AMENDED AND RESTATED MARKETING AGENT AGENCY AGREEMENT

Exhibit 10.9
Execution Version

AMENDED AND RESTATED MARKETING AGENT AGENCY AGREEMENT

THIS AGREEMENT (the "Agreement") is made effective as of September 27, 2016 (the "Effective Date") among Cellco Partnership d/b/a Verizon Wireless, a Delaware general partnership ("Cellco"), as marketing agent (the "Marketing Agent"), the various subsidiaries and affiliates of Cellco listed on Schedule I hereto that originate device payment plan agreements (collectively, with Cellco, the "Verizon Originators") and Cellco, as the servicer of the Receivables (as defined below) (the "Servicer").

WHEREAS, each of the Verizon Originators originate device payment plan agreements in the ordinary course of its business;

WHEREAS, from time to time, one or more Verizon Originators may transfer any such device payment plan agreements, directly or indirectly, to a grantor trust, owner trust, limited liability company, corporation or other such entity (each such entity, an "SPE" and each such Verizon Originator, a "Transferring Originator"), which SPE will issue securities or make borrowings under loans (such securities or loans, the "ABS Credit Extensions") backed by such device payment plan agreements (the "Receivables");

WHEREAS, from time to time, each of the Verizon Originators may offer to its customers Upgrade Offers;

WHEREAS, each of the Verizon Originators wishes to establish a uniform set of terms and conditions for any Upgrade Offers offered by the Verizon Originators and wishes to allow for changes to the terms and conditions of any such Upgrade Offer from time to time to be coordinated through the Marketing Agent;

WHEREAS, from time to time, each of the Verizon Originators wishes to allow its customers to transfer a device payment plan agreement from one account to another account;

WHEREAS, from time to time, any of the Verizon Originators may grant to its customers certain credits on their accounts;

WHEREAS, in connection with the conduct of each such Verizon Originator as described above, each of the Verizon Originators wishes to appoint the Marketing Agent as its agent in fact;

WHEREAS, the Verizon Originators and Cellco, as Marketing Agent, wish to, among other things, memorialize the terms and conditions governing the agency relationship between them;

WHEREAS, the Verizon Originators and Cellco, as Marketing Agent, entered into the Marketing Agent Agency Agreement dated as of July 20, 2016 (the "Original Agreement") for the purposes set forth above; and

WHEREAS, the Verizon Originators and Cellco, as Marketing Agent, wish to amend and restate the Original Agreement on the terms of this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants exchanged below and other good and valuable consideration, the receipt and adequacy of which are acknowledged, each of the Verizon Originators and the Marketing Agent, wishing to be legally bound, agree as follows:

the customer under the Upgrade Contract and that this breach would give the customer a claim in recoupment against the Upgrade Contract Originator and a right to offset that claim against the amounts that the customer owes to the Upgrade Contract Originator under the new device payment plan agreement (each such agreement, a "New Upgrade DPP") entered into by such Upgrade Contract Originator (or its agent, on its behalf) pursuant to the Upgrade Contract.  The parties hereto intend that the payment by the Marketing Agent or the related Upgrade Contract Originator of the Upgrade Payment as provided in this Section 2.2.1 shall extinguish such customer's claim in recoupment against the Upgrade Contract Originator and the customer's right to offset the amount of that claim against the amounts that the customer would owe under the New Upgrade DPP contemporaneously with such Upgrade Payment by the Marketing Agent or the related Upgrade Contract Originator.

Offer for any reason, including the failure of the Marketing Agent to remit, or to cause the related Verizon Originator to remit, an Upgrade Payment under the terms of the related Transaction Documents and (y) severally agrees not to offer any other upgrade offer not in strict compliance with the Upgrade Offers authorized by the Marketing Agent at such time.

Marketing Agent and the Verizon Originators is intended or should be construed to create any fiduciary duties on the part of the Verizon Originators or any of their respective Affiliates.

hereunder to the Verizon Originators, and that such benefit constitutes sufficient consideration for such services. No other fee or remuneration shall be paid to the Marketing Agent by the Verizon Originators.

6.1          The Marketing Agent represents and warrants that:

the performance by the Marketing Agent of its obligations under, or the validity or enforceability of, this Agreement.

(INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).

Upon acceptance by the Marketing Agent of a duly executed and delivered Originator Joinder Agreement by such Additional Originator and the satisfaction of the other conditions set forth in this Section 8.11, such Additional Originator shall become party to, and have the rights and obligations of a Verizon Originator under this Agreement, and shall be bound by all the provisions hereof.

8.12        No Third Party Beneficiaries.  This Agreement is for the benefit of and will be binding on the parties and their permitted successors and assigns.  Each SPE is and will be an intended third party beneficiary with respect to Sections 2.1, 2.2, 2.3, 2.4, 2.6 and 8.11 of this Agreement and may enforce such sections against the parties hereto.  No provision of this Agreement shall be construed as conferring upon any other third party any rights, benefits, obligations or duties under this Agreement.

IN WITNESS WHEREOF, the parties authorized representatives have executed and delivered this Agreement effective on the day and year written above.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule I

Cellco Partnership

Alltel Communications, LLC

Los Angeles SMSA Limited Partnership, a California Limited Partnership

New York SMSA Limited Partnership

Chicago SMSA Limited Partnership

GTE Mobilnet of California Limited Partnership

GTE Mobilnet of South Texas Limited Partnership

Verizon Wireless of the East LP

Sacramento-Valley Limited Partnership

Seattle SMSA Limited Partnership

GTE Mobilnet of Indiana Limited Partnership

Southwestco Wireless, L.P.

Pittsburgh SMSA Limited Partnership

Cellular Inc. Network Corporation

Upstate Cellular Network

Gold Creek Cellular of Montana Limited Partnership

Fresno MSA Limited Partnership

ALLTEL Communications of North Carolina Limited Partnership

▇▇▇▇ Atlantic Mobile of Rochester, L.P.

Omaha Cellular Telephone Company

Verizon Wireless (VAW) LLC

New Par

Verizon Wireless Tennessee Partnership

Illinois SMSA Limited Partnership

Verizon Wireless Personal Communications LP

Dallas MTA, L.P.

San Antonio MTA, L.P.

Rural Cellular Corporation

ALLTEL Communications Southwest Holdings, Inc.

Alltel Communications of Nebraska LLC

Alltel Communications Wireless, Inc.

Alltel Communications Wireless of Louisiana, Inc.

▇▇▇▇▇▇▇ Cellular Telephone Co., Inc.

AirTouch Cellular Inc.

Allentown SMSA Limited Partnership

Alltel Communications of Arkansas RSA #12 Cellular Limited Partnership

Alltel Communications of LaCrosse Limited Partnership

Alltel Communications of Mississippi RSA #2, Inc.

▇▇▇▇▇▇▇▇ CellTelCo

Athens Cellular, Inc.

Badlands Cellular of North Dakota Limited Partnership

▇▇▇▇ Atlantic Mobile of Asheville, Inc.

▇▇▇▇ Atlantic Mobile Systems of Allentown, Inc.

Binghamton MSA Limited Partnership

Bismarck MSA Limited Partnership

California RSA No. 4 Limited Partnership

Charleston-North Charleston MSA Limited Partnership

Colorado 7-Saguache Limited Partnership

 CommNet Cellular Inc.

Dubuque MSA Limited Partnership

Gadsden CellTelCo Partnership

Gila River Cellular General Partnership

GTE Mobilnet of Fort ▇▇▇▇▇ Limited Partnership

GTE Mobilnet of Indiana RSA #3 Limited Partnership

GTE Mobilnet of Indiana RSA #6 Limited Partnership

GTE Mobilnet of Terre Haute Limited Partnership

GTE Mobilnet of Texas RSA #17 Limited Partnership

GTE Wireless of the Midwest Incorporated

GTE Mobilnet of Florence, Alabama Incorporated

Idaho 6-▇▇▇▇▇ Limited Partnership

Illinois RSA 6 and 7 Limited Partnership

Indiana RSA #1 Limited Partnership

Indiana RSA 2 Limited Partnership

Iowa 8-Monona Limited Partnership

Iowa RSA No. 4 Limited Partnership

Iowa RSA 5    Limited Partnership

Kentucky RSA No. 1 Partnership

Missouri RSA 2 Limited Partnership

Missouri RSA 4 Limited Partnership

Modoc RSA   Limited Partnership

Muskegon Cellular Partnership

North Central RSA 2 of North Dakota  Limited Partnership

New Mexico RSA No. 5 Limited Partnership

New Mexico RSA 6-I Partnership

New York RSA ▇▇. ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇

▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇. ▇ Limited Partnership

North Dakota 5-▇▇▇▇▇▇ Limited Partnership

Northeast Pennsylvania SMSA Limited Partnership

Northern New Mexico Limited Partnership

Northwest Dakota Cellular of North Dakota Limited Partnership

New York RSA 2 Cellular Partnership

NYNEX Mobile Limited Partnership 1

NYNEX Mobile Limited Partnership 2

NYNEX Mobile of New York, L.P.

Orange County-Poughkeepsie Limited Partnership

Pascagoula Cellular Partnership

Pennsylvania RSA 1 Limited Partnership

Pennsylvania 3   ▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇

▇▇▇▇▇▇▇▇▇▇▇▇ ▇  ▇▇▇▇▇▇ ▇ Limited Partnership

Pennsylvania RSA No. 6 (I) Limited Partnership

Petersburg Cellular Partnership

Pinnacles Cellular, Inc.

Pittsfield Cellular Telephone Company

Portland Cellular Partnership

Redding MSA Limited Partnership

RSA 7 Limited Partnership

San ▇▇▇▇▇▇ Cellular of Colorado Limited Partnership

Sioux City MSA Limited Partnership

Springfield Cellular Telephone Company

St. ▇▇▇▇▇▇▇▇ Seaway RSA Cellular Partnership

St. ▇▇▇▇▇▇ CellTelCo

Syracuse SMSA Limited Partnership

Texas RSA #11B Limited Partnership

Topeka Cellular Telephone Company, Inc.

Tuscaloosa Cellular Partnership

Tyler/Longview/▇▇▇▇▇▇▇▇ MSA Limited Partnership

Verizon Wireless Texas, LLC

Vermont RSA Limited Partnership

Virginia RSA 5 Limited Partnership

Wasatch Utah RSA No. 2 Limited Partnership

Waterloo MSA Limited Partnership

Wisconsin RSA #1 Limited Partnership

Wisconsin RSA #2 Partnership

Wisconsin RSA #6 Partnership, LLP

Wisconsin RSA No. 8 Limited Partnership

WWC Texas RSA LLC

Wyoming 1-Park Limited Partnership

Pennsylvania RSA No. 6 (II) Limited Partnership

Southwestco Wireless, Inc.

Schedule II

Notice Addresses

If to the Marketing Agent or the Servicer:

Cellco Partnership

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇

Attn: Assistant Treasurer

Email: ▇▇▇.▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇.▇▇▇

If to a Verizon Originator:

[Originator]

▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇

▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇

Attn: Assistant Treasurer (or Equivalent)

Email: ▇▇▇.▇▇▇▇.▇▇▇@▇▇▇▇▇▇▇.▇▇▇

 

 

 

 

 

 

GLOSSARY

ABS Credit Extensions has the meaning set forth in the recitals of this Agreement.

Account Statement has the meaning set forth in Section 5.2.2 of this Agreement.

Additional Originator has the meaning set forth in Section 8.11 of this Agreement.

Affiliate means, with respect to a party to this Agreement, any Person, that directly or indirectly, through one or more intermediaries, Controls, is Controlled by or is under common Control with such party.

Agreement has the meaning set forth in the preamble of this Agreement.

Annual Upgrade Offer means the annual upgrade offer in effect on the Effective Date extended by the Marketing Agent on behalf of each Verizon Originator, as applicable, to an existing customer under which such customer can upgrade a Device that is the subject of a device payment plan agreement, which annual upgrade offer contains the following terms and conditions:

·

The customer may be able to upgrade his or her eligible device for a new qualifying device after 30 days provided that such customer has paid at least 50% of the retail price of the eligible device and returns such eligible device to Verizon Wireless in good working condition with no significant damage as determined by Verizon Wireless;

·

The customer is required to purchase a new qualifying wireless device under a new device payment plan agreement.  New device purchases are subject to then-available offers and any associated wireless service requirements;

·

A customer's account must be in good standing and such customer must satisfy Verizon Wireless's eligibility requirements for a new device payment plan agreement;

·

Upon entering into a device payment agreement for a new qualifying wireless device, and after returning your eligible device to Verizon Wireless within 14 days, Verizon Wireless will agree, for such customer's benefit and for the express benefit of any assignee of such customer's original device payment plan agreement, to acquire such customer's eligible device for the remaining balance of the original device payment plan agreement and pay off and settle that remaining balance.  After Verizon Wireless does that, such customer's only remaining obligations will be under the new device payment agreement and for associated wireless service;

·

If a customer does not return his or her eligible device when upgrading, or if it is not returned to Verizon Wireless in good working condition, in each case the remaining

balance under such customer's device payment plan agreement will be due on such customer's next ▇▇▇▇. Good working condition requires, among other things, that the customer's returned device powers on and off, does not have a cracked screen, has no significant damage as determined by Verizon Wireless, and has all password-protected security features (e.g., Find My iPhone) turned off;

·

The Upgrade Offer and the related terms and conditions may be modified or terminated by Verizon Wireless at any time.  A customer's upgrade eligibility will be determined in the sole discretion of Verizon Wireless.  If the Upgrade Offer is terminated or the related terms and conditions are not satisfied, a customer will remain responsible for the remaining balance due under his or her original device payment plan agreement.

Business Day means any day other than (a) a Saturday, Sunday or any other day on which banks in New York, New York are authorized or required to close and (b) a holiday on the Federal Reserve calendar.

Cellco has the meaning set forth in the preamble of this Agreement.

Collateral has the meaning set forth in Section 4.2 of this Agreement.

