) of such Group III 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 III 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 III
Exchanged Vehicles and any Certificates of Title related thereto at the time of
the transfers and designations in items (b), (c) and (d) above.
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Upon satisfaction of the foregoing, the Master Servicer shall designate the
substitute Vehicles, including Group III Replacement Vehicles, and Exchange
Agreement Group III Rights Value in its computer system as Group III Master
Collateral related to the Financing Source and Beneficiaries tendering the Group
III Exchanged Vehicles, while simultaneously designating the Group III Exchanged
Vehicles and all proceeds thereof as QI Group III Master Collateral related to
the Qualified Intermediary as Beneficiary.
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 III Series of Notes on the monthly Reporting Date.
Section 4. Acceptance and Affirmation. The Master Collateral Agent
hereby accepts 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 III Master
Collateral.
Section 9. Governing Law. THIS ADDENDUM 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:
Acknowledged and consented to by:
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH, as a Subordinated Beneficiary
By:_____________________________________
Name:
Title:
By:_____________________________________
Name:
Title:
VEXCO, LLC, as a Financing Source and Beneficiary
By:_____________________________________
Name:
Title:
BANK ONE, NA, as a Financing Source and Beneficiary
By:_____________________________________
Name:
Title: