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, DTG OPERATIONS, INC., as a...
EXHIBIT 4.155
EXECUTION VERSION
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,
DTG OPERATIONS, INC.,
as a grantor and as Servicer,
VARIOUS FINANCING SOURCES PARTIES HERETO,
VARIOUS BENEFICIARIES PARTIES HERETO,
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
not in its individual capacity but solely
as Master Collateral Agent
Dated as of March 28, 2006
ADDENDUM TO THE AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT
This ADDENDUM, dated as of March 28, 2006 (the “Addendum”), to the AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT, dated as of December 23, 1997, as amended 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, by that certain Amended and Restated Addendum (relating to the Series of Notes known as the Group III Notes) to the Amended and Restated Master Collateral Agency Agreement, dated as of June 4, 2002 and by that Addendum No. 3 (relating to the Series of Notes known as the Group II Notes and the Group III Notes) to the Amended and Restated Master Collateral Agency Agreement, dated as of December 12, 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, DTG OPERATIONS, INC., an Oklahoma corporation (“DTG Operations”), as a grantor and servicer (in the capacity as servicer, the “Servicer” and in the capacity as grantor, the “Lessee Grantor”), RCFC and DEUTSCHE BANK TRUST COMPANY AMERICAS (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, not in its individual capacity but as agent for the Beneficiaries (in such capacity, the “Master Collateral Agent”).
WHEREAS, the parties hereto desire to add provisions to the Existing Agreement with respect to the group of Master Collateral designated as the “Group IV Master Collateral”;
WHEREAS, the parties hereto desire to set out certain additional terms governing the Group IV 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 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 IV Replacement Vehicles.
“Excess Funding Accounts” means, collectively, as of any date, the Series 2006-1 Excess Funding Account and the corresponding account or accounts designated as such with respect to each additional Group IV 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 IV Rights Value” means the value of the Group IV 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 IV 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 IV 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 IV Exchanged Vehicles; (iv) the money or other property from the sale of any Group IV 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 IV 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 IV Exchanged Vehicles for Group IV Replacement Vehicles with the intent of qualifying for deferral of gain or loss under Section 1031 of the Code.
“Group IV Assignment of Exchange Agreement” means the Collateral Assignment of Exchange Agreement dated as of the date hereof by and among RCFC, DTG Operations and the Master Collateral Agent pursuant to which each of RCFC and DTG Operations assigns (consistent with the limitations on RCFC’s or DTG Operations’, 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 § 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 IV 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 IV 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 IV” pursuant to the Indenture.
“Group IV Exchanged Vehicle” means a Group IV Vehicle that is transferred to the Qualified Intermediary in accordance with the “safe harbor” provisions of Treasury Regulation § 1.1031(k)-1(g)(4) and pursuant to the procedures set forth in the Exchange Agreement and thereby ceases to be a Group IV Vehicle.
“Group IV Master Collateral” means all right, title and interest of RCFC or DTG Operations in (i) Group IV Vehicles and proceeds thereof, (ii) the other Group IV Master Collateral described in the Existing Agreement and proceeds thereof, (iii) the Group IV 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 IV Series of Notes; provided that notwithstanding anything to the contrary in this Addendum and the Existing Agreement, the Group IV Master Collateral shall not include any QI Group IV Master Collateral, including Exchange Proceeds until such time as RCFC or DTG Operations, 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 §1.1031(k)-1(g)(6).
“Group IV Replacement Vehicle” means a Vehicle designated by the Master Servicer as comprising Group IV Collateral acquired in exchange for a Group IV 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 IV 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 §1.1031(k)-1(g)(4) and (b) is acceptable to the Group IV Required Noteholders and the Rating Agencies.
“Substitute Group IV Exchanged Vehicle Proceeds” means funds in the amount of the Net Book Value of Group IV Exchanged Vehicles transferred by RCFC, at the direction of the Master Servicer, from (i) the Substitute Group IV Exchanged Vehicle Proceeds Amount, (ii) the Retained Distribution Account or (iii) RCFC’s capital and deposited into the Group IV Collection Account to be treated as Disposition Proceeds of such Group IV Exchanged Vehicles.
“Substitute Group IV Exchanged Vehicle Proceeds Amount” means, at any time, funds, if any, set aside by RCFC in an Excess Funding Account in respect of Group IV Exchanged Vehicles for use as Substitute Group IV Exchanged Vehicle Proceeds.
“Unused Exchange Proceeds” means the Exchange Proceeds that are not used to acquire Group IV Replacement Vehicles and which are transferred from an Escrow Account to RCFC in accordance with the terms of the Exchange Agreement.
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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 IV Exchanged Vehicle, (ii) any funds in the Master Collateral Account that are proceeds of any Group IV Exchanged Vehicle, (iii) any receivables in respect of disposition of any Group IV 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 IV 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 IV Master Collateral.
Section 3. Reporting; Designation. In connection with the identification of one or more Group IV 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 IV 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 IV Exchanged Vehicle;
(b) the VIN and Capitalized Cost or Net Book Value of each Vehicle, including Group IV Replacement Vehicles, if any, to be designated as belonging to Group IV and as related to the Financing Source and Beneficiaries in substitution for the proposed Group IV Exchanged Vehicles;
(c) the amount of Substitute Group IV Exchanged Vehicle Proceeds to be transferred from each Excess Funding Account for a Group IV Series of Notes to the Collection Account for each such Series of Notes;
(d) the increase in Exchange Agreement Group IV Rights Value to be designated to the Financing Source and Beneficiaries in substitution for the proposed Group IV Exchanged Vehicles, and the amount by which Disposition Proceeds received in respect of Group IV Exchanged Vehicles are less than the Net Book Value, (such amount, if positive to be treated as Losses under Financing Documents for Group IV Series of Notes) of such Group IV 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 IV 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 Servicer on its behalf (pursuant to Section 2.7 of the Existing Agreement) to release its lien on the Group IV 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 IV Replacement Vehicles, and Exchange Agreement Group IV Rights Value in its computer system as Group IV Master Collateral related to the Financing Source and Beneficiaries tendering the Group IV Exchanged Vehicles, while simultaneously designating the Group IV Exchanged Vehicles and all proceeds thereof as QI Group IV 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 IV 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 IV 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: __________________________________
Xxxxxx X. Xxxx
Vice President and Treasurer
RENTAL CAR FINANCE CORP., as grantor
By: __________________________________
Xxxxxx X. Xxxx
Vice President and Treasurer
DTG OPERATIONS, INC., as grantor and as servicer
By: __________________________________
Xxxxxx X. Xxxx
Treasurer
DEUTSCHE BANK TRUST COMPANY
AMERICAS,
not in its individual capacity but solely as
Master Collateral Agent and as Trustee
By: __________________________________
Name:
Title:
By: __________________________________
Name:
Title:
Acknowledged and consented to by:
CREDIT SUISSE, NEW YORK BRANCH, as a Subordinated Beneficiary
By: _____________________________________
Name:
Title:
By: _____________________________________
Name:
Title:
VEXCO, LLC, as a Financing Source and Beneficiary
By: _____________________________________
Name:
Title:
