Exhibit 4.58
------------
================================================================================
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
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as Master Collateral Agent
Dated as of January 31, 2002
================================================================================
ADDENDUM NO. 2 TO THE AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT
This ADDENDUM NO. 2, dated as of January 31, 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 "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
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 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, 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 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 Collateral Assignment
of the Exchange Agreement dated as of January 31, 2002 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.
"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.
2
"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 the Substitute Group II Exchanged Vehicle
Proceeds Amount, from the Retained Distribution Account or otherwise from 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 funds
transferred by RCFC in respect of Group II Exchanged Vehicles from funds set
aside for use as Substitute Group II Exchanged Vehicle Proceeds on deposit in
the Series 2000-1 Excess Funding Account or the Series 1998-1 Excess Funding
Account, if any, to the Group II Collection Account.
"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.
3
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.
4
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.
5
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
BANKERS TRUST COMPANY, not in its individual
capacity but solely as Master Collateral
Agent and as Trustee
By: __________________________________________
Name:
Title:
6
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:
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:
By: _____________________________________
Name:
Title:
7
VEXCO, LLC, as a Financing Source and Beneficiary
By: _____________________________________
Name:
Title:
BANK ONE, NA, as a Financing Source and Beneficiary
By: _____________________________________
Name:
Title:
8