EXHIBIT 10.3
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
Dated as of May 23, 2002
Among
MCI WORLDCOM RECEIVABLES CORPORATION,
as the Seller,
WORLDCOM, INC.,
as the Servicer,
THE BANKS PARTY HERETO,
BANK ONE, NA (MAIN OFFICE CHICAGO),
as a Group Managing Agent,
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as a Group Managing Agent,
BAYERISCHE LANDESBANK, NEW YORK BRANCH,
as a Group Managing Agent,
THE BANK OF NOVA SCOTIA,
as a Group Managing Agent,
CITICORP NORTH AMERICA, INC.,
as a Group Managing Agent and as Co-Lead Manager,
and
JPMORGAN CHASE BANK,
as a Group Managing Agent, as Co-lead Manager and as Administrative Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
SECTION 1.01. Certain Defined Terms...................................................2
SECTION 1.02. Incorporation by Reference..............................................9
SECTION 1.03. Other Terms9
SECTION 1.04. Computation of Time Periods............................................10
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. Commitment 10
SECTION 2.02. Making Purchases.......................................................10
SECTION 2.03. Termination or Reduction of the Commitments............................12
SECTION 2.04. Receivable Interest....................................................12
SECTION 2.05. Non-Liquidation Settlement Procedures..................................13
SECTION 2.06. Liquidation Settlement Procedures......................................18
SECTION 2.07. General Settlement Procedures..........................................19
SECTION 2.08. Payments and Computations, Etc.........................................19
SECTION 2.09. Fees 20
SECTION 2.10. Increased Costs........................................................20
SECTION 2.11. Increased Capital......................................................20
SECTION 2.12. Taxes 20
SECTION 2.13. Sharing of Payments, Etc...............................................20
SECTION 2.14. Substitution of Members................................................21
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness..................................21
SECTION 3.02. Conditions Precedent to All Purchases and Reinvestments................24
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller...........................25
SECTION 4.02. Representations and Warranties of the Servicer.........................25
ARTICLE V
GENERAL COVENANTS OF THE SELLER AND THE SERVICER
SECTION 5.01. Affirmative Covenants of the Seller....................................25
SECTION 5.02. Reporting Requirements of the Seller...................................26
SECTION 5.03. Negative Covenants of the Seller.......................................26
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SECTION 5.04. Affirmative Covenants of Servicer......................................26
SECTION 5.05. Negative Covenants of the Servicer.....................................26
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. Designation of Servicer................................................26
SECTION 6.02. Duties of Servicer.....................................................27
SECTION 6.03. Rights of the Administrative Agent.....................................27
SECTION 6.04. Responsibilities of the Seller.........................................27
SECTION 6.05. Further Actions Evidencing Purchases...................................27
SECTION 6.06. The Concentration Account and the Deposit Account......................27
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. Events of Termination..................................................27
ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE GROUP MANAGING AGENTS
SECTION 8.01. Authorization and Action of the Administrative Agent...................31
SECTION 8.02. Authorization and Action of the Group Managing Agents..................31
SECTION 8.03. Administrative Agent's and Group Managing Agents' Reliance, Etc........32
SECTION 8.04. Rights and Powers......................................................33
SECTION 8.05. Members' Purchase Decisions............................................33
SECTION 8.06. Indemnification........................................................33
SECTION 8.07. Successor Administrative Agent.........................................34
SECTION 8.08. Co-Lead Managers.......................................................35
SECTION 8.09. Authorizations and Actions Within Purchaser Groups.....................35
ARTICLE IX
ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 9.01. Assignment 35
SECTION 9.02. Assignment of Rights and Obligations...................................36
SECTION 9.03. Annotation of Certificate..............................................38
ARTICLE X
INDEMNIFICATION
SECTION 10.01. Indemnities...........................................................38
ARTICLE XI
GRANT OF SECURITY INTEREST
SECTION 11.01. Grant of Security Interest............................................41
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SECTION 11.02. Security for Secured Obligations......................................41
SECTION 11.03. Further Assurances....................................................41
SECTION 11.04. Administrative Agent Appointed Attorney-in-Fact.......................42
SECTION 11.05. Administrative Agent May Perform......................................42
SECTION 11.06. The Administrative Agent's Duties.....................................42
SECTION 11.07. Remedies 42
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. Amendments, Etc.......................................................43
SECTION 12.02. Notices, Etc..........................................................44
SECTION 12.03. Binding Effect, Assignability.........................................45
SECTION 12.04. Costs and Expenses....................................................45
SECTION 12.05. Non-Business Days.....................................................45
SECTION 12.06. Confidentiality.......................................................45
SECTION 12.07. Governing Law.........................................................46
SECTION 12.08. Jurisdiction, Etc.....................................................46
SECTION 12.09. Execution in Counterparts.............................................46
SECTION 12.10. Intent of the Parties.................................................47
SECTION 12.11. Entire Agreement......................................................47
SECTION 12.12. Severability of Provisions............................................47
SECTION 12.13. Amendment, Restatement, and Consent...................................47
SECTION 12.14. No Proceedings........................................................48
SECTION 12.15. Waiver of Jury Trial..................................................48
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EXHIBIT A Form of Assignment
EXHIBIT B Form of Assignment and Acceptance
EXHIBIT C Form of Certificate
iv
SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT
This SECOND AMENDED AND RESTATED
RECEIVABLES PURCHASE AGREEMENT (this
"AGREEMENT") dated as of May 23, 2002, amends and restates that certain Amended
and Restated
Receivables Purchase Agreement, dated as of October 24, 2001, as
amended by Amendment No. 1 thereto dated as of March 26, 2002 (such Agreement as
so amended being the "A&R PARALLEL PURCHASE COMMITMENT"), which amended and
restated that certain
Receivables Purchase Agreement, dated as of August 20,
1999 (the "ORIGINAL PARALLEL PURCHASE COMMITMENT"), and is among:
(i) MCI WORLDCOM RECEIVABLES CORPORATION, a Delaware corporation (the
"SELLER"),
(ii) WORLDCOM, INC., a Georgia corporation ("WORLDCOM"), as Servicer (as
hereinafter defined),
(iii) BANK ONE, NA (Main Office Chicago), a national banking association
("BANK ONE"), as an Initial Bank and as a Group Managing Agent hereunder,
(iv) WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH, a German bank
organized under the laws of the State of North Rhine Westphalia, acting
by and through its
New York Branch ("WEST LB"), as an Initial Bank and as
a Group Managing Agent hereunder,
(v) CITIBANK, N.A., a national banking association ("CITIBANK"), as an
Initial Bank hereunder,
(vi) BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH, a German bank
organized under the laws of the State of Bavaria, acting by and through
its Cayman Islands Branch ("BLBCI"), as an Initial Bank hereunder,
(vii) BAYERISCHE LANDESBANK,
NEW YORK BRANCH, a German bank organized
under the laws of the State of Bavaria, acting by and through its
New
York Branch ("BLBNY"), as a Group Managing Agent hereunder,
(viii) THE BANK OF NOVA SCOTIA, a Canadian chartered commercial bank,
acting by and through its
New York Agency ("NOVA SCOTIA"), as an Initial
Bank and as a Group Managing Agent hereunder,
(ix) CITICORP NORTH AMERICA, INC., a Delaware corporation ("CNAI"), as a
Group Managing Agent hereunder and as Co-Lead Manager, and
(x) JPMORGAN CHASE BANK, a
New York banking corporation ("JPMORGAN", and
together with Bank One, West LB, Citibank, BLBCI and Nova Scotia,
collectively the "INITIAL BANKS" and each an "INITIAL BANK"), as an
Initial Bank, as a Group Managing Agent, as Co-Lead Manager and as the
administrative agent (together with any successor administrative agent
appointed pursuant to SECTION 8.07, the "ADMINISTRATIVE AGENT") for
the Group Managing Agents and the Members of each Purchaser Group (each
as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) Certain terms which are capitalized and used throughout this
Agreement (in addition to those defined above) are defined in ARTICLE I of this
Agreement.
(2) The Seller has purchased or has otherwise acquired from CMC, Partners
and each of the Originators, and will continue to purchase from time to time
from each of the Originators, Pool Receivables in which the Seller intends to
sell Receivable Interests.
(3) Pursuant to the terms of the Purchase Agreement, each of the
Purchasers may, in its absolute and sole discretion, make "Purchases" of
"Receivable Interests" under and as defined in the Purchase Agreement from the
Seller from time to time.
(4) In the event that any Purchaser declines to make any such "Purchase"
under and as defined in the Purchase Agreement, such Purchaser's Purchaser Group
(as hereinafter defined) shall, at the request of the Seller, make such Purchase
in accordance with the terms hereof.
(5) WORLDCOM has been requested and is willing to act as Servicer
pursuant to the terms hereof.
(6) JPMorgan has been requested and is willing to act as Administrative
Agent pursuant to the terms hereof.
NOW, THEREFORE, in consideration of the premises, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. CERTAIN DEFINED TERMS. Unless otherwise defined herein, and
subject to the modifications herein set forth, capitalized terms used in this
Agreement or in any provisions of the Purchase Agreement (as hereinafter
defined) incorporated herein by reference shall have the respective meanings
given to them in the Purchase Agreement. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"AFFILIATE BANK" means, in respect of any Purchaser, any Bank that
is an Affiliate of such Purchaser.
"AFFILIATED PURCHASER" means, in respect of any Purchaser Group,
the Purchaser whose Affiliate Bank is or was, prior to any Assignment by
such Affiliate Bank pursuant to ARTICLE IX, a member of such Purchaser's
Purchaser Group.
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"APPLICABLE MARGIN" means, for any day, a percentage per annum
equal to 2.50% per annum until the effectiveness of the New WORLDCOM
Credit Agreement, and on and after the effectiveness of the New WORLDCOM
Credit Agreement, 0.25 of 1% per annum above that all-in, fully drawn,
cost (including applicable margin, utilization fees and facility fees)
which WORLDCOM would pay for "Eurodollar Rate Borrowings" (or the
equivalent term) under and as defined in the New WORLDCOM Credit
Agreement on such day above, and in addition to, the "Adjusted Eurodollar
Rate" (or the equivalent term) under and as defined in the New WORLDCOM
Credit Agreement.
"ASSIGNEE" means any Person that is the assignee of any Member's
Receivable Interest pursuant to SECTION 9.01 or the assignee of such
Member's rights and obligations under this Agreement pursuant to SECTION
9.02.
"ASSIGNMENT" means an assignment, in substantially the form of
Exhibit A hereto, by which a Receivable Interest or a portion thereof may
be assigned pursuant to Section 9.01.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance, in
substantially the form of Exhibit B hereto, entered into by any Member
and an Assignee pursuant to SECTION 9.02.
"BANK RATE" means, for any Settlement Period for any Receivable
Interest, an interest rate per annum equal, at the Seller's election upon
notice to the Administrative Agent at least three Business Days (in the
case of the rate referred to in clause (a) below) or one Business Day (in
the case of the rate referred to in clause (b) below) before the first
day of such Settlement Period, to either (a) the Applicable Margin in
effect from time to time plus the Adjusted LIBO Rate for such Settlement
Period or (b) the Alternate Base Rate in effect from time to time (or if
no such notice is given selecting the rate referred to in clause (a)
above or the rate referred to in clause (b) above for any Settlement
Period, the Seller will be deemed to have selected the rate referred to
in clause (b) above for such Settlement Period); PROVIDED, HOWEVER, that:
(i) in the case of any such Settlement Period of one to and
including 29 days, the "Bank Rate" for such Settlement Period for such
Receivable Interest shall be an interest rate per annum equal to the
Alternate Base Rate in effect from time to time during such Settlement
Period; and
(ii) if either (A) the introduction of or any change in or in the
interpretation of any law or regulation shall make it unlawful, or any
central bank or other governmental authority asserts that it is unlawful,
for any Member owning such Receivable Interest to obtain funds in the
London interbank market during such Settlement Period, or (B) the
Adjusted LIBO Rate will not adequately reflect the cost to any Member of
making a Purchase of or maintaining such Receivable Interest during such
Settlement Period, then the "Bank Rate" for such Settlement Period for
such Receivable Interest shall be an interest rate per annum equal to the
Alternate Base Rate in effect from time to time.
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"BANKS" means the Initial Banks and each Assignee that shall
become a party hereto pursuant to SECTION 9.02.
"CAPITAL" means, in respect of any Receivable Interest, the
original amount paid to the Seller for such Receivable Interest at the
time of its acquisition by the Members of a Purchaser Group pursuant to
SECTIONS 2.01 and 2.02, reduced from time to time by Collections received
and distributed on account of such Capital pursuant to SECTION 2.05 or
2.06; PROVIDED, HOWEVER, that if such Capital of such Receivable Interest
shall have been reduced by any distribution of any portion of Collections
and thereafter such distribution is rescinded or must otherwise be
returned for any reason, such Capital of such Receivable Interest shall
be increased by the amount of such distribution, all as though such
distribution had not been made.
"CERTIFICATE" means a certificate of assignment by the Seller
delivered to the Administrative Agent on behalf of any Member, in
substantially the form of Exhibit C hereto, evidencing each Receivable
Interest of such Member.
"COMMITMENT" means (i) in respect of each Initial Bank, the amount
set forth as the "Commitment" opposite the name of such Initial Bank on
the signature pages hereto and (ii) in respect of each Person that
becomes a Member by entering into an Assignment and Acceptance, the
amount set forth as the "Commitment" for such Member in the Register
maintained by the Administrative Agent pursuant to SECTION 9.02(C), in
the case of clauses (i) and (ii) as such amount may be reduced from time
to time as the result of any assignment of any Commitment or any portion
thereof pursuant to SECTION 9.02 or may be reduced from time to time
pursuant to SECTION 2.03; PROVIDED, HOWEVER, that upon the occurrence of
a Special Event for any Purchaser, the Commitment of each Member of such
Purchaser's Purchaser Group shall automatically and permanently be
reduced to zero.
"COMMITMENT TERMINATION DATE" means the earliest of (i) May 22,
2003, (ii) the date of termination in whole of the aggregate Commitments
pursuant to SECTION 2.03 and (iii) the date designated as the Commitment
Termination Date by the Administrative Agent pursuant to SECTION 7.01.
"DEPOSIT ACCOUNT" means the deposit account of the Administrative
Agent, with reference to 160289.46 MCI WorldCom Rec. Corp. DEPOSIT A/C
FBO Admin Agent (ABA Routing number ▇▇▇▇▇▇▇▇▇, account number
▇▇▇-▇▇-▇▇▇▇, and account name DFC Funding Account), maintained with
JPMorgan at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"ELIGIBLE ASSIGNEE" means (i) each Initial Bank and any of its
Affiliates, (ii) any commercial bank all of whose short-term public
senior unsecured debt securities are rated at least A-1 by S&P and at
least P-1 by ▇▇▇▇▇'▇, or (iii) any other Person, PROVIDED that such
Person is not a competitor of WORLDCOM or any of the Originators;
PROVIDED, HOWEVER, that neither an Originator nor the Seller nor any of
their respective Affiliates may be an Eligible Assignee.
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"EVENTS OF TERMINATION" has the meaning specified in SECTION 7.01.
"GROUP COMMITMENT" means, in respect of any Purchaser Group, the
aggregate amount of the Commitments of the Members of such Purchaser
Group.
"GROUP MANAGING AGENT" means, in respect of any Purchaser Group,
the Managing Agent of the Affiliated Purchaser of such Purchaser Group.
"INDEMNIFIED AMOUNTS" has the meaning specified in SECTION 10.01.
"INDEMNIFIED PARTY" means any or all of the Group Managing Agents,
the Members, the Participants, and the Administrative Agent and their
respective Affiliates and successors and assigns.
"MAJORITY MEMBERS" means, in respect of any Purchaser Group at any
time, the Members of such Purchaser Group owning in the aggregate at
least 51% of the then aggregate outstanding Receivable Interests owned by
such Purchaser Group or, if no Receivable Interest is then owned by such
Purchaser Group, Members of such Purchaser Group holding at least 51% of
such Purchaser Group's Group Commitment.
"MAJORITY PURCHASER GROUPS" means at any time Purchaser Groups
owning in the aggregate at least 51% of the aggregate Group Commitments.
"MEMBER" has the meaning set forth in the definition of "Purchaser
Group." The term "Member", when used without reference to any Purchaser
Group, means any Member of any Purchaser Group; and the term "Members",
when used without reference to any Purchaser Group, means any or all
Members of any or all Purchaser Groups.
"MEMBER COLLECTIONS" means, as of any date, that portion of the
Collections deposited to the Concentration Account on such date equal to
the product of (a) the aggregate amount of such Collections multiplied by
(b) the Total Receivable Interest Percentage on such date.
"POTENTIAL EVENT OF TERMINATION" means any event that, with the
giving of notice or the passage of time or both, would constitute an
Event of Termination.
"PRO RATA SHARE" means, for any Member, such Member's Commitment
divided by the Group Commitment of such Member's Purchaser Group.
"PURCHASE" means a purchase by any Purchaser Group of Receivable
Interests from the Seller pursuant to ARTICLE II.
"PURCHASE AGREEMENT" means the Third Amended and Restated
Receivables Purchase Agreement dated as of the date hereof among the
Seller, WORLDCOM, as Servicer thereunder, Corporate Asset Funding
Company, Inc., a Delaware corporation ("CAFCO"), Charta Corporation, a
Delaware corporation ("CHARTA" and, together with CAFCO, the "CNAI
CONDUITS"), Falcon Asset Securitization Corporation, a Delaware
corporation ("FASC"), Jupiter Securitization Corporation, a Delaware
corporation
5
("JSC" and, together with FASC, the "BANK ONE CONDUITS"), Giro Balanced
Funding Corporation, a Delaware corporation ("GBFC"), Liberty Street
Funding Corporation, a Delaware corporation ("LIBERTY"), Delaware Funding
Corporation, a Delaware corporation ("DELAWARE FUNDING"), Paradigm
Funding LLC, a Delaware limited liability company ("PARADIGM"), Bank One,
as Managing Agent for FASC and JSC and the Bank One Conduits' respective
successive Assignees, West LB, as Managing Agent for Paradigm and
Paradigm's successive Assignees, BLBNY, as Managing Agent for GBFC and
GBFC's successive Assignees, Nova Scotia, as Managing Agent for Liberty
and Liberty's successive Assignees, CNAI as Managing Agent for CAFCO and
CHARTA and the CNAI Conduits' respective successive Assignees and as
Co-Lead Manager, and JPMorgan, as Managing Agent for Delaware Funding and
Delaware Funding's successive Assignees, as Co-Lead Manager and as
Administrative Agent for the Purchasers, such Managing Agents and any
other owners of Receivable Interests thereunder.
"PURCHASER" means any of CAFCO, CHARTA, FASC, JSC, GBFC, Liberty,
Delaware Funding and Paradigm (in each case, as defined in the definition
of Purchase Agreement contained herein); PROVIDED, HOWEVER, that upon any
assignment under the Purchase Agreement pursuant to SECTION 9.02 of all
or a portion of the Receivable Interests owned by any Purchaser together
with all or a portion of the rights and obligations of such Purchaser
under the Purchase Agreement associated therewith, the "Assignee" (as
defined in the Purchase Agreement) shall be a Purchaser for all purposes
hereunder.
"PURCHASER GROUP" means, in respect of any Purchaser, such
Purchaser's Affiliate Bank (for so long as such Affiliate Bank has any
Commitment or owns any Receivable Interest), together with any Person
that either becomes an owner of any interest in any Receivable Interest
now or hereafter owned by such Affiliate Bank or assumes all or part of
the Commitment of such Affiliate Bank pursuant to the terms hereof,
including, without limitation, any Person who becomes an Assignee of such
Affiliate Bank pursuant to ARTICLE IX hereof (each of the foregoing
referred to herein as a "MEMBER" of such Purchaser Group).
"REGISTER" has the meaning specified in SECTION 9.02(C).
"REINVESTMENT TERMINATION DATE" means that Business Day which the
Seller designates, or, if the conditions precedent in SECTION 3.02 are
not satisfied, that Business Day which the Administrative Agent (with the
consent or at the request of the Majority Purchaser Groups) designates,
as the first date on which Collections in respect of each Receivable
Interest shall not be reinvested in accordance with SECTION 2.05(A), by
notice to the Administrative Agent (if the Seller so designates) or to
the Seller (if the Administrative Agent so designates) at least one
Business Day prior to such Business Day.
"SECURED OBLIGATIONS" has the meaning specified in SECTION 11.02.
"SELLER'S ACCOUNT" means the deposit account of the Seller with
reference to 160289.47 MCI WorldCom Rec. Corp. Sellers A/C FBO Admin
Agent (ABA Routing
6
number 021000021, account number ###-##-####, and account name DFC
Funding Account), maintained with JPMorgan at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"SERVICER" has the meaning specified in SECTION 6.01.
"SERVICER FEE" has the meaning specified in SECTION 2.09(B).
"SETTLEMENT DATE" means, for each Settlement Period for each
Receivable Interest, (i) with respect to the payment of all amounts other
than Capital, the last day of such Settlement Period and (ii) with
respect to the recovery of Capital, the later of the 26th day after the
end of such Settlement Period and the first Business Day after the
Monthly Report relating to such Settlement Period is required to be
forwarded by the Servicer to the Administrative Agent and each Group
Managing Agent pursuant to SECTION 2.07(B) (whether or not so forwarded);
PROVIDED that, in each case, if such day is not a Business Day, such
Settlement Date shall be the next succeeding Business Day.
"SETTLEMENT PERIOD" means, for each Receivable Interest:
(a) in the case of any Settlement Period in respect of
which Yield is computed by reference to the Bank Rate, initially,
the period beginning on the date of Purchase of such Receivable
Interest and ending on and including the last day of the calendar
month in which the date of such Purchase occurs, and thereafter,
each successive period commencing on the first day of each
calendar month during the term of this Agreement and ending on the
last day of such calendar month during the term of this Agreement;
PROVIDED, HOWEVER, that in the case of any Settlement Period for
any Receivable Interest which commences before the Termination
Date and would otherwise end on a date occurring after the
Termination Date, such Settlement Period shall end on the
Termination Date and the duration of each Settlement Period which
commences on or after the Termination Date may be any period
(including, without limitation, a period of one day) as shall be
selected from time to time by the Administrative Agent (with the
consent or at the request of the Majority Purchaser Groups); and
PROVIDED, further, HOWEVER, that whenever the last day of any such
Settlement Period would otherwise occur on a day other than a
Business Day, the last day of such Settlement Period shall be
extended to occur on the next succeeding Business Day, EXCEPT
that, if such extension would cause the last day of such
Settlement Period to occur in the next following calendar month,
the last day of such Settlement Period shall occur on the next
preceding Business Day; and
(b) in the case of any Settlement Period in respect of
which Yield is computed by reference to the Alternate Base Rate,
such Settlement Period shall be of such duration as shall be
selected by the Administrative Agent (with the consent or at the
request of the Majority Purchaser Groups).
"SUBSTITUTABLE MEMBER" has the meaning specified in SECTION 2.14.
7
"TERMINATION DATE" means the earlier of (i) the Reinvestment
Termination Date and (ii) the Commitment Termination Date.
"TOTAL RECEIVABLE INTEREST PERCENTAGE" means, on any date, the sum
of the Receivable Interests (expressed in percentage terms) on such date.
"YIELD" means (a) except as otherwise provided in clause (b)
below, for each Receivable Interest for any Settlement Period:
BR x C x ED + LF
---
360
(b) for each Receivable Interest for any period within any Settlement
Period in which an Event of Termination shall have occurred and/or is
continuing, the sum of (i) the Yield for such Receivable Interest calculated
under clause (a) of this definition PLUS (ii) the product of
DR x C x TD
---
360
where:
BR = the Bank Rate for such Receivable Interest for
such Settlement Period;
DR = the Default Rate in effect from time to time
C = the Capital of such Receivable Interest during
such Settlement Period;
ED = the actual number of days elapsed during such
Settlement Period, PROVIDED, HOWEVER, that if an
Event of Termination shall have occurred and/or is
continuing during such Settlement Period, "ED" shall
not include the number of days during each
Settlement Period in which there shall have occurred
and/or be continuing an Event of Termination;
TD = the actual number of days elapsed during such
Settlement Period in which there shall have
occurred and/or be continuing an Event of
Termination; and
LF = the Liquidation Fee, if any, for such Receivable
Interest for such Settlement Period.
8
PROVIDED that no provision of this Agreement shall require the payment or
permit the collection of Yield in excess of the maximum permitted by
applicable law; and PROVIDED FURTHER that Yield for any Receivable
Interest shall not be considered paid by any distribution to the extent
that at any time all or a portion of such distribution is rescinded or
must otherwise be returned for any reason.
SECTION 1.02. INCORPORATION BY REFERENCE. Various provisions (including
defined terms) of, and Exhibits D through M, and Schedules I through V to, the
Purchase Agreement are specifically incorporated in this Agreement by reference,
with the same force and effect as if the same were set out in this Agreement in
full, EXCEPT that for the purposes hereof (a) references to the term
"Purchasers" contained in the definition of "Eligible Receivable" contained in
SECTION 1.01 of the Purchase Agreement and in SECTION 6.02 of the Purchase
Agreement shall be deemed to be references to "Banks" as defined in this
Agreement, (b) the reference to the term "original Purchaser" contained in
SECTION 2.12 of the Purchase Agreement shall be deemed to be a reference to
"Initial Bank" as defined in this Agreement, (c) references to the term
"Managing Agents" and the term "Majority Managing Agents" in the provisions of
the Purchase Agreement incorporated in this Agreement by reference shall be
deemed to be a reference to "Purchaser Groups" and "Majority Purchaser Groups",
respectively, as defined in this Agreement, (d) references to the term "Parallel
Purchase Commitment" in the definition of "Cure Amount", "Excess Amount",
"Seller Collections", and "Transaction Documents", contained in SECTION 1.01 of
the Purchase Agreement and in each of Sections 4.01, 4.02 and 5.03 of the
Purchase Agreement shall be deemed to be references to the "Purchase Agreement"
as defined in this Agreement, (e) references to the term "Liquidity Banks" in
the definition of "Eligible Investments" contained in SECTION 1.01 of the
Purchase Agreement shall be deemed to be references to the "Members" as defined
in this Agreement, (f) unless otherwise expressly set forth herein, all defined
terms used in such incorporated definitions, provisions, Exhibits and Schedules
shall have the meanings set forth herein and (g) unless otherwise expressly set
forth herein, all article, section, paragraph and clause references used in such
incorporated definitions, provisions, Exhibits and Schedules shall be references
to such article, section, paragraph and clause, respectively, hereof. All
references in such incorporated definitions or provisions to this "Agreement",
"hereof", "hereunder" or words of similar effect and to the "Administrative
Agent" shall, without further reference, mean and refer to this Agreement and
JPMorgan as Administrative Agent under this Agreement, respectively; likewise,
to the extent any word or phrase is defined in this Agreement, any such word or
phrase appearing in provisions so incorporated by reference from the Purchase
Agreement shall have the meaning given to it in this Agreement. The
incorporation by reference into this Agreement from the Purchase Agreement is
for convenience only, and this Agreement and the Purchase Agreement shall at all
times be, and be deemed to be and treated as, separate and distinct facilities.
Incorporations by reference in this Agreement from the Purchase Agreement shall
not be affected or impaired by any subsequent expiration or termination of the
Purchase Agreement, nor by any amendment thereof or waiver thereunder unless the
Administrative Agent and the Members or the Majority Purchaser Groups, as
applicable under SECTION 12.01 hereof, shall have consented to such amendment or
waiver in writing.
SECTION 1.03. OTHER TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP. All terms used in Article 9
of the UCC of
9
the State of
New York and not specifically defined herein are used herein as
defined in such Article 9.
SECTION 1.04. COMPUTATION OF TIME PERIODS. Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word "from" means "from and including" and the words
"to" and "until" each means "to but excluding".
ARTICLE II
AMOUNTS AND TERMS OF THE PURCHASES
SECTION 2.01. COMMITMENT. On the terms and conditions hereinafter set
forth, each Member of each Purchaser Group severally agrees that, from time to
time prior to the Commitment Termination Date, in the event that the Affiliated
Purchaser of such Member's Purchaser Group declines to make any "Purchase" under
and as defined in the Purchase Agreement in accordance with its "Pro Rata Share"
(as defined in the Purchase Agreement without giving effect to the PROVISO to
the definition thereof), if so requested by the Seller, each such Member of such
Purchaser Group shall make its Pro Rata Share of a Purchase in an amount equal
to such "Purchase"; PROVIDED, HOWEVER, that no Member of such Purchaser Group
shall be obligated to make any Purchase if, after giving effect to such
Purchase, the aggregate outstanding Capital of such Member's Pro Rata Share of
Receivable Interests owned by such Purchaser Group, together with such Member's
Pro Rata Share of the aggregate outstanding "Capital" of "Receivable Interests"
owned by the Affiliated Purchaser of such Member's Purchaser Group, would exceed
such Member's Commitment; and PROVIDED, FURTHER, HOWEVER, that upon the
occurrence of a Special Event for any Purchaser, each such Member of such
Purchaser's Purchaser Group shall, automatically and permanently, cease to be
obligated to make any Purchase hereunder. Each Purchase shall be made by the
Members of the applicable Purchaser Group simultaneously and ratably in
accordance with their respective Pro Rata Shares.
SECTION 2.02. MAKING PURCHASES. (a) Each Purchase of Receivable Interests
hereunder shall be made on notice from the Seller to each Group Managing Agent
and the Administrative Agent, given not later than 12:00 noon (
New York City
time) on the second Business Day before the date of such Purchase if the Bank
Rate for such Purchase is based on the Alternate Base Rate and on the fourth
Business Day before the date of such Purchase if the Bank Rate for such Purchase
is based on the Adjusted LIBO Rate. Each such notice of a proposed Purchase of
Receivable Interests by the applicable Purchaser Group shall be by telecopier to
the Administrative Agent and by electronic transmission to each Group Managing
Agent and the Administrative Agent, and shall specify (i) the requested
aggregate amount of such Purchase (which shall not be less than $10,000,000) to
be paid to the Seller, (ii) the date of such Purchase (which shall be a Business
Day), and (iii) the Bank Rate for such Purchase. On the date of each Purchase of
Receivable Interests by a Purchaser Group, each Member of such Purchaser Group
shall, upon satisfaction of the applicable conditions set forth in ARTICLE III,
make available to the Seller its Pro Rata Share of the amount of the Capital of
the Receivable Interests being acquired in such Purchase by deposit of such Pro
Rata Share in same day funds to the Seller's Account (or to such other account
as the Seller may designate in writing from time to time).
10
(b) The Administrative Agent shall on the first day of each Settlement
Period for each Receivable Interest hereunder notify the Seller and each Member
of any Purchaser Group that owns such Receivable Interest or any interest
therein of the Bank Rate for such Settlement Period.
(c) Each notice of a Purchase delivered pursuant to SECTION 2.02(A) shall
be irrevocable and binding on the Seller. The Seller shall indemnify the Group
Managing Agent and each Member of any Purchaser Group against any actual loss or
expense incurred by such Group Managing Agent and/or such Member as a result of
any failure to fulfill on or before the date of any Purchase by such Purchaser
Group (as to which notice has been given pursuant to SECTION 2.02(A)) the
applicable conditions set forth in ARTICLE III, including, without limitation,
any actual loss or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Group Managing Agent and/or such
Member to fund its Pro Rata Share of such Purchase when such Purchase, as a
result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice from a
Group Managing Agent or a Member prior to the date of any Purchase that a Member
will not make available to the Administrative Agent all or any portion of such
Member's Pro Rata Share of such Purchase, the Administrative Agent may assume
that each Member has made such Pro Rata Share available to the Administrative
Agent on the date of such Purchase in accordance with SECTION 2.02(A), and the
Administrative Agent may, in reliance upon such assumption, make available to
the Seller on such date a corresponding amount. However, if the Administrative
Agent has received such notice from such Group Managing Agent or Member, the
Administrative Agent may not make such assumption and may not make available to
the Seller on such date such corresponding amount. If and to the extent that any
Member shall not have made all or such portion available to the Administrative
Agent, such Member and the Seller severally agree to pay (to the extent not
repaid by the Seller or such Member, respectively) to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Seller until the
date such amount is repaid to the Administrative Agent, at (i) in the case of
the Seller, the Yield rate applicable to such amount and (ii) in the case of
such Member, the Federal Funds Rate. If such Member shall repay to the
Administrative Agent such corresponding amount, such amount so repaid shall
constitute such Member's Pro Rata Share of such Purchase for purposes of this
Agreement.
(e) The failure of any Member to make available such Member's Pro Rata
Share of any Purchase shall not relieve any other Member of its obligation, if
any, hereunder to make available such other Member's Pro Rata Share of such
Purchase on the date of such Purchase, but no Member shall be responsible for
the failure of any other Member to make available such other Member's portion of
such Purchase on the date of any Purchase.
(f) Either the Seller or any Member, upon notice to and consent by the
other received at least three Business Days prior to the end of any Settlement
Period (the "TERMINATING SETTLEMENT PERIOD") for any Receivable Interest of such
Member, may, effective on the last day of the Terminating Settlement Period: (i)
divide any such Receivable Interest into multiple Receivable Interests, (ii)
combine any such Receivable Interest with one or more other Receivable Interests
that have a Settlement Period ending on the same day as such Terminating
11
Settlement Period or (iii) combine any such Receivable Interest with a new
Receivable Interest to be purchased by such Member on the day such Terminating
Settlement Period ends, PROVIDED, that in no event may a Receivable Interest of
any Member be combined with a Receivable Interest of any other Member.
SECTION 2.03. TERMINATION OR REDUCTION OF THE COMMITMENTS. (a) OPTIONAL.
