AMENDMENT AND CONSENT
Dated as of August 24, 2001
Reference is hereby made to the Amended and Restated
Participation Agreement dated as of September 2, 1998 among ▇▇▇▇▇▇▇▇
Communications, LLC, formerly ▇▇▇▇▇▇▇▇ Communications, Inc. (the "Company"),
State Street Bank and Trust Company of Connecticut, National Association, not in
its individual capacity, but solely as Trustee of the 1998 WCI Trust (the
"Trustee"), the Persons named therein as Note Holders, as Certificate Holders
and as APA Purchasers, State Street Bank and Trust Company, not in its
individual capacity, but solely as Collateral Agent, and Citibank, N.A., as
Agent (as amended and supplemented through the date hereof, the "Participation
Agreement"). Capitalized terms used but not otherwise defined herein shall have
the meanings ascribed to such terms in the Participation Agreement.
Reference is also made to the Asset Purchase Agreement dated
as of September 2, 1998 among CXC Incorporated, WC Network Funding LLC, each of
the financial institutions that has executed a signature page to the Asset
Purchase Agreement or an Assignment of Purchase Commitment (the "APA
Purchasers"), Citibank, N.A., as Agent for the APA Purchasers, and Citicorp
North America, Inc. (the "Asset Purchase Agreement").
WHEREAS, the parties desire to effect certain amendments to
the Participation Agreement and the Asset Purchase Agreement;
NOW, THEREFORE, the undersigned hereby agree as follows:
1. Amendment to the Participation Agreement. The Participation
Agreement is hereby amended as follows:
(a) The Commitment Fee chart set forth in Section A of Part II
to Schedule II to the Participation Agreement is hereby deleted in its entirety
and restated as follows:
Commitment
Fee(2)
Ratings Level(1) (bps per annum)
---------------- ---------------
A/A2 or Better 23.0
A-/A3 23.5
BBB+/Baal 24.5
BBB/Baa2 25.0
BBB-/Baa3 28.0
Lower than BBB-/Baa3 38.0
(1) If the Guarantor is split-rated, the higher rating level will apply.
(2) The Collateral Purchase Account fee shall equal the Commitment/Liquidity
Backstop Fee multiplied by 1.2.
(b) Paragraph (d) of Section 1.06 of the
Participation
Agreement is hereby deleted in its entirety.
(c) Appendix A of the
Participation Agreement is hereby
amended by deleting in its entirety the definition of "Guarantor" contained
therein and replacing it with the following: "'Guarantor' means The ▇▇▇▇▇▇▇▇
Companies, Inc., successor in interest by merger dated July 31, 1999 to
▇▇▇▇▇▇▇▇ Holdings of Delaware, Inc.".
(d) Appendix A of the
Participation Agreement is hereby
amended by deleting in its entirety the definition "Guaranty" contained therein
and replacing it with the following: "'Guaranty' means the Second Amended and
Restated Guaranty Agreement dated as of August 17, 2000 between The ▇▇▇▇▇▇▇▇
Companies, Inc., the Trustee, the Collateral Agent, the Agent and Citibank,
N.A., as APA Agent."
2. Amendments to the Asset Purchase Agreement. The Asset
Purchase Agreement is hereby amended as follows:
(a) The first paragraph of Section 2(a) of the Asset Purchase
Agreement is hereby deleted and restated in its entirety as follows:
"(a) From time to time upon notice from the Securitization
Company (or CNAI or any other agent designated by the Securitization Company to
give such notice on behalf of the Securitization Company) to the Agent (which
shall give prompt notice thereof to one or more of the Purchasers, as selected
by the Agent in its discretion), each of such Purchaser or Purchasers as shall
have received such notice shall, from time to time on or prior to such
Purchaser's Purchase Termination Date (as defined in Section 5), purchase
without recourse to the Securitization Company (except in the case of a breach
by the Securitization Company of its express representations, warranties and
other obligations hereunder), on the terms and conditions herein set forth, the
Securitization Percentage Interest that the Securitization Company offers for
sale to such Purchaser (it being understood and agreed that the Securitization
Company may give any such notice to the Agent for any reason whatsoever). Each
such notice of purchase shall be given by the Agent to each applicable Purchaser
no later than 12:00 noon (
New York City time) on the date of such purchase
(which shall be a Business Day (as defined below)), shall be sent by telecopier,
telex or cable to all such Purchasers concurrently, and shall specify the date
of such purchase (which shall be a Business Day) and the Advance or Advances or
portion thereof in which the interest is to be purchased by such Purchaser
(identified by term and principal amount). Prior to 3:00 p.m. (
New York City
time) on the date of such purchase, such Purchaser shall pay to the Agent for
the account of the Securitization Company, in immediately available funds in
United States dollars, by depositing to an account specified by the Agent at the
office of Citibank at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Agent's
Account"), an amount (such Purchaser's "Securitization Purchase Price") equal to
such Purchaser's Percentage multiplied by the sum of (i) the then unpaid
principal amount of such Advance or Advances (or such
2
portion thereof) plus (ii) the aggregate unpaid interest payable on such Advance
or Advances (or such portion thereof) (including Capitalized Interest) through
the maturity dates thereof. After the Agent's receipt of such funds, the Agent
will make such funds available to the Securitization Company by crediting an
account specified by the Securitization Company at the office of Citibank as
aforesaid (the "Securitization Company's Account"). For purposes of this
Agreement, the term "Business Day" means any day other than a Saturday, Sunday
or any other day on which banks in
New York,
New York, are required or
authorized to close."
(b) The first sentence of Section 7(b) of the Asset Purchase
Agreement is hereby deleted and restated in its entirety to read as follows:
"(b) Subject to Section 7(c), whenever any amount or principal
or interest is paid in connection with any Advance, or any Company Note, in
which any Purchaser has purchased a Percentage Interest, the Securitization
Company or the Borrower, as the case may be, will promptly pay, or cause to be
paid, out of such funds received by it, to the Agent at the Agent's Account for
the account of such Purchaser, in immediately available funds in United States
dollars, such Purchaser's Percentage of such principal amount and its Percentage
of accrued interest on the principal amount of the Advance or Company Note, as
the case may be, adjusted to reflect the fact that such Purchaser is entitled to
interest on its applicable Purchase Price."
(c) Sections 18(b)(iv) and 18(b)(v) of the Asset Purchase
Agreement are hereby deleted in their entirety.
3. Representations and Warranties of the Company. The Company
hereby represents and warrants that as of the date hereof (except for any such
representations or warranties relating to a specific earlier date or time
period) and after giving effect to this Amendment and Consent:
(a) all of the representations and warranties of the
Company set forth in the Operative Documents (other than those
contained in Section 3.01(x) of the Participation Agreement) are true
and correct in all material respects;
(b) there are no offsets, defenses or counterclaims
against the obligations of the Company under the Operative Documents;
(c) no Default, Event of Default or Environmental
Trigger exists on the part of the Company; and
(d) this Amendment and Consent has been duly executed
and delivered by the Company and is the legal, valid and binding
obligation of the Company, enforceable against the company, in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and by general principles
of equity.
4. Representations and Warranties of the Guarantor. The
▇▇▇▇▇▇▇▇ Companies, Inc. (the "Guarantor") hereby represents and warrants that
as of the date hereof
3
(except for any such representations or warranties relating to a specific
earlier date or time period) and after giving effect to this Amendment and
Consent:
(a) all of the representations and warranties of the
Guarantor set forth in the Operative Documents (other than those
contained in Section 3.01(m) of the Second Amended and Restated
Guaranty Agreement dated as of August 17, 2000 between the Guarantor,
the Trustee, the Collateral Agent, the Agent and the APA Agent) are
true and correct in all material respects;
(b) there are no offsets, defenses or counterclaims
against the obligations of the Guarantor under the Operative Documents;
(c) no Default, Event of Default or Environmental
Trigger exists on the part of such Guarantor; and
(d) this Amendment and Consent has been duly executed
and delivered by the Guarantor and is the legal, valid and binding
obligation of the Guarantor, enforceable against the company, in
accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the
enforceability of creditors' rights generally and by general principles
of equity.
5. Trustee. The undersigned Note Holders and Certificate
Holders hereby (a) direct the Trustee to give its consent to the actions
contemplated hereby by executing and delivering this Amendment and Consent, and
(b) consent to the execution and delivery by the Trustee of this Amendment and
Consent.
6. Consent. CXC and each APA Purchaser executing this
Amendment and Consent as an APA Purchaser hereby directs the SPV to execute and
deliver this Amendment and Consent.
7. Effective Date. This Amendment and Consent shall be
effective on the date first above written.
8. Full Force and Effect. Except as specifically amended
hereby, the Operative Documents and the Securitization Documents shall remain in
full force and effect and are hereby ratified and confirmed.
9. Exculpation of the Trustee. Except for its own gross
negligence or willful misconduct and as otherwise expressly provided in the
Operative Documents, it is expressly understood and agreed by the parties hereto
that (a) this Amendment and Consent is executed and delivered by SSBTC, not in
its individual capacity but solely as Trustee under the Declaration of Trust, in
the exercise of the powers and authority conferred and vested in it as the
Trustee, (b) each of the undertakings and agreements herein made on the part of
the Trustee is made and intended not as a personal representation, undertaking
and agreement by SSBTC but is made and intended for the purpose for binding only
the Trust Estate created by the Declaration of Trust, (c) nothing herein
contained shall be construed as creating any
4
liability on SSBTC, individually or personally, to perform any obligation of the
Trustee either expressed or implied contained herein or in the Operative
Documents, all such liability, if any, being expressly waived by the parties to
this Amendment and Consent and by any Person lawfully claiming by, through or
under the parties to this Amendment and Consent and (d) under no circumstances
shall SSBTC be personally liable for the payment of any indebtedness or expenses
of the Trustee or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Trustee under the
Operative Documents.
10. Exculpation of the Collateral Agent. Except for its own
gross negligence or willful misconduct and as otherwise provided in the
Operative Documents, it is expressly understood and agreed by the parties hereto
that (a) this Agreement is executed and delivered by the Collateral Agent, not
in its individual capacity but solely as Collateral Agent, under the Interparty
Agreement, in the exercise of the powers and authority conferred and vested in
it as the Collateral Agent, (b) nothing herein contained shall be construed as
creating any liability on the Collateral Agent, individually or personally, to
perform any obligation of the Collateral Agent either expressed or implied
contained herein or in the Operative Documents, all such liability, if any,
being expressly waived by the Parties and by any Person claiming by, through or
under the Parties and (c) under no circumstances shall the Collateral Agent be
personally liable for the payment of any indebtedness or expenses of the
Collateral Agent or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Collateral Agent
under this Agreement or the Operative Documents except where such breach or
failure is the result of the Collateral Agent's willful misconduct or gross
negligence.
11. Governing Law. This Amendment and Consent shall be
governed by and construed under the laws of the State of
New York.
12. Counterparts. This Amendment and Consent may be executed
in any number of counterparts, each of which shall, when executed, be deemed to
be an original and all of which taken together shall be deemed to be one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment and Consent by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment and Consent.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment and Consent to be duly executed by their officers thereunto duly
authorized as of the day and year first above written.
[SIGNATURE PAGES FOLLOW.]
5
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
By:
-------------------------------------
Name:
Title:
THE ▇▇▇▇▇▇▇▇ COMPANIES, INC.
By:
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
STATE STREET BANK AND TRUST COMPANY OF
CONNECTICUT NATIONAL ASSOCIATION, not in
its individual capacity but solely as
Trustee of the 1998 WCI Trust, as
Trustee and Lessor
By:
-------------------------------------
Name:
Title:
STATE STREET BANK AND TRUST COMPANY, not
in its individual capacity but solely as
Collateral Agent
By:
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
CITIBANK, N.A., as Agent
By:
-------------------------------------
Name:
Title:
CITIBANK, N.A.
as APA Purchaser
By:
-------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
CXC INCORPORATED
By: CITICORP NORTH AMERICA, INC.,
as attorney-in-fact
By:
-------------------------------------
Name:
Title:
CITICORP NORTH AMERICA, INC.,
as administrative agent for CXC
Incorporated and as RCE Agent
By:
---------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
WC NETWORK FUNDING LLC,
as Note Holder
By: WC Network Holdings, Inc.,
its sole member
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
FBTC LEASING CORP.,
as Certificate Holder
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
SCOTIABANC INC.,
as Certificate Holder
By:
------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
BANK OF MONTREAL,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
ROYAL BANK OF CANADA,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
BANK OF AMERICA, N.A., as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
THE CHASE MANHATTAN BANK,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
BARCLAYS BANK PLC,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
TORONTO DOMINION (TEXAS), INC.
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
ABN AMRO BANK, N.V.
as APA Purchaser
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
FLEET NATIONAL BANK (f/k/a BankBoston,
N.A.), as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
CIBC INC., as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
THE BANK OF
NEW YORK,
as APA Purchaser
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
BNP PARIBAS, as APA Purchaser
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
COMMERZBANK AG,
NEW YORK AND
GRAND CAYMAN BRANCHES, as APA
Purchaser
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SIGNATURE PAGE TO AMENDMENT AND CONSENT
DATED AS OF AUGUST 24, 2001
WITH RESPECT TO ▇▇▇▇▇▇▇▇ COMMUNICATIONS, LLC
SECURITIZED ASSET DEFEASANCE PROGRAM
CREDIT AGRICOLE INDOUSUEZ,
as APA Purchaser
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
