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EXHIBIT 4.16
[EXECUTION COPY]
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DEPOSITARY AGREEMENT
dated as of March 4, 1998
between
DOLLAR THRIFTY FUNDING CORP.,
as Issuer
and
BANKERS TRUST COMPANY,
as Depositary
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TABLE OF CONTENTS
Page
SECTION 1. Establishment of Accounts; Proceeds of Commercial Paper Notes . . . . . . . . . . . . . . . . . . . 2
SECTION 2. Commercial Paper Notes Delivered for Safekeeping . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. Issuance of Commercial Paper Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 4. Delivery of Commercial Paper Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. Payment of Commercial Paper Notes at Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 6. Book Entry Commercial Paper Notes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 7. Inspection of Documents by Commercial Paper Note Holders . . . . . . . . . . . . . . . . . . . . 13
SECTION 8. Expenses and Indemnity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 9. Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 10. Term and Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 11. Amendments and Modifications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 12. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 13. Binding Effect; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 14. GOVERNING LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
SECTION 15. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 16. Conditions Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 17. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 18. No Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 19. Duties and Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
SECTION 20. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 21. Limited Recourse to DTFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 22. Merger or Consolidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 23. Amortization Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 24. Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 25. Waiver of Set-Off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
SECTION 26. Additional Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Exhibit A - Form of Commercial Paper Note
Exhibit B - Form of Incumbency Certificate
Exhibit C - Reserved
Exhibit D - Form of DTC Letter of Representations
Exhibit E - Form of Commercial Paper Master Note
Exhibit F - Form of Note Direct
Exhibit G - Form of Fee Letter
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March 4, 1998
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group / Commercial Paper Group
Re: Dollar Thrifty Funding Corp. - Commercial Paper
Ladies and Gentlemen:
This will confirm the arrangements made with Bankers Trust Company
(the "Depositary") by the undersigned, Dollar Thrifty Funding Corp. ("DTFC" or
the "Issuer"), whereby you have agreed to act as depositary for safekeeping of
certain short-term promissory notes of DTFC (the "Commercial Paper Notes") and
as issuing and paying agent on behalf of DTFC in connection with the issuance
and payment of the Commercial Paper Notes, and to undertake certain obligations
as described below on behalf of holders of the Commercial Paper Notes. The
Depositary has advised the undersigned that it has arranged for The Depository
Trust Company ("DTC" or the "Sub-Agent") to act as its sub-agent for certain
purposes of this Depositary Agreement (as amended, supplemented, amended and
restated or otherwise modified from time to time in accordance with the terms
hereof, this "Agreement").
The Commercial Paper Notes will be issued on the terms and subject to
the conditions set forth herein and pursuant to the Liquidity Agreement (as
such agreement may be amended, supplemented, amended and restated or otherwise
modified from time to time in accordance with its terms, the "Liquidity
Agreement"), dated as of March 4, 1998, among DTFC, certain financial
institutions as Liquidity Lenders (the "Liquidity Lenders") and Credit Suisse
First Boston, a Swiss banking corporation (the "Liquidity Agent"), and be
supported by the Series 1998-1 Letter of Credit. All capitalized terms used
herein and not otherwise defined herein shall have the meanings set forth for
such terms in Annex A to, or incorporated by reference in, the Liquidity
Agreement.
The Commercial Paper Notes will be entitled to the benefits of this
Agreement, the Liquidity Agreement, the Collateral Agreement, the Base
Indenture, the Series 1998-1 Supplement and the Series 1998-1 Letter of Credit.
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This Agreement will govern your rights, powers and duties as such
Depositary, issuing and paying agent and, in certain circumstances, as agent
with respect to the Commercial Paper Notes issued pursuant to this Agreement.
No implied covenants shall be read into this Agreement against you. You shall
have no liability to DTFC, any Liquidity Lender, the Credit Enhancer or the
Holder of any Commercial Paper Note for the performance of any of the terms of
the Liquidity Agreement, the Collateral Agreement, the Base Indenture, the
Series 1998-1 Supplement or the Series 1998-1 Letter of Credit except as
expressly provided herein.
SECTION 1. Establishment of Accounts; Proceeds of Commercial Paper
Notes. For the purposes of this Agreement and the Liquidity Agreement you have
established, in the name of DTFC for the exclusive benefit of the Holders, from
time to time, of the Commercial Paper Notes Outstanding, a segregated trust
account in the corporate trust department at Bankers Trust Company, Account No.
25291 (being referred to herein and in the Liquidity Agreement as the
"Commercial Paper Account") over which you shall have exclusive dominion and
control and the sole right of withdrawal. All proceeds of the sale on any day
of Commercial Paper Notes issued hereunder shall be deposited by you in the
Commercial Paper Account to the extent necessary to provide for the payment of
unpaid matured Commercial Paper Notes or Commercial Paper Notes maturing on
such day, whether or not presented to the Depositary for payment; the proceeds
in excess of the amount required to pay unpaid matured Commercial Paper Notes
or Commercial Paper Notes maturing on such day, whether or not presented to the
Depositary for payment, shall be remitted to the Collateral Agent for deposit
into the Collateral Account on such day. All funds at any time on deposit in
the Commercial Paper Account shall be held in trust by you for the exclusive
benefit of the Holders, from time to time, of the Commercial Paper Notes
Outstanding in accordance with the terms of this Agreement; and no application
shall be made of such funds except to repay advances by you made pursuant to
Section 5 hereof or to pay matured Commercial Paper Notes in accordance with
the terms hereof. DTFC shall have no legal, equitable or beneficial interest
in the Commercial Paper Account. You agree to give DTFC, the Liquidity Agent,
the Rating Agencies and the Dealers immediate notice if you receive written
notice that the Commercial Paper Account or any funds on deposit in the
Commercial Paper Account have become subject to any stay, writ, judgment,
warrant of attachment, execution or similar process.
SECTION 2. Commercial Paper Notes Delivered for Safekeeping. At any
time and from time to time during the term of this Agreement, DTFC may deliver
to your attention at your address set forth in Section 12, Commercial Paper
Notes in substantially the form of Exhibit A to this Agreement (the
"Certificated Notes") which shall be consecutively numbered and bear such other
identification as DTFC may deem appropriate and shall be manually signed or
signed in facsimile in such manner as is acceptable to you on behalf of DTFC by
an Authorized Signatory (as defined below) of DTFC (notwithstanding whether
such person shall thereafter cease to be an Authorized Signatory), but shall
otherwise be incomplete. The Depositary shall not have any responsibility to
DTFC to determine by what means a facsimile signature may have been affixed to
the Commercial Paper Notes or to determine whether any facsimile signature or
manual signature is genuine or if such facsimile signature or manual signature
resembles the specimen
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signature on file with the Depositary. Each Commercial Paper Note (including
any Master Note (as defined in Section 6(b) hereof)), or group of Commercial
Paper Notes at one time, delivered to you shall be accompanied by a letter from
DTFC identifying the Commercial Paper Note or Commercial Paper Notes
transmitted therewith, and you shall acknowledge receipt of such Commercial
Paper Note or Commercial Paper Notes on the copy of such letter or some other
form of written receipt deemed appropriate by you and DTFC at the time of
delivery to you of such Commercial Paper Note or Commercial Paper Notes.
Pending the issuance of Commercial Paper Notes as provided in Section 3 hereof,
all Commercial Paper Notes delivered to you shall be held by you for the
account of DTFC for safekeeping in accordance with the Depositary's customary
practices. DTFC shall bear the sole risk of wastage of Certificated Notes as a
result of administrative or operational errors during the process of their
completion pursuant to this Agreement, other than errors attributable to the
Depositary's gross negligence or willful misconduct. DTFC shall maintain with
the Depositary at all times a supply of Certificated Notes sufficient to enable
the Depositary to perform the operations contemplated by this Agreement. The
Depositary shall forward to DTFC the original and all copies of any matured,
spoiled, mutilated, or incorrectly completed Certificated Note, properly
canceled.
Prior to the issuance of any Commercial Paper Notes, DTFC will furnish
to you, and from time to time hereafter may furnish to you, a certificate
(substantially in the form of Exhibit B hereto) (hereinafter called an
"Incumbency Certificate") of the Secretary or an Assistant Secretary of DTFC,
identifying and certifying the incumbency and specimen signatures of (i) the
officers or agents ("Authorized Signatories") of DTFC authorized to execute
Commercial Paper Notes (including the Master Notes) on behalf of DTFC, and (ii)
the officers or agents ("Authorized Representatives") of DTFC who are otherwise
authorized to act and give instructions and notices on behalf of DTFC
hereunder. Until you receive a subsequent Incumbency Certificate, or unless a
Designated Person (as defined below) shall have actual knowledge of the lack of
authority of any individual, you shall be entitled to rely on the last such
Incumbency Certificate delivered to you for purposes of determining Authorized
Signatories and Authorized Representatives.
For purposes of this Agreement, you hereby acknowledge that any
Managing Director, Vice President, Assistant Vice President, Assistant
Secretary or Assistant Treasurer of your Corporate Trust and Agency Group in
New York, New York, shall be authorized to act hereunder on your behalf as a
designated person (each, a "Designated Person") and to receive notices and
instructions delivered hereunder.
SECTION 3. Issuance of Commercial Paper Notes. (a) From time to
time during the term of this Agreement, and upon your timely receipt of written
(including electronically transmitted writings) or telephonic instructions
(subject to written confirmation, in the case of telephonic instructions, as
provided in paragraph (b) of this Section 3) in respect of any Commercial Paper
Note, not later than 1:00 p.m. (New York City time) on the date of issuance
thereof from an Authorized Representative, you shall: (i) in the case of
Certificated Notes,
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withdraw designated Commercial Paper Notes from safekeeping and, in accordance
with the instructions received, take the following action with respect to each
such Certificated Note:
(A) date each such Certificated Note the date of issuance
thereof (which shall be a Business Day) and insert (w) the maturity
date thereof (which shall be a Business Day and which shall not be
later than (i) three Business Days prior to the earliest of the
Scheduled Liquidity Commitment Termination Date and the Series 1998-1
Letter of Credit Expiration Date in effect on the date of issuance
thereof and (ii) the 58th day following the date of issuance thereof),
(x) the face amount (which shall be at least $100,000 and an integral
multiple of $1,000 thereafter) thereof in figures and, if so directed
by an Authorized Representative, strike the word "Bearer" (if
applicable) and insert the name, address and taxpayer identification
number of the payee thereof (y) the Cusip Number and (z) the issue
price (for discounted notes) or the interest rate (for interest
bearing notes);
(B) authenticate each such Certificated Note by
countersigning it for authentication in the space provided thereon;
(C) deliver each such Certificated Note to the Dealer
specified in such instructions, or to the applicable Holder if any,
designated by such Dealer for the account of such Dealer against
receipt of payment of the amount set forth in the instructions of DTFC
delivered in respect thereof as provided in Section 4 hereof; and
(D) send a copy of each such Certificated Note to DTFC, and
upon written request therefor to the Liquidity Agent and the
Collateral Agent on or promptly following the date of issuance
thereof; and
(ii) in the case of Book Entry CP Notes (as defined in Section 6 hereof),
enter an issuance instruction (a "Book Entry Issuance Instruction") in the book
entry system of DTC in accordance with the Book Entry Procedures (as defined in
Section 6 hereof), which instruction shall provide the issuance information set
forth in clause (i) above with respect to such Book Entry CP Notes and specify
the party to whom such Book Entry CP Notes shall be issued.
Notwithstanding the foregoing, no Commercial Paper Note shall be
issued hereunder if,
(A) DTFC and the Depositary have received written
instructions then in effect from the Liquidity Agent (copies of which
will also be sent to the Dealer), given in accordance with Section 2.1
of the Liquidity Agreement not to issue or deliver Commercial Paper
Notes because (i) DTFC shall have terminated the Aggregate Liquidity
Commitment pursuant to Section 3.3 of the Liquidity Agreement, (ii)
the Aggregate Liquidity Commitment is otherwise terminated in whole
for any reason in accordance with the Liquidity Agreement, (iii) the
Commercial Paper Account or any funds on
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deposit in, or otherwise to the credit of, the Commercial Paper
Account are or have become subject to any stay, writ, judgment,
warrant of attachment, execution or similar process; provided,
however, that if any such stay, writ, judgment, warrant or attachment,
execution or similar process is removed or dismissed, DTFC may
recommence the issuance and sale of Commercial Paper Notes, or (iv)
any other condition precedent to issuance in Section 2.1 of the
Liquidity Agreement shall not have been met,
(B) after giving effect to such issuance and the use of
the proceeds thereof, the sum of the Aggregate Outstanding CP and the
aggregate principal amount of all Liquidity Advances Outstanding
would, net of any amounts on deposit at such time in the Collateral
Account and the Series 1998-1 Collection Account set aside for the
repayment of the principal of Liquidity Advances, exceed the Aggregate
Liquidity Commitment plus the Series 1998-1 Letter of Credit Amount
(which determination shall be made by the Depositary by reference to
the information to be set forth in the report referred to below),
(C) after giving effect to such issuance and the use of
proceeds thereof, the Aggregate Outstandings would exceed the CP
Borrowing Base,
(D) you shall have received written notice that any
condition precedent specified in Section 2.2 of the Liquidity
Agreement with respect to such issuance has not been satisfied,
(E) you shall have received written notice that any
Liquidity Agreement Amortization Event or any Limited Liquidity
Agreement Amortization Event as specified in Sections 9.2 and 9.4 of
the Liquidity Agreement has occurred, or
(F) you shall have received notice that any of the
Accounts (as defined in Section 5.01 of the Collateral Agreement) or
the Series 1998-1 Cash Collateral Account is subject to any stay,
writ, judgment, warrant of attachment, execution or other similar
process as specified in Section 5.01 of the Collateral Agreement.
In this connection the Collateral Agent will provide you at the opening of
business on each such day of issuance with a report based on information as of
the immediately preceding Business Day as to the aggregate principal amount of
all Liquidity Advances Outstanding and interest accrued thereon and the
information required to make the determinations set forth in clauses (B) and
(C) above, and the Series 1998-1 Letter of Credit Amount and the CP Borrowing
Base or any change in any of such amounts, and satisfaction of the conditions
precedent referred to in clause (D) above, and at the time of delivering or
issuing Commercial Paper Notes you may rely on the last such report so received
in determining the amount of Commercial Paper Notes that may then be issued.
In addition, if the Collateral Agent is unable to obtain such information
electronically from the Depositary or the Dealers and the Collateral Agent has
requested such notification, you shall notify the Collateral Agent on each day
of the Aggregate Face Amount of Commercial Paper Notes Outstanding as reflected
by your records. The Depositary shall make such
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information electronically or otherwise available to DTFC, the Collateral Agent
and the Liquidity Agent. The Depositary shall also make available to DTFC
pursuant to "Noteline Direct" under the terms specified in Exhibit F hereto the
information required by DTFC for purposes of calculating the CP Rate. If any
information required to be provided by the Collateral Agent hereunder is not
available to the Collateral Agent, DTFC agrees to provide such information to
the Collateral Agent to the extent DTFC possesses such information.
(b) No Commercial Paper Note will be authenticated and delivered, and
no Book Entry Issuance Instruction shall be given, by you unless you shall have
received, in your reasonable judgment, complete instructions from an Authorized
Representative as to the matters specified above in clause (i)(A) and clause
(ii) of paragraph (a) of this Section 3 and, in the case of Certificated Notes
as specified above in clause (i)(A) and (C) of paragraph (a) of this Section 3.
Any instructions given to you by an Authorized Representative to authenticate
and deliver Certificated Notes or to enter a Book Entry Issuance Instruction
hereunder shall constitute a representation and warranty on the part of DTFC
that (i) such Commercial Paper Note is the valid, enforceable and binding
obligation of the Issuer; (ii) such Commercial Paper Note is being issued in a
transaction exempt from registration under the Securities Act of 1933, as
amended, and any applicable state securities law; (iii) the issuance of such
Commercial Paper Notes will not violate or contravene any applicable law, rule,
regulation, order or contractual agreement binding upon DTFC (including, as
appropriate and without limitation, any securities law or law pertaining to
investment companies or any order of any court, governmental agency or
regulatory authority) and will be in conformity with the terms hereof and of
the Liquidity Agreement and all such Commercial Paper Notes are legal, valid
and binding and enforceable against DTFC in accordance with their terms.
Notwithstanding any instructions received by you from an Authorized
Representative, you shall not deliver Commercial Paper Notes or enter any Book
Entry Issuance Instruction on any date pursuant to such instructions if a
Designated Person shall receive by 9:00 a.m. (New York City time) on such date
written instructions from the Liquidity Agent pursuant to Section 2.1(a) of the
Liquidity Agreement instructing the Depositary not to deliver Commercial Paper
Notes or to enter Book Entry Issuance Instructions, until such written
instructions from the Liquidity Agent are revoked or superseded by further
instructions from the party originally giving the same.
Any telephonic or electronic instructions given to you by an
Authorized Representative shall be confirmed in writing or electronically by
such Authorized Representative within twenty-four hours after the same are
received by you, and you shall incur no liability for acting in accordance with
any such telephonic instructions reasonably believed by you in good faith to
have been given by an Authorized Representative.
DTFC is granted a personal, non-transferable and non-exclusive right
to use the instruction and reporting communication service Noteline Direct
("Noteline Direct") to transmit through the Noteline Direct system instructions
made pursuant to Section 3 hereof. DTFC may,
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by separate agreement between DTFC and one or more of the Dealers (each, an
"Agent"), authorize the Agent(s) to access Noteline Direct directly for the
purposes of transmitting instructions to you or obtaining reports with respect
to the Commercial Paper Notes.
DTFC acknowledges that (a) some or all of the services utilized in
connection with Noteline Direct are furnished by Digital Transactions Inc.
("DTI"), Dynamic Microprocessor Associates Inc. ("DMA") and Bankers Trust
Company, (b) Noteline Direct is provided to DTFC "AS IS" without warranties or
representations of any kind whatsoever by DTI, DMA or you, and (c) Noteline
Direct is proprietary and confidential property disclosed to DTFC in confidence
and only on the terms and conditions and for the purposes set forth in this
Agreement.
By this Agreement, DTFC acquires no title, ownership or sublicensing
rights whatsoever in Noteline Direct or in any trade secret, trademark,
copyright or patent of your bank, DTI, or DMA now or to become applicable to
Noteline Direct. DTFC may not transfer, sublicense, assign, rent, lease,
convey, modify, translate, convert to a programming language, decompile,
disassemble, recirculate, republish or redistribute Noteline Direct for any
purpose without your prior written consent and, where necessary, DTI and DMA
(except for the access to Noteline Direct by the Agent(s) as provided in this
section).
In the event (a) any action is taken or threatened which may result in
a disclosure or transfer of Noteline Direct or any part thereof, other than as
authorized by this Agreement, or (b) the use of any trademark, trade name,
service xxxx, service name, copyright or patent of your bank, DTI or DMA by
DTFC amounts to unfair competition, or otherwise constitutes a possible
violation of any kind, then you, DTI and DMA shall each have the right to take
any and all action deemed necessary to protect their rights in Noteline Direct,
and to avoid the substantial and irreparable damage which would result from
such disclosure, transfer or use, including the immediate termination of DTFC's
right to use Noteline Direct.
To permit the use of Noteline Direct to issue instructions or obtain
reports with respect to the Commercial Paper Notes, you will supply DTFC with
an identification number and initial passwords. From time to time thereafter,
DTFC will keep all information relating to its identification number and
passwords strictly confidential and will be responsible for the maintenance of
adequate security over its customer identification number and passwords. For
security purposes, DTFC should change its passwords frequently (at least once a
year).
Instructions transmitted over Noteline Direct and received by you
pursuant to Section 3 hereof accompanied by DTFC's identification number and
the passwords, shall be deemed conclusive evidence that such instructions are
correct and complete and that the issuance or redemption of the Note(s)
directed thereby has been duly authorized by DTFC.
SECTION 4. Delivery of Commercial Paper Notes. No Certificated Note
shall be delivered by you to any Dealer or the applicable investor except
against receipt therefor. A Certificated Note shall be deemed delivered
against receipt for purposes of this Section 4 if the
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net proceeds of such Certificated Note are received by you in immediately
available funds at the time of your delivery of such Certificated Note to any
Dealer or the applicable Holder or if, at the time you deliver such
Certificated Note to such Dealer or such Holder you receive such Dealer's
receipt for the delivery in customary form. In accordance with the custom in
the commercial paper market, delivery of such receipt shall obligate such
Dealer to deliver or cause to be delivered to you the purchase price of such
Certificated Notes in immediately available funds prior to your close of
business on such day. Should you deliver any Certificated Notes against
receipt as provided in the second sentence of this Section 4 you shall have no
responsibility or liability for the credit risks involved in your delivery of
such Certificated Notes to those persons who shall be designated by an
Authorized Representative or for the failure of such persons to effectuate
payment therefor as herein contemplated. It is understood that, as a matter of
bookkeeping convenience, the Depositary may credit the Commercial Paper Account
with the proceeds of Commercial Paper Notes prior to its actual receipt of
final payment therefor and that such bookkeeping credits may be reflected on
the Depositary's books, and otherwise, as "immediately available funds" or
"same day funds" or by some other similar characterization. Notwithstanding
any such credit or characterization, all such credits shall be conditioned upon
the Depositary's receipt of final payment and may be reversed by the Depositary
to the extent that such final payment is not received. DTFC agrees to
indemnify and hold the Depositary (which, for purposes of this sentence shall
include its directors, officers, employees and agents) harmless from any loss
which the Depositary may suffer and any expense (including the reasonable fees
and expenses of counsel) which the Depositary may incur as a result of the
failure of any purchaser to remit payment in full for any Commercial Paper
Notes (other than any loss or expense resulting from the gross negligence or
willful misconduct of the Depositary or any director, officer, employee or
agent thereof) and, without limiting the generality of the foregoing, DTFC
agrees that, immediately upon notification from the Depositary of failure of a
purchaser to remit payment, DTFC shall reimburse the Depositary in immediately
available funds any amount credited to DTFC in anticipation of receipt of such
payment plus any applicable overdraft fees and interest thereon for each day
such proceeds remain unreimbursed. The overdraft charges and rate of interest
payable by DTFC to the Depositary shall be that provided for either (i) under
arrangements with respect to overdraft advances in effect at the time between
DTFC and the Depositary or (ii) if no such arrangements are then in effect, in
the Depositary's standard fee schedule for overdrafts.
For purposes of this Section 4, payment for any Commercial Paper Notes
shall not be irrevocable and final until the Depositary shall have received
from or on behalf of the account of the purchaser of such Commercial Paper
Notes immediately available funds which under applicable law and rule are
irreversible, which are not subject to any security interest, levy or other
encumbrance enforceable against the Depositary or DTFC, and which are
specifically applicable or determined by the Depositary to be applicable to the
payment of such Commercial Paper Notes. A debit by the Depositary to any
account of a person to whom or for whose account such Commercial Paper Notes
shall have been delivered shall not constitute final payment to the extent that
such debit creates an overdraft or does not otherwise result in the receipt by
the Depositary of immediately available, irreversible and unencumbered funds.
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At the close of business on each Business Day on which Commercial
Paper Notes are issued or mature, you shall prepare a written statement
containing, or otherwise make electronically available, the following
information provided the Issuer delivers such request in writing: (i) the
aggregate face amount and issue price of all discount Commercial Paper Notes
issued on that Business Day and the principal amount and the interest rate of
all interest bearing Commercial Paper Notes issued on that Business Day, which
statement shall include the serial number, in the case of Certificated Notes,
or the CUSIP number, in the case of Book Entry CP Notes, issue date, maturity
date and face amount thereof; and (ii) the aggregate face amount and issue
price of all discount Commercial Paper Notes Outstanding and the aggregate
principal amount and the interest rate of all interest bearing Commercial Paper
Notes Outstanding at the close of business on such day. You shall furnish such
information electronically or otherwise to DTFC, the Liquidity Agent and the
Collateral Agent on that day and at such other times as DTFC, the Liquidity
Agent or the Collateral Agent may from time to time reasonably request. To the
extent that a written statement is the method of providing information, a copy
of each statement referred to above and each Certificated Note issued shall be
sent by you by either telecopy or overnight delivery service to DTFC, the
Liquidity Agent and the Collateral Agent at their addresses specified herein,
no later than the following Business Day.
SECTION 5. Payment of Commercial Paper Notes at Maturity. (a) Each
matured Commercial Paper Note presented to you for payment on any Business Day
prior to the standard window closing time (as established by the rules of the
New York Clearing House Association in effect from time to time) on such
Business Day, shall be paid the same day in accordance with the provisions of
paragraph (b) of this Section 5. Each matured Commercial Paper Note presented
to you for payment on any Business Day after such time shall be paid on the
next succeeding Business Day in accordance with the provisions of paragraphs
(b) and (c) of this Section 5.
(b) You shall pay each matured Commercial Paper Note presented to you
for payment prior to the close of business on any Business Day from funds
available for such payment in the Commercial Paper Account (including funds
from Commercial Paper Notes issued or to be issued on that day). If on any
given day on which a Commercial Paper Note is scheduled to mature by its terms,
upon receiving notice from the Dealers by 12:00 p.m. (New York City time) on
such day specifying the amount of Commercial Paper Notes placed by such Dealers
by that time on such day, and upon DTFC's determining that a Commercial Paper
Deficit exists, DTFC shall give notice thereof to the Collateral Agent, not
later than 12:15 p.m. (New York City time) on such day, and DTFC shall instruct
the Collateral Agent to deliver a Borrowing Request to the Liquidity Agent for
a Borrowing consisting of Refunding Advances, not later than 12:30 p.m. (New
York City time) on the date of a proposed Borrowing, irrevocably requesting
that a Borrowing be made in an aggregate principal amount (subject to the
immediately following sentence) equal to the excess of (i) the Commercial Paper
Deficit over (ii) the sum of the aggregate amount, if any, applied or to be
applied on such Business Day to the Commercial Paper Deficit from amounts
available therefor in the Collateral Account or the Series 1998-1 Collection
Account and the Termination Advance Account that are designated for payment of
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maturing Commercial Paper Notes. In accordance with and subject to the terms
of the Liquidity Agreement, the proceeds of any Refunding Advances (and/or any
Swing Line Advances) shall be remitted to the Commercial Paper Account not
later than 3:00 p.m. (New York City time) on the date of the requested
Borrowing. You shall apply the proceeds of any Refunding Advances and any
Swing Line Advances obtained by you first to reimburse yourself for any
advances made by you on any matured Commercial Paper Note and second to the
payment of the Commercial Paper Notes in respect of which the Refunding
Advances and Swing Line Advances were obtained.
(c) If on any given day on which a Commercial Paper Note is
scheduled to mature by its terms (after giving effect to funds deposited in the
Commercial Paper Account pursuant to clause (b) above), a Commercial Paper
Deficit exists, and the Aggregate Liquidity Commitment shall be fully drawn
under the Liquidity Agreement, or is unavailable for reasons other than a
failure to satisfy conditions precedent for such drawing, (i) if the Series
1998-1 Letter of Credit has not been terminated and LOC Termination
Disbursements have not been made, you are hereby authorized and directed to
notify the Collateral Agent to cause the Enhancement Agent to request LOC
Liquidity Disbursements in an amount equal to the Commercial Paper Deficit, as
it may be reduced after giving effect to funds received pursuant to clause (b)
above, (up to the Series 1998-1 Letter of Credit Amount) in accordance with the
provisions of the Collateral Agreement and (ii) if the Series 1998-1 Letter of
Credit has been terminated and LOC Termination Disbursements have been made,
then you are hereby authorized and directed to notify the Collateral Agent of
the existence and amount of the Commercial Paper Deficit, as so reduced, and to
instruct the Collateral Agent to cause the Enhancement Agent to withdraw an
amount equal to the Commercial Paper Deficit (up to the amount then on deposit
in the Series 1998-1 Cash Collateral Account) from the Series 1998-1 Cash
Collateral Account in accordance with the provisions of the Collateral
Agreement and deposit into the Commercial Paper Account such LOC Liquidity
Disbursement or such withdrawal from the Series 1998-1 Cash Collateral Account.
If a Commercial Paper Deficit continues to exist you shall cease paying matured
and maturing Commercial Paper until such time as the Collateral Agent shall
instruct you otherwise; it being understood that the purpose of such delay is
to permit an equitable distribution of funds allocated to the Holders pursuant
to the Collateral Agreement to be made pro rata according to the face amount of
all Commercial Paper Notes Outstanding (as may be adjusted as determined by the
Collateral Agent to compensate Holders for accrued interest to reflect delay in
payment) rather than first to the earliest maturing Commercial Paper Notes. In
accordance and subject to the terms of the Series 1998-1 Letter of Credit, the
proceeds of such LOC Liquidity Disbursement or any such withdrawal from the
Series 1998-1 Cash Collateral Account shall be remitted into the Commercial
Paper Account not later than 4:00 p.m. (New York City time) on the date of the
requested drawing. You shall apply the proceeds of any LOC Liquidity
Disbursement or any such withdrawal from the Series 1998-1 Cash Collateral
Account obtained by you first, to reimburse yourself for any advances made by
you on any matured Commercial Paper Note and second, to the payment of the
Commercial Paper Notes in respect of which LOC Liquidity Disbursements were
obtained.
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If at the time any Commercial Paper Note is presented to you for
payment there are insufficient funds on deposit and available in the Commercial
Paper Account (after giving effect to transfers thereto, if any, from the
Collateral Account or the Series 1998-1 Collection Account and from the
Liquidity Lenders in the form of Refunding Advances and/or Swing Line Advances
or from the Credit Enhancer in the form of LOC Liquidity Disbursements in
accordance with paragraph (b) or (c) of this Section 5) to pay such Commercial
Paper Note in full, you shall be entitled, but not required, to pay such
Commercial Paper Note before your close of business that day and you shall
thereupon be deemed and treated as the holder of such Commercial Paper Note and
shall be entitled to receive payment for such Commercial Paper Note (from the
proceeds of Refunding Advances, Swing Line Advances or LOC Liquidity
Disbursements, as the case may be, or from any other source available in
accordance with the Collateral Agreement for the payment of Commercial Paper
Notes). DTFC shall pay you interest, upon your demand, on the amount paid by
you to the holder of such Commercial Paper Note at a rate per annum equal to
your corporate base rate in effect from time to time during the period from but
excluding the date of payment made by you to and including the day you are
reimbursed for such amount. Unless you are reimbursed for such amount by DTFC
prior to your making demand for payment of such Commercial Paper Note, you
shall promptly make demand for payment of such Commercial Paper Note.
(d) DTFC hereby agrees to advise the Depositary by 9:30 a.m. (New
York City time) on each Business Day on which Commercial Paper Notes are
maturing of the aggregate amount of new Commercial Paper Notes, if any,
anticipated to be placed by the Dealers. To the extent that the Depositary
determines that a Commercial Paper Deficit exists between such aggregate amount
and the aggregate amount of new Commercial Paper Notes that are actually placed
by the Dealers as of 12:00 noon (New York City time) on such Business Day as
reported to the Depositary, the Depositary will use its best efforts to contact
DTFC with the amount of such Commercial Paper Deficit so as to determine
whether a Commercial Paper Deficit exists.
(e) Certificated Notes paid in full by you shall be canceled and held
by you in safekeeping for disposition in accordance with written instructions
to you by DTFC. Unless DTFC instructs you otherwise, you shall dispose of such
Certificated Notes in accordance with your usual procedure.
SECTION 6. Book Entry Commercial Paper Notes. (a) DTFC may elect to
make the Commercial Paper Notes eligible for the book entry commercial paper
program of DTC, in which case (i) DTFC will instruct the Depositary in writing
to issue book entry Commercial Paper Notes ("Book Entry CP Notes") through DTC
instead of, or in addition to, issuing certificated Commercial Paper Notes as
hereinbefore provided, (ii) the Depositary will prepare for execution by DTFC
and the Depositary DTC's current form Letter of Representations (the "Letter"),
a copy of which is attached hereto as Exhibit D, (iii) DTFC will provide to the
Depositary for submission with the Letter a copy of the information memorandum
for DTFC's commercial paper program under which the Commercial Paper Notes are
issued by the Depositary pursuant to this Agreement and (iv) DTFC will deliver
the Letter to DTC's Legal
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Department and will return to the Depositary a copy of the Letter after it has
been received and accepted by DTC. The Depositary is authorized and directed
to issue and settle through DTC Book Entry CP Notes in accordance with the
applicable rules and procedures established by DTC and the Depositary for the
issuance and settlement of book entry notes upon receipt by the Depositary of
written instructions pursuant to clause (i) of the immediately preceding
sentence. DTC's procedures with respect to the issuance of book entry notes
(the "Book Entry Procedures"), among other things, currently provide that
issuance of Book Entry CP Notes with a maturity date on a holiday on which DTC
is scheduled to be closed for settlement services are not acceptable for
deposit into DTC's CP Program. In the event there is any delay in the issuance
of Book Entry CP Notes resulting from DTFC's instructions to the Depositary
providing for the issuance of Book Entry CP Notes to mature on DTC holidays,
the Depositary shall not be liable to DTFC, DTC or any beneficial owner of a
Book Entry CP Note. Each Book Entry CP Note issued and distributed through DTC
upon the instruction of a Designated Person from an Authorized Representative
shall constitute DTFC's representation and warranty that such Book Entry CP
Note is a legal, valid and binding obligation of DTFC.
(b) Once the Commercial Paper Notes have been accepted by DTC for
DTC's commercial paper program and prior to the issuance and distribution of
any Book Entry CP Notes, DTFC will deliver (i) to the Depositary, as custodian
for DTC, the Master Note (the "Master Note") with respect to Book Entry CP
Notes issued at a discount from face value to be paid at maturity and with
respect to Book Entry CP Notes issued in interest bearing form (in the form of
Exhibit E hereto), duly executed on behalf of DTFC by the manual or facsimile
signature of an Authorized Signatory to evidence Book Entry CP Notes to be
issued and distributed through DTC by the Depositary on behalf of DTFC (and the
obligation of DTFC to provide for payment of such Book Entry CP Notes at their
respective maturities) and (ii) to the Depositary, copies of all agreements
entered into by DTFC required by DTC for participation in DTC's book entry
commercial paper program. The Depositary shall maintain a record of each
change in the face amount of Outstanding Book Entry CP Notes or, in the case of
interest bearing Book Entry CP Notes the principal amount and the interest rate
thereon represented thereby and the maturity dates thereof.
(c) In accordance with DTC's book entry commercial paper program, the
Depositary shall obtain from the CUSIP Service Bureau a written list of CUSIP
numbers for the Book Entry CP Notes that will be issued through DTC as provided
in the Letter, and the Depositary shall deliver such list to DTC. The
Depositary shall instruct the CUSIP Service Bureau to xxxx DTFC for the fee or
fees payable to CUSIP Service Bureau for such list of CUSIP numbers for book
entry Commercial Paper Notes. The CUSIP numbers, as required by DTC's
commercial paper program, will be assigned to DTFC's Book Entry CP Notes upon
issuance and used to identify DTFC's Outstanding Book Entry CP Notes in DTC's
book entry system.
(d) On and after the date when the Commercial Paper Notes become
eligible for DTC's book entry commercial paper program, the Depositary shall
execute all instructions from DTFC to issue Commercial Paper Notes by, subject
to the provisions of Section 3 of this Agreement,
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issuing and delivering only Book Entry CP Notes through DTC, except where the
Depositary has been specifically instructed in writing by DTFC to complete and
deliver one or more Certificated Notes.
(e) In the event and on each occasion that DTFC agrees with a Holder
that holds Book Entry CP Notes (a "Book Entry XX Xxxxxx") to prepay such Book
Entry XX Xxxxxx'x Book Entry CP Notes on deposit with DTC prior to the
scheduled maturity of such Book Entry CP Notes, DTFC shall make arrangements
with such Book Entry XX Xxxxxx and the Depositary for the delivery through the
DTC system by the DTC participant holding such Commercial Paper Notes to the
Depositary's designated account at DTC for payment.
(f) DTFC may for any reason discontinue its participation in DTC's
book entry commercial paper program with respect to the Commercial Paper Notes
at any time upon not less than ten days prior written notice to the Depositary
(with copies of such notice to the Dealers). In the event DTFC shall
discontinue its participation in DTC's book entry commercial paper program, or
DTC shall discontinue its services with respect to the Book Entry CP Notes,
DTFC and the Depositary shall cooperate in taking appropriate action, including
without limitation, if necessary, delivery of one or more Certificated Notes to
any DTC participant having Book Entry CP Notes credited to its DTC account. In
the event of such discontinuance of DTFC's participation in DTC's commercial
paper program as herein described, and upon delivery of Certificated Notes in
respect of all Book Entry CP Notes represented by the Master Note, the
Depositary shall destroy such Master Note and provide DTFC with a duly executed
certificate of destruction with respect to such Master Note. Upon written
notice by DTFC to the Depositary of the discontinuance of DTFC's participation
in DTC's book entry program with respect to the Commercial Paper Notes in
respect of all Book Entry CP Notes represented by the Master Note, the
Depositary shall destroy such Master Note and provide DTFC with a duly executed
certificate of destruction with respect to such Master Note. Notice by DTFC to
the Depositary of the discontinuance of DTFC's participation in DTC's book
entry program with respect to the Commercial Paper Notes shall not constitute
notice of termination of the Depositary's duties as issuing and paying agent
for Certificated Notes under this Agreement.
(g) All references in this Agreement to "Commercial Paper Notes"
shall apply to and shall include any Book Entry CP Notes issued hereunder by
DTFC. Any reference in this Agreement to authentication, completion and
delivery of the Commercial Paper Notes shall, in the context of Book Entry CP
Notes, be deemed to mean issuance of Commercial Paper Notes in accordance with
DTC's and the Depositary's rules and procedures with respect to the Book Entry
CP Notes and any reference to presentation of Commercial Paper Notes for
payment shall, in the context of Book Entry CP Notes, be deemed to mean the
procedure undertaken by DTC to make a demand for payment from DTFC (through the
Depositary) of matured Book Entry CP Notes. References in this Agreement to
"Holders" of the Commercial Paper Notes shall, in the context of Book Entry CP
Notes, refer to the beneficial owners of such Book Entry CP Notes, except that
in the case of payment of Book Entry CP Notes by the Depositary, the term
"Holder" shall be deemed to refer to Cede & Co. Upon payment of all
Outstanding Book Entry CP Notes
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represented by a Master Note, and upon request by DTFC, the Depositary shall
destroy such Master Note, and provide DTFC with a duly executed certificate of
destruction with respect to such Master Note.
SECTION 7. Inspection of Documents by Commercial Paper Note Holders.
You shall keep a fully executed or conformed copy of the Liquidity Agreement,
the Collateral Agreement and this Agreement (together with all amendments,
modifications, supplements, waivers and consents made or given with respect
thereto which have been delivered to you by the Issuer), on file at your
address set forth in Section 12 hereof. DTFC agrees to provide to you a copy
of all such documents and any amendments thereto promptly following their
execution. You shall permit reasonable inspection to be made of such documents
during normal business hours by the Holder of any Commercial Paper Note or by
any officer, employee or agent of such Holder, provided that the person
purporting to be such Holder establishes to your satisfaction that he is in
fact such Holder of such Commercial Paper Note and, in cases where inspection
is sought to be made by a person purporting to be an officer, employee or agent
of such Holder, that such person submits evidence satisfactory to you of his
authority to make such inspection on behalf of the Holder of such Commercial
Paper Note.
SECTION 8. Expenses and Indemnity. DTFC agrees:
(a) to pay to you from time to time reasonable compensation
for all services rendered by you hereunder, which are subject to
change as circumstances may warrant as set forth in Exhibit G hereto,
including for the issuance of Book Entry CP Notes through DTC, and to
reimburse you for expenses, disbursements and advances (if any), in
each case as mutually agreed upon;
(b) to indemnify you (which for purposes of this Section 8
shall include your directors, officers, employees and agents) for, and
hold you harmless from and against, any and all losses (except your
loss of profit), liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, reasonable out-of-pocket
costs and expenses (including, without limitation, interest and
reasonable attorneys' fees and disbursements, but excluding costs and
expenses attributable solely to administrative overhead) arising out
of, in connection with, or resulting from the review, execution and
delivery of this Agreement or any amendment hereto, or in connection
with, the exercise of your rights and/or the performance of your
duties, by you or by your directors, officers, agents and employees,
hereunder; provided, however, that DTFC shall not be liable to
indemnify you for, or hold you harmless from, damage, cost and expense
resulting from or attributable to your gross negligence or willful
misconduct or that of your officers, employees or agents. The
foregoing indemnity will survive the termination or expiration of this
Agreement and your resignation or removal as Depositary and issuing
and paying agent, and includes, but is not limited to, any action
taken or omitted to be taken by you upon telephonic, electronic or
written instructions (authorized herein) received by you from, or
believed by you in good faith to have been given by, the proper person
or
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persons; provided further, that any claims arising hereunder shall be
limited by the provisions of Section 20 hereof.
SECTION 9. Representations and Warranties. In addition to any other
representations and warranties on the part of DTFC contained herein, DTFC
hereby represents and warrants to you that its entry into this Agreement, and
your appointment by DTFC as depositary and issuing and paying agent and, in
certain circumstances, as agent with respect to the Commercial Paper Notes,
have been duly authorized by all necessary corporate action on the part of DTFC
and will not result in any violation, breach or contravention of any law, rule,
regulation, order, contract or agreement binding upon DTFC which has a Material
Adverse Effect, or may in the future have a Material Adverse Effect on, the
business, financial condition or operations of DTFC or the performance by DTFC
of its obligations under any of the CP Program Documents to which it is a
party. In addition, DTFC represents and warrants, and each instruction to
issue Commercial Paper Notes will constitute a representation and warranty,
that the issuance of the Commercial Paper Notes, including, if the Commercial
Paper Notes become eligible for deposit as book entry only in DTC's commercial
paper program, the issuance of Book Entry CP Notes and the execution of any
instruments or documents required by DTC in connection therewith, has been duly
and validly authorized by all necessary corporate action, and that the
Commercial Paper Notes, when completed, countersigned and delivered pursuant
hereto, will constitute DTFC's legal, valid and binding obligation enforceable
against DTFC in accordance with their terms, are not required to be registered
under the Securities Act of 1933, as amended, and from applicable state
securities laws and will be in conformity with the terms of the Liquidity
Agreement.
SECTION 10. Term and Termination. (a) The term of this Agreement
(except for the provisions of Sections 8, 20 and 21 which shall survive
indefinitely and the provisions of Section 18, which shall survive for the
period set forth therein) shall extend from the date hereof and shall end on
the earliest of:
(i) the date on which all Commercial Paper Notes have been
repaid, the Aggregate Liquidity Commitment has terminated and the
Series 1998-1 Letter of Credit Expiration Date has occurred, subject
to the conditions set forth in paragraph (d) of this Section 10; and
(ii) the date of termination specified in any termination
notice given pursuant to paragraph (b) of this Section 10.
Any Commercial Paper Notes Outstanding on the date of any termination
of this Agreement pursuant to paragraphs (a) or (b) of this Section 10 shall
nevertheless remain valid obligations of DTFC, and the provisions of this
Agreement shall continue to be applicable with respect to the payment of such
Commercial Paper Notes to the same extent as if this Agreement had not
terminated.
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(b) Either you or DTFC may terminate this Agreement and the authority
granted to you herein, at any time upon not less than thirty Business Days'
prior written notice given to the other parties hereto specifying the
termination date hereof (which shall not occur on the date of maturity of any
Commercial Paper Notes nor the Business Day next preceding any such date).
Notwithstanding the preceding sentence, no termination of this Agreement shall
take effect until a successor to the Depositary has been duly appointed, unless
all outstanding Commercial Paper Notes have been paid in full and no amounts
are due to Commercial Paper holders. You may petition a court of competent
jurisdiction if no such appointment is made within 30 Business Days of your
termination notice. No successor to the Depositary may be appointed, however,
if such appointment shall result in the withdrawal or reduction of any rating
assigned to the Commercial Paper Notes. Upon the termination of this Agreement
under paragraph (a) of this Section or this paragraph (b), you shall promptly
deliver to DTFC or your successor, if one is appointed, all Commercial Paper
Notes (including any Master Note) then held by you hereunder for DTFC's account
for safekeeping, against receipt by DTFC or such successor, and shall cause to
be deposited in the Collateral Account, upon advice to DTFC, the Liquidity
Agent and the Collateral Agent, all funds, if any, then on deposit in, or
otherwise to the credit of, the Commercial Paper Account.
(c) No Commercial Paper Notes shall be delivered to you by DTFC for
safekeeping or issuance hereunder nor shall any Certificated Notes be
authenticated or delivered to any Dealer or any applicable holder or any Book
Entry Issuance Instruction be issued by you upon the termination of this
Agreement and the authority granted to you herein.
(d) Notwithstanding any termination of this Agreement, the Depositary
(or the successor to the Depositary if one has been appointed) shall maintain
the Commercial Paper Account until the earlier of the first anniversary of the
date of termination of this Agreement and the date on which the Commercial
Paper Notes Outstanding have been paid in full and apply any amounts in the
Commercial Paper Account to repay Commercial Paper Notes as they mature.
Pending disbursement of such amounts to repay maturing Commercial Paper Notes,
the Depositary or the Collateral Agent, as the case may be, shall invest such
amounts in Eligible Investments designated in writing by DTFC which mature not
later than the anticipated date or dates on which Commercial Paper Notes
mature, such written designation to certify that the requested investment
constitutes an Eligible Investment and matures at the time required by this
sentence. Any investment earnings on Eligible Investments shall be released
to DTFC after payment in full of all Commercial Paper Notes Outstanding.
SECTION 11. Amendments and Modifications. (a) No amendment,
modification, termination or waiver of any provision of this Agreement shall be
effective unless (i) the same shall be in writing and signed by all of the
parties hereto and consented to in writing by the Dealers, the Liquidity Agent
on behalf of the Majority Banks and the Collateral Agent, and (ii) S&P, Moody's
and DCR have confirmed in writing that their respective ratings on the
Commercial Paper Notes will not be lowered or withdrawn as a result of any such
amendment, modification, termination or waiver. No such amendment,
modification, termination or waiver
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shall, as evidenced by an opinion of counsel delivered to the Depositary by the
Issuer upon which it may conclusively rely, adversely affect the rights of the
Holder or Holders of any Commercial Paper Notes Outstanding at the time of such
amendment, modification, termination or waiver unless consented to in writing
by such Holder or Holders.
Notwithstanding the foregoing provisions of this Section 11(a), the
Dealers, the Liquidity Agent and the Collateral Agent may with the written
consent of the Depositary, at any time and from time to time, without the
consent of the Majority Banks, enter into any amendment, supplement or other
modification to this Agreement to cure any apparent ambiguity or to correct or
supplement any other provision herein; provided, however, that (i) any such
action shall not have a material adverse effect as evidenced by an opinion of
counsel delivered to the Depositary by the Issuer on the interests of the
Liquidity Lenders and (ii) a copy of such amendment, supplement or other
modification is furnished to each Liquidity Lender in accordance with the
notice provisions of the Liquidity Agreement not later than ten days prior to
the execution thereof by the parties hereto.
(b) Contemporaneously with any amendment, modification, termination
or waiver of any provision of the Liquidity Agreement, the Collateral Agreement
or any other CP Program Document, DTFC shall give notice to you summarizing
such action and shall furnish you with a fully executed and conformed copy of
such amendment, modification, waiver or consent. No amendment of any of the
foregoing agreements which could reasonably be expected to have a material
adverse effect on your rights, duties or powers hereunder shall be effective
against you without your written consent.
SECTION 12. Notices. Except where telephonic instructions or notices
are authorized herein to be given, all notices, demands, instructions and other
communications required or permitted to be given to any party hereunder shall
be in writing and addressed, delivered or transmitted to such party at its
address or facsimile number set forth below, or at any other address or
facsimile number, as the case may be, as such party may notify the other
parties hereto in accordance with the provisions of this Section 12. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted upon receipt of electronic confirmation of transmission.
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If to the Depositary:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group/Commercial
Paper Group Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to DTFC:
Dollar Thrifty Funding Corp.
0000 Xxxx 00xx Xxxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. XxXxxxx
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to the Collateral Agent:
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group/Commercial
Paper Group Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Liquidity Agent:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010-3629
Attention: Asset Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to the Dealers:
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Short and Medium Finance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Chase Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Money Market Division
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to S&P:
Standard & Poor's Ratings Group
00 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Backed Surveillance Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
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If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: ABS Monitoring Department
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to DCR:
Duff & Xxxxxx Credit Rating Co.
00 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Bella
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
SECTION 13. Binding Effect; Assignment. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and their
respective successors and assigns. No party hereto may assign any of its
rights or obligations hereunder (other than in connection with the appointment
of a successor to the Depositary under Section 10 or by DTFC pursuant to the
Collateral Agreement) except with (i) the prior written consent of all parties
hereto and (ii) the prior written confirmation of S&P, Moody's and DCR that
their respective rating on the Commercial Paper Notes will not be lowered or
withdrawn.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO THE CONFLICT OF LAW PRINCIPLES THEREOF.
SECTION 15. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same Agreement. Delivery of an
executed counterpart of a signature page to this Agreement by facsimile
transmission shall be effective as delivery of a manually executed counterpart
of this Agreement.
SECTION 16. Conditions Precedent. The Depositary shall execute this
Agreement upon satisfaction of the following conditions precedent:
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(a) Delivery by DTFC to the Depositary of execution copies of
this Agreement, the Liquidity Agreement, the Collateral Agreement and
the Series 1998-1 Letter of Credit.
(b) Delivery by DTFC to the Depositary of (i) a legal opinion
on the enforceability of this Agreement, the enforceability of the
Commercial Paper Notes when issued, the enforceability of the
Collateral Agreement under New York State law, the exemption of the
Commercial Paper Notes from registration under the Securities Act of
1933 and the exemption of DTFC from the Investment Company Act of 1940
reporting requirements and (ii) its incumbency certificate in the form
of Exhibit B.
SECTION 17. Headings. Section headings used in this Agreement are
for convenience only and shall not affect the construction of this Agreement.
SECTION 18. No Petition. You, in your capacity as Depositary hereby
covenant and agree that, prior to the date which is one year and one day after
the payment in full of all Commercial Paper Notes Outstanding, you will not
institute against, or join any other Person in instituting against, DTFC, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States. In the event that you take action in violation of this
Section 18, DTFC agrees, for the benefit of the Holders, that it shall file, an
answer with the bankruptcy court or otherwise properly contest the filing of
such a petition by you against DTFC or the commencement of such action and
raise the defense that you have agreed in writing not to take such action and
should be estopped and precluded therefrom and such other defenses, if any, as
its counsel advises that it may assert. The provisions of this Section 18
shall survive the termination of this Agreement, and your resignation or
removal as Depositary and issuing and paying agent.
SECTION 19. Duties and Responsibilities. It is understood that you
are acting as agent of DTFC. Neither you nor any of your officers, directors,
employees or agents shall be liable for any action taken or omitted to be taken
by you or them hereunder except for acts of gross negligence or willful
misconduct by your officers, employees or agents. Neither the Depositary nor
its officers or employees shall be required to ascertain whether any issuance
or sale of Commercial Paper Notes (or any amendment or termination of this
Agreement) has been duly authorized or is in compliance with any other
agreement to which DTFC is a party (whether or not the Depositary is a party to
such other agreement). You undertake to perform such duties and only such
duties as are set forth in this Agreement and no implied covenants shall be
read into this Agreement against you and you make no representations or
warranties with respect to the valuation or adequacy of the Depositary's
collateral. The Depositary shall also not be liable for any action taken, or
any failure to take any action in connection with this Agreement or the
services provided hereunder or otherwise to fulfill its obligations in
connection with this Agreement, in the event and to the extent that the taking
of such action or such failure arises out of or is caused by mechanical
breakdown, computer or system failure or other failure of equipment, failure or
malfunctioning of any communications media for whatever reason, or any
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24
other cause outside of the control of the Depositary, provided that the
Depositary undertakes to use reasonable efforts to cure any such failure or
breakdown of the Depositary's equipment. It is understood by DTFC that
provision of services under this Agreement is dependent upon the availability
to the Depositary and DTFC of telecommunication facilities provided by third
party vendors and that the Depositary cannot warrant such availability.
You shall incur no liability in acting within the scope of this
Agreement on any notice or instruction, telephonic or written, given hereunder
which a Designated Person believes in good faith to have been given by an
Authorized Representative or by the Liquidity Agent or the Collateral Agent;
nor shall you in so acting assume or be deemed to have assumed any
responsibility for the propriety of any transaction effected by you under, or
the compliance of any such transaction with the Liquidity Agreement or any CP
Program Document. Your countersignature of any Commercial Paper Note shall be
for authentication purposes only and neither you nor any person countersigning
on your behalf shall have any liability on any Commercial Paper Note.
You may rely and shall be protected in acting or refraining from
acting upon any communication authorized by this Agreement and upon any written
instruction, notice, request, direction, consent, report, certificate,
Commercial Paper Note or other instrument, paper or document believed by you to
be genuine. You shall not be liable for acting upon any telephone
communication authorized by this Agreement which you believe in good faith to
have been given by DTFC or any authorized party hereunder. You may record
telephone communications with DTFC or any authorized party hereunder.
Anything in this Agreement to the contrary notwithstanding, in no
event shall you, or any of your directors, officers, employees or agents, be
liable under this Agreement to DTFC or any third party for indirect, special,
punitive, incidental or consequential loss or damage of any kind whatsoever,
including, but not limited to, lost profits, whether or not the likelihood of
such loss or damage was known to you, or any such director, officer, employee
or agent. In no event shall the Depositary be considered negligent in
consequence of complying with DTC's rules, regulations and procedures.
You may consult with counsel and the advice of such counsel shall be
full and complete authorization and protection in respect of any action taken,
offered or omitted by you hereunder in good faith and in reliance thereon.
No prior action or course of dealing on your part with respect to
advances of the purchase price or payments of matured commercial paper shall
give rise to any claim or cause of action by the Issuer, any holder, or any
other party against you in the event that you refuse to pay or settle any
Commercial Paper Notes for which the Issuer has not timely provided funds as
required by this Agreement.
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25
You in your individual or any other capacity, may become the owner or
pledgee of Commercial Paper Notes or a participant in the credit provided under
the Liquidity Agreement or the Series 1998-1 Letter of Credit and may otherwise
transact banking or trust business with any of the parties with the same rights
as you would have if you were not acting hereunder.
Except as otherwise expressly provided herein, whenever, in the
administration of this Agreement, you shall deem it necessary that a matter be
proved or established prior to taking, suffering or omitting any action
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved and
established by a certificate of an Authorized Representative, and such
certificate shall be full warranty to you for any action taken, suffered or
omitted under the provisions of this Agreement upon the faith thereof.
Except as otherwise provided herein, the Depositary may execute any of
the powers hereunder or perform any duties hereunder either directly or by or
through agents, including, without limitation, the Sub-Agent, or attorneys;
provided, however, that the Depositary shall not be responsible for the acts of
DTC but shall be responsible only for the selection of other agents with due
care. DTFC hereby acknowledges the interest of DTC in the Commercial Paper
Notes and Certificated Notes. The Depositary shall be under no liability for
interest on any moneys received by the Depositary hereunder except as the
Depositary may agree with DTFC to pay thereon.
SECTION 20. No Recourse. The obligations of DTFC under this
Agreement are solely the corporate obligations of DTFC. No recourse shall be
had for the payment of any amount owing in respect to Section 8 hereof or for
the payment of any fee hereunder or any other obligation or claim arising out
of or based upon this Agreement against any Dealer or against any shareholder,
employee, officer, director or incorporator of DTFC. For purposes of this
Section 20, the term "Dealer" shall mean and include all Affiliates thereof and
any employee, officer, director, incorporator, shareholder, affiliate or
beneficial owner of any of them; provided, however, that neither the Depositary
nor DTFC shall be considered to be an Affiliate of any Dealer for purposes of
this Section 20.
SECTION 21. Limited Recourse to DTFC. Notwithstanding any other
provision of this Agreement, the Depositary agrees that the obligations of DTFC
to the Depositary hereunder shall be payable in the order and priority set
forth in Section 2.01 and 5.02(b), as applicable, of the Collateral Agreement.
Such obligations shall be due and payable to the extent that DTFC's assets are
sufficient to pay such obligations. No recourse shall be had for the payment
of any amount owing hereunder or for the payment of any fee hereunder or any
other obligation or claim arising out of or based upon this Agreement against
any stockholder, employee, officer, director or incorporator of DTFC; provided,
however, that the foregoing shall not relieve any such person or entity from
any liability they might otherwise have as a result of fraudulent actions or
omissions taken by them. No claims of the Depositary (whether under the cited
provision or
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otherwise) arising under or in connection with this Depositary Agreement are
intended to be impaired or waived by this Section 21.
SECTION 22. Merger or Consolidation. Any corporation or other entity
into which the Depositary may be merged or consolidated, or any corporation or
other entity resulting from any merger, conversion or consolidation to which
the Depositary shall be a party, or any Person or entity succeeding to the
corporate trust or agency business of the Depositary, shall be the successor of
the Depositary hereunder (without relieving the Depositary of its
responsibilities hereunder if it survives such merger, conversion,
consolidation or succession) without the execution or filing of any paper or
any further act on the part of any party hereto, anything to the contrary
notwithstanding; provided, however, that (a) upon the request of DTFC, the
Collateral Agent or the Liquidity Agent, such corporation, entity or successor
shall execute an assumption agreement providing for the assumption by such
corporation, entity or successor of the rights and obligations of the
Depositary in a form reasonably satisfactory to DTFC, the Collateral Agent and
the Liquidity Agent and (b) the Depositary shall give the Rating Agencies prior
written notice of such merger, conversion, consolidation or succession.
SECTION 23. Amortization Event. If the Depositary shall have been
notified by DTFC, the Liquidity Agent, any Liquidity Lender or the Collateral
Agent that an Amortization Event shall have occurred, the Depositary shall
notify the Liquidity Agent and the Collateral Agent in writing as soon as
possible upon payment in full of all Commercial Paper Notes Outstanding or the
receipt of funds in the amount required to pay all Commercial Paper Notes
Outstanding upon maturity.
SECTION 24. Entire Agreement. This Agreement together with the
exhibits attached hereto, constitutes the entire understanding among the
parties hereto with respect to the Depositary. This Agreement is solely for the
benefit of the parties hereto and no other person shall acquire or have any
right under or by virtue hereof.
SECTION 25. Waiver of Set-Off. The Depositary hereby waives and
relinquishes any right it has or may have to set-off or to exercise any
banker's lien or any right of attachment or garnishment with respect to any
funds at any time and from time to time on deposit in, or otherwise to the
credit of, any account and any claims of DTFC therein or with respect to any
right to payment from DTFC, it being understood, however, that nothing
contained in this Section 25 shall, or is intended to, derogate from the
assignment and security interest granted to the Collateral Agent under the
Collateral Agreement or impair any rights of the Holders, the Depositary or the
Collateral Agent thereunder.
SECTION 26. Additional Notice. DTFC shall give prompt written notice
to each Rating Agency if it is required to make a payment hereunder to the
Depositary with respect to increased costs of the Depositary or indemnification
obligations to the Depositary.
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27
SECTION 27. Opinion of Counsel. On the Closing Date, the Issuer shall
deliver to you all documents you may reasonably request relating to corporate
existence and authority to enter into this Agreement, including, without
limitation, an opinion of counsel to that effect.
SECTION 28. Force Majeure. In no event shall you be liable for any
failure or delay in the performance of your obligations hereunder because of
circumstances beyond your control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, strikes or
work stoppages for any reason, embargo, government action, including any laws,
ordinances, regulations, or the like which restrict or prohibit the providing
of the services contemplated by this Agreement, inability to obtain material,
equipment, or communications or computer facilities, and other causes beyond
your control whether or not of the same class or kind as specifically named
above.
SECTION 29 Jurisdiction and Venue. Each party hereby irrevocably and
unconditionally submits to the jurisdiction of the United States District Court
for the Southern District of New York and any New York State court located in
the Borough of Manhattan in New York City and of any appellate court from any
thereof for the purposes of any legal suit, action or proceeding arising out of
or relating to this Agreement (a "Proceeding"). Each party hereby irrevocably
agrees that all claims in respect of any Proceeding may be heard and determined
in such Federal or New York State court and irrevocably waives, to the fullest
extent it may effectively do so, any objection it may now or hereafter have to
the laying of venue of any Proceeding in any of the aforementioned courts and
the defense of an inconvenient forum to the maintenance of any Proceeding.
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28
If the foregoing is acceptable to you, please indicate your agreement
therewith by signing this or a duplicate counterpart of this Agreement in the
space provided below, and returning this or such duplicate signed counterpart
to DTFC, whereupon this Agreement will become a binding agreement between us
and you.
DOLLAR THRIFTY FUNDING CORP.
By:
---------------------------
Name:
Title:
ACCEPTED AND AGREED:
BANKERS TRUST COMPANY,
as Depositary
By:
-----------------------------
Name:
Title:
CONSENTED TO:
CREDIT SUISSE FIRST BOSTON,
as Liquidity Agent
By:
------------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
29
CONSENTED TO:
BANKERS TRUST COMPANY,
as Collateral Agent
By:
-----------------------------
Name:
Title:
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EXHIBIT A
to the Depositary Agreement
DOLLAR THRIFTY FUNDING CORP.
COMMERCIAL PAPER NOTE
No.
$ Issuing Date:
For value received, DOLLAR THRIFTY FUNDING CORP. ("DTFC") promises to
pay to the order of BEARER, the sum of _______________ ____________________
DOLLARS ($________) plus accrued interest at a rate per annum of ___% (in the
case of an interest bearing Commercial Paper Note) payable at the principal
corporate trust office in New York, New York of Bankers Trust Company.
Payment of this Commercial Paper Note shall be made at the office of
Bankers Trust Company (the "Depositary") at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, pursuant to a certain Depositary Agreement dated as of March 4, 1998, as
it may from time to time be amended or modified and in effect (the "Depositary
Agreement") between DTFC and the Depositary, by 3:00 p.m. (New York City time)
on any Business Day, provided that this Commercial Paper Note is presented for
payment not later than the standard window closing time (as established by the
rules of the New York Clearing House Association in effect from time to time)
on such Business Day. If this Commercial Paper Note is presented for payment
after 2:00 p.m. (New York City time) on a Business Day, payment will be made on
the next succeeding Business Day. "Business Day" means a day other than a
Saturday, Sunday or other day on which commercial banks are authorized to close
in New York City. Capitalized terms not otherwise defined herein are used
herein with the meanings assigned thereto in the Depositary Agreement.
The holder of this Commercial Paper Note is entitled to the benefits
of a certain Collateral Agreement made by DTFC in favor of Bankers Trust
Company, as Collateral Agent. By accepting the benefits of the security
interest granted therein, the holder of this Commercial Paper Note hereby
irrevocably authorizes the Collateral Agent to take such action on behalf of
such holder under the provisions of the Collateral Agreement and the related
documents to exercise such powers and perform such duties as are expressly
delegated to it by the terms thereof, together with such other powers as are
reasonably incidental thereto.
DTFC has delivered to the Depositary the Collateral Agreement, the
Liquidity Agreement, the Depositary Agreement and other CP Program Documents
(including any amendments thereto) and they are on file with the Depositary at
its office at 0 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, and reference is made
to such documents for the terms under which this Commercial Paper Note has been
issued, the collateral security for this Commercial Paper Note,
31
the rights and duties of the Collateral Agent and the terms of the Liquidity
Agreement and the Series 1998-1 Letter of Credit.
THIS COMMERCIAL PAPER NOTE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE
CONFLICT OF LAW PRINCIPLES THEREOF.
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------
Authorized Signature
Countersigned for authentication only (without recourse, warranty or
liability):
BANKERS TRUST COMPANY,
as Depositary
By:
-----------------------
Authorized Signature
This Commercial Paper Note is not valid for any purpose unless
countersigned by Bankers Trust Company, as Depositary.
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EXHIBIT B
to the Depositary Agreement
INCUMBENCY CERTIFICATE
Bankers Trust Company
0 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust and Agency Group / Commercial Paper Group
Ladies and Gentlemen:
This is to certify that, until such time as you shall have received
from Dollar Thrifty Funding Corp. ("DTFC") a subsequent Incumbency Certificate
or written notice to the contrary (i) each of the persons listed on Appendix
B-1 hereto is an "Authorized Signatory" and is authorized to execute Commercial
Paper Notes and (ii) each of the persons listed on Appendix B-2 hereto is an
"Authorized Representative" and is authorized to act and to give instructions
and notices on behalf of DTFC under Section 2 of the Depositary Agreement,
dated as of March __, 1998, entered into between DTFC and Bankers Trust
Company, as it may from time to time be amended or modified and in effect.
Date: __________________
DOLLAR THRIFTY FUNDING CORP.
By:
-------------------------
Name:
Title:
33
APPENDIX B-1
Authorized Signatories
NAME TITLE SIGNATURE
(please type or print)
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
Mailing Address:
Telecopier:
34
APPENDIX B-2
Authorized Representatives
NAME TITLE SIGNATURE
(please type or print)
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
--------------------------- ------------------------ --------------------
Mailing Address:
Telecopier:
35
EXHIBIT C
to the Depositary Agreement
Reserved
36
EXHIBIT D
to the Depositary Agreement
LETTER OF REPRESENTATIONS
37
EXHIBIT E
to the Depositary Agreement
FORM OF COMMERCIAL PAPER MASTER NOTE
March , 1998
Date of Issuance
Dollar Thrifty Funding Corp. ("DTFC") a corporation existing under the laws of
the State of Oklahoma, for value received, hereby promises to pay to Cede &
Co., as nominee of the Depository Trust Company, or to registered assigns: (i)
the principal amount, together with unpaid accrued interest thereon, if any, on
the maturity date of each obligation identified on the records of DTFC (the
"Underlying Records"), as being evidenced by this Master Note, which Underlying
Records are maintained at Bankers Trust Company (the "Depositary"); (ii)
interest on the principal amount of each such obligation that is payable in
installments, if any, on the due date of each installment, as specified on the
Underlying Records; and (iii) the principal amount of each such obligation that
is payable in installments, if any, on the due date of each installment, as
specified on the Underlying Records. Interest shall be calculated at the rate
and according to the calculation convention specified on the Underlying
Records. Payments shall be made by wire transfer to the registered owner from
the Depositary without the necessity of presentation and surrender of this
Master Note.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS
OF THIS MASTER NOTE SET FORTH ON THE REVERSE HEREOF.
This Master Note is a valid and binding obligation of DTFC.
DOLLAR THRIFTY FUNDING CORP.
By:
---------------------------
Name:
Title:
Countersigned for authentication only:
BANKERS TRUST COMPANY,
as Depositary
By:
-------------------------------
Name:
38
Title:
At the request of the registered owner, DTFC shall promptly issue and deliver
one or more separate note certificates evidencing each obligation evidenced by
this Master Note. As of the date any such note certificate or certificates are
issued, the obligations which are evidenced thereby shall no longer be
evidenced by this Master Note.
--------------------------------------------------------------------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns, and transfers unto
-----------------------------------------------------------------------
(Name, Address and Taxpayer Identification Number of Assignee)
the Master Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________________ attorney to transfer said Master Note on the
books of the Issuer with full power or substitution in the premises.
Dated:
---------------------------
(Signature)
Signature(s) Guaranteed:
NOTICE: The signature on this
assignment must correspond
with the name as written upon
the face of this Master Note,
in every particular, without
alteration or enlargement or
any change whatsoever.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) TO DOLLAR
THRIFTY FUNDING CORP. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY) ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
39
EXHIBIT F
to the Depositary Agreement
Noteline Direct
The Issuer is granted a personal, non-transferable and non-exclusive
right to use the instruction and reporting communication service Noteline
Direct ("Noteline Direct") to transmit through the Noteline Direct system
Instructions made pursuant to the Agreement. The Issuer may, by separate
agreement between the Issuer and one or more of its commercial paper dealers or
sales agents (each an "Agent"), authorize the Agent (in each case other than
the Depositary) to directly access Noteline Direct for the purposes of
transmitting Instructions to the Depositary or obtaining reports with respect
to the obligations of the Issuer under the Agreement (the "Obligations").
The Issuer acknowledges that (a) some or all of the services utilized
in connection with Noteline Direct are furnished by Digital Transactions Inc.
("DTI"), Dynamic Microprocessor Associates Inc. ("DMA") and Bankers Trust
Company, (b) Noteline Direct is provided to the Issuer "AS IS" without
warranties or representations of any kind whatsoever by DTI, DMA or the
Depositary, and (c) Noteline Direct is proprietary and confidential property
disclosed to the Issuer in confidence and only on the terms and conditions and
for purposes set forth in this Agreement.
By this Agreement, the Issuer acquires no titles, ownership or
sublicensing rights whatsoever in Noteline Direct or in any trade secret,
trademark, copyright or patent of the Depositary, DTI, or DMA now or to become
applicable to Noteline Direct. The Issuer may not transfer, sublicense,
assign, rent, lease, convey, modify, translate, convert to a programming
language, decompile, disassemble, recirculate, republish or redistribute
Noteline Direct for any purpose without the prior written consent of the
Depositary and, where necessary, DTI and DMA.
In the event (a) any action is taken or threatened which may result in
a disclosure or transfer of Noteline Direct or any part thereof, other than as
authorized by this Agreement, or (b) the use of any trademark, trade name,
service xxxx service name, copyright or patent of the Depositary, DTI or DMA by
the Issuer amounts to unfair competition, or otherwise constitutes a possible
violation of any kind, then the Depositary and/or DTI and/or DMA shall have the
right to take any and all action deemed necessary to protect their rights in
Noteline Direct, and to avoid the substantial and irreparable damage which
would result from such disclosure, transfer or use, including the immediate
termination of the Issuer's right to use Noteline Direct.
To permit the use of Noteline Direct to issue instructions and/or
obtain reports with respect to the obligation, the Depositary will supply the
Issuer with an identification number and initial passwords. From time to time
thereafter, the Issuer may change its passwords directly
40
through Noteline Direct. The Issuer will keep all information relating to its
identification number and passwords strictly confidential and will be
responsible for the maintenance of adequate security over its customer
identification number and passwords. For security purposes, the Issuer should
change its passwords frequently (at least one a year).
Instructions transmitted over Noteline Direct and received by the
Depositary pursuant to the Agreement accompanied by the Issuer's identification
number and the passwords, shall be deemed conclusive evidence that such
Instructions are correct and complete and that the issuance or redemption of
the Obligation(s) directed thereby has been duly authorized by the Issuer.
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41
EXHIBIT G
to the Depositary Agreement
FEE LETTER