The Seller may, upon at least five Business Days' notice to the Administrative
Agent and each Group Managing Agent, terminate in whole or reduce in part,
ratably for each Member, the unused portions of the Commitments of the Members;
PROVIDED, HOWEVER, that for purposes of this SECTION 2.03(A), the unused
portions of the Commitments of the Members shall be computed as the excess of
(i) the aggregate of the Commitments of the Members immediately prior to giving
effect to such termination or reduction over (ii) the sum of (A) the aggregate
Capital of Receivable Interests outstanding at the time of such computation and
(B) the aggregate "Capital" of "Receivable Interests" outstanding under the
Purchase Agreement at such time; and PROVIDED, FURTHER, that each such partial
reduction of the unused portions of the Commitments (i) shall be in an aggregate
amount equal to $10,000,000 or an integral multiple of $1,000,000 in excess
thereof and (ii) shall be made ratably among the Members in accordance with
their respective Commitments.
(b) MANDATORY. On each day on which the Seller shall, pursuant to SECTION
2.03(A) of the Purchase Agreement, reduce in part the unused portion of the
aggregate Purchase Limits, the aggregate Commitments shall automatically, and
ratably for the Members in accordance with their respective Commitments, reduce
by an equal amount. The aggregate Commitments shall automatically terminate in
whole on any day on which the Seller shall terminate in whole the aggregate
Purchase Limits under and pursuant to SECTION 2.03(A) of the Purchase Agreement.
SECTION 2.04. RECEIVABLE INTEREST. Each Receivable Interest shall be
initially computed as of the opening of business of the Servicer on the date of
Purchase of such Receivable Interest. Thereafter until the Termination Date,
such Receivable Interest shall be automatically recomputed as of the close of
business of the Servicer on each day (other than a Liquidation Day). Such
Receivable Interest shall remain constant from the time as of which any such
computation or recomputation is made until the time as of which the next such
recomputation, if any, shall be made. Any Receivable Interest, as computed as of
the day immediately preceding the Termination Date, shall remain constant at all
times on and after the Termination Date. Such Receivable Interest shall become
zero at such time as each Member owning any portion of such Receivable Interest
shall have received the accrued Yield for such Receivable Interest, shall have
recovered the Capital of such Receivable Interest, and shall have received
payment of the Fees and all other amounts payable by the Seller to such Member
or its Group Managing Agent, and the Servicer shall have received the accrued
Servicer Fee for such Receivable Interest. Upon any Receivable Interest becoming
zero as aforesaid, each Member owning any portion of such Receivable Interest
and the Administrative Agent, respectively, shall execute and deliver such
documents and take such action as the Seller may reasonably request to evidence
the termination of such Member's interest in the remaining Pool Receivables and
hereunder, including assignments to the Seller of such Member's interest in the
remaining Pool Receivables and UCC termination statements with respect thereto,
all without recourse to, or
12
representation or warranty by, such Member or its Group Managing Agent or the
Administrative Agent, as the case may be.
SECTION 2.05. NON-LIQUIDATION SETTLEMENT PROCEDURES. (a) Except as set
forth in subsection (d) of this SECTION 2.05, on each Business Day (other than a
Liquidation Day or a Provisional Liquidation Day) during any Daily Reporting
Period, the Servicer shall cause all those funds on deposit in the Lock-Box
Accounts that constitute Collections of Pool Receivables to be transferred
electronically in immediately available funds to the Concentration Account, and
shall, based on the Daily Report delivered by the Servicer to each Group
Managing Agent and the Administrative Agent on such Business Day pursuant to
SECTION 2.07(C), at that time and in the following order:
(i) allocate all Collections transferred to the Concentration
Account since receipt of the last such Daily Report either as Member
Collections or as Seller Collections;
(ii) for each Receivable Interest, out of such Member Collections
attributable to such Receivable Interest, cause the Concentration Bank to
transfer to the Deposit Account, to be held and invested by the
Administrative Agent pursuant to SECTION 6.06, the Cure Amount, if any,
for such Receivable Interest for such Business Day;
(iii) for each Receivable Interest, out of the remainder of such
Member Collections attributable to such Receivable Interest, set aside
and hold in trust (in accordance with the provisions of SECTION 6.02(B))
for the Member owning such Receivable Interest and the Servicer an amount
equal to the sum of (A) the Yield and Servicer Fee accrued through such
Business Day for such Receivable Interest and not previously so set aside
and (B) the aggregate of the Fees and any other amounts then accrued or
owed hereunder by the Seller to such Member or its Group Managing Agent
and not previously so set aside;
(iv) reinvest the remainder of such Member Collections, for the
benefit of the Member owning such Receivable Interest, by recomputation
of such Receivable Interest pursuant to SECTION 2.04 as of the end of
such Business Day and cause the Concentration Bank to transfer such
remainder for account of the Seller either to the Seller's Account or to
a deposit account of the Servicer; PROVIDED that, to the extent that any
Member of any Purchaser Group shall be required for any reason to pay
over any amount of Collections which shall have been previously
reinvested for the account of such Member pursuant to SECTION 2.04, such
amount shall be deemed not to have been so transferred but rather to have
been retained by the Seller and paid over for the account of such Member
and, notwithstanding any provision hereof to the contrary, such Member
shall have a claim for such amount; and
(v) cause the Concentration Bank to transfer the Seller
Collections for account of the Seller either to the Seller's Account or
to a deposit account of the Servicer;
it being understood and agreed that if on any Business Day during any Daily
Reporting Period the Servicer shall fail to deliver the Daily Report for such
Business Day to each Group Managing
13
Agent and the Administrative Agent pursuant to SECTION 2.07(C), the Servicer
shall, until such Daily Report shall be so delivered, either hold all funds that
constitute Collections of Pool Receivables in the Concentration Account or, if
and to the extent that the Servicer shall be obligated to deposit such funds in
the Deposit Account pursuant to this SECTION 2.05(A), deposit such funds in the
Deposit Account.
If on any Business Day (other than a Settlement Date in respect of Capital)
during any Daily Reporting Period, the Servicer shall deliver to each Group
Managing Agent and the Administrative Agent, prior to 12:00 noon (New York City
time) on such Business Day, a Daily Report for such Business Day that shows any
Excess Amount in respect of the Receivable Interests on deposit in the Deposit
Account on such Business Day, the Administrative Agent shall, on such Business
Day, transfer by way of immediately available funds to the Concentration Account
funds equal to such Excess Amount.
On the Business Day that occurs two Business Days before the Settlement Date for
each Settlement Period for such Receivable Interest, the Servicer shall deposit
to the Deposit Account for the account of the Member owning of such Receivable
Interest the amounts set aside in respect of such Settlement Period as described
in clause (iii) of this SECTION 2.05(A). Upon receipt of such funds by the
Administrative Agent and on such Settlement Date, the Administrative Agent shall
distribute such funds and the Cure Deposited Amounts, if any, then held in the
Deposit Account and attributable to such Receivable Interest (i) to the Member
owning such Receivable Interest (A) in payment of the accrued Yield for such
Receivable Interest, (B) in reduction of Capital of such Receivable Interest in
the amount of the Cure Amount, if any, then in respect of such Receivable
Interest, and (C) in payment of the Fees and any other amounts then owed by the
Seller hereunder to such Member or its Group Managing Agent and (ii) to the
Servicer in payment of the accrued Servicer Fee payable with respect to such
Receivable Interest. If there shall be insufficient funds on deposit for the
Administrative Agent to distribute funds in payment in full of the
aforementioned amounts, the Administrative Agent shall distribute such funds,
FIRST, to the payment of the Servicer's out-of-pocket costs and expenses in
connection with servicing, administering and collecting the Pool Receivables, up
to the amount of the Servicer Fee, if WORLDCOM or one of its Affiliates is not
then acting as the Servicer, SECOND, in payment of the accrued Yield for such
Receivable Interest, THIRD, in reduction of Capital of such Receivable Interest
in the amount of the Cure Amount, if any, then in respect of such Receivable
Interest, FOURTH, in payment of the Fees and any other amounts owed by the
Seller hereunder to such Member or its Group Managing Agent, FIFTH, in payment
of the Servicer's out-of-pocket costs and expenses in connection with servicing,
administering and collecting the Pool Receivables, in excess of the Servicer
Fee, if WORLDCOM or one of its Affiliates is not then acting as the Servicer,
and SIXTH, in payment of the accrued Servicer Fee payable with respect to such
Receivable Interest if WORLDCOM or one of its Affiliates is then acting as
Servicer.
(b) Except as set forth in subsection (d) of this SECTION 2.05, on each
Business Day (other than a Liquidation Day or a Provisional Liquidation Day)
during each Weekly Reporting Period, the Servicer shall cause all those funds on
deposit in the Lock-Box Accounts that constitute Collections of Pool Receivables
to be transferred electronically in immediately available funds to the
Concentration Account, and shall, based on information available to it, at that
time and in the following order:
14
(i) allocate all such Collections transferred to the Concentration
Account either as Member Collections or as Seller Collections;
(ii) for each Receivable Interest and subject to the PROVISO set
forth below, out of such Member Collections attributable to such
Receivable Interest, set aside and hold in trust for the Member owning
such Receivable Interest and the Servicer an amount equal to the sum of
(A) the Yield and Servicer Fee accrued through such Business Day for such
Receivable Interest and not previously so set aside, (B) the Cure Amount,
if any, for such Receivable Interest for such Business Day, and (C) the
aggregate of the Fees and any other amounts then accrued or owed
hereunder by the Seller to such Member or its Group Managing Agent and
not previously so set aside;
(iii) reinvest the remainder of such Member Collections, for the
benefit of the Member owning such Receivable Interest, by recomputation
of such Receivable Interest pursuant to SECTION 2.04 as of the end of
such Business Day and cause the Concentration Bank to transfer such
remainder for account of the Seller either to the Seller's Account or to
a deposit account of the Servicer; PROVIDED that, to the extent that any
Member of any Purchaser Group shall be required for any reason to pay
over any amount of Collections which shall have been previously
reinvested for the account of such Member pursuant to SECTION 2.04, such
amount shall be deemed not to have been so transferred but rather to have
been retained by the Seller and paid over for the account of such Member
and, notwithstanding any provision hereof to the contrary, such Member
shall have a claim for such amount; and
(iv) cause the Concentration Bank to transfer the Seller
Collections for account of the Seller either to the Seller's Account or
to a deposit account of the Servicer;
PROVIDED, HOWEVER, that on the first Business Day of each week, the Servicer
shall, based on the Weekly Report delivered by the Servicer to each Group
Managing Agent and the Administrative Agent on such Business Day pursuant to
SECTION 2.07(D) for the immediately preceding week, for such Receivable
Interest, out of such Member Collections referred to in clause (i) of this
SUBSECTION (B) attributable to such Receivable Interest, cause the Concentration
Bank to transfer to the Deposit Account, to be held and invested by the
Administrative Agent pursuant to SECTION 6.06, the Cure Amount, if any, for such
Receivable Interest for such Business Day, it being understood and agreed that
if on the first Business Day of any week during any Weekly Reporting Period, the
Servicer shall fail to have delivered the Weekly Report for such Business Day to
each Group Managing Agent and the Administrative Agent pursuant to SECTION
2.07(D), the Servicer shall, until such Weekly Report shall be so delivered,
either hold all funds that constitute Collections of Pool Receivables in the
Concentration Account or, if and to the extent that the Servicer shall be
obligated to deposit such funds in the Deposit Account pursuant to this SECTION
2.05(B), deposit such funds in the Deposit Account.
If, on the first Business Day (other than a Settlement Date in respect of
Capital) of any week during any Weekly Reporting Period, the Servicer shall
deliver to each Group Managing Agent and the Administrative Agent, prior to
12:00 noon (New York City time) on such Business Day, a Weekly Report for such
Business Day that shows any Excess Amount in respect of the Receivable Interests
on deposit in the Deposit Account on such Business Day, the Administrative
15
Agent shall, on such Business Day, transfer by way of immediately available
funds to the Concentration Account funds equal to such Excess Amount.
On the Business Day that occurs two Business Days before the Settlement Date for
each Settlement Period for such Receivable Interest, the Servicer shall deposit
to the Deposit Account for the account of the Member owning such Receivable
Interest the amounts set aside in respect of such Settlement Period as described
in clause (ii) of this SECTION 2.05(B). Upon receipt of such funds by the
Administrative Agent and on such Settlement Date, the Administrative Agent shall
distribute such funds and the Cure Deposited Amounts, if any, then held in the
Deposit Account and attributable to such Receivable Interest (i) to the Member
owning such Receivable Interest (A) in payment of the accrued Yield for such
Receivable Interest, (B) in reduction of Capital of such Receivable Interest in
the amount of the Cure Amount, if any, then in respect of such Receivable
Interest, and (C) in payment of the Fees and any other amounts then owed by the
Seller hereunder to such Member or its Group Managing Agent and (ii) to the
Servicer in payment of the accrued Servicer Fee payable with respect to such
Receivable Interest. If there shall be insufficient funds on deposit for the
Administrative Agent to distribute funds in payment in full of the
aforementioned amounts, the Administrative Agent shall distribute such funds,
FIRST, to the payment of the Servicer's out-of-pocket costs and expenses in
connection with servicing, administering and collecting the Pool Receivables, up
to the amount of the Servicer Fee, if WORLDCOM or one of its Affiliates is not
then acting as the Servicer, SECOND, in payment of the accrued Yield for such
Receivable Interest, THIRD, in reduction of Capital of such Receivable Interest
in the amount of the Cure Amount, if any, then in respect of such Receivable
Interest, FOURTH, in payment of the Fees and any other amounts owed by the
Seller hereunder to such Member or its Group Managing Agent, FIFTH, in payment
of the Servicer's out-of-pocket costs and expenses in connection with servicing,
administering and collecting the Pool Receivables, in excess of the Servicer
Fee, if WORLDCOM or one of its Affiliates is not then acting as the Servicer,
and SIXTH, in payment of the accrued Servicer Fee payable with respect to such
Receivable Interest if WORLDCOM or one of its Affiliates is then acting as
Servicer.
(c) Except as set forth in subsection (d) of this SECTION 2.05, on each Business
Day (other than a Liquidation Day or a Provisional Liquidation Day) during each
Monthly Reporting Period, the Servicer shall cause all those funds on deposit in
the Lock-Box Accounts that constitute Collections of Pool Receivables to be
transferred electronically in immediately available funds to the Concentration
Account, and shall, based on information available to it, at that time and in
the following order:
(i) allocate all such Collections transferred to the Concentration
Account either as Member Collections or as Seller Collections;
(ii) for each Receivable Interest, out of such Member Collections
attributable to such Receivable Interest, set aside and hold in trust for
the Member owning such Receivable Interest and the Servicer an amount
equal to the sum of (A) the Yield and Servicer Fee accrued through such
Business Day for such Receivable Interest and not previously so set
aside, (B) the Cure Amount, if any, for such Receivable Interest for such
Business Day, and (C) the aggregate of the Fees and any other amounts
then accrued or owed hereunder by the Seller to such Member or its Group
Managing Agent and not previously so set aside;
16
(iii) reinvest the remainder of such Member Collections for the
benefit of the Member owning such Receivable Interest, by recomputation
of such Receivable Interest pursuant to SECTION 2.04 as of the end of
such Business Day and cause the ------------ Concentration Bank to
transfer such remainder for account of the Seller either to the Seller's
Account or to a deposit account of the Servicer; PROVIDED that, to the
extent that any Member of any Purchaser Group shall be required for any
reason to pay over any amount of Collections which shall have been
previously reinvested for the account of such Member pursuant to SECTION
2.04, such amount shall be deemed not to have been so transferred but
rather to have been retained by ------------ the Seller and paid over for
the account of such Member and, notwithstanding any provision hereof to
the contrary, such Member shall have a claim for such amount; and
(iv) cause the Concentration Bank to transfer the Seller
Collections for account of the Seller either to the Seller's Account or
to a deposit account of the Servicer.
On the Settlement Date for each Settlement Period for such Receivable Interest,
the Servicer shall deposit to the Deposit Account for the account of the Member
owning such Receivable Interest the amounts set aside in respect of such
Settlement Period as described in clause (ii) of this SECTION 2.05(C). Upon
receipt of such funds by the Administrative Agent and on such Settlement Date,
the Administrative Agent shall distribute such funds (i) to the Member owning
such Receivable Interest (A) in payment of the accrued Yield for such Receivable
Interest, (B) in reduction of Capital of such Receivable Interest in the amount
of the Cure Amount, if any, then in respect of such Receivable Interest, and (C)
in payment of the Fees and any other amounts then owed by the Seller hereunder
to such Member or its Group Managing Agent and (ii) to the Servicer in payment
of the accrued Servicer Fee payable with respect to such Receivable Interest. If
there shall be insufficient funds on deposit for the Administrative Agent to
distribute funds in payment in full of the aforementioned amounts, the
Administrative Agent shall distribute such funds, FIRST, to the payment of the
Servicer's out-of-pocket costs and expenses in connection with servicing,
administering and collecting the Pool Receivables, up to the amount of the
Servicer Fee, if WORLDCOM or one of its Affiliates is not then acting as the
Servicer, SECOND, in payment of the accrued Yield for such Receivable Interest,
THIRD, in reduction of Capital of such Receivable Interest in the amount of the
Cure Amount, if any, then in respect of such Receivable Interest, FOURTH, in
payment of the Fees and any other amounts owed by the Seller hereunder to such
Member or its Group Managing Agent, FIFTH, in payment of the Servicer's
out-of-pocket costs and expenses in connection with servicing, administering and
collecting the Pool Receivables, in excess of the Servicer Fee, if WORLDCOM or
one of its Affiliates is not then acting as the Servicer, and SIXTH, in payment
of the accrued Servicer Fee payable with respect to such Receivable Interest if
WORLDCOM or one of its Affiliates is then acting as Servicer.
(d) Anything herein to the contrary notwithstanding, on each Business Day
(other than a Liquidation Day or a Provisional Liquidation Day) on which a
Special Event for any Purchaser shall have occurred and be continuing during any
Settlement Period for any Receivable Interest owned by any Member of such
Purchaser's Purchaser Group, (i) the Servicer shall set aside and hold in trust,
and deposit to the Deposit Account for the account of each such Member, all
Collections of Pool Receivables attributable to such Receivable Interest, and
(ii) the Administrative Agent shall distribute such Collections to such Members
and the Servicer, in each
17
case of clauses (i) and (ii) above as and in the manner and order set forth in
SECTION 2.06 as though the term "Member" or "Members" in SECTION 2.06 referred
only to such Members.
SECTION 2.06. LIQUIDATION SETTLEMENT PROCEDURES. On each Liquidation Day
and on each Provisional Liquidation Day during each Settlement Period for each
Receivable Interest, the Servicer shall cause all those funds on deposit in the
Lock-Box Accounts that constitute Collections of Pool Receivables to be
transferred electronically in immediately available funds to the Concentration
Account, and, based on information available to it, at that time and in the
following order:
(i) allocate all such Collections either as Member Collections or
as Seller Collections;
(ii) for each Receivable Interest, out of such Member Collections,
cause the Concentration Bank to deposit to the Deposit Account for the
account of the Member owning such Receivable Interest funds constituting
such Member Collections attributable to such Receivable Interest, but
such deposit shall not exceed the sum of (A) the accrued Yield for each
Receivable Interest as of such date, (B) the Capital of such Receivable
Interest, (C) the accrued Servicer Fee payable as of such date, and (D)
the aggregate of the Fees and any other amounts owed hereunder by the
Seller to the Member owning such Receivable Interest or its Group
Managing Agent; PROVIDED, HOWEVER, that if such funds are so deposited to
the Deposit Account on any Provisional Liquidation Day which is
subsequently determined not to be a Liquidation Day, such funds shall be
applied pursuant to SECTION 2.05 on the day of such subsequent
determination; and
(iii) cause the Concentration Bank to transfer the Seller
Collections for account of the Seller either to the Seller's Account or
to a deposit account of the Servicer.
Upon receipt of such funds by, and held by, the Administrative Agent, the
Administrative Agent shall, on the Settlement Date for each Settlement Period
for such Receivable Interest, distribute them (A) to the Member owning such
Receivable Interest (x) in payment of the accrued Yield for such Receivable
Interest, (y) in reduction (to zero) of the Capital of such Receivable Interest
and (z) in payment of the Fees and any other amounts owed by the Seller
hereunder to such Member or its Group Managing Agent and (B) to the Servicer in
payment of accrued Servicer Fees payable with respect to such Receivable
Interest. If there shall be insufficient funds on deposit for the Administrative
Agent to distribute funds in payment in full of the aforementioned amounts, the
Administrative Agent shall distribute such funds, FIRST, to the payment of the
Servicer's reasonable out-of-pocket costs and expenses in connection with
servicing, administering and collecting the Pool Receivables, including the
Servicer Fee, if WORLDCOM or one of its Affiliates is not then acting as the
Servicer, SECOND, to the reimbursement of the Administrative Agent's costs of
collection and enforcement of this Agreement, THIRD, in payment of the accrued
Yield for such Receivable Interest, FOURTH, in reduction of Capital of such
Receivable Interest, FIFTH, in payment of the Fees and other amounts payable to
such Member or its Group Managing Agent, and SIXTH, in payment of the accrued
Servicer Fee payable with respect to such Receivable Interest if WORLDCOM or one
of its Affiliates is then acting as the Servicer.
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SECTION 2.07. GENERAL SETTLEMENT PROCEDURES. SECTION 2.07 of the Purchase
Agreement is hereby incorporated herein by this reference.
SECTION 2.08. PAYMENTS AND COMPUTATIONS, ETC. (a) All amounts to be paid
or deposited by the Seller or the Servicer hereunder shall be paid or deposited
in accordance with the terms hereof no later than 12:00 noon (New York City
time) on the day when due in lawful money of the United States in same day funds
to the Deposit Account. Amounts paid or deposited by the Seller or the Servicer
to the Deposit Account on any day later than 12:00 noon (New York City time) on
such day shall be deemed to be paid or deposited on the next succeeding Business
Day. The Administrative Agent shall promptly thereafter cause to be distributed
(i) like funds relating to the payment out of Collections in respect of Capital,
Yield, Servicer Fee, Fees or other amounts payable out of Collections, to the
applicable Members (or, in the case of Fees, the applicable Group Managing
Agents), ratably in accordance with their respective interests and to the
Servicer in accordance with the provisions of SECTION 2.05 or 2.06, as
applicable, and (ii) like funds relating to the payment by the Seller of other
amounts payable by the Seller hereunder, to the parties hereto for whose benefit
such funds were paid (and if such funds are insufficient, such distribution
shall be made ratably in accordance with the respective amounts thereof). Upon
the Administrative Agent's acceptance of an Assignment and Acceptance and
recording of the information contained therein in the Register pursuant to
SECTION 9.02(C), from and after the effective date specified in such Assignment
and Acceptance, the Administrative Agent shall make all payments hereunder in
respect of the interest assigned thereby to the assignee thereunder, and the
parties to such Assignment and Acceptance shall make all appropriate adjustments
in such payments for periods prior to such effective date directly between
themselves.
(b) The Seller shall, to the extent permitted by law, pay to the
Administrative Agent interest on all amounts not paid or deposited within 2
Business Days of the date due hereunder (except for those amounts with respect
to which Yield accrues) at the Default Rate in effect from time to time, payable
on demand, PROVIDED, HOWEVER, that such interest rate shall not at any time
exceed the maximum rate permitted by applicable law. Such interest shall be for
the account of, and distributed by the Administrative Agent to, the applicable
Members ratably in accordance with their respective interests in such overdue
amount.
(c) All computations of interest and all computations of Yield,
Liquidation Yield/Fee and fees hereunder shall be made on the basis of a year of
360 days for the actual number of days (including the first but excluding the
last day) elapsed.
(d) The Seller hereby authorizes each Member, if and to the extent any
amount owed by the Seller to such Member is not paid to the Administrative Agent
when due hereunder and if the Administrative Agent or such Member shall have
notified the Seller that such amount is or will be due, to charge from time to
time against any or all of the Seller's accounts with such Member any such
amount so due.
(e) Unless the Administrative Agent shall have received notice from the
Servicer or the Seller prior to the date on which any payment is due to the
Members hereunder that the Servicer or the Seller, as the case may be, will not
make such payment in full, the Administrative Agent may assume that the Servicer
or the Seller, as the case may be, has made
19
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each Member on such due date an amount equal to the amount then
due such Member. If and to the extent the Servicer or the Seller, as the case
may be, shall not have so made such payment in full to the Administrative Agent,
each Member shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Member together with interest thereon, for each day
from the date such amount is distributed to such Member until the date such
Member repays such amount to the Administrative Agent, at the Federal Funds
Rate.
SECTION 2.09. FEES. (a) The Seller shall pay to the Administrative Agent
for the account of the Administrative Agent, the Group Managing Agents and the
Banks, as the case may be, such fees as are set forth in the Fee Letters. (b)
The Servicer shall be paid a fee (the "SERVICER FEE") of 1/2 of 1% per annum on
the average daily amount of Capital of each Receivable Interest from the date of
the initial Purchase hereunder until the later of the Commitment Termination
Date or the date on which such Capital is reduced to zero, payable on the
Settlement Date for each Settlement Period for such Receivable Interest;
PROVIDED, HOWEVER, that, upon three Business Days' notice to the Administrative
Agent, the Servicer (if not WORLDCOM or any Affiliate thereof) may elect to be
paid, as such fee, another percentage per annum on the average daily amount of
Capital of each such Receivable Interest, but in no event in excess of the
lesser of (i) 1% per annum on the average daily amount of such Capital, and (ii)
110% of the costs and expenses referred to in SECTION 6.02(C); and PROVIDED
FURTHER that such fee shall be payable only from Collections pursuant to, and
subject to the priority of payment set forth in, SECTIONS 2.05 and 2.06.
SECTION 2.10. INCREASED COSTS. SECTION 2.10 of the Purchase Agreement is
hereby incorporated herein by this reference.
SECTION 2.11. INCREASED CAPITAL. SECTION 2.11 of the Purchase Agreement
is hereby incorporated herein by this reference.
SECTION 2.12. TAXES. SECTION 2.12 of the Purchase Agreement is hereby
incorporated herein by this reference.
SECTION 2.13. SHARING OF PAYMENTS, ETC. If any Member shall obtain any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) on account of the Purchases made by it (other than with
respect to payments due to such Member pursuant to SECTION 2.10, 2.11, 2.12 or
2.14) in excess of its ratable share of payments on account of the Purchases
obtained by all the Members, such Member shall forthwith purchase from the other
Members such interests in the Receivable Interests purchased by them as shall be
necessary to cause such purchasing Member to share the excess payment ratably
with each of them; PROVIDED, HOWEVER, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Member, such purchase from
each other Member shall be rescinded and such other Member shall repay to the
purchasing Member the purchase price to the extent of such recovery together
with an amount equal to such other Member's ratable share (according to the
proportion of (i) the amount of such other Member's required repayment to (ii)
the total amount so recovered from the purchasing Member) of any interest or
20
other amount paid or payable by the purchasing Member in respect of the total
amount so recovered. The Seller agrees that any Member so purchasing an interest
in Receivable Interests from another Member pursuant to this Section 2.13 may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such interest in Receivable
Interests as fully as if such Member were the direct creditor of the Seller in
the amount of such interest in Receivable Interests.
SECTION 2.14. SUBSTITUTION OF MEMBERS. If any Member shall (i) request,
or if any Participant or Participants for the Receivable Interest or Interests
of such Member shall request, a payment pursuant to SECTION 2.10, 2.11 or 2.12,
or (ii) have had its Affiliated Purchaser become a "Substitutable Purchaser"
under and as defined in SECTION 2.14 of the Purchase Agreement (in each of
clauses (i) and (ii) such a Member being a "SUBSTITUTABLE MEMBER"), the Seller
may cause such Member, as instructed by the Seller, to assign to the other
Members which shall have agreed to accept and assume such assignment (it being
understood that each Member willing to so accept and assume such assignment
shall be permitted to do so by each other Member and the Seller) ratably in
accordance with their respective Commitments or as otherwise agreed by such
Members and notified to the Seller and the Administrative Agent, or, if no other
Member shall have agreed to so accept and assume such assignment within five
Business Days after the Seller shall give written notice to the Administrative
Agent of the Seller's offer of such assignment to the other Members, to such
other Person as shall have been designated by the Seller and approved by the
Administrative Agent and the Group Managing Agent of such Substitutable Member's
Purchaser Group (which approval shall not be unreasonably withheld, conditioned
or delayed), all of its rights and obligations under this Agreement and with
respect to its Receivable Interests (including, without limitation, all of its
Commitment and the amount of Capital owing to it) pursuant to an Assignment and
Acceptance executed under SECTION 9.02, PROVIDED, HOWEVER, that (x) such
assignment shall not conflict with any law, rule, regulation, order or decree of
any Governmental Authority, (y) the Substitutable Member shall have received
from such assignee full payment in immediately available funds of all amounts
payable to it in respect of Capital, accrued Yield and other amounts owing to it
in connection herewith and (z) such assignment by such Substitutable Member
shall occur simultaneously with an assignment by that Purchaser which is an
Affiliate of such Substitutable Member of all of such Purchaser's rights and
obligations under the Purchase Agreement and with respect to its Receivable
Interests, if any, to an assignee pursuant to SECTION 2.14 of the Purchase
Agreement; and PROVIDED, FURTHER, that nothing contained in this SECTION 2.14
shall obligate any Member to assume any rights or obligations of any
Substitutable Member.
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. CONDITIONS PRECEDENT TO EFFECTIVENESS. This Agreement shall
be effective at such time as (i) the Seller shall have caused the amount of the
aggregate outstanding Capital of the Receivable Interests, ratably in accordance
with their respective Capital, to be reduced to an amount resulting in no Cure
Amount, determined on the basis of the Daily Report furnished pursuant to
SUBSECTION (F) below, (ii) the Administrative Agent and each Member shall have
received all fees and expenses required to be paid on or before the New Closing
Date pursuant to the terms of this Agreement, (iii) the Facility Termination
Date shall not have occurred, (iv) the conditions precedent to the effectiveness
of the Purchase Agreement shall have been
21
satisfied and (v) the Administrative Agent shall have received each of the
following, in form and substance satisfactory to the Administrative Agent and in
sufficient copies for the Administrative Agent and each Group Managing Agent:
(a) This Agreement, duly executed by each of the parties hereto.
(b) The Parent Undertaking, duly executed by WORLDCOM.
(c) The Receivables Contribution and Sale Agreement, duly executed
by each Originator, WORLDCOM as the Buyer's Servicer, and the Seller.
(d) The Consent and Agreement, duly executed by the Seller and
each Originator.
(e) Favorable opinions of (i) Hall, Estill, Hardwick, Gable,
Golden & ▇▇▇▇▇▇, P.C., counsel to the Originators, WORLDCOM and the
Seller, in substantially the form of Exhibits H-1A and B to the Purchase
Agreement, (ii) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Assistant Corporate General Counsel
of WORLDCOM, in substantially the form of Exhibit H-2 to the Purchase
Agreement, (iii) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇, New York counsel to the
Originators, WORLDCOM and the Seller, in substantially the form of
Exhibit H-3 to the Purchase Agreement, (iv) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, General
Counsel of WORLDCOM, in substantially the form of Exhibit H-4 to the
Purchase Agreement, and (v) Morris, Nichols, Arsht & ▇▇▇▇▇▇▇, Delaware
counsel to the Seller and the Originators, in substantially the form of
Exhibit H-5 to the Purchase Agreement.
(f) A Daily Report as of May 22, 2002.
(g) An Officer's Certificate, duly executed by an authorized
officer of the Seller, stating that:
(A) The representations and warranties contained in SECTION
4.01 of this Agreement are correct on and as of the New Closing
Date, both before and after giving effect to this Agreement; and
(B) No event has occurred and is continuing, or would
result from the execution and delivery of this Agreement and the
performance by the Seller of its obligations hereunder, which
constitutes an Event of Termination or a Potential Event of
Termination.
(h) An Officer's Certificate, duly executed by an authorized
officer of the Servicer, stating that:
(A) The representations and warranties contained in SECTION
4.02 of this Agreement are correct on and as of the New Closing
Date, both before and after giving effect to this Agreement; and
(B) No event has occurred and is continuing, or would
result from the execution and delivery of this Agreement and the
performance by the Servicer of
22
its obligations hereunder, which constitutes an Event of
Termination or a Potential Event of Termination.
(i) An Officer's Certificate, duly executed by an authorized
officer of each of the Originators, stating that the representations and
warranties contained in SECTION 3.01 of the Receivables Contribution and
Sale Agreement are correct on and as of the New Closing Date, both before
and after giving effect to this Agreement.
(j) A certificate of the Secretary or Assistant Secretary of
WORLDCOM certifying (i) that there have been no changes to its Articles
or Certificate of Incorporation since the Amendment Closing Date, or if
there have been any changes, a copy of such Articles or Certificate duly
certified by the Secretary of State of Georgia as of a recent date
acceptable to the Administrative Agent, (ii) that there have been no
changes to its by-laws since the Amendment Closing Date, or if there have
been any changes, a copy of such by-laws, (iii) the names and true
signatures of the officers of WORLDCOM authorized on its behalf to sign
this Agreement and the other Transaction Documents to be delivered by it
hereunder and (iv) a copy of the resolutions of the Board of Directors of
WORLDCOM authorizing the transactions contemplated by this Agreement and
the other Transaction Documents.
(k) A certificate of the Secretary or Assistant Secretary of the
Seller certifying (i) that there have been no changes to its Certificate
of Incorporation since the Amendment Closing Date, (ii) that there have
been no changes to its by-laws since the Amendment Closing Date, (iii)
the names and true signatures of the officers of the Seller authorized on
its behalf to sign this Agreement and the other Transaction Documents to
be delivered by it hereunder and (iv) a copy of the resolutions of the
Board of Directors of the Seller authorizing the transactions
contemplated by this Agreement and the other Transaction Documents.
(l) A certificate of the Secretary or Assistant Secretary of each
Originator certifying (i) that there have been no changes to its
Certificate of Incorporation since the First Closing Date or the
Amendment Closing Date (whichever date such Certificate was furnished to
the Administrative Agent or its predecessor), as the case may be, or if
there have been any changes, a copy of such Certificate duly certified by
the Secretary of State of Delaware as of a recent date acceptable to the
Administrative Agent, (ii) that there have been no changes to its by-laws
since the First Closing Date or the Amendment Closing Date (whichever
date such by-laws were furnished to the Administrative Agent or its
predecessor), or if there have been any changes, a copy of such by-laws,
(iii) the names and true signatures of the officers of such Originator
authorized on its behalf to sign the Consent and Agreement and the other
Transaction Documents to be delivered by it hereunder, and (iv) a copy of
the resolutions of the Board of Directors of such Originator authorizing
the transactions contemplated by the Receivables Contribution and Sale
Agreement and the other Transaction Documents to which such Originator is
a party.
23
(m) Copies of good standing certificates for each of the Seller,
WORLDCOM and the Originators, issued as of a recent date acceptable to
the Administrative Agent by the Secretaries of State of their respective
states of incorporation.
(n) The Fee Letters dated as of the New Closing Date duly executed
by all parties thereto.
(o) Proper UCC-3 financing statements for each of the financing
statements delivered pursuant to SECTIONS 3.02(D) and (J) of the A&R
Parallel Purchase Commitment (except for those filed against CMC and
Partners) to be filed under the UCC amending the name of the secured
party therein from Bank One as Administrative Agent to JPMorgan as
Administrative Agent.
(p) Collection Notices for the Lock-Box Accounts in which at least
40% of the Recent Collections were deposited, duly executed by the
respective Lock-Box Banks and the owner of the Lock-Box Accounts (that
is, the Seller), indicating daily settlement transfers of Collections to
the Concentration Account and giving "control" (within the meaning of
Section 9-104 of the UCC in effect in the State of New York) to the
Administrative Agent.
(q) An assignment by Bank One to JPMorgan as Administrative Agent
of all of Bank One's right, title and interest as Administrative Agent
in, to and under the Collection Notices as defined in, and entered into
pursuant to, the Original Parallel Purchase Commitment or the A&R
Parallel Purchase Commitment.
(r) The cancellation and return by Bank One of the Letter of
Credit as defined in, and issued pursuant to, the A&R Parallel Purchase
Commitment.
SECTION 3.02. CONDITIONS PRECEDENT TO ALL PURCHASES AND REINVESTMENTS.
Each Purchase (including the initial Purchase of each Member) hereunder and the
right of the Servicer to reinvest in Pool Receivables those Collections
attributable to a Receivable Interest pursuant to SECTION 2.05 shall be subject
to the further conditions precedent that:
(a) with respect to any such Purchase, on or prior to the date of
such Purchase, the Servicer shall have delivered to each Group Managing
Agent and the Administrative Agent, in form and substance satisfactory to
the Administrative Agent, a copy of each of the most recent Monthly
Report, Weekly Report and Daily Report that are then required to be
delivered to each Group Managing Agent and the Administrative Agent
pursuant to SECTION 2.07(B), (C) and (D), and completed by the Servicer
in all respects, together with such additional information (including,
without limitation, a listing by Obligor of all Billed Pool Receivables,
together with an analysis as to the aging of such Billed Pool
Receivables) as may be reasonably requested by the Administrative Agent;
(b) on the date of such Purchase or reinvestment the following
statements shall be true (and the acceptance by the Seller of the
proceeds of such Purchase or reinvestment shall constitute a
representation and warranty by the Seller that on the date of such
Purchase or reinvestment such statements are true):
24
(i) The representations and warranties contained in
SECTIONS 4.01 and 4.02 of this Agreement, in SECTION 3.01 of the
Receivables Contribution and Sale Agreement and in SECTION 5 of
the Parent Undertaking are correct on and as of the date of such
Purchase or reinvestment, before and after giving effect to such
Purchase or reinvestment and to the application of the proceeds
therefrom, as though made on and as of such date;
(ii) No event has occurred and is continuing, or would
result from such Purchase or reinvestment or from the application
of the proceeds therefrom, which constitutes an Event of
Termination or a Potential Event of Termination;
(c) in the case of any such Purchase, the Administrative Agent
shall have received a request for such Purchase pursuant to SECTION 2.02;
(d) the Administrative Agent and the Majority Purchaser Groups
shall have been satisfied with the results of the most recent audit
conducted pursuant to SECTION 5.01(E);
(e) the Commitment Termination Date shall not have occurred; and
(f) the Administrative Agent shall have received such other
approvals, opinions or documents as the Administrative Agent or any
Member may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE SELLER. Each of the
representations and warranties of the Seller as set forth in SECTION 4.01 of the
Purchase Agreement is hereby incorporated herein by this reference and is deemed
to be herein restated and hereby reconfirmed in favor of the Members, the Group
Managing Agents and the Administrative Agent.
SECTION 4.02. REPRESENTATIONS AND WARRANTIES OF THE SERVICER. Each of the
representations and warranties of the Servicer as set forth in SECTION 4.02 of
the Purchase Agreement is hereby incorporated herein by this reference and is
deemed to be herein restated and hereby reconfirmed in favor of the Members, the
Group Managing Agents and the Administrative Agent.
ARTICLE V
GENERAL COVENANTS OF THE SELLER AND THE SERVICER
SECTION 5.01. AFFIRMATIVE COVENANTS OF THE SELLER. Until the later of (i)
the Commitment Termination Date and (ii) the date on which no Capital for any
Receivable Interest shall be existing and all other amounts payable by the
Seller hereunder shall be paid in full, the Seller shall, unless the Majority
Purchaser Groups shall otherwise consent in writing, comply with each and every
covenant of the Seller as set forth in SECTION 5.01 of the Purchase Agreement,
each of which is hereby incorporated herein by this reference.
25
SECTION 5.02. REPORTING REQUIREMENTS OF THE SELLER. Until the later of
(i) the Commitment Termination Date and (ii) the date on which no Capital for
any Receivable Interest shall be existing and all other amounts payable by the
Seller hereunder shall be paid in full, the Seller will, unless the Majority
Purchaser Groups shall otherwise consent in writing, furnish to the
Administrative Agent and each Group Managing Agent each and every report,
document, certificate or other item referred to in SECTION 5.02 of the Purchase
Agreement, which is incorporated herein by this reference.
SECTION 5.03. NEGATIVE COVENANTS OF THE SELLER. Until the later of (i)
the Commitment Termination Date and (ii) the date on which no Capital for any
Receivable Interest shall be existing and all other amounts payable by the
Seller hereunder shall be paid in full, the Seller shall not, without the prior
written consent of the Majority Purchaser Groups (in the case of subsection (c)
of SECTION 5.03, the prior written consent of all the Purchaser Groups), violate
any covenant set forth in SECTION 5.03 of the Purchase Agreement, each of which
is hereby incorporated herein by this reference.
SECTION 5.04. AFFIRMATIVE COVENANTS OF SERVICER. Until the later of (i)
the Commitment Termination Date and (ii) the date on which no Capital for any
Receivable Interest shall be existing and all other amounts payable by the
Seller hereunder shall be paid in full, the Servicer shall, unless the Majority
Purchaser Groups shall otherwise consent in writing, comply with each and every
covenant of the Servicer as set forth in SECTION 5.04 of the Purchase Agreement,
each of which is hereby incorporated herein by this reference.
SECTION 5.05. NEGATIVE COVENANTS OF THE SERVICER. Until the later of (i)
the Commitment Termination Date and (ii) the date on which no Capital for any
Receivable Interest shall be existing and all other amounts payable by the
Seller hereunder shall be paid in full, the Servicer shall not, without the
prior written consent of the Majority Purchaser Groups (in the case of
subsection (b) of SECTION 5.05, the prior written consent of all the Purchaser
Groups), violate any covenant set forth in SECTION 5.05 of the Purchase
Agreement, each of which is hereby incorporated herein by this reference.
ARTICLE VI
ADMINISTRATION AND COLLECTION
SECTION 6.01. DESIGNATION OF SERVICER. The Pool Receivables shall be
serviced, administered and collected by the Person (the "SERVICER") designated
to do so from time to time in accordance with this SECTION 6.01. Until the
Administrative Agent (with the consent or at the request of the Majority
Purchaser Groups) designates a new Servicer, WORLDCOM is hereby designated as,
and hereby agrees to perform the duties and obligations of, the Servicer
pursuant to the terms hereof. The Administrative Agent may (with the consent or
at the request of the Majority Purchaser Groups), at any time upon the
occurrence and during the continuance of any Event of Termination, designate as
Servicer any Person (including itself) to succeed WORLDCOM or any successor
Servicer, if such Person (other than itself) shall agree in writing to perform
the duties and obligations of the Servicer pursuant to the terms hereof. The
Servicer may subcontract with any Originator, or, with the prior consent of the
Administrative Agent (with the consent or at the request of the Majority
Purchaser Groups), any other Person, in each case to service, administer or
collect any or all of the Pool Receivables, PROVIDED that the Person
26
with whom the Servicer so subcontracts shall not become the Servicer hereunder
and the Servicer shall remain liable for the performance of the duties and
obligations of the Servicer pursuant to the terms hereof.
SECTION 6.02. DUTIES OF SERVICER. SECTION 6.02 of the Purchase Agreement
is hereby incorporated herein by this reference.
SECTION 6.03. RIGHTS OF THE ADMINISTRATIVE AGENT. SECTION 6.03 of the
Purchase Agreement is hereby incorporated herein by this reference.
SECTION 6.04. RESPONSIBILITIES OF THE SELLER. SECTION 6.04 of the
Purchase Agreement is hereby incorporated herein by this reference.
SECTION 6.05. FURTHER ACTIONS EVIDENCING PURCHASES. SECTION 6.05 of the
Purchase Agreement is hereby incorporated herein by this reference.
SECTION 6.06. THE CONCENTRATION ACCOUNT AND THE DEPOSIT ACCOUNT. SECTION
6.06 of the Purchase Agreement is hereby incorporated herein by this reference.
ARTICLE VII
EVENTS OF TERMINATION
SECTION 7.01. EVENTS OF TERMINATION. If any of the following events
("EVENTS OF TERMINATION") shall occur and be continuing:
(a) (i) The Seller or the Servicer (if WORLDCOM or any of its
Affiliates) shall fail to make any payment or deposit of Yield to be made
by it hereunder within one Business Day after such payment or deposit is
due, (ii) the Seller or the Servicer (if WORLDCOM or any of its
Affiliates) shall fail to make any other payment or deposit to be made by
it hereunder on the date such payment or deposit is due, or (iii) except
as otherwise provided in subsection (c) of this SECTION 7.01, the
Servicer (if WORLDCOM or any of its Affiliates) shall fail to perform or
observe any other term, covenant or agreement contained in this Agreement
or any other Transaction Document to which it is a party on its part to
be performed or observed and such failure shall continue for 10 days
after the earlier of (A) the date on which written notice thereof shall
have been given to the Servicer by the Administrative Agent and (B) the
date on which any Senior Financial Officer of the Servicer shall have
knowledge of such failure to perform or observe; or
(b) Any representation or warranty made or deemed made by the
Seller, the Servicer (if WORLDCOM or any of its Affiliates), WORLDCOM
(other than in its capacity as Servicer) or any Originator (or any of
their respective officers) under or in connection with this Agreement,
the Parent Undertaking or the Receivables Contribution and Sale Agreement
or in any Monthly Report, Weekly Report, Daily Report or any other
written report, certificate or information delivered by or on behalf of
the Seller, such Servicer, WORLDCOM or any Originator (or any of their
respective officers) pursuant hereto or thereto, shall prove to have been
incorrect in any material respect when made or deemed made or delivered;
or
27
(c) The Seller or the Servicer (if WORLDCOM or any of its
Affiliates) shall fail to perform or observe any term, covenant or
agreement contained in SECTION 5.01(E), 5.01(G), 5.01(N), 5.02(D), 5.03,
5.04(D), 5.04(E) or 5.05 of this Agreement, or any Originator shall fail
to perform or observe any term, covenant or agreement contained in
SECTION 4.01(G), 4.01(I), 4.01(J)(III) or 4.02 of the Receivables
Contribution and Sale Agreement; or
(d) The Seller, WORLDCOM (other than in its capacity as Servicer)
or any Originator shall fail to perform or observe any other term,
covenant or agreement contained in any Transaction Document to which it
is a party on its part to be performed or observed and any such failure
shall remain unremedied for 10 days after written notice thereof shall
have been given to the Seller, WORLDCOM or such Originator, as the case
may be, by the Administrative Agent; or
(e) The Seller shall fail to pay any principal of, or premium or
interest on, any of its Debt that is outstanding, or WORLDCOM shall fail
to pay any principal of, or premium or interest on, any of its Debt that
is outstanding in a principal amount of at least $100,000,000, either
individually or in the aggregate, in each case, when the same becomes due
and payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), redeemed, purchased or defeased, or an offer to
prepay, redeem, purchase or defease such Debt shall be required to be
made, in each case prior to the stated maturity thereof; PROVIDED,
HOWEVER, that the provisions of this subsection (e) shall not give effect
to any waiver, amendment or other modification, or consent, that would
cure or otherwise remedy any failure to pay or other event or condition
referred to in this subsection (e); or
(f) Any Purchase or any reinvestment pursuant to SECTION 2.05
shall for any reason (other than pursuant to the terms hereof) cease to
create, or any Receivable Interest shall for any reason cease to be, a
valid and perfected first priority undivided percentage ownership
interest to the extent of the pertinent Receivable Interest in each
applicable Pool Receivable and the Related Security and Collections with
respect thereto or any Certificate shall for any reason cease to evidence
in the Members owning such Receivable Interest legal and equitable title
to, and ownership of, an undivided percentage ownership interest in Pool
Receivables and Related Security to the extent of such Receivable
Interest; or
(g) The Seller, the Servicer (if any Originator or any of its
Affiliates), WORLDCOM or any Originator shall generally not pay its debts
as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit
of creditors; or any proceeding shall be instituted by or
28
against the Seller, the Servicer (if any Originator or any of its
Affiliates), WORLDCOM or any Originator seeking to adjudicate it a
bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry
of an order for relief or the appointment of a receiver, trustee,
custodian or other similar official for it or for any substantial part of
its property and, in the case of any such proceeding instituted against
it (but not instituted by it) that is being diligently contested by it in
good faith, such proceeding shall remain undismissed or unstayed for a
period of 60 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief against,
or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall
occur; or the Seller, the Servicer (if any Originator or any of its
Affiliates), WORLDCOM or any Originator shall take any corporate action
to authorize any of the actions set forth above in this subsection (g);
or
(h) (i) One or more final and non-appealable judgments for the
payment of money shall be entered against the Seller or (ii) one or more
final and non-appealable judgments for the payment of money in an amount
in excess of, until the effectiveness of the New WORLDCOM Credit
Agreement, $500,000,000, and on and after the effectiveness of the New
WORLDCOM Credit Agreement, the amount set forth in the equivalent defined
term "Default" or "Event of Default" under and as defined in the New
WORLDCOM Credit Agreement, individually or in the aggregate, shall be
entered against WORLDCOM on claims not covered by insurance or as to
which the insurance carrier has denied its responsibility, and such
judgment shall continue unsatisfied and in effect for sixty consecutive
days without a stay of execution; or
(i) (i) The average of the Deemed Loss Ratios for each of the
three most recently ended calendar months shall exceed 8%, or (ii) the
average of the Default Ratios for each of the three most recently ended
calendar months shall exceed 29%, or (iii) the average of the
Loss-to-Liquidation Ratios for each of the three most recently ended
calendar months shall exceed 6%, or (iv) the average of the Dilution
Ratios for each of the three most recently ended calendar months shall
exceed 9%; or
(j) The aggregate undivided percentage interest of all Receivable
Interests and all "Receivable Interests" under the Purchase Agreement
shall exceed at any time the Receivable Interest Percent then in effect
and such excess shall continue until the earlier of (i) the date two
Business Days after the date on which the Seller or the Servicer knows of
such excess and (ii) the next succeeding Settlement Date for any
Settlement Period; or
(k) There shall have been any material adverse change in the
financial condition or operations of the Seller or the Servicer (if any
Originator or any of its Affiliates) or WORLDCOM or any Originator since
(i) in the case of the Seller, the First Closing Date, and (ii) in the
case of such Servicer, WORLDCOM or any Originator, December 31, 2001,
except as set forth in (A) that certain Form 10-Q filed by and in respect
of WORLDCOM with the U.S. Securities and Exchange Commission on or about
May 15, 2002 (exclusive of, and without giving effect to, the financial
statements contained in such Form 10-Q, but inclusive of, and giving
effect to, the footnotes related
29
to such financial statements), and (B) Schedule V to the Purchase
Agreement; or there shall have occurred any event which materially
adversely affects the collectibility of the Pool Receivables taken as a
whole, or there shall have occurred any other event which materially
adversely affects the ability of the Servicer (if any Originator or any
of its Affiliates) to collect Pool Receivables or the ability of the
Servicer (if any Originator or any of its Affiliates) to perform
hereunder or there shall have occurred any other event that materially
adversely affects the credit quality of the Obligors of the Pool
Receivables taken as a whole; or
(l) Any provision of any Transaction Document shall for any reason
cease to be a legal, valid and binding obligation of the Seller or the
Servicer (if any Originator or any of its Affiliates) or WORLDCOM or any
Originator, as applicable, or the Seller or such Servicer or WORLDCOM or
any Originator, as applicable, shall so state in writing; or
(m) Any "Default" as defined in and under the WORLDCOM Credit
Agreement, without giving effect to any waiver, amendment or other
modification, or consent, with respect thereto, shall have occurred and
be continuing; or
(n) WORLDCOM shall cease to own directly or indirectly 100% of the
outstanding shares of stock of the Seller or of any Originator; or
(o) [Intentionally Omitted]; or
(p) The charter or by-laws of the Seller shall be amended,
supplemented or otherwise modified without consent of the Administrative
Agent; or
(q) The aggregate undivided percentage interest of all Receivable
Interests and all "Receivable Interests" under the Purchase Agreement
shall exceed at any time 100%; or
(r) There shall have occurred and be continuing any event that
constitutes an "Event of Termination" under and as defined in the
Purchase Agreement or the Purchase Agreement shall cease for any reason
to be in full force and effect;
then, and in any such event, the Administrative Agent shall at the request, or
may with the consent, of the Majority Purchaser Groups, by notice to the Seller
and the Servicer declare the Commitment Termination Date to have occurred,
whereupon the Commitment Termination Date shall forthwith occur; PROVIDED that,
automatically upon the occurrence of any event (without any requirement for the
passage of time or the giving of notice, or both) described in subsection (g) of
this SECTION 7.01, the Commitment Termination Date shall occur, WORLDCOM shall
cease to be the Servicer and the Administrative Agent or its designee shall
become the Servicer. Upon any such occurrence of the Commitment Termination
Date, the Administrative Agent and each Member shall have, in addition to all
other rights and remedies under this Agreement or otherwise, all other rights
and remedies provided under the UCC of the applicable jurisdiction and other
applicable laws, which rights shall be cumulative.
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ARTICLE VIII
THE ADMINISTRATIVE AGENT AND THE GROUP MANAGING AGENTS
SECTION 8.01. AUTHORIZATION AND ACTION OF THE ADMINISTRATIVE AGENT. Each
Member hereby appoints and authorizes the Administrative Agent, to take such
action as agent on its behalf and to exercise such powers under this Agreement
and the other Transaction Documents and each other instrument or document
furnished pursuant hereto as are delegated to the Administrative Agent by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement of such Transaction Documents and
such other instruments and documents), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions or requests of the Group Managing
Agents of the Majority Purchaser Groups, and such instructions and requests
shall be binding upon all parties hereto and all Assignees; PROVIDED, HOWEVER,
that the Administrative Agent shall not be required to take any action which
exposes the Administrative Agent to personal liability or which is contrary to
this Agreement or any other Transaction Document, or any other instrument or
document furnished pursuant hereto or applicable law. The Administrative Agent
agrees to give to each Member prompt notice of each notice given to it pursuant
to the terms of this Agreement or any other Transaction Document or any other
instrument or document furnished pursuant hereto, and in the case of each notice
by the Seller to the Administrative Agent of each requested Purchase by the
Members pursuant to SECTION 2.02(A), the Administrative Agent agrees to use its
reasonable best efforts to give notice of such Purchase to each Member on the
same day as such notice by the Seller. The Administrative Agent hereby agrees to
deliver promptly to each Member each report, document, notice or other written
communication required to be delivered by or on behalf of the Seller or the
Servicer or any Originator to the Administrative Agent on behalf of the Members
by the terms and conditions of this Agreement and the other Transaction
Documents (it being understood that the Administrative Agent shall have no
obligation to deliver, or cause to be delivered, to any Member any such report,
document, notice or other written communication if the Seller or the Servicer or
any Originator required to deliver, or have delivered on its behalf, such
report, document, notice or other written communication fails to make or cause
such delivery to the Administrative Agent).
SECTION 8.02. AUTHORIZATION AND ACTION OF THE GROUP MANAGING AGENTS. Each
Member of each Purchaser Group hereby appoints and authorizes the Group Managing
Agent of such Purchaser Group to take such action as agent on its behalf and to
exercise such powers under this Agreement and the other Transaction Documents
and each other instrument or document furnished pursuant hereto as are delegated
to such Group Managing Agent (whether in its capacity as Group Managing Agent
hereunder or as Managing Agent under any other Transaction Document) by the
terms hereof or thereof, together with such powers as are reasonably incidental
thereto. As to any matters not expressly provided for by this Agreement
(including, without limitation, enforcement of such Transaction Documents and
such other instruments and documents), no Group Managing Agent shall be required
to exercise any discretion or take any action, but each Group Managing Agent
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions or requests of the
Members of such Group Managing Agent's Purchaser Group, and
31
such instructions and requests shall be binding upon all parties hereto and all
Assignees; PROVIDED, HOWEVER, that no Group Managing Agent shall be required to
take any action which exposes such Group Managing Agent to personal liability or
which is contrary to this Agreement or any other Transaction Document or any
other instrument or document furnished pursuant hereto or applicable law. The
Group Managing Agent of each Purchaser Group agrees to give to each Member of
such Purchaser Group prompt notice of each notice given to it pursuant to the
terms of this Agreement or any other Transaction Document or any other
instrument or document furnished pursuant hereto, and in the case of each notice
by the Seller or the Administrative Agent to such Group Managing Agent of each
requested Purchase by the Members of such Group Managing Agent's Purchaser Group
pursuant to SECTION 2.02(A), such Group Managing Agent agrees to use its
reasonable best efforts to give notice of such Purchase to each such Member of
such Purchaser Group on the same day as it receives such notice. The Group
Managing Agent of each Purchaser Group hereby agrees to deliver promptly to each
Member of such Purchaser Group each report, document, notice or other written
communication required to be delivered by or on behalf of the Seller, the
Servicer, the Administrative Agent or any Originator to such Group Managing
Agent on behalf of such Members by the terms and conditions of this Agreement
and the other Transaction Documents (it being understood that such Group
Managing Agent shall have no obligation to deliver, or cause to be delivered, to
any such Member any such report, document, notice or other written communication
if the Seller, the Servicer, the Administrative Agent or any Originator required
to deliver, or have delivered on its behalf, such report, document, notice or
other written communication fails to make or cause such delivery to such Group
Managing Agent).
SECTION 8.03. ADMINISTRATIVE AGENT'S AND GROUP MANAGING AGENTS' RELIANCE,
ETC. Neither the Administrative Agent nor any Group Managing Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them as Administrative Agent or
Group Managing Agent, respectively, under or in connection with this Agreement
or any other Transaction Document or any other instrument or document furnished
pursuant hereto (including without limitation, the Administrative Agent's
servicing, administering or collecting the Pool Receivables as Servicer pursuant
to SECTION 6.01), except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, except as
otherwise agreed by the Administrative Agent and any Member, or the Group
Managing Agent of any Purchaser Group and any Member of such Purchaser Group,
the Administrative Agent or such Group Managing Agent, as applicable: (i) may
consult with legal counsel (including counsel for the Seller, the Servicer or
any Originator), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (ii) makes no warranty or representation to any Member or any other
Indemnified Party and shall not be responsible to any Member or any other
Indemnified Party for any statements, warranties or representations (whether
written or oral) made in or in connection with this Agreement or any other
Transaction Document or any other instrument or document delivered pursuant
hereto; (iii) shall not have any duty to ascertain, to verify or to inquire as
to the performance or observance or accuracy of any of the terms, covenants or
conditions of, or information specified in, this Agreement or any other
Transaction Document or any Daily Report, Weekly Report, Monthly Report, or
other instrument or document delivered pursuant hereto on the part of the
Seller, the Servicer or any Originator or to inspect the property (including the
books and records) of the Seller, the Servicer or any Originator; (iv) shall not
be
32
responsible to any Member or other Indemnified Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement or any other Transaction Document or any other instrument or document
furnished pursuant hereto, or the perfection, priority or value of any ownership
interest or security interest created or purported to be created hereunder or
under the Receivables Contribution and Sale Agreement; and (v) shall incur no
liability under or in respect of this Agreement or any other Transaction
Document or any other instrument or document delivered pursuant hereto by acting
upon any notice (including notice by electronic transmission or telephone),
consent, certificate or other instrument or writing (which may be by telecopier,
telegram, cable, telex or electronic transmission) believed by it to be genuine
and signed or sent by the proper party or parties.
SECTION 8.04. RIGHTS AND POWERS. With respect to any Receivable Interest
owned by it, the Administrative Agent and each Group Managing Agent shall have
the same rights and powers under this Agreement as any other Member and may
exercise the same as though it were not the Administrative Agent or a Group
Managing Agent, as applicable. The Administrative Agent and its Affiliates and
each Group Managing Agent and its respective Affiliates may generally engage in
any kind of business with the Seller or any Originator or any Obligor, any of
their respective Affiliates and any Person who may do business with or own
securities of the Seller or any Originator or any Obligor or any of their
respective Affiliates, all as if Bank One or such Group Managing Agent were not
the Administrative Agent or a Group Managing Agent, respectively, and without
any duty to account therefor to the Members.
SECTION 8.05. MEMBERS' PURCHASE DECISIONS. Each Member acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
of its Affiliates or any Group Managing Agent or any of its respective
Affiliates or any other Indemnified Party and based on such documents and
information as it has deemed appropriate, made its own evaluation and decision
to enter into this Agreement and, if it so determines, to purchase undivided
ownership interests in Pool Receivables hereunder. Each Member also acknowledges
that it will, independently and without reliance upon the Administrative Agent
or any of their respective Affiliates or any Group Managing Agent or any of its
respective Affiliates or any other Indemnified Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own decisions in taking or not taking action under this Agreement.
SECTION 8.06. INDEMNIFICATION. The Members of each Purchaser Group agree
to indemnify the Administrative Agent and the Group Managing Agent of such
Purchaser Group (to the extent not reimbursed by the Seller or any Originator),
ratably according to the respective amounts of Capital of their respective
Receivable Interests (or, if no Receivable Interest is at that time owned by
them, ratably according to their respective Commitments), from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent or such Group Managing Agent in any way relating to or
arising out of this Agreement or any other Transaction Document or any other
instrument or document furnished pursuant hereto or in connection herewith or
any action taken or omitted by the Administrative Agent or such Group Managing
Agent under this Agreement or any other Transaction Document or any such
instrument or document, PROVIDED that no Member shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions,
33
judgments, suits, costs, expenses or disbursements resulting from the
Administrative Agent's or such Group Managing Agent's gross negligence or
willful misconduct. Without limitation of the foregoing but subject to the
PROVISO to the preceding sentence, the Members agree to reimburse the
Administrative Agent, ratably according to the respective amounts of Capital of
their respective Receivable Interests (or, if no Receivable Interest is at that
time owned by them, ratably according to their respective Commitments), promptly
upon demand for any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement or any other Transaction Document or any other instrument or
document furnished pursuant hereto or in connection herewith, to the extent that
the Administrative Agent is not reimbursed for such expenses by the Seller or
any Originator.
SECTION 8.07. SUCCESSOR ADMINISTRATIVE AGENT. (a) The Administrative
Agent may resign at any time by giving written notice thereof to the Group
Managing Agents and the Seller and may be removed at any time with or without
cause by the Majority Purchaser Groups. Upon any such resignation or removal,
the Group Managing Agents shall have the right to appoint a successor
Administrative Agent. If no successor Administrative Agent shall have been so
appointed by the Group Managing Agents, and shall have accepted such
appointment, within 30 days after the retiring Administrative Agent's giving of
notice of resignation or the Majority Purchaser Groups' removal of the retiring
Administrative Agent, then the retiring Administrative Agent may, on behalf of
the Members, appoint a successor Administrative Agent, which shall be a
commercial bank organized under the laws of the United States or of any State
thereof and having a combined capital and surplus of at least $250,000,000. Upon
the acceptance of any appointment as Administrative Agent hereunder by a
successor Administrative Agent and upon the execution and filing or recording of
such financing statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Group Managing Agents may
request, in order to continue the perfection of the security interests granted
or purported to be granted by the Transaction Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Transaction Documents. Anything herein to the contrary
notwithstanding, the retiring Administrative Agent's resignation or removal
shall not become effective, and the retiring Administrative Agent shall not be
discharged from its duties and obligations under the Transaction Documents,
unless and until a successor Administrative Agent shall have been appointed
hereunder and shall have accepted such appointment. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
shall have become effective, as specified above, the provisions of this ARTICLE
VIII shall inure to its benefit to any actions taken or omitted to be taken by
it while it was Administrative Agent under this Agreement.
(b) Upon the effectiveness of this Agreement and on and after the date
hereof:
(i) Bank One hereby resigns as Administrative Agent as defined in,
and for purposes of, the Original Parallel Purchase Commitment and the
A&R Parallel Purchase Commitment and for purposes of this Agreement.
34
(ii) The Group Managing Agents and the Members hereby appoint
JPMorgan as successor Administrative Agent under, and for purposes of,
this Agreement, and JPMorgan hereby accepts such appointment.
(iii) The provisions of this ARTICLE VIII (including, without
limitation, the indemnity provisions of SECTION 8.06) shall inure to Bank
One's benefit to any actions taken or omitted to be taken by Bank One
while Bank One was Administrative Agent as defined in, and under, the
Original Parallel Purchase Commitment and the A&R Parallel Purchase
Commitment.
SECTION 8.08. CO-LEAD MANAGERS. It is understood and agreed that CNAI and
JPMorgan, each as Co-Lead Manager hereunder, shall have no duties or
responsibilities hereunder as such Co-Lead Managers.
SECTION 8.09. AUTHORIZATIONS AND ACTIONS WITHIN PURCHASER GROUPS. Any
authorization, consent or waiver that is to be taken by any Purchaser Group
hereunder shall be taken by the Group Managing Agent of such Purchaser Group on
its behalf at the direction or with the consent of the Members of such Purchaser
Group. The specific manner in which such direction or consent shall be given or
authorized with respect to any Purchaser Group shall be determined by the
Members of such Purchaser Group. Any action with respect to the removal or
replacement of any Group Managing Agent shall be determined by the Members of
the Purchaser Group of such Group Managing Agent. Any authorization, consent,
waiver or other action that is to be taken by the Majority Purchaser Groups
hereunder shall be taken by the Group Managing Agents representing such Majority
Purchaser Groups unless otherwise expressly stated herein.
ARTICLE IX
ASSIGNMENT OF RECEIVABLE INTERESTS
SECTION 9.01. ASSIGNMENT. (a) Each Member may assign to any Person, and
any such Assignee may assign to any other Person, any Receivable Interest. Upon
any such assignment, (i) the Assignee thereof shall become the owner of such
Receivable Interest for all purposes of this Agreement and a Member of the
Purchaser Group of such assigning Member, and (ii) such assigning Member shall
relinquish its rights with respect to such Receivable Interest for all purposes
of this Agreement. Such assignment shall be upon such terms and conditions as
the assignor and the Assignee of such Receivable Interest may mutually agree;
the parties thereto shall deliver to the Administrative Agent an Assignment,
duly executed by such parties; and such assignor shall promptly execute and
deliver all further instruments and documents, and take all further action, that
the Assignee may reasonably request in order to perfect, protect or more fully
evidence the Assignee's right, title and interest in and to such Receivable
Interest, and to enable the Assignee to exercise or enforce any rights hereunder
or under the applicable Certificate and the other instruments and documents
furnished pursuant hereto. The Administrative Agent shall provide notice to the
Seller, the assigning Bank's Group Managing Agent and each Member of the
assigning Member's Purchaser Group of any assignment of any portion of any
Receivable Interest by such assigning Bank hereunder.
35
(b) By executing and delivering an Assignment (in the case of an
assigning Member) and executing and accepting an Assignment (in the case of an
Assignee), such assigning Member and such Assignee confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment, such assigning Member makes no representation or warranty
and assumes no responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement or any other
Transaction Document or any other instrument or document furnished pursuant
hereto or in connection herewith or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Transaction Document or any other instrument or document furnished pursuant
hereto or in connection herewith, or the perfection, priority or value of any
ownership interest or security interest created or purported to be created
hereunder or thereunder; (ii) such assigning Member makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Seller, WORLDCOM or any Originator or the performance, or the observance,
by the Seller, WORLDCOM or any Originator of any of its obligations under this
Agreement or any other Transaction Document or any other instrument or document
furnished pursuant hereto or in connection herewith; (iii) such Assignee
confirms that it has received copies of this Agreement and the other Transaction
Documents, together with such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and to purchase such Receivable Interest; (iv) such Assignee will,
independently and without reliance upon the Administrative Agent, any of its
Affiliates, such assigning Member, any Group Managing Agent or any other Member
of any Purchaser Group or any other Indemnified Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Transaction Documents and the other instruments and
documents furnished pursuant hereto or in connection herewith; (v) such Assignee
appoints and authorizes the Administrative Agent and the Group Managing Agent of
such Assignee's Purchaser Group to take such action as agent on its behalf and
to exercise such powers and discretion under this Agreement and the other
Transaction Documents and the other instruments and documents furnished pursuant
hereto or in connection herewith as are delegated to the Administrative Agent
and the Group Managing Agent, respectively, by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto;
(vi) such Assignee appoints as its agent the Servicer from time to time
designated pursuant to SECTION 6.01 to enforce its respective rights and
interests in and under the Pool Receivables and the Related Security and
Collections with respect thereto and the related Contracts; (vii) such Assignee
agrees that it will not institute against any Purchaser or any former Purchaser
any proceeding of the type referred to in SECTION 7.01(G) so long as any
commercial paper notes issued by such Purchaser shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which any
such commercial paper notes shall have been outstanding; and (viii) such
Assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Member.
SECTION 9.02. ASSIGNMENT OF RIGHTS AND OBLIGATIONS. (a) Each Member may
assign to any Assignee, and if required by the Seller pursuant to SECTION 2.14
will assign to the Assignee designated pursuant to such Section, all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment and of the portion of the
Receivable Interests owned by it); PROVIDED, HOWEVER, that (i) each such
36
assignment shall be a constant, and not a varying, percentage of such Member's
rights and obligations under this Agreement and the portion of the Receivable
Interests owned by it, (ii) each such assignment shall be to an Eligible
Assignee, and (iii) the parties to each such assignment shall execute and
deliver to the Administrative Agent an Assignment and Acceptance. Upon such
execution, delivery and acceptance, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be the later of
(x) the date the Administrative Agent receives the executed Assignment and
Acceptance and (y) the date of such Assignment and Acceptance, (I) the Assignee
thereunder shall be a party hereto and shall have all the rights and obligations
of a Member hereunder, (II) such Assignee shall thereby become a Member of the
Purchaser Group of the assigning Member and (III) the assigning Member shall, to
the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of an assigning
Member's rights and obligations under this Agreement, such Member shall cease to
be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
assigning Member and the Assignee thereunder confirm to and agree with each
other and the other parties hereto as follows: (i) other than as provided in
such Assignment and Acceptance, the assigning Member makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other Transaction Document or any other instrument or document furnished
pursuant hereto or in connection herewith, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
Transaction Document or any other instrument or document furnished pursuant
hereto, or the perfection, priority or value of any ownership interest or
security interest created or purported to be created hereunder or thereunder;
(ii) the assigning Member makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Seller, WORLDCOM
or any Originator or the performance, or the observance, by the Seller, WORLDCOM
or any Originator of any of its obligations under this Agreement or any other
Transaction Document or any other instrument or document furnished pursuant
hereto or in connection herewith; (iii) such Assignee confirms that it has
received copies of this Agreement and the other Transaction Documents, together
with such other documents and information as it has deemed appropriate to make
its own analysis and decision to enter into such Assignment and Acceptance; (iv)
such Assignee will, independently and without reliance upon the Administrative
Agent, any of its Affiliates, the assigning Member or any other Member or any
former Member or other Indemnified Party and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under this Agreement and the other
Transaction Documents and the other instruments and documents furnished pursuant
hereto or in connection herewith; (v) such Assignee confirms that it is an
Eligible Assignee; (vi) such Assignee appoints and authorizes the Administrative
Agent and the Group Managing Agent of the applicable Purchaser Group to take
such action as agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Transaction Documents and the other
instruments and documents furnished pursuant hereto as are delegated to the
Administrative Agent and such Group Managing Agent, respectively, by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; (vii) such Assignee appoints as its agent the Servicer from
time to time designated pursuant to SECTION 6.01 to enforce its respective
rights
37
and interests in and under the Pool Receivables and the Related Security and
Collections with respect thereto and the related Contracts; (viii) such Assignee
agrees that it will not institute against any Purchaser or any former Purchaser
any proceeding of the type referred to in SECTION 7.01(G) so long as any
commercial paper notes issued by such Purchaser shall be outstanding or there
shall not have elapsed one year plus one day since the last day on which any
such commercial paper notes shall have been outstanding; and (ix) such Assignee
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Member.
(c) The Administrative Agent shall maintain at its office referred to in
SECTION 12.02 a copy of each Assignment and Acceptance delivered to and accepted
by it and a register (the "REGISTER") for the recordation of the names and
addresses of the Group Managing Agent of each Purchaser Group and the Members of
such Purchaser Group and the Commitment of, and the portion of each Receivable
Interest owned by, each Member of such Purchaser Group from time to time, which
Register shall be available for inspection by the Seller and the Members at any
reasonable time and from time to time upon reasonable prior notice. The entries
in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Seller, the Servicer, the Group Managing Agents, the
Members and the Administrative Agent may treat each Person whose name is
recorded in the Register as a Member hereunder for all purposes of this
Agreement.
(d) Upon its receipt of an Assignment and Acceptance executed by any
assigning Member and an assignee representing that it is an Eligible Assignee,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit B hereto, (i) accept such
Assignment and Acceptance and (i) give prompt notice thereof to the Seller, the
Servicer, the assigning Member's Group Managing Agent and each Member of the
assigning Member's Purchaser Group. In the case of any such assignment by a
Member, within five Business Days after its receipt of the notice thereof the
Seller, at its expense, shall execute and deliver to the Administrative Agent a
Certificate for such Assignee.
SECTION 9.03. ANNOTATION OF CERTIFICATE. The Administrative Agent shall
annotate the Certificate for each assigning Member to reflect the assignment
made by such Member pursuant to SECTION 9.01 or 9.02 or otherwise.
ARTICLE X
INDEMNIFICATION
SECTION 10.01. INDEMNITIES. Without limiting any other rights that any
Indemnified Party may have hereunder or under applicable law, and whether or not
any of the transactions contemplated hereby are consummated, the Seller hereby
agrees to indemnify each Indemnified Party from and against, and hold each
thereof harmless from, any and all claims, losses, liabilities, costs and
expenses of any kind whatsoever (including, without limitation, reasonable
attorneys' fees and expenses) (all of the foregoing being collectively referred
to as "INDEMNIFIED AMOUNTS") arising out of, or resulting from, in whole or in
part, one or more of the following: (a) this Agreement or any other Transaction
Document or any other agreement or document delivered or to be delivered in
connection with this Agreement; (b) the use of proceeds
38
of any Purchase or reinvestment; (c) the interest of any Member in any
Receivable, any Contract or any Related Security or (d) any transaction
contemplated by this Agreement or any other Transaction Document or any other
agreement or document delivered or to be delivered in connection with this
Agreement; EXCLUDING, HOWEVER, Indemnified Amounts to the extent resulting from
either (x) the gross negligence or willful misconduct on the part of such
Indemnified Party, or (y) the failure to collect amounts in respect of a Pool
Receivable, which is an Eligible Receivable, to the extent such failure results
from a discharge of the Obligor with respect thereto in a proceeding in respect
of such Obligor under applicable bankruptcy laws or otherwise results from the
Obligor's financial inability to pay such amounts. Without limiting or being
limited by the foregoing (other than, and subject to, the exclusions referred to
in the EXCLUDING, HOWEVER clause above) and whether or not any of the
transactions contemplated hereby are consummated, the Seller shall pay on demand
to each Indemnified Party any and all amounts necessary to indemnify such
Indemnified Party from and against any and all Indemnified Amounts which relate
to or result from, or which would not have occurred but for, one or more of the
following:
(i) any Receivable becoming a Pool Receivable which is not at the
date of the initial creation of an interest therein hereunder an Eligible
Receivable or which thereafter ceases to be an Eligible Receivable;
(ii) any representation or warranty or statement made or deemed
made by the Seller or any Originator (or any of their respective
officers) under or in connection with this Agreement or any other
Transaction Document or any Monthly Report, Weekly Report, Daily Report
or other document delivered or to be delivered in connection herewith or
with any other Transaction Document being incorrect in any material
respect when made or deemed made or delivered;
(iii) the failure by the Seller or any Originator to comply with
any applicable law, rule or regulation with respect to any Pool
Receivable or the related Contract or any Related Security with respect
thereto; or the failure of any Pool Receivable or the related Contract or
any Related Security with respect thereto to conform to any such
applicable law, rule or regulation;
(iv) the failure to vest in the Members owning a Receivable
Interest a first priority perfected undivided percentage ownership
interest, to the extent of such Receivable Interest, in each Receivable
in, or purported to be in, the Receivables Pool and the Related Security
and Collections in respect thereof, free and clear of any Adverse Claim;
or the failure of the Seller to have obtained a first priority perfected
ownership interest in the Pool Receivables and the Related Security and
Collections with respect thereto transferred or purported to be
transferred to the Seller under the Receivables Contribution and Sale
Agreement, free and clear of any Adverse Claim;
(v) the failure to have filed, or any delay in filing, financing
statements or other similar instruments or documents under the UCC of any
applicable jurisdiction or other applicable laws with respect to any
Receivable in, or purported to be in, the Receivables Pool and the
Related Security and Collections in respect thereof, whether at the time
of any Purchase or reinvestment or at any subsequent time unless such
failure
39
results directly and solely from the Administrative Agent's failure to
take appropriate action;
(vi) any dispute, claim, offset or defense (other than discharge
in bankruptcy of the Obligor) of any Obligor to the payment of any
Receivable in, or purported to be in, the Receivables Pool (including,
without limitation, any defense based on the fact or allegation that such
Receivable or the related Contract is not a legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of the goods or
services related to such Receivable or the furnishing or failure to
furnish such goods or services;
(vii) any failure of the Seller, WORLDCOM, as Servicer or
otherwise, or any Originator, to perform its duties or obligations in
accordance with the provisions of this Agreement or any other Transaction
Document or to perform its duties or obligations under any Contract;
(viii) any product liability, personal injury, copyright
infringement, theft of services, property damage, or other breach of
contract, antitrust, unfair trade practices or tortious claim arising out
of or in connection with the subject matter of any Contract or out of or
in connection with any transaction contemplated by this Agreement, any
other Transaction Document or any other instrument or document furnished
pursuant hereto or such Contract;
(ix) the commingling of Collections of Pool Receivables by, or in
any Lock-Box Account or any other deposit account of, WORLDCOM or any of
its Affiliates at any time with other funds;
(x) any action or omission by the Seller, WORLDCOM, whether as
Servicer or otherwise, or any Originator, reducing or impairing the
rights of any Member under this Agreement, any other Transaction Document
or any other instrument or document furnished pursuant hereto or thereto
or with respect to any Pool Receivable;
(xi) any cancellation or modification of a Pool Receivable, the
related Contract or any Related Security, whether by written agreement,
verbal agreement, acquiescence or otherwise other than as expressly
permitted by this Agreement or any other Transaction Document;
(xii) any investigation, litigation or proceeding related to or
arising from this Agreement, any other Transaction Document or any other
instrument or document furnished pursuant hereto or thereto, or any
transaction contemplated by this Agreement or any Contract or the use of
proceeds from any Purchase or reinvestment pursuant to this Agreement, or
the ownership of, or other interest in, any Receivable, the related
Contract or any Related Security;
(xiii) the existence of any Adverse Claim against or with respect
to any Pool Receivable, the related Contract or the Related Security or
Collections with respect thereto, except for any such Adverse Claim
created by any Members;
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(xiv) any failure by the Seller or any Originator to pay when due
any taxes, including without limitation sales, excise or personal
property taxes, payable by the Seller or such Originator in connection
with any Receivable or the related Contract or any Related Security with
respect thereto;
(xv) any claim brought by any Person other than an Indemnified
Party arising from any activity by any Originator or any Affiliate of any
Originator in servicing, administering or collecting any Pool Receivable;
(xvi) any setoff or counterclaim by any Lock-Box Bank or other
depositary bank against the deposits constituting Collections of Pool
Receivables held in any Lock-Box Account or other deposit account;
(xvii) [Intentionally Omitted]; or
(xviii) to the extent not covered by the foregoing clauses, the
occurrence and continuance of any Event of Termination other than an
Event of Termination arising under SECTION 7.01(I).
ARTICLE XI
GRANT OF SECURITY INTEREST
SECTION 11.01. GRANT OF SECURITY INTEREST. The Seller hereby assigns and
pledges to the Administrative Agent for the benefit of itself, the Members and
each other Indemnified Party from time to time, and hereby grants to the
Administrative Agent for the benefit of itself, the Members and each other
Indemnified Party from time to time a security interest in and to, the Demand
Note and all proceeds thereof.
SECTION 11.02. SECURITY FOR SECURED OBLIGATIONS. The assignment, pledge
and security interest granted under this ARTICLE XI secures the payment of all
obligations of the Seller now or hereafter existing from time to time under this
Agreement, the Fee Letters and any other instruments and documents furnished by
the Seller pursuant hereto or otherwise in connection with this Agreement,
whether for Collections received or deemed to have been received or otherwise
payable by the Seller, interest, fees, costs, expenses, taxes, indemnification
or otherwise (all such obligations being the "SECURED OBLIGATIONS").
SECTION 11.03. FURTHER ASSURANCES. (a) The Seller agrees that from time
to time, at the expense of the Seller, the Seller will promptly execute and
deliver all further instruments and documents, and take all further action, that
may be necessary or desirable, or that the Administrative Agent may request, in
order to perfect and protect the assignment and security interest granted or
purported to be granted hereby or to enable the Administrative Agent to exercise
and enforce its rights and remedies hereunder with respect to the Demand Note.
Without limiting the generality of the foregoing, the Seller will, upon the
request of the Administrative Agent, execute and file such financing or
continuation statements, or amendments thereto, and such other instruments or
notices, as may be necessary or desirable, or as the Administrative Agent may
reasonably request, in order to perfect and preserve the assignment and security
interest granted or purported to be granted hereby.
41
(b) The Seller hereby authorizes the Administrative Agent to file one or
more financing or continuation statements, and amendments thereto, relating to
the Demand Note and the proceeds thereof without the signature of the Seller
where permitted by law, and the Administrative Agent shall notify the Seller of
each such filing. A photocopy or other reproduction of this Agreement or any
financing statement covering the Demand Note and the proceeds thereof shall be
sufficient as a financing statement where permitted by law.
SECTION 11.04. ADMINISTRATIVE AGENT APPOINTED ATTORNEY-IN-FACT. The
Seller hereby irrevocably appoints the Administrative Agent the Seller's
attorney-in-fact, with full authority in the place and stead of the Seller and
in the name of the Seller or otherwise, from time to time in the Administrative
Agent's discretion following the occurrence and during the continuance of an
Event of Termination, to take any action and to execute any instrument which the
Administrative Agent may deem necessary or advisable to accomplish the purposes
of the assignment, pledge and security interest granted hereunder, including,
without limitation:
(a) to ask, demand, collect, ▇▇▇ for, recover, compromise, receive
and give acquittance and receipts for moneys due and to become due under
or in connection with the Demand Note, and
(b) to file any claims or take any action or institute any
proceedings which the Administrative Agent may deem necessary or
desirable for the collection of the Demand Note or otherwise to enforce
compliance with the terms and conditions of the Demand Note or the rights
of the Administrative Agent with respect to the Demand Note.
SECTION 11.05. ADMINISTRATIVE AGENT MAY PERFORM. If the Seller fails to
perform any agreement contained in this ARTICLE XI, the Administrative Agent may
itself perform, or cause performance of, such agreement, and the expenses of the
Administrative Agent incurred in connection therewith shall be payable by the
Seller under SECTION 12.04.
SECTION 11.06. THE ADMINISTRATIVE AGENT'S DUTIES. The powers conferred on
the Administrative Agent hereunder are solely to protect its interest in the
Demand Note and shall not impose any duty upon it to exercise any such powers.
Except for the safe custody of the Demand Note in its possession and the
accounting for moneys actually received by it hereunder, the Administrative
Agent shall have no duty as to the Demand Note or as to the taking of any
necessary steps to preserve rights against any parties or any other rights
pertaining to the Demand Note. The Administrative Agent shall be deemed to have
exercised reasonable care in the custody and preservation of the Demand Note in
its possession if the Demand Note is accorded treatment substantially equal to
that which it accords its own property.
SECTION 11.07. REMEDIES. If any Event of Termination shall have occurred
and be continuing:
(a) The Administrative Agent may exercise any and all rights and
remedies of the Seller under or in connection with the Demand Note or
otherwise in respect of the Demand Note, including, without limitation,
any and all rights of the Seller to demand or otherwise require payment
of the Demand Note.
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(b) The Administrative Agent may exercise in respect of the Demand
Note, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party
on default under the UCC in effect in the State of New York (whether or
not such UCC applies to the Demand Note).
(c) All payments received by the Seller in respect of the Demand
Note shall be received in trust for the benefit of the Administrative
Agent, shall be segregated from other funds of the Seller and shall be
forthwith paid over to the Administrative Agent in the same form as so
received (with any necessary endorsement).
(d) All payments made in respect of the Demand Note, and all cash
proceeds in respect of any sale of, collection from, or other realization
upon all or any part of the Demand Note, received by the Administrative
Agent may, in the discretion of the Administrative Agent, be held by the
Administrative Agent as collateral for, and/or then or at any time
thereafter applied (after payment of any amounts payable to the
Administrative Agent pursuant to SECTION 12.04) in whole or in part by
the Administrative Agent for the Members or the applicable Indemnified
Parties against, all or any part of the Secured Obligations and the
"Secured Obligations" under and as defined in the Purchase Agreement, to
the Members and Indemnified Parties hereunder and the "Owners" and
"Indemnified Parties" under and as defined in the Purchase Agreement
ratably in accordance with the respective amounts of such Secured
Obligations and "Secured Obligations" owing to them. Any surplus of such
payments or cash proceeds held by the Administrative Agent and remaining
after payment in full of all the Secured Obligations and the "Secured
Obligations" under and as defined in the Purchase Agreement shall be paid
over to the Seller or to whomsoever may be lawfully entitled to receive
such surplus.
ARTICLE XII
MISCELLANEOUS
SECTION 12.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement, and no consent to any departure by the Seller, or the
Servicer here from, shall be effective unless in a writing signed by the
Majority Purchaser Groups and, in the case of any such amendment, the Seller and
the Servicer, and then such amendment, waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that no such amendment, waiver or consent shall do any of the following
unless in writing and signed by all the Group Managing Agents and Members and
the Rating Agencies then rating the commercial paper notes of GBFC, Paradigm and
Liberty shall have confirmed that the rating of the commercial paper notes of
GBFC will not be downgraded or withdrawn as a result of such amendment, waiver
or consent: (a) waive any of the conditions specified in SECTION 3.01 and 3.02,
(b) subject the Members or the Group Managing Agents to any additional
obligations, (c) reduce the amount of Capital or Yield with respect to
Receivable Interests or any fees payable hereunder, (d) postpone any date
scheduled for any reduction of Capital or for any payment of Yield or any fees
payable hereunder, (e) amend or waive any of the conditions specified in SECTION
3.02 or any Event of Termination, (f) amend the definition of "Contract",
"Default Ratio", "Defaulted Receivable", "Dilution Reserve", "Eligible
Receivable", "Loss Reserve", "Loss-to-Liquidation Ratio", or "Net Receivables
Pool Balance" or amend or (if
43
applicable) waive any defined term used (or contained) in any of the foregoing
definitions as applied thereto, (g) assign any interest of Receivable Interests
in any Pool Receivables or Related Security or Collections, other than as
provided in this Agreement, (h) change the percentage of Commitments, or the
number of Members or Group Managing Agents or Purchaser Groups, which shall be
required for any amendment, waiver or consent or for any other action hereunder
or (i) amend this SECTION 12.01; PROVIDED, FURTHER, HOWEVER, that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Group Managing Agents and Members as required above to
take such action, affect the rights or duties or increase the obligations of the
Administrative Agent under this Agreement; and PROVIDED, FURTHER, HOWEVER, that
no amendment, waiver or consent shall increase the obligations of any Group
Managing Agent or Member under this Agreement without the prior written approval
of such Group Managing Agent or Member, as applicable. Anything herein to the
contrary notwithstanding, in the event of any conflict between (i) any action
taken by the Majority Purchaser Groups or all of the Purchaser Groups or
Members, as applicable, or the Administrative Agent under this Agreement,
including without limitation, in respect of any of the definitions contained in
SECTION 1.01 hereof or in respect of any amendment, waiver or consent pursuant
to this SECTION 12.01, and (ii) any action taken by the Majority Managing Agents
or all of the Managing Agents (as each such term is defined in the Purchase
Agreement), as applicable, or the Administrative Agent under the Purchase
Agreement, such action referred to in clause (i) of SECTION 12.01 of this
Agreement shall control and apply to the Purchase Agreement as well as this
Agreement. No failure on the part of any Member or any other Indemnified Party
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. Without limiting the foregoing, each Member is hereby authorized by the
Seller upon the occurrence and during the continuance of an Event of Termination
and from time to time, to the fullest extent permitted by law, to setoff and
apply any and all deposits (general or special, time or demand, provisional or
final) at any time held and other indebtedness at any time owing by such Member
to or for the credit or the account of the Seller against any and all of the
obligations of the Seller now or hereafter existing under this Agreement to such
Member irrespective of whether or not any formal demand shall have been made
under this Agreement and although such obligations may be unmatured. Each Member
agrees promptly to notify the Seller and each other Member after any such setoff
and application; PROVIDED, HOWEVER, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Member under this SECTION 12.01 are in addition to other rights and remedies
(including, without limitation, other rights of setoff) which such Member may
have. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
SECTION 12.02. NOTICES, ETC. All notices and other communications
hereunder shall, unless otherwise stated herein, be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, (i) to each of the Seller, the Servicer, the
Administrative Agent, each Group Managing Agent and the Initial Banks, at its
address set forth under its name on the signature pages hereof, (ii) to each
Member other than the Initial Banks, at its address specified on the Assignment
and Acceptance to which it is a party or (iii) to any party hereto, at such
other address as shall be designated by such party in a written notice to the
other parties hereto. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to
44
the telegraph company, transmitted by telecopier or confirmed by telex
answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to ARTICLE II shall not be effective until
received by the Administrative Agent.
SECTION 12.03. BINDING EFFECT, ASSIGNABILITY. This Agreement shall be
binding upon and inure to the benefit of the Seller, WORLDCOM, the
Administrative Agent, each Group Managing Agent, each Member from time to time,
and each other Indemnified Party from time to time, and their respective
successors and assigns, except that neither the Seller nor WORLDCOM shall have
the right to assign its rights or obligations hereunder or any interest herein
without the prior written consent of each Member. This Agreement shall create
and constitute the continuing obligation of the parties hereto in accordance
with its terms, and shall remain in full force and effect until such time, after
the Commitment Termination Date, as no Capital of any Receivable Interest shall
be outstanding and no Yield, fees or other amounts payable hereunder shall
remain unpaid; PROVIDED, HOWEVER, that rights and remedies with respect to the
provisions of SECTIONS 2.10, 2.11, 2.12, 10.01, 12.04, 12.05, 12.06, 12.14 shall
be continuing and shall survive any termination of this Agreement.
SECTION 12.04. COSTS AND EXPENSES. In addition to the rights of
indemnification granted under this Agreement, the Seller agrees to pay on demand
all costs and expenses in connection with the preparation, execution, delivery
and administration (including periodic auditing of Receivables by an independent
accounting firm pursuant to SECTION 5.01(E)) of, and searches and filings in
respect of, this Agreement, the other Transaction Documents and the other
documents and agreements to be delivered hereunder and thereunder, including,
without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent with respect thereto and advising the Administrative Agent
as to its rights and remedies hereunder. The Seller further agrees to pay on
demand all costs and expenses, if any (including, without limitation, reasonable
counsel fees and disbursements), of each Member, the Administrative Agent and
any Affiliate thereof, in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement, the other
Transaction Documents and the other documents and agreements to be delivered in
connection herewith or therewith.
SECTION 12.05. NON-BUSINESS DAYS. In any case where any payment or action
is due under this Agreement on a day which is not a Business Day, such payment
or action may be made on the next succeeding Business Day, but such extension of
time shall in such case be included in the computation of payment of interest,
Yield, Liquidation Yield/Fee or fees, as the case may be, for purposes of the
applicable accrual period; PROVIDED, HOWEVER, that, if such extension would
cause payment in respect of Capital or Yield for Receivable Interests for which
Yield is computed by reference to the Bank Rate to be made in the next
succeeding calendar month, such payment shall be made on the next preceding
Business Day.
SECTION 12.06. CONFIDENTIALITY. Except as otherwise required by
applicable law, each of the parties hereto agrees to maintain the
confidentiality of this Agreement, the Purchase Agreement, the Receivables
Contribution and Sale Agreement, Consent and Agreement, the Fee Letters (and all
drafts thereof) and all non-public information delivered in connection herewith
in communications with third parties and otherwise; PROVIDED that this
Agreement, the Purchase Agreement, the Receivables Contribution and Sale
Agreement,
45
Consent and Agreement, the Fee Letters and such information may be disclosed (i)
to third parties to the extent such disclosure is made pursuant to a written
confidentiality agreement in form and substance substantially identical to this
SECTION 12.06, (ii) to the Seller's, the Servicer's, the Administrative Agent's,
each Group Managing Agent's and each Member's legal counsel, accountants and
auditors if they agree to hold it confidential, (iii) to any rating agency, (iv)
to any regulatory authority having jurisdiction over the Seller, the Servicer,
the Administrative Agent, any Group Managing Agent or any Member, and (v)
pursuant to court order or subpoena; PROVIDED, HOWEVER, that each of the parties
hereto agrees that the disclosure of this Agreement, the Purchase Agreement, the
Receivables Contribution and Sale Agreement, the Consent and Agreement, the Fee
Letters or other information required to be made by or pursuant to court order
or subpoena will not be made until the other parties hereto have been notified
at least five Business Days in advance of any such disclosure, unless such
notification is prohibited by applicable law or such court order or subpoena.
SECTION 12.07. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 12.08. JURISDICTION, ETC. (a) Each of the parties hereto hereby
irrevocably and unconditionally submits, for itself and its property, to the
nonexclusive jurisdiction of any New York State court or Federal court of the
United States of America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Transaction Documents to which it is a party, or
for recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such Federal court. Each of the
parties hereto hereby agrees that service of process in any such action or
proceeding may be effected by mailing a summons and complaint to it at its
address specified in SECTION 12.02 by registered mail, return receipt requested,
or in any other manner permitted by applicable law. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or proceeding
relating to this Agreement or any of the other Transaction Documents in the
courts of any other jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding
arising out of or relating to this Agreement or any of the other Transaction
Documents to which it is a party in any New York State or Federal court. Each of
the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 12.09. EXECUTION IN COUNTERPARTS. This Agreement may be executed
in any number of counterparts, each of which when so executed shall be deemed to
be an original and all of which when taken together shall constitute one and the
same agreement. Delivery by
46
telecopier of an executed counterpart of a signature page to this Agreement
shall be effective as delivery of an original executed counterpart of this
Agreement.
SECTION 12.10. INTENT OF THE PARTIES. (a) It is the intention of the
parties hereto that each Purchase and reinvestment shall convey to each Member,
to the extent of its Receivable Interests, an undivided ownership interest in
the Pool Receivables and the Related Security and Collections in respect thereof
and that such transaction shall constitute a purchase and sale and not a secured
loan. If, notwithstanding such intention, the conveyance of the Receivable
Interests from the Seller to the Administrative Agent for the benefit of any
Member shall ever be recharacterized as a secured loan and not a sale, it is the
intention of the parties hereto that this Agreement shall constitute a security
agreement under applicable law, and that the Seller shall be deemed to have
granted to the Administrative Agent for the benefit of such Member a duly
perfected first priority security interest in all of the Seller's right, title
and interest in, to and under the Pool Receivables, whether now owned or
hereafter acquired, and the Related Security and Collections with respect
thereto from time to time and all cash and non-cash proceeds in respect thereof,
free and clear of Adverse Claims. For such purpose, the Seller hereby grants to
the Administrative Agent for the benefit of each Member, to the extent of such
Member's Receivable Interests, a duly perfected first priority security interest
in all of the Seller's right, title and interest in, to and under the Pool
Receivables, whether now owned or hereafter acquired, and the Related Security
and Collections with respect thereto from time to time and all cash and non-cash
proceeds in respect thereof.
(b) Notwithstanding SECTION 12.10(A) or any other provision of this
Agreement, the parties hereto agree to treat the transfers of Receivable
Interests described herein as secured financing for all federal, state and local
tax purposes.
SECTION 12.11. ENTIRE AGREEMENT. This Agreement and the other Transaction
Documents contain a final and complete integration of all prior expressions by
the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement and understanding among the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
SECTION 12.12. SEVERABILITY OF PROVISIONS. Any provision of this
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 12.13. AMENDMENT, RESTATEMENT, AND CONSENT. (a) This Agreement
amends and restates in its entirety the A&R Parallel Purchase Commitment. Upon
the effectiveness of this Agreement, the terms and provisions of the A&R
Parallel Purchase Commitment shall, subject to this SECTION 12.13, be superseded
hereby. Notwithstanding the amendment and restatement of the A&R Parallel
Purchase Commitment by this Agreement, the Seller and the Servicer shall
continue to be liable to the Administrative Agent, the Group Managing Agents,
the Members and the other Owners with respect to agreements on the part of the
Seller and the Servicer under the A&R Parallel Purchase Commitment to indemnify
any of the Administrative Agent, the Group Managing Agents, the Members and the
other Owners in
47
connection with events or conditions arising or existing prior to the date
hereof. This Agreement is given in substitution for the A&R Parallel Purchase
Commitment. Upon the effectiveness of this Agreement, each reference to the
Original Parallel Purchase Commitment or the A&R Parallel Purchase Commitment in
any other document, instrument or agreement (including, without limitation, the
Certificates) and/or delivered in connection therewith shall mean and be a
reference to this Agreement. This Agreement is not a novation. Nothing contained
herein or in any of the other Transaction Documents, unless expressly herein or
therein stated to the contrary, is intended to amend, modify or otherwise affect
any other instrument, document or agreement executed and/or delivered in
connection with the Original Parallel Purchase Commitment or the A&R Parallel
Purchase Commitment. All amounts outstanding under the Original Parallel
Purchase Commitment or the A&R Parallel Purchase Commitment immediately prior to
giving effect to this Agreement to each Member and each Group Managing Agent
that is a party thereto shall be deemed to be outstanding under this Agreement.
Each Certificate issued under the Original Parallel Purchase Commitment or the
A&R Parallel Purchase Commitment and outstanding immediately prior to giving
effect to this Agreement shall be deemed to be a Certificate hereunder.
(b) The Seller, the Administrative Agent, Bank One, and each Member that
holds a Certificate as defined in, and issued under, the Original Parallel
Purchase Commitment or the A&R Parallel Purchase Commitment hereby agree that
each such Certificate is, effective upon the effectiveness of this Agreement and
on and after the date hereof, hereby amended by deleting, in the first paragraph
of each such Certificate, the parenthetical phrase, "(the "ADMINISTRATIVE
AGENT")".
(c) Each of the parties hereto consents to (i) the amendment and
restatement of the Receivables Contribution and Sale Agreement in the form of
Exhibit F to the Purchase Agreement and (ii) the amendment and restatement of
the Purchase Agreement in the form referred to in the definition of "Purchase
Agreement" contained in SECTION 1.01.
SECTION 12.14. NO PROCEEDINGS. (a) Each of the Seller, WORLDCOM, the
Administrative Agent, each Group Managing Agent and each Member hereby agrees
that they will not institute against or join or assist any Person in instituting
against, any Purchaser any proceeding of the type referred to in SECTION 7.01(G)
so long as any commercial paper notes issued by such Purchaser shall be
outstanding or there shall not have elapsed one year plus one day since the last
day on which any such commercial paper notes shall have been outstanding.
(b) Each of the parties hereto hereby agrees that they will not institute
against the Seller any proceeding of the type referred to in SECTION 7.01(G).
SECTION 12.15. WAIVER OF JURY TRIAL. Each of the parties hereto
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise) arising out of or
relating to this Agreement or any of the other Transaction Documents, the
Purchases or the actions of the Administrative Agent, any Group Managing Agent
or any other Indemnified Party in the negotiation, administration, performance
or enforcement hereof or thereof.
48
(SIGNATURE PAGES FOLLOW)
49
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers thereunto duly authorized, as of the date first
above written.
MCI WORLDCOM RECEIVABLES CORPORATION
By:
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Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Senior Manager, Treasury Operations
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
WORLDCOM, INC.,
as Servicer
By:
------------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Senior Manager, Treasury Operations
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
JPMORGAN CHASE BANK,
as Co-Lead Manager and as Administrative Agent
By:
------------------------------------------
Name:
Title:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Conduit Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
with a copy to:
JPMorgan Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Finance Group/2CS
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP NORTH AMERICA, INC.,
as Co-Lead Manager
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Global Securitization
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Securitization
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
INITIAL BANKS
COMMITMENT
$300,000,000 BANK ONE, NA (Main Office Chicago)
By:
------------------------------------------
Name:
Title:
Asset Backed Finance
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Funding Manager
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
$300,000,000 CITIBANK, N.A.
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Securitization
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
$300,000,000 JPMORGAN CHASE BANK
By:
------------------------------------------
Name:
Title:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Conduit Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
with a copy to:
JPMorgan Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Finance Group/2CS
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
$300,000,000 WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
$225,000,000 BAYERISCHE LANDESBANK, CAYMAN ISLANDS BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Lending
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
$75,000,0000 THE BANK OF NOVA SCOTIA
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Director
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
GROUP MANAGING AGENTS
BANK ONE, NA (Main Office Chicago)
By:
------------------------------------------
Name:
Title:
Asset Backed Finance
1 Bank ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇-▇▇▇▇, ▇-▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Funding Manager
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
CITICORP NORTH AMERICA, INC.,
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: Global Securitization
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Citicorp North America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Global Securitization
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
JPMORGAN CHASE BANK
By:
------------------------------------------
Name:
Title:
JPMorgan Chase Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Conduit Administration
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
with a copy to:
JPMorgan Services
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Finance Group/2CS
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
WESTDEUTSCHE LANDESBANK GIROZENTRALE,
NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
BAYERISCHE LANDESBANK, NEW YORK BRANCH
By:
------------------------------------------
Name:
Title:
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Securitization Division
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
By:
------------------------------------------
Name:
Title:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, Director
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