EXHIBIT 4.43
[EXECUTION COPY]
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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
BANKERS TRUST COMPANY,
not in its individual capacity but solely
as Master Collateral Agent
Dated as of March 6, 2001
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ADDENDUM TO THE AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT
This ADDENDUM, dated as of March 6, 2001, (the "Addendum"), to the AMENDED
AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT, dated as of December 23, 1997
(the "Existing Agreement") as the same may be 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 create a new group of
Master Collateral to be designated the "Group III Master Collateral;"
WHEREAS, RCFC may 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
III Master Collateral;
WHEREAS, the parties to the Existing Agreement desire 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.
"Assignment of Exchange Agreement" means the Collateral Assignment of the
Exchange Agreement by and among the Issuer, the Qualified Intermediary and the
Master Collateral Agent pursuant to which the Issuer assigns, consistent with
the limitations on the Issuer's 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 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.
"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 the segregated trust account established in
accordance with the terms of the Exchange Agreement and into which are deposited
the Exchange Proceeds and other funds with which to purchase Replacement
Vehicles.
"Exchange Agreement Rights Value" means the value of the 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 Exchanged Vehicle that is held in the Escrow
Account as of such time; (ii) any interest or other amounts earned on the money
or other property from the sale of any Exchanged Vehicles that is held in the
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 Exchanged Vehicles; (iv) the money or
other property from the sale of any 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 Exchanged Vehicle held in the Master Collateral
Account for the benefit of the Qualified Intermediary as of such time.
"Exchange Agreement" means the agreement between the Qualified Intermediary
and RCFC pursuant to which, among other things, the Qualified Intermediary holds
the Exchange Proceeds in the Escrow Account consistent with the requirements of
the "safe harbor" provisions of Treasury Regulation xx.xx. 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 Program" means a program under which RCFC will exchange Exchanged
Vehicles for Replacement Vehicles with the intent of qualifying for deferral of
gain and loss under Section 1031 of the Code.
"Group III Master Collateral" means all right, title and interest of RCFC
in Group III Vehicles and proceeds thereof, the other Group III Master
Collateral and proceeds thereof, the Assignment of Exchange Agreement with
respect to Group III Vehicles, and 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 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).
"QI Master Collateral" shall have the meaning specified in Section 2 of
this Addendum.
"Qualified Intermediary" means such entity that 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).
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"Replacement Vehicle" means a Vehicle acquired in exchange for an Exchanged
Vehicle in accordance with the terms of the Exchange Agreement and under Section
1031 of the Code and the regulations promulgated thereunder.
"Unused Exchange Proceeds" means the Exchange Proceeds that are not used to
acquire Replacement Vehicles and which are transferred from the 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 an Exchanged Vehicle, any funds in the Master
Collateral Account that are proceeds of any Exchanged Vehicle, any receivables
in respect of disposition of any Exchanged Vehicle and any other Master
Collateral 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
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 Master Collateral.
Section 3. Additional Grant. In addition to and supplemental to the
grants in Section 2.1 of the Existing Agreement, RCFC hereby grants, pledges and
assigns to the Master Collateral Agent, for the benefit of the Beneficiaries (to
the extent set forth in Section 2.2 and 2.3 of the Existing Agreement), a
continuing, first priority Lien on all right, title and interest of RCFC in, to
and under the Assignment of Exchange Agreement and all proceeds thereof,
including Unused Exchange Proceeds, but only to the extent such grant, pledge
and assignment with respect to such Exchange Proceeds, including such grant,
pledge and assignment with respect to the Unused Exchange Proceeds, is
consistent with the limitations set forth in the "safe harbor" provisions of
Treasury Regulation ss.1.1031(k)-1(g) (6).
Section 4. Reporting; Designation. In connection with the identification
of one or more 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
Exchanged Vehicles make the designations in the Master Servicer's computer
system and, if necessary, instruct the Trustee under item (c) below as to the
following:
(a) the VIN and current Net Book Value of each proposed Exchanged Vehicle;
(b) the VIN and Capitalized Cost or Net Book Value of each Vehicle,
including Replacement Vehicles, if any, to be designated as related to the
Financing Source and Beneficiaries in substitution for the proposed Exchanged
Vehicles;
(c) the amount of Substitute 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 Rights Value to be designated to
the Financing Source and Beneficiaries in substitution for the proposed
Exchanged Vehicles, and the amount by which Disposition Proceeds received in
respect of 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 Exchanged Vehicles.
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(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 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 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 Replacement Vehicles, and Exchange Agreement
Rights Value in its computer system as Group III Master Collateral related to
the Financing Source and Beneficiaries tendering the Exchanged Vehicles, while
simultaneously designating the Exchanged Vehicles and all proceeds thereof as QI
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 5. 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 6. Severability. Any provision of this Addendum thatis 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 7. 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 8. 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.
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Section 9. 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 10. 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:
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Xxxxxx X. Xxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
RENTAL CAR FINANCE CORP.,
as grantor
By:
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Xxxxxx X. Xxxx
Vice President and Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
THRIFTY RENT-A-CAR SYSTEM, INC.,
as grantor and as servicer
By:
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Xxxxxx X. Xxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
DOLLAR RENT A CAR SYSTEMS, INC.,
as grantor and as servicer
By:
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Xxxxxxx X. XxXxxxx
Treasurer
Address: 0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
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BANKERS TRUST COMPANY,
not in its individual capacity
but solely as Master Collateral Agent
By:
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Name:
Title:
Address: Corporate Trust and Agency Group
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Group
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