Exhibit 10.4
EXECUTION COPY
DEPOSITARY AGREEMENT
August 7, 1997
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of Issuer Services
FCTR, Inc. - Commercial Paper
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Ladies and Gentlemen:
This will confirm the arrangements made with you (the "Depositary") by
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the undersigned, FCTR, Inc. ("▇▇▇▇▇"), whereby you have agreed to act as
depositary for safekeeping of certain short-term promissory notes of ▇▇▇▇▇ (the
"Commercial Paper Notes") and as issuing and paying agent on behalf of ▇▇▇▇▇ in
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connection with the issuance and payment of the Commercial Paper Notes, and to
undertake certain obligations as described below on behalf of holders, from time
to time (the "Holders"), of the Commercial Paper Notes. The Depositary has
advised the undersigned that it has arranged for The Depository Trust Company
("DTC") to act as its sub-agent for certain purposes of this Agreement.
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The Commercial Paper Notes will be issued on the terms and subject to
the conditions set forth herein and pursuant to the Liquidity Agreement dated as
of the date hereof among ▇▇▇▇▇, as Borrower, certain financial institutions as
Liquidity Lenders and Citibank, N.A., as the Liquidity Agent for the Liquidity
Lenders (as such agreement may be amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, the "Liquidity
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Agreement"). All capitalized terms used herein and not otherwise defined herein
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shall have the meanings set forth for such terms in Annex A to the Liquidity
Agreement.
The Holders of Commercial Paper Notes will be entitled to the benefits
of this Agreement, the Liquidity Agreement and the Collateral Agreement
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 ▇▇▇▇▇, Leasco, TRS, any Liquidity Lender or any Holder for
the performance of any of the terms of the Liquidity Agreement except as
expressly provided herein.
SECTION 1. Establishment of Accounts; Proceeds of Commercial Paper
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Notes. For the purposes of this Agreement and the Liquidity Agreement you have
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established, in the name of ▇▇▇▇▇ for the exclusive benefit of the Holders, from
time to time, of the outstanding Commercial Paper Notes, a segregated trust
account at Citibank, N.A. in its corporate trust department, Account No. 102876
(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. Provided that no
Amortization Event has occurred, 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 Agent 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 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. ▇▇▇▇▇ shall have no legal, equitable or
beneficial interest in the Commercial Paper Account. You agree to give ▇▇▇▇▇,
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. (a) At
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any time and from time to time during the term of this Agreement ▇▇▇▇▇ may
deliver to your Commercial Paper Unit, Commercial Paper Notes in substantially
the form of Exhibit A to this Agreement (the "Certificated Notes") which shall
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be consecutively numbered and bear such other identification as ▇▇▇▇▇ may deem
appropriate and shall be manually signed or signed in facsimile in such manner
as is acceptable to you on behalf of ▇▇▇▇▇ by an Authorized Representative (as
defined below) of ▇▇▇▇▇ (notwithstanding whether such person shall thereafter
cease to be an Authorized Representative), but shall otherwise be incomplete.
The Depositary shall not have any responsibility to ▇▇▇▇▇ 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
signature on file with the Depositary. Each Commercial Paper Note (including
any Master Note (as defined below)), or group of Commercial Paper Notes at one
time, delivered to you shall be accompanied by a letter from ▇▇▇▇▇ 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 ▇▇▇▇▇ 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
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you shall be held by you for the account of ▇▇▇▇▇ for safekeeping in accordance
with the Depositary's customary practices. ▇▇▇▇▇ 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 wilful
misconduct. ▇▇▇▇▇ 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 ▇▇▇▇▇ the
original and all copies of any spoiled, mutilated, or incorrectly completed
Certificated Note, properly canceled.
(b) Prior to the issuance of any Commercial Paper Notes, ▇▇▇▇▇ 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
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Certificate") of the Secretary or an Assistant Secretary of ▇▇▇▇▇, identifying
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and certifying the incumbency and specimen signatures of (i) the officers or
agents ("Authorized Signatories") of ▇▇▇▇▇ authorized to execute Commercial
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Paper
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Notes (including the Master Notes) on behalf of ▇▇▇▇▇, and (ii) the
officers or agents ("Authorized Representatives") of ▇▇▇▇▇ who are otherwise
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authorized to act and give instructions and notices on behalf of ▇▇▇▇▇
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.
(c) Prior to the issuance of any Commercial Paper Notes, and from
time to time thereafter as you choose, you shall deliver to ▇▇▇▇▇ a certificate,
substantially in the form of Exhibit C hereto (a "Depositary Authorization
Letter"), of an officer of the Depositary, identifying and certifying the
incumbency and specimen signatures of (i) persons ("Authenticating
Representatives") who are authorized to give receipt for and, in the case of
Certificated Notes, complete, authenticate and deliver Commercial Paper Notes
and (ii) persons ("Designated Persons") who are otherwise authorized to act on
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behalf of the Depositary hereunder and to give and receive notices and
instructions on its behalf hereunder. Until ▇▇▇▇▇ receives a subsequent
Depositary Authorization Letter or written notice from the Depositary to the
contrary, ▇▇▇▇▇ shall be entitled to rely on the last such Depositary
Authorization Letter delivered to ▇▇▇▇▇ for purposes of determining
Authenticating Representatives and Designated Persons.
SECTION 3. Issuance of Commercial Paper Notes. (a) From time to
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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
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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, 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 on a Business Day) and insert (x) the maturity date thereof
(which shall be a Business Day and which shall not be later than (1) three
Business Days prior to the earlier of the Scheduled Liquidity Commitment
Termination Date in effect on the date of issuance thereof and (2) the 58th
day following the date of issuance thereof), and (y) the face amount (which
shall be at least $100,000 and an integral multiple of $1,000 thereafter)
thereof in figures, strike the word "Bearer" and insert the name, address
and taxpayer identification number of the payee thereof;
(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 ▇▇▇▇▇ delivered in respect thereof
as provided in Section 4 hereof; and
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(D) send a copy of each such Certificated Note to ▇▇▇▇▇, and upon
request therefor, to the Liquidity Agent and the Agent on or promptly
following the date of issuance thereof; and
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(ii) in the case of Book Entry CP Notes (as defined below), enter an
issuance instruction (a "Book Entry Issuance Instruction") in the Book
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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.
(b) Notwithstanding the foregoing, no Commercial Paper Note shall be
issued hereunder if,
(i) ▇▇▇▇▇ and the Depositary have received instructions then in
effect from the Liquidity Agent (copies of which will also be sent to the
Dealers), given in accordance with Section 2.01 of the Liquidity Agreement
not to issue or deliver Commercial Paper Notes because (1) ▇▇▇▇▇ shall have
terminated the Aggregate Liquidity Commitment pursuant to Section 3.03 of
the Liquidity Agreement, (2) the Aggregate Liquidity Commitment is
otherwise terminated in whole for any reason in accordance with the
Liquidity Agreement, (3) the Commercial Paper Account or any funds on
deposit in, or otherwise to the credit of, the Commercial Paper Account are
or have become subject to any stay, writ, judgment, warrant or attachment,
execution or similar process; provided, however, that if any such stay,
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writ, judgment, warrant of attachment, execution or similar process is
removed or dismissed, ▇▇▇▇▇ may recommence the issuance and sale of
Commercial Paper Notes, or (4) any other condition precedent to issuance in
Section 2.02 of the Liquidity Agreement shall not have been met,
(ii) after giving effect to such issuance and the use of the proceeds
thereof, the sum of Aggregate Outstanding CP and the aggregate principal
amount of Liquidity Advances Outstanding (less any amounts on deposit at
such time in the Collateral Account set aside for the repayment of the
principal of Liquidity Advances) would exceed the Aggregate Liquidity
Commitment,
(iii) after giving effect to such issuance and the use of proceeds
thereof, the sum of Aggregate Outstanding CP and the aggregate principal
amount of Liquidity Advances Outstanding (less any amounts on deposit at
such time in the Collateral Account set aside for the repayment of the
principal of Liquidity Advances) would exceed the Borrowing Base,
(iv) such issuance is otherwise prohibited by the Liquidity Agreement
or any other Related Document, or
(v) you shall have received notice that any condition precedent
specified in Section 2.02 of the Liquidity Agreement with respect to such
issuance has not been satisfied.
In this connection the Agent will provide you at the opening of business on each
such day of issuance with a report as to the aggregate principal amount of all
Liquidity Advances Outstanding and interest accrued thereon and the Borrowing
Base or any change in any of such amounts, and satisfaction of the conditions
precedent referred to in clause (v) 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 Agent is unable to obtain such information electronically from
the Depositary or the Dealer and the Agent has
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requested such notification, you shall notify the Agent on each day of the
Outstanding amount of Commercial Paper Notes as reflected by your records. The
Depositary shall make such information electronically or otherwise available to
the Agent and the Liquidity Agent. If any information required to be provided by
the Agent hereunder is not available to the Agent, ▇▇▇▇▇ agrees to provide such
information to the Agent to the extent ▇▇▇▇▇ possesses such information.
(c) 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, in the
case of Certificated Notes as specified above in clause (i)(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 ▇▇▇▇▇ that the issuance of such Commercial Paper Notes
will not violate or contravene any applicable law, rule, regulation, order or
contractual agreement binding upon ▇▇▇▇▇ (including, as appropriate and without
limitation, any securities law or law pertaining to investment companies or any
other of any court, governmental agency or regulatory authority) and will be in
conformity with the terms of the Liquidity Agreement.
(d) 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
instructions from the Liquidity Agent pursuant to Section 2.01(a) of the
Liquidity Agreement instructing the Depositary not to deliver Commercial Paper
Notes or to enter Book Entry Issuance Instructions, which instructions may be
specific with respect to a particular issue of Commercial Paper Notes or may be
general and applicable to all Commercial Paper Notes issued or to be issued
after receipt of such instructions, until such instructions from the Liquidity
Agent are revoked or superseded by further instructions from the party
originally giving the same.
(e) 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.
SECTION 4. Delivery of Commercial Paper Notes. (a) No Certificated
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Note shall be delivered by you to any Dealer or the applicable investor except
against payment therefore. A Certificated Note shall be deemed delivered
against payment for purposes of this Section 4 if the 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 therefore as herein contemplated. It is understood that,
as a matter of bookkeeping convenience, the Depositary
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may credit the Commercial Paper Account with the proceeds of Commercial Paper
Notes prior to its actual receipt of final payment therefore 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 conditional 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. ▇▇▇▇▇ agrees to indemnify and hold the Depositary harmless from any
loss 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 wilful misconduct of the
Depositary) and, without limiting the generality of the foregoing, ▇▇▇▇▇ agrees
that, immediately upon notification from the Depositary of failure of a
purchaser to remit payment, Finco shall reimburse the Depositary in immediately
available funds any amount credited to ▇▇▇▇▇ 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 ▇▇▇▇▇ to the Depositary shall be that provided for either (i) under
arrangements with respect to overdraft advances in effect at the time between
▇▇▇▇▇ and the Depositary or (ii) if no such arrangements are then in effect, in
the Depositary's standard fee schedule for overdrafts.
(b) 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 ▇▇▇▇▇, 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.
(c) 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: (i) the aggregate face amount and issue price of all discount
Commercial Paper Notes issued on that Business Day and the principal amount of
and the interest on 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 Commercial Paper Notes outstanding and the
aggregate principal amount and the interest rate of all Commercial Paper Notes
outstanding at the close of business on such day. You shall furnish such
information electronically or otherwise to ▇▇▇▇▇, the Liquidity Agent and the
Agent on that day and at such other times as ▇▇▇▇▇, the Liquidity Agent or the
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 ▇▇▇▇▇, the Liquidity Agent and
the Agent at their address specified herein, no later than the following
Business Day.
SECTION 5. Payment of Commercial Paper Notes at Maturity. (a) Each
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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 on the same day in accordance with
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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 a Commercial
Paper Deficit exists on any given day on which a Commercial Paper Note is
scheduled to mature by its terms, you shall give notice thereof to the Agent,
not later than 11:15 a.m. (New York City time) on such date, and you shall, and
▇▇▇▇▇ hereby irrevocably authorizes you to, as attorney-in-fact of ▇▇▇▇▇, by
delivering a Borrowing Request to the Liquidity Agent or instructing the Agent
to deliver a Borrowing Request to the Liquidity Agent (with a copy to ▇▇▇▇▇) for
a Borrowing consisting of Refunding Advances, irrevocably request, not later
than 12:00 noon (New York City time) on the date of a proposed Borrowing, that a
Borrowing be made in an aggregate principal amount (subject to the immediately
following sentence) equal to the sum of (i) the excess of (A) the Commercial
Paper Deficit over (B) 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 therefore in the Collateral Account that are designated for payment of
maturing Commercial Paper Notes and (ii) all amounts required to reimburse
yourself for any advances made by you on any matured Commercial Paper Note
pursuant to paragraph (d) of this Section 5. In accordance with and subject to
the terms of the Liquidity Agreement, the proceeds of any Refunding Advance
shall be remitted to the Commercial Paper Account not later than 2:00 p.m. (New
York City time) on the date of the requested Borrowing. You shall apply the
proceeds of any Refunding Advance obtained by you first to reimburse yourself
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for any advances made by you on any matured Commercial Paper Note pursuant to
paragraph (d) of this Section 5 and second to the payment of the Commercial
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Paper Notes in respect of which the Refunding Advances were obtained.
(c) If a Commercial Paper Deficit continues to exist you shall cease
paying matured and maturing Commercial Paper Notes until such time as the 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 outstanding Commercial Paper Notes (as may be adjusted as
determined by the Agent to compensate Holders for accrued interest to reflect
delay in payment) rather than first to the earliest maturing Commercial Paper
Notes.
(d) 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 and from the Liquidity Banks in the form of Refunding
Advances 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 out of your personal assets 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 or from any other
source available in accordance with the Collateral Agreement for the payment of
Commercial Paper Notes). ▇▇▇▇▇ 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
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such amount by ▇▇▇▇▇ prior to your making demand for payment of such Commercial
Paper Note, you shall promptly make demand for payment of such Commercial Paper
Note.
(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 ▇▇▇▇▇. Unless ▇▇▇▇▇ instructs you otherwise, you shall dispose of such
Certificated Notes in accordance with your usual procedure.
SECTION 6. Book Entry Commercial Paper Notes. (a) ▇▇▇▇▇ may elect
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to make the Commercial Paper Notes eligible for the book entry commercial paper
program of DTC, in which case:
(i) ▇▇▇▇▇ will instruct the Depositary in writing to issue book entry
Commercial Paper Notes ("Book Entry CP Notes") through DTC instead of, or
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in addition to, issuing certificated Commercial Paper Notes as herein
provided;
(ii) the Depositary will prepare for execution by Finco and the
Depositary DTC's current form Letter of Representations (the "Letter"), a
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copy of which is attached hereto as Exhibit D;
(iii) ▇▇▇▇▇ will provide to the Depositary for submission with the
Letter a copy of the information memorandum for ▇▇▇▇▇'▇ commercial paper
program under which the Commercial Paper Notes are issued by the Depositary
pursuant to this Agreement; and
(iv) the Depositary will deliver the Letter to DTC's Legal Department
and will return to ▇▇▇▇▇ 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
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to the issuance of book entry notes (the "Book Entry Procedures"), among other
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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
is 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ 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 ▇▇▇▇▇'▇ representation and warranty that such
Book Entry CP Note is a legal, valid and binding obligation of ▇▇▇▇▇.
(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, ▇▇▇▇▇ will deliver (i) the Depositary, as custodian for
DTC, the Master Note certificate (the "Master Note") with respect to Book Entry
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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 ▇▇▇▇▇ by the manual or facsimile
signature of an Authorized Representative to evidence Book Entry CP Notes to be
issued and distributed through DTC by the Depositary on behalf of ▇▇▇▇▇ (and the
obligation of ▇▇▇▇▇ to provide for provide for payment of such Book Entry CP
Notes at their respective maturities) and (ii) to the
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Depositary, copies of all agreements entered into by ▇▇▇▇▇ required by DTC for
participation in DTC's book entry commercial paper program. The Depositary shall
record on the schedule attached to the Master Note 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 ▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇'▇ Book Entry CP Notes upon
issuance and used to identify ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ to issue Commercial Paper Notes by, subject
to the provisions of Section 3 of this Agreement, issuing and delivering only
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Book Entry CP Notes through DTC, except where the Depositary has been
specifically instructed in writing by ▇▇▇▇▇ to complete and deliver one or more
Certificated Notes.
(e) In the event and on each occasion that ▇▇▇▇▇ agrees with a Holder
that holds Book Entry CP Notes (a "Book Entry Holder") to prepay such Book Entry
-----------------
Holder's Book Entry CP Notes on deposit with DTC prior to the scheduled maturity
of such Book Entry CP Notes, ▇▇▇▇▇ shall make arrangements with such Book Entry
Holder 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) ▇▇▇▇▇ 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 ▇▇▇▇▇ 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,
▇▇▇▇▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ with a duly executed
certificate of destruction with respect to such Master Note. Upon notice by
▇▇▇▇▇ to the Depositary of the discontinuance of ▇▇▇▇▇'▇ 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 ▇▇▇▇▇ with a duly executed certificate of
destruction with respect to such Master Note. Notice by ▇▇▇▇▇ to the Depositary
of the discontinuance of ▇▇▇▇▇'▇ 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
▇▇▇▇▇. Any reference in this
-9-
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 ▇▇▇▇▇ (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 represented by a Master
Note, and upon request by ▇▇▇▇▇, the Depositary shall destroy such Master Note,
and provide ▇▇▇▇▇ with a duly executed certificate of destruction with respect
to such Master Note.
SECTION 7. Inspection of Documents by Holders of Commercial Paper
------------------------------------------------------
Notes. 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), on file at your Corporate Trust Department at Citibank, N.A.,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇. ▇▇▇▇▇ agrees to provide to you a
copy of all such documents promptly following their execution. You shall permit
reasonable inspection to be made of such documents during normal business hours
by any Holder 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 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 such Holder.
SECTION 8. Expenses and Indemnity. ▇▇▇▇▇ agrees:
-----------------------
(a) to pay to you from time to time reasonable compensation for all
services rendered by you hereunder, including for the issuance of Book Entry CP
Notes through DTC, and to reimburse you for expenses, disbursements and
advances, in each case as mutually agreed upon;
(b) to indemnify you 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, but excluding costs and expenses attributable solely
to administrative overhead) arising out of, in connection with, or resulting
from, the exercise of your rights and/or the performance of your duties, by you
or by your agents and employees, hereunder; provided, however, that ▇▇▇▇▇ 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 wilful
misconduct or that of your officers, employees or agents. The foregoing
indemnity includes, but is not limited to, any action taken or omitted to be
taken by you upon telephonic instructions (authorized herein) received by you
from, or believed by you in good faith to have been given by, the proper person
or 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 ▇▇▇▇▇ contained herein, ▇▇▇▇▇
hereby represents and warrants to you that its entry into this Agreement, and
your appointment by ▇▇▇▇▇ as Depositary and issuing and paying agent and, in
certain circumstances, as agent with respect to the Commercial
-10-
Paper Notes, have been duly authorized by all necessary corporate action on the
part of ▇▇▇▇▇ and will not violate, breach or contravene any law, rule,
regulation, order, contract or agreement binding upon ▇▇▇▇▇. In addition, ▇▇▇▇▇
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 ▇▇▇▇▇'▇
legal, valid and binding obligation and will be in conformity with the terms of
the Liquidity Agreement. You hereby represent and warrant that your acceptance
of your appointment as issuing and paying agent and depositary have been duly
authorized by all necessary action on your part.
SECTION 10. Term and Termination. (a) The term of this Agreement
---------------------
(except for the provisions of Sections 8, 19 and 20 which shall survive
indefinitely and the provisions of Section 17, 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 and Liquidity
Advances have been repaid and the Aggregate Liquidity Commitment has
terminated 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 ▇▇▇▇▇, 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.
(b) Either you or ▇▇▇▇▇ 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 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 Depositary has been duly appointed, unless all
outstanding Commercial Paper Notes have been paid in full and no amounts are due
to Holders of Commercial Paper Notes. If no successor Depositary has been
appointed within thirty days of the resignation of the Depositary, the
Depositary may petition a court of competent jurisdiction to appoint a successor
Depositary. No successor 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 ▇▇▇▇▇ or your successor, if one is appointed, all Commercial Paper Notes
(including any Master Note) then held by you hereunder for ▇▇▇▇▇'▇ account for
safekeeping, against receipt by ▇▇▇▇▇ or such successor, and shall cause to be
deposited in the Collateral Account, upon advice to ▇▇▇▇▇, the Liquidity Agent
and the Agent, all funds, if any, then on deposit in, or otherwise to the credit
of, the Commercial Paper Account.
-11-
(c) No Commercial Paper Notes shall be delivered to you by ▇▇▇▇▇ for
safekeeping or issuance hereunder nor shall any Certificated Notes be
authenticated or delivered to any Dealer or any 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 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 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
Agent, as the case may be, shall invest such amounts in Eligible Investments
designated in writing by ▇▇▇▇▇ 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 ▇▇▇▇▇ after payment in full of all
Commercial Paper Notes Outstanding.
-12-
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
and the Agent, and (ii) S&P and Moody's 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 shall, as
evidenced by opinion of counsel delivered to the Depositary 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.
(b) Contemporaneously with any amendment, modification, termination
or waiver of any provision of the Liquidity Agreement, the Collateral Agreement
or any other Related Document, ▇▇▇▇▇ 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 materially adversely
affect your rights, duties or powers hereunder shall be effective against you
without your prior 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 to 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.
If to the Depositary:
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇:
FCTR, INC.
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: General Counsel
Telephone:
Telecopier:
-13-
If to the Agent:
CITICORP USA, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of:
Telephone:
Telecopier:
If to the Liquidity Agent:
CITIBANK, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Dealers:
CITICORP SECURITIES, INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: ▇▇▇ ▇▇▇▇▇▇▇
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telecopier:(▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ BROTHERS INC.
3 World Financial ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of: Commercial Paper Product Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to S&P:
STANDARD & POOR'S RATINGS GROUP
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of Asset Backed Surveillance Department
-14-
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
If to Moody's:
▇▇▇▇▇'▇ INVESTORS SERVICE, INC.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention of ABS Monitoring Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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 Depositary under Section 10) except with (i) the prior written consent
of all parties hereto and (ii) the prior written confirmation of S&P and Moody's
that their respective rating of 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.
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. Headings. Section headings used in this Agreement are
---------
for convenience only and shall not affect the construction of this Agreement.
SECTION 17. 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 outstanding Commercial Paper Notes, you will not
institute against, or join any other Person in instituting against, ▇▇▇▇▇ or
Leasco, 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 17, ▇▇▇▇▇ agrees, for the benefit of the Holders, that it shall
file, or cause Leasco to file, an answer with the bankruptcy court or otherwise
properly contest the filing of such a petition by you against ▇▇▇▇▇ or Leasco 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 17 shall survive the termination of this Agreement,
and your resignation or removal as Depositary and issuing and paying agent.
SECTION 18. Duties and Responsibilities. (a) It is understood that
----------------------------
you are acting as agent of the Holders solely to the extent that you are holding
and applying funds in the
-15-
Commercial Paper Account, as provided in this Agreement on behalf of the holders
from time to time of the Commercial Paper Notes. 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 wilful 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 ▇▇▇▇▇ 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. 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, or any 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 ▇▇▇▇▇ that provision of services under this
Agreement is dependent upon the availability to the Depositary and ▇▇▇▇▇ of
telecommunication facilities provided by third party vendors and that the
Depositary cannot warrant such availability.
(b) 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 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 Related 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.
(c) 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 reasonably 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 ▇▇▇▇▇. You may record telephone communications with ▇▇▇▇▇.
(d) 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 ▇▇▇▇▇ or any third party for indirect, special,
punitive, incidental or consequential loss or damage of any kind whatsoever,
including lost profits, whether or not the likelihood of such loss or damage was
known to you, or any such director, officer, employee or agent.
(e) You may consult with counsel and the written 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.
(f) You shall not be required to advance, expend or risk your own
funds or otherwise incur or become exposed to financial liability in the
performance of your duties hereunder, notwithstanding any course of conduct or
practice that you may have engaged in, and no
-16-
party or any holder of Commercial Paper Notes may rely on the continued
existence of such course of conduct or practice.
(g) 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 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.
(h) 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 to the extent you have in reasonable good faith
relied thereon.
(i) 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, DTC, or attorneys;
provided, however, that the Depositary shall not be responsible for the acts
-------- -------
of DTC but shall be responsible for other agents and attorneys selected or
appointed by the Depositary. ▇▇▇▇▇ 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 ▇▇▇▇▇ to pay thereon.
SECTION 19. No Recourse. Notwithstanding any other provision of this
------------
Agreement, the obligations of ▇▇▇▇▇ under this Agreement (a) are solely the
corporate obligations of ▇▇▇▇▇ and (b) shall be payable in the order and
priority set forth in Sections 2.01 and 5.02(b), as applicable, of the
Collateral Agreement. Such obligations shall be due and payable to the extent
that ▇▇▇▇▇'▇ assets are sufficient to pay such obligations, and 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, except as otherwise
provided under the Related Documents, against any shareholder, employee,
officer, director or incorporator of ▇▇▇▇▇. For purposes of this Section 19,
the term "Dealer" shall mean and include all Affiliates thereof; provided,
--------
however, that neither the Depositary nor ▇▇▇▇▇ shall be considered to be an
-------
Affiliate of any Dealer for purposes of this Section 19; provided, further, that
-------- -------
the foregoing shall not relieve any such person or entity from any liability
they might otherwise have as a result of fraudulent action or omissions taken by
them. No claims of the Depositary (whether under the cited provision or
otherwise) arising under or in connection with this Depositary Agreement are
intended to be impaired or waived by this Section 19.
SECTION 20. 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 ▇▇▇▇▇, the Agent or the Liquidity
-17-
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 ▇▇▇▇▇, the Agent and the Liquidity Agent and (b) the Depositary
shall give the Rating Agencies written notice of such merger, conversion,
consolidation or succession.
SECTION 21. Amortization Event. If the Depositary shall have been
-------------------
notified by ▇▇▇▇▇, the Liquidity Agent, any Liquidity Lender or the Agent that
an Amortization Event shall have occurred, the Depositary shall notify the
Liquidity Agent and the Agent in writing as soon as possible upon payment in
full of all Outstanding Commercial Paper Notes or the receipt of funds in the
amount required to pay all Outstanding Commercial Paper Notes upon maturity.
SECTION 22. Entire Agreement. This Agreement constitutes the entire
-----------------
understanding among the parties hereto with respect to the Depositary.
SECTION 23. 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 ▇▇▇▇▇ therein or with respect to any right to payment
from ▇▇▇▇▇, it being understood, however, that nothing contained in this Section
23 shall, or is intended to, derogate from the assignment and security interest
granted to the Agent under the Collateral Agreement or impair any rights of the
Holders, the Depositary or the Agent thereunder.
SECTION 24. Additional Notice. ▇▇▇▇▇ 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.
SECTION 25. Collateral Agreement. Without limiting the
---------------------
authorizations otherwise set forth in this Agreement, each Holder, by its
purchase of a Commercial Paper Note, hereby authorizes you in your capacity as
Depositary hereunder to execute and deliver the Collateral Agreement, as
Depositary and on behalf of each such Holder.
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
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this or such duplicate signed counterpart to ▇▇▇▇▇, whereupon this letter will
become a binding agreement between us and you.
FCTR, INC.,
by
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President and Treasurer
Consented to:
CITIBANK, N.A., as
Depositary
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
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