Control (including the correlative terms "Controlling", "Controlled by" and "under common Control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power in fact or in law to direct or cause the direction of management policies of such Person, whether through ownership of voting securities, by contract or otherwise.  For the avoidance of doubt, if, with respect to a Person that is party to a merger or consolidation transaction (for purposes of this sentence, an "acquiring entity"), the shareholders of the acquiring entity as a group as of the time immediately prior to the consummation of such transaction, immediately following the consummation of such transaction beneficially own, directly or indirectly, voting securities of the surviving Person in such transaction sufficient to exercise Control thereof, the acquiring entity will be deemed to have acquired Control of the other party or parties to such merger or consolidation transaction.

Discount Rate means the discount rate set forth in the applicable Transaction Documents related to an SPE.

Effective Date has the meaning set forth in the preamble of this Agreement.

Governmental Authority means any government or political subdivision or any agency, authority, bureau, regulatory body, central bank, commission, department or instrumentality of any such government or political subdivision, or any other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government or any court, tribunal, grand jury or arbitrator, or any accounting board or authority (whether or not part of a government) which is responsible for the establishment or interpretation of national or international accounting principles, in each case whether foreign or domestic.

Internal Payment Priority means the order (which order may be changed at any time in the sole discretion of the Servicer) in which payments remitted by a customer to the Servicer, any release

 

of a security deposit, and any application of a credit granted to a customer are applied to the related account, which order is based on invoice aging, with the oldest invoiced balance being relieved first, followed by the second oldest invoiced balance, etc., up to current billing amounts, and within each invoice aging status, applied in the following order:

·

late fees;

·

service and all other charges, including insurance premium payments, purchases billed to the account, other than amounts due under any device payment plan agreement; and

·

any amounts related to any device payment plan agreement, which, in the case of multiple device payment plan agreements related to a single account, will be applied in the order in which such device payment plan agreements were originated with the most recent device payment plan agreement being paid last.

Law means any law (including common law), constitution, statute, treaty, regulation, rule, ordinance, executive order, order, injunction, writ, decree, directive, judgment, injunction, award or similar item of or by a Governmental Authority or any interpretation, implementation or application thereof.

Marketing Agent has the meaning set forth in the preamble of this Agreement.

Material Adverse Effect means, with respect to any event or circumstance, a material adverse effect on the ability of the Marketing Agent to perform its obligations under this Agreement.

New Upgrade DPP has the meaning set forth in Section 2.2.1 of this Agreement.

Original Agreement has the meaning set forth in the recitals of this Agreement.

Payment Date has the meaning set forth in Section 2.2.1 of this Agreement.

Person means any person, partnership, corporation, limited liability company, firm, joint venture, joint-stock company, trust, governmental authority or body, association, organization or any other entity.

Receivable has the meaning set forth in the recitals of this Agreement.

Servicer has the meaning set forth in the preamble of this Agreement.

SPE has the meaning set forth in the recitals of this Agreement.

Transaction Documents means any agreements or other documents entered into by the Marketing Agent in connection with any ABS Credit Extensions.

Transferring Originators has the meaning set forth in the recitals of this Agreement.

Upgrade Contract means the contract between a Verizon Originator and a customer that accepts an Upgrade Offer by purchasing a new qualifying wireless device under a new device payment plan agreement.

Upgrade Contract Originator has the meaning set forth in Section 2.2.1 of this Agreement.

Upgrade Offer means any upgrade offer, including the Annual Upgrade Offer, extended by the Marketing Agent on behalf of each Verizon Originator, as applicable, to an existing customer under which such customer can upgrade a wireless device that is the subject of a device payment plan agreement subject to the terms and conditions of such Upgrade Offer, as the same may be modified from time to time by the Marketing Agent.

Upgrade Payment has the meaning set forth in Section 2.2.1 of this Agreement.

Verizon Originators has the meaning set forth in the preamble of this Agreement.

Verizon Wireless means the wireless business segment of Verizon Communications Inc., operated by Cellco and its various Affiliates, including the Verizon Originators.

 

 

 

 

 

 

FORM OF ORIGINATOR JOINDER AGREEMENT

THIS ORIGINATOR JOINDER AGREEMENT, dated as of _____________, 20___ (this "Agreement") is executed by _________, a ______________ organized under the laws of _______________ (the "Additional Originator"), with its principal place of business located at _______________________________.

BACKGROUND:

NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Additional Originator hereby agrees as follows:

OBLIGATIONS LAW OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).

[Signature Pages Follow]

 

 

 

 

 

 

IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed by its duly authorized officer as of the date and year first above written.

[NAME OF ADDITIONAL ORIGINATOR]

By:                                                                             

Name:                                                                        

Title:                                                                          

CELLCO PARTNERSHIP,

as Marketing Agent

By:                                                                             

      Name:

      Title:

CELLCO PARTNERSHIP,

as Servicer

 

By:                                                                             

      Name:

      Title: