|
|
|
|
|
DELAWARE
|
|
1-33409
|
|
20-0836269
|
(State or other jurisdiction
|
|
(Commission File Number)
|
|
(I.R.S. Employer
|
of incorporation or organization)
|
|
|
|
Identification No.)
|
|
|
|
12920 SE 38th Street
|
|
|
Bellevue, Washington
|
|
98006-1350
|
(Address of principal executive offices)
|
|
(Zip Code)
|
¨
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
¨
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
¨
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
¨
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Exhibit
|
|
Description
|
10.1
|
|
Receivables Sale and Conveyancing Agreement, dated as of February 26, 2014, among T-Mobile West LLC, T-Mobile Central LLC, T-Mobile Northeast LLC and T-Mobile South LLC, as sellers, and T-Mobile PCS Holdings LLC, as purchaser.
|
10.2
|
|
Receivables Sale and Contribution Agreement, dated as of February 26, 2014, between T-Mobile PCS Holdings LLC, as seller, and T-Mobile Airtime Funding LLC, as purchaser.
|
10.3
|
|
Master Receivables Purchase Agreement, dated as of February 26, 2014, among T-Mobile Airtime Funding LLC, as funding seller, Billing Gate One LLC, as purchaser, Landesbank Hessen-Thüringen Girozentrale, as bank purchasing agent, T-Mobile PCS Holdings LLC, as servicer, and T-Mobile US, Inc., as performance guarantor.
|
10.4
|
|
Guarantee Facility Agreement, dated as of February 26, 2014, among T-Mobile US, Inc., as the company, T-Mobile Airtime Funding LLC, as the funding seller, and KfW IPEX-Bank GmbH, as the bank.
|
|
|
T-MOBILE US, INC.
|
|
|
|
March 4, 2014
|
|
/s/ J. Braxton Carter
|
|
|
J. Braxton Carter
Executive Vice President and Chief Financial Officer
|
|
|
Page
|
|
ARTICLE 1
|
DEFINITIONS
|
2
|
|
Section 1.01
|
General
|
2
|
|
Section 1.02
|
Additional Specific Defined Terms
|
2
|
|
ARTICLE 2
|
TRANSFERS OF RECEIVABLES AND RELATED RIGHTS
|
3
|
|
Section 2.01
|
Conveyance of Receivables and Related Rights
|
3
|
|
Section 2.02
|
Assignment of Agreement
|
4
|
|
Section 2.03
|
Repurchase of Aged and Written-Off Receivables
|
5
|
|
ARTICLE 3
|
REPRESENTATIONS AND WARRANTIES
|
5
|
|
Section 3.01
|
Entity Representations and Warranties
|
6
|
|
Section 3.02
|
Receivable Representations and Warranties
|
8
|
|
ARTICLE 4
|
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
|
9
|
|
Section 4.01
|
Filing
|
9
|
|
Section 4.02
|
Name Change or Relocation
|
9
|
|
Section 4.03
|
Sale Treatment
|
9
|
|
Section 4.04
|
Separateness from T‑Mobile Airtime Funding
|
9
|
|
ARTICLE 5
|
COVENANTS
|
10
|
|
Section 5.01
|
Compliance with Law
|
10
|
|
Section 5.02
|
Performance of Contracts
|
10
|
|
Section 5.03
|
No Adverse Claims
|
10
|
|
Section 5.04
|
Modification of Receivables
|
10
|
|
Section 5.05
|
Payment Instructions
|
10
|
|
Section 5.06
|
Marking of Records
|
10
|
|
Section 5.07
|
Sales Tax
|
11
|
|
Section 5.08
|
Obligations of Sellers
|
11
|
|
Section 5.09
|
Books of Account
|
11
|
|
Section 5.10
|
Corporate Existence; Merger or Consolidation
|
11
|
|
Section 5.11
|
Separate Existence
|
11
|
|
ARTICLE 6
|
MISCELLANEOUS
|
12
|
|
Section 6.01
|
Amendment
|
12
|
|
Section 6.02
|
Notices
|
12
|
|
Section 6.03
|
Delivery of Collections
|
13
|
|
Section 6.04
|
Merger and Integration
|
13
|
|
Section 6.05
|
Headings
|
13
|
|
Section 6.06
|
Governing Law
|
13
|
|
Section 6.07
|
No Bankruptcy Petition; Subordination
|
13
|
|
Section 6.08
|
Severability of Provisions
|
14
|
|
Section 6.09
|
No Waiver; Cumulative Remedies
|
14
|
|
Section 6.10
|
Counterparts
|
14
|
|
Section 6.11
|
Other Agreements
|
14
|
|
Section 6.12
|
JURISDICTION
|
14
|
|
Section 6.13
|
WAIVER OF JURY TRIAL
|
14
|
|
Section 6.14
|
Right of First Refusal
|
15
|
|
|
|
|
|
Page
|
ARTICLE I
|
DEFINITIONS
|
2
|
Section 1.01
|
General
|
2
|
Section 1.02
|
Additional Specific Defined Terms
|
2
|
ARTICLE II
|
TRANSFERS OF RECEIVABLES AND RELATED RIGHTS
|
3
|
Section 2.01
|
Conveyance of the Receivables and Related Rights
|
3
|
Section 2.02
|
Assignment of Agreement
|
5
|
ARTICLE III
|
REPRESENTATIONS AND WARRANTIES
|
5
|
Section 3.01
|
Representations and Warranties
|
6
|
Section 3.02
|
Receivables Representations and Warranties
|
9
|
ARTICLE IV
|
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
|
9
|
Section 4.01
|
Filing
|
9
|
Section 4.02
|
Name Change or Reorganization
|
9
|
Section 4.03
|
Sale Treatment
|
10
|
ARTICLE V
|
REMEDIES UPON MISREPRESENTATION
|
10
|
Section 5.01
|
Breach of Representations and Warranties and Dilutions
|
10
|
Section 5.02
|
Repurchases of Aged and Written-Off Receivables
|
10
|
Section 5.03
|
Reassignment of Repurchased Receivables
|
11
|
ARTICLE VI
|
COVENANTS
|
11
|
Section 6.01
|
Compliance with Law
|
11
|
Section 6.02
|
Performance of Contracts
|
11
|
Section 6.03
|
No Adverse Claims
|
11
|
Section 6.04
|
Modification of Receivables
|
11
|
Section 6.05
|
Payment Instructions
|
12
|
Section 6.06
|
Marking of Records
|
12
|
Section 6.07
|
Sales Tax
|
12
|
Section 6.08
|
Obligations of T-Mobile PCS Holdings
|
12
|
Section 6.09
|
Books of Account
|
12
|
Section 6.10
|
Corporate Existence; Merger or Consolidation
|
12
|
Section 6.11
|
Separate Existence.
|
13
|
ARTICLE VII
|
INDEMNITIES; CERTAIN OTHER AGREEMENTS
|
13
|
Section 7.01
|
T-Mobile PCS Holdings Indemnification
|
13
|
Section 7.02
|
Operation of Indemnities
|
13
|
Section 7.03
|
Security Interests
|
13
|
Section 7.04
|
Application of Excess Funds
|
14
|
Section 7.05
|
Delivery of Collections
|
14
|
Section 7.06
|
Separate Entity Existence
|
14
|
Section 7.07
|
Right of First Refusal
|
14
|
ARTICLE VIII
|
MISCELLANEOUS
|
15
|
Section 8.01
|
Amendment
|
15
|
Section 8.02
|
Notices
|
15
|
Section 8.03
|
Delivery of Collections
|
16
|
Section 8.04
|
Merger and Integration
|
16
|
Section 8.05
|
Headings
|
16
|
Section 8.06
|
Governing Law
|
16
|
Section 8.07
|
No Bankruptcy Petition
|
16
|
Section 8.08
|
Severability of Provisions
|
16
|
Section 8.09
|
No Waiver; Cumulative Remedies
|
16
|
Section 8.10
|
Counterparts
|
16
|
Section 8.11
|
Other Agreements
|
17
|
Section 8.12
|
JURISDICTION
|
17
|
Section 8.13
|
WAIVER OF JURY TRIAL
|
17
|
Section 8.14
|
Parties’ Agreement
|
17
|
(A)
|
all security interests, hypothecations, reservations of ownership, liens or other adverse claims and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the contract pursuant to which such Receivable was originated, together with all financing statements, registrations, hypothecations, charges or other similar filings or instruments against an Obligor and all security agreements describing any collateral securing such Receivable, if any;
|
(B)
|
all guarantees, insurance policies and other agreements or arrangements of whatsoever character from time to time supporting of such Receivable whether pursuant to the contract pursuant to which such Receivable was originated, including any obligation of any party under the Transaction Documents to promptly deposit amounts received in respect of Collections to an account;
|
(C)
|
all Collections with respect to such Receivable; and
|
(D)
|
all proceeds of the foregoing.
|
(i)
|
pay to T-Mobile PCS Holdings, the Purchase Price for new Receivables pursuant to the terms and conditions of Article II hereof;
|
(ii)
|
to the extent any Excess Funds are remaining following the application of clause (i), decrease the Receivables Deferred Purchase Price by an amount equal to the lesser of the Receivables Deferred Purchase Price and such remaining Excess Funds; and
|
(iii)
|
to the extent any Excess Funds are remaining following the application of clauses (i) and (ii), make a dividend payment to T-Mobile PCS Holdings, in respect of T-Mobile PCS Holdings’ sole membership interest in the Funding Purchaser (so long as such dividend payment is not otherwise prohibited by the terms of the Receivables Purchase Agreement).
|
T-MOBILE AIRTIME FUNDING LLC
By:
/s/ Dirk Wehrse
Name: Dirk Wehrse
Title: Vice President, Treasury & Treausurer
|
T-MOBILE PCS HOLDINGS LLC
By:
/s/ J. Braxton Carter
Name: J. Braxton Carter
Title: Executive Vice President & Chief
Financial Officer
|
|
|
|
|
|
Page
|
1.
|
|
Interpretation
|
2
|
2.
|
|
Sales and Assignment
|
22
|
3.
|
|
Servicing of Purchased Receivables
|
29
|
4.
|
|
Fees and Payments; Increased Costs; Set-Off
|
35
|
5.
|
|
Repurchase of Receivables; Allocation and Sharing of Losses
|
38
|
6.
|
|
Representations and Warranties of the Funding Seller and the Performance Guarantor
|
44
|
7.
|
|
Certain Covenants of the Funding Seller, the Servicer, the Performance Guarantor, the Bank Purchasing Agent and the Purchaser
|
50
|
8.
|
|
Conditions Precedent
|
55
|
9.
|
|
Indemnification By Funding Seller
|
55
|
10.
|
|
Payments
|
57
|
11.
|
|
Term; Termination
|
57
|
12.
|
|
Confidentiality
|
62
|
13.
|
|
Notices
|
63
|
14.
|
|
Assignments
|
63
|
15.
|
|
Amendments
|
64
|
16.
|
|
Other Costs
|
64
|
17.
|
|
Severability
|
64
|
18.
|
|
Money Laundering
|
64
|
19.
|
|
Performance Guarantee
|
65
|
20.
|
|
Termination of KFW Guarantee
|
67
|
21.
|
|
Purchasing Entities’ Undertakings related to German VAT
|
67
|
22.
|
|
Bankruptcy
|
67
|
23.
|
|
Limited Recourse against Wells Fargo
|
68
|
24.
|
|
Choice of Law and Jurisdiction; Waiver of Jury Trial
|
68
|
25.
|
|
Counterparts
|
69
|
26.
|
|
Execution
|
69
|
|
|
|
|
|
|
SIGNATURE PAGES
|
|
ANNEX 1
|
|
ADDRESSES
|
A-1
|
ANNEX 2
|
|
(Reserved)
|
A-2
|
ANNEX 3
|
|
ELIGIBLE RECEIVABLES
|
A-3
|
ANNEX 4
|
|
ORIGINATORS
|
A-4
|
ANNEX 5
|
|
CONDITIONS PRECEDENT
|
A-5
|
ANNEX 6
|
|
FORM OF MONTHLY REPORT
|
A-6
|
ANNEX 7
|
|
SCOPE OF ACCOUNTANT'S REPORT
|
A-7
|
ANNEX 8
|
|
DATA CONFIDENTIALITY PROVISIONS
|
A-8
|
ANNEX 9
|
|
FORM OF DT PAYMENT GUARANTEE
|
A-9
|
ANNEX 10
|
|
TEMPLATE FOR INVOICES ON SERVICER FEE TO BE ISSUED BY SERVICER SEPARATELY TO EACH BANK PURCHASER PURSUANT TO SECTION 4.3(b)
|
A-9
|
(1)
|
T-Mobile Airtime Funding LLC
, a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 12920 SE 38th Street, Bellevue, Washington, USA 98006 (“
T-Mobile Funding
” or the “
Funding
Seller
”);
|
(2)
|
Billing Gate One LLC
, a limited liability company organized under the laws of the State of Delaware, with its principal place of business at 919 N. Market Street, Suite 1600, Wilmington, Delaware, USA 19801 (the “
Purchaser
”);
|
(3)
|
Landesbank Hessen-Thüringen Girozentrale
, a public law corporation incorporated under the laws of Germany, registered in the commercial register kept at the local court (
Amtsgericht
) of Frankfurt am Main under registration number HRA 29821 and the local court (
Amtsgericht
) of Jena under registration number HRA 102181, with its business address at Neue Mainzer Straße 52-58, 60311 Frankfurt am Main, Germany (“
Helaba
” or the “
Bank Purchasing Agent
”);
|
(4)
|
T-Mobile PCS Holdings LLC
, a Delaware limited liability company, with its business address at 12920 SE 38th Street, Bellevue, Washington, USA 98006, as Servicer (“
T-Mobile PCS Holdings
” or the “
Servicer
”); and
|
(5)
|
T-Mobile US, Inc.
, a Delaware corporation, with its business address at 12920 SE 38th Street, Bellevue, Washington, USA 98006 (the “
Performance Guarantor
” or “
TMUS
”).
|
(A)
|
On or about the date hereof, T-Mobile PCS Holdings and the Originators entered into a receivables sale and conveyancing agreement, as amended from time to time (the “
Conveyancing Agreement
”), pursuant to which T-Mobile PCS Holdings (in such capacity, the “
Initial Purchaser
”) has agreed to purchase Receivables and Related Rights from the Originators, and the Originators have agreed to sell certain Receivables and Related Rights to the Initial Purchaser.
|
(B)
|
On or about the date hereof, T-Mobile Funding and the Initial Purchaser have entered into a receivables sale and contribution agreement, as amended from time to time (the “
Contribution Agreement
”), pursuant to which T-Mobile Funding has agreed to purchase Receivables and Related Rights from the Initial Purchaser, and the Initial Purchaser has agreed to sell or contribute Receivables and Related Rights to T-Mobile Funding that the Initial Purchaser has acquired pursuant to the Conveyancing Agreement.
|
(C)
|
In order to enable the Funding Seller to purchase such Receivables and Related Rights from the Initial Purchaser pursuant to the Contribution Agreement, the Funding Seller and the Purchaser wish to enter into this Agreement, pursuant to which the Funding Seller shall sell to the Purchaser, and the Purchaser shall purchase from the Funding Seller, the Receivables and Related Rights that the Funding Seller has acquired pursuant to the Contribution Agreement.
|
(D)
|
In order to enable the Purchaser to purchase the Receivables and Related Rights from the Funding Seller pursuant to this Agreement, the Bank Purchasing Agent, the Bank Purchasers and the Purchaser shall enter into the Onward Receivables Purchase Agreement, as amended from time to time (the “
Onward Receivables Purchase Agreement
”), on or about the date hereof, pursuant to which the Purchaser shall agree to sell to the Bank Purchasers, and the Bank Purchasers shall agree to purchase from the Purchaser, undivided percentage ownership interests in such Receivables and Related Rights.
|
(E)
|
Helaba has been requested and is willing to act as Bank Purchasing Agent on behalf of the Bank Purchasers and their assigns in accordance with the terms of the Onward Receivables Purchase Agreement.
|
(F)
|
T-Mobile PCS Holdings has been requested, and is willing, to act as the Servicer in accordance with the terms hereof.
|
(G)
|
In order to induce the Purchaser to enter into this Agreement, the Performance Guarantor has agreed to guaranty certain of the obligations of the Servicer, the Initial Purchaser and the Originators under the Transaction Documents.
|
1.
|
INTERPRETATION
|
1.1
|
Definitions
|
(a)
|
a case or other proceeding shall be commenced, without the application or consent of such Person, in any court, seeking the liquidation, reorganization, debt arrangement, dissolution, winding up or composition or readjustment of debts of such Person, the appointment of a trustee, receiver, custodian, liquidator, assignee, sequestrator or the like for such Person or any substantial part of its assets, or any similar action with respect to such Person under the Bankruptcy Code or any other law relating to bankruptcy, insolvency, reorganization, winding up or composition or adjustment of debts, and, except in the case of the Funding Seller, such case or proceeding shall continue undismissed, or unstayed and in effect, for a period of 60 days; or an order for relief in respect of such Person shall be entered in an involuntary case under the Bankruptcy Code or other similar laws now or hereafter in effect; or
|
(b)
|
such Person shall commence a voluntary case or other proceeding under the Bankruptcy Code or any other applicable bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other similar law now or hereafter in effect, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestration or the like, for such Person or any substantial part of its property, or shall make any general assignment for the benefit of creditors, or shall fail to, or admit in writing its inability to, pay its debts generally as they become due; or
|
(c)
|
such Person 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 file a notice of intention to make a proposal to some or all of its creditors.
|
(a)
|
the Discount Ledger Adjusted Balance for such Settlement Date; minus
|
(b)
|
the sum of (i) the aggregate amount, if any, by which the Discount Ledger Balance is required to be reduced pursuant to Section 5.3(b)(ii) on such Settlement Date plus (ii) the aggregate amount, if any, payable by the Purchaser to the Funding Seller pursuant to Section 5.3(c)(ii) on such Settlement Date.
|
(I)
|
Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, imposed as a result of the Bank Purchasing Agent or any Bank Purchaser being organized under the laws of, or having its principal office located in, the jurisdiction imposing such Tax (or any political subdivision thereof); and
|
(II)
|
Taxes attributable to any Purchasing Entity’s failure to comply with Section 4.7(b) or 4.7(c).
|
(A)
|
the Level 4 Reserve Percentage multiplied by:
|
(i)
|
for the initial three Settlement Dates, the Batch Receivables Amount for the Closing Date Batch
plus
the sum of the Level 4 Reserve Batch Amounts for all Collection Periods preceding such Settlement Date; and
|
(ii)
|
thereafter, the sum of the Level 4 Reserve Batch Amounts for the four Collection Periods immediately preceding such Settlement Date;
|
(B)
|
the sum of the amounts by which the Level 4 Reserve Amount was required to be reduced pursuant to Section 5.3(b)(iv) and Section 5.3(c)(iv) on all prior Settlement Dates;
plus
|
(C)
|
the aggregate amount of all Recoveries paid to the Funding Seller pursuant to Section 5.4(ii) on such Settlement Date and all prior Settlement Dates.
|
(a)
|
the financial condition, assets or business of the Performance Guarantor and its Subsidiaries, taken as a whole; or
|
(b)
|
the ability of the Funding Seller, the Servicer, the Initial Purchaser, the Performance Guarantor or the Originators to perform and comply with their respective obligations under any Transaction Document.
|
(a)
|
the product of (i) the Maximum Mandatory Repurchase Percentage for the Collection Period to which such Batch relates times (ii) its Batch Receivables Amount;
minus
|
(b)
|
the aggregate amount of reductions (in connection with the allocation of the Allocated Write-Off Amount) that were required to be made to the Mandatory Repurchase Reserve Payment Amount with respect to such Batch on all prior Settlement Dates pursuant to Sections 5.3(b)(i) and 5.3(c)(i).
|
(A)
|
all security interests, hypothecations, reservations of ownership, liens or other adverse claims and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the contract pursuant to which such Receivable was originated, together with all financing statements, registrations, hypothecations, charges or other similar filings or instruments against an Obligor and all security agreements describing any collateral securing such Receivable, if any;
|
(B)
|
all guarantees, insurance policies and other agreements or arrangements of whatsoever character from time to time supporting of such Receivable whether pursuant to the contract pursuant to which such Receivable was originated, including any obligation of any party under the Transaction Documents to promptly deposit amounts received in respect of Collections to an account;
|
(C)
|
all Collections with respect to such Receivable; and
|
(D)
|
all proceeds of the foregoing.
|
(a)
|
any failure by the Servicer to make any payment, transfer or deposit pursuant to this Agreement, which failure continues unremedied for a period of five (5) days; or
|
(b)
|
failure on the part of the Servicer duly to observe or perform in any material manner any other covenants or agreements of the Servicer set forth in this Agreement, which continues unremedied for a period of ten (10) days after the first to occur of (i) the date on which written notice of such failure requiring the same to be remedied shall have been given to the Servicer by the Bank Purchasing Agent or any Bank Purchaser, and (ii) the date on which the Servicer becomes aware thereof; or
|
(c)
|
any representation, warranty or certification made by the Servicer in this Agreement or in any certificate delivered pursuant hereto shall prove to have been incorrect or untrue in any material respect when made or deemed made which, if capable of cure, continues to be incorrect in any material respect for a period of thirty (30) days after the first to occur of (i) the date on which written notice of such incorrectness shall have been given to the Servicer by the Bank Purchasing Agent or any Bank Purchaser, and (ii) the date on which the Servicer becomes aware thereof; or
|
(d)
|
a Bankruptcy Event shall occur with respect to the Servicer.
|
1.2
|
Construction
. The index to and the headings in this Agreement are for ease of reference only and are to be ignored in construing this Agreement.
|
2.
|
SALE AND ASSIGNMENT
|
2.1
|
Sale
.
|
(a)
|
On the Closing Date, subject to the terms and conditions of this Agreement, all of the Funding Seller’s right, title and interest in and to all existing Receivables and associated Related Rights that the Funding Seller, immediately prior to the sale contemplated hereunder, acquired from the Initial Purchaser pursuant to the terms of the Contribution Agreement on the Closing Date shall be, and hereby are, sold, transferred, assigned, set-over and otherwise conveyed to the Purchaser.
|
(b)
|
After the Closing Date, on each Business Day prior to the Facility Termination Date, all of the Funding Seller’s right, title and interest in and to all newly created Receivables and associated Related Rights that the Funding Seller, immediately prior to the sales contemplated hereunder, acquires from the Initial Purchaser on each such Business Day pursuant to the terms of the Contribution Agreement, shall be sold, transferred, assigned, set over and otherwise conveyed to the Purchaser without any further action by the Funding Seller or any other Person.
|
(c)
|
Notwithstanding the foregoing clauses (a) and (b), the Funding Seller may, at any time, cease to sell all Receivables related to one or more specific CCPCs or one or more Designated States in order to avoid the concentration limits on Eligible Receivables set forth in clauses (t), (u), (v), (cc) or (dd) in Annex 3 being exceeded (each such Receivable, an “
Excluded Receivable
”), provided that, at all times, Receivables relating to at least eight Designated States shall not be so excluded. The Funding Seller shall notify each of the Purchasing Entities of any such exclusions and such exclusions shall remain in effect until the Funding Seller shall otherwise notify the Purchasing Entities. Each such notice shall be given in writing no less than one (1) Business Day prior to the beginning of a
|
2.2
|
Increases or Decreases to the Funded Amount
. On any Reporting Date, the Funding Seller may provide each of the Purchasing Entities with written notice included within the Monthly Report delivered on such Reporting Date of its request for an increase or a decrease in the Funded Amount (to be effected by a decrease or increase in the Excess Funding Reserve Amount), which notice shall be irrevocable and shall specify the amount of such requested increase or decrease (which shall not be less than $10,000,000); provided, however, that (A) no such request by the Funding Seller shall cause either (i) the Funded Amount to be less than 80% or greater than 100% of the Funding Limit or (ii) the Excess Funding Reserve Amount to be less than zero at any time and (B) the Funded Amount shall remain as requested on the immediately following Settlement Date unless the Funding Seller shall have requested a further increase or decrease in the Funded Amount for such Settlement Date in accordance with this Section 2.2.
|
2.3
|
(Reserved)
|
2.4
|
Payment of Purchase Price
.
|
(a)
|
The amount payable by the Purchaser to the Funding Seller for each Purchased Receivable shall be the Purchase Price for such Receivable and associated Related Rights. The Purchase Price for the Receivables and associated Related Rights sold hereunder shall be paid or provided for in the manner provided below on each Business Day. The Funding Seller hereby appoints the Servicer as its agent to receive payment of the Purchase Price for Receivables sold by it to the Purchaser hereunder and hereby authorizes the Purchaser to make all payments due to the Funding Seller directly to, or as directed by, the Servicer. The Servicer hereby accepts and agrees to such appointment.
|
(b)
|
The Purchase Price for Receivables and associated Related Rights purchased by the
Purchaser from the Funding Seller shall be paid by the
Purchaser on each Purchase Date as follows:
|
(i)
|
to the extent available for such purpose in accordance with Section 2.6(b), in cash from Collections of Purchased Receivables; and
|
(ii)
|
to the extent that the Purchase Price on such Purchase Date exceeds the amount available from Collections (as contemplated by clause (i) above) on such Purchase Date, by an increase in the deferred payments owed by the
Purchaser to the Funding Seller hereunder.
|
(c)
|
Following each sale of Receivables, the Funding Seller shall have no retained right, title or interest in the Purchased Receivables or any rights with respect to the Obligors thereof and will look solely to the Purchaser for payment of the Deferred Purchase Price in accordance with the terms hereof. The Purchaser and the Servicer will apply Collections with respect to the Receivables in accordance with the terms hereof.
|
2.5
|
Excess Dilutions; Breaches of Representations
.
|
(a)
|
If the product of (A) the aggregate amount of Dilutions for any Collection Period and (B) the Funding Advance Rate exceeds (C) the Dilution Reserve Amount for the immediately succeeding Settlement Date, the Funding Seller shall deposit an amount equal to such excess into the Collection Account on or before the Business Day immediately prior to such Settlement Date.
|
(b)
|
If there is a breach of any representation in Section 6.3 relating to a Purchased Receivable, the Funding Seller shall deposit cash equal to the Funding Advance Rate times the Outstanding Amount of such Purchased Receivable into the Collection Account on or before the Business Day immediately prior to the immediately following Settlement Date.
|
2.6
|
Deposit of Collections
.
|
(a)
|
Collection of the Purchased Receivables shall be administered by the Servicer in accordance with the terms of Article 3 and other terms of this Agreement.
|
(b)
|
During each Collection Period on each Business Day prior to the Facility Termination Date on which Collections of Purchased Receivables are received by the Servicer, the Servicer shall pay the Purchase Price to the Funding Seller pursuant to Section 2.4(b)(i) from Collections received on such day to the extent any new Receivables have been acquired by the Funding Seller; provided, however, that such Purchase Price shall not be paid in cash from Collections to the extent that the payment thereof would cause the Servicer not to have sufficient funds to pay the full Required Amount pursuant to clause (c) below on the next Settlement Date.
|
(c)
|
No later than the Business Day immediately prior to each Settlement Date, the Servicer shall deposit cash in an amount equal to the Required Amount into the Collection Account to the extent not previously deposited thereto by the Funding Seller pursuant to the terms of this Agreement. On each Business Day prior to the Facility Termination Date, the Servicer shall transfer the Collections not required to be deposited into the Collection Account pursuant to the preceding sentence to the Funding Seller in partial payment of the amounts owed by the Purchaser to the Funding Seller hereunder.
|
(d)
|
On and after the Facility Termination Date, all Collections shall be deposited by the Servicer into the Collection Account immediately following a determination that such Collections relate to Purchased Receivables, but in each case within two (2) Business Days after receipt thereof.
|
2.7
|
Settlement Date Procedures
.
|
(a)
|
On each Settlement Date, the following amounts shall be deposited to the Collection Account by the Purchaser:
|
(i)
|
the higher of (i) the Funded Amount for such Settlement Date
minus
the Funded Amount for the immediately preceding Settlement Date (which, for purposes of the first Settlement Date, shall be deemed to have been the Closing Date Funded Amount), and (ii) zero; and
|
(ii)
|
the amount of all payments required to be made by the Purchaser on such Settlement Date in respect of Immediate Write-Off Amounts in accordance with Section 5.3(b)(ii) and (iii).
|
(b)
|
All amounts on deposit in the Collection Account shall be applied by the Servicer on each Settlement Date (in accordance with the Monthly Report provided by the Servicer to the Bank Purchasing Agent prior to such Settlement Date) for the related Collection Period in the following order of priority:
|
(i)
|
to the Servicer in payment of the monthly Servicer Fee;
|
(ii)
|
to Wells Fargo, in payment of any other amounts, including indemnification amounts, payable to it in accordance with the organizational documents of the Purchaser or the organizational documents of the Purchaser’s manager, Billing Gate One Trust;
|
(iii)
|
to the Purchaser, first to the payment of the Factoring Fee and then to the payment of the Commitment Fee;
|
(iv)
|
to the
Purchaser, (A) the Administration Fee and (B) all indemnities and other amounts payable by the Funding Seller to any of the Purchasing Entities pursuant to the Transaction Documents;
|
(v)
|
to the Purchaser, an amount equal to the product of (x) the Discount Rate and (y) the Collections on Purchased Receivables owned by the Purchaser during the prior Collection Period;
|
(vi)
|
to the Purchaser, an amount equal to the product of (x) the Discount Rate and (y) the amount of all Late Collections that occurred during the prior Collection Period;
|
(vii)
|
if the Funded Amount for such Settlement Date is less than the Funded Amount for the immediately preceding Settlement Date (which, for purposes of the first Settlement Date, shall be deemed to have been the Closing Date Funded Amount), the amount of such decrease in the Funded Amount (excluding a decrease in the Funded Amount pursuant to Section 5.3(b)(v)) to the
Purchaser; and
|
(viii)
|
the remainder, if any, to the Funding Seller.
|
(c)
|
Immediately upon the application of the payments disbursed pursuant to Sections 2.7(b)(v) and 2.7(b)(vi) above, the Bank Purchasing Agent shall increase the Discount Ledger Balance by such amounts. Following the Final Termination Date, any amounts relating to the Discount Ledger Balance shall be retained by the Purchaser in accordance with this Agreement.
|
(d)
|
The Servicer shall make available the amounts due to the
Purchaser pursuant to Section 2.7(b) by wire transfer in U.S. dollars in same day funds to the accounts designated by the
Bank Purchasing Agent no later than 3:00 p.m. (New York City time) on the related Settlement Date.
|
2.8
|
UCC Filings
.
|
(a)
|
On or before the Closing Date, the Funding Seller shall cause to be filed:
|
(i)
|
with the Secretary of State of Delaware a UCC financing statement, naming the Funding Seller as debtor, the Purchaser as secured party, and the Bank Purchasing Agent as the assignee of the secured party;
|
(ii)
|
with respect to each Originator, with the Secretary of State of the state in which such Originator is organized or otherwise “located” for purposes of the UCC, a UCC financing statement, naming such Originator as debtor, the Initial Purchaser as secured party, and the Funding Seller as the assignee of the secured party; and
|
(iii)
|
with respect to each Originator, with the Secretary of State of the state in which such Originator is organized or otherwise “located” for purposes of the UCC, UCC Amendments (Form UCC-3) assigning each UCC financing statement described in the foregoing clause (ii) to the Purchaser as the assignee of the Funding Seller, to the Bank Purchasing Agent as the assignee of the Purchaser;
|
(b)
|
The Funding Seller hereby irrevocably authorizes the Bank Purchasing Agent to file all such UCC financing statements (and amendments thereto and continuations thereof) and agrees to cooperate with the Bank Purchasing Agent in providing the necessary documents, signatures or further consents reasonably required therefor. If any further declarations or action be required to perfect the sale, assignment and transfer of the Receivables in accordance with this Agreement, the Funding Seller shall, at the Bank Purchasing Agent’s request, make any such declarations or take any such action.
|
(c)
|
The Funding Seller (and the Servicer) are hereby authorized to file all necessary UCC financing statements (and amendments thereto and continuations thereof) and UCC termination statements, in each case in form and substance satisfactory to the Bank Purchasing Agent, to reflect the transfers of Aged Receivables, Written-Off Receivables and Purchased Receivables from the Purchaser to the Funding Seller permitted hereunder.
|
2.9
|
Responsibilities
. The parties hereto agree that:
|
(a)
|
except as expressly contemplated by this Agreement, the Funding Seller shall have no liability with respect to any Purchased Receivable;
|
(b)
|
subject to and in accordance with Article 3, the Servicer shall be responsible for the servicing and collection of Purchased Receivables on behalf of each of the Bank Purchasers in accordance with the terms hereof;
|
(c)
|
except as may be expressly permitted by this Agreement, the Purchaser shall not notify any Obligor of the sale and assignment of the Receivable made under this Agreement; it being
|
(d)
|
in the event that the Purchaser wishes to sell, transfer or assign all or part of the Purchased Receivables to a third party prior to the Facility Termination Date, the Purchaser shall offer the Funding Seller a right of first refusal to purchase such Purchased Receivables at a purchase price equal to the greater of (a) the price at which the Purchaser has agreed to sell such Purchased Receivables or (b) an amount equal to the (i) the Funding Advance Rate times (ii) the Outstanding Balance of such Purchased Receivables; provided, however, that the Purchaser may sell undivided percentage interests in the Purchased Receivables and Related Rights to the Bank Purchasers pursuant to the Onward Receivables Purchase Agreement without initiating such right of first refusal if the Bank Purchasers agree to grant a similar right of first refusal to the Funding Seller with respect to any subsequent sale of such Purchased Receivables;
|
(e)
|
the Purchaser shall have the sole right to retain any gains or profits created by buying, selling or holding the Purchased Receivables; and except as otherwise expressly contemplated by this Agreement, the Purchaser shall have the sole risk of, and responsibility for, losses or damages created by such buying, selling or holding of such Purchased Receivables;
|
(f)
|
except as otherwise expressly contemplated by this Agreement, the sale and purchase of Purchased Receivables under this Agreement shall be without recourse to the Funding Seller; it being understood that the Funding Seller shall be liable to the Purchaser for all representations, warranties, covenants and indemnities made by the Funding Seller pursuant to the terms of this Agreement, all of which obligations are, except as otherwise expressly contemplated by this Agreement, limited so as not to constitute recourse to the Funding Seller for the credit risk of the Obligors; and
|
(g)
|
the Purchaser shall have no obligation or liability to any Obligor (including any obligation to perform any of the obligations of the Originators under any Receivable, related contracts or any other related purchase orders or other agreements). No such obligation or liability is intended to be assumed by the Purchaser hereunder, and any assumption is expressly disclaimed.
|
2.10
|
Intention of the Parties
. It is the intention of the parties hereto that the sale of the Purchased Receivables hereunder shall constitute a “sale of accounts”, as such term is used in Section 9-109(a) of the UCC and therefore this Agreement is intended to create a “security interest” in the Purchased Receivables within the meaning of the UCC in favor of the Purchaser. The Funding Seller and the Purchaser intend the sales of Purchased Receivables hereunder to be considered to be “true sales” of the Purchased Receivables and Related Rights by the Funding Seller to the Purchaser that (A) shall constitute irrevocable, absolute transfers of the same by the Funding Seller to the Purchaser and (B) provide the Purchaser with the full benefits of ownership of the Purchased Receivables and Related Rights. If, notwithstanding such intent, any Purchased Receivables or Related Rights are determined to be property of the Funding Seller’s estate and the conveyance of such property hereunder shall be characterized as a loan secured by such property (any of the foregoing being referred to herein as a “
Recharacterization
”), then (i) this Agreement
|
2.11
|
Tax Treatment
. Notwithstanding anything to the contrary contained herein, the Funding Seller and the Purchaser agree that, except as otherwise required by applicable law, the transfer of the Purchased Receivables and Related Rights by the Funding Seller to the Purchaser shall be treated as a loan to the Funding Seller of the proceeds of such transfer for U.S. federal income tax purposes and state or local income tax and transactional tax purposes.
|
2.12
|
Records
. The Funding Seller shall mark its accounting records regarding the Purchased Receivables conveyed by it hereunder to indicate the sale, transfer, set-off and assignment of the Purchased Receivables to the Purchaser.
|
2.13
|
Increase in Funding Limit
. The Funding Seller may, at any time and from time to time, request in writing, with a copy to each of the Purchasing Entities, that the Bank Purchasers increase the Funding Limit (a “
Funding Limit Increase Request
”), provided that:
|
(a)
|
any such requested increase shall be in an amount not less than $20,000,000 and would not, if effected, cause the Funding Limit to exceed $700,000,000;
|
(b)
|
each Bank Purchaser shall make a determination whether or not to accept any request to increase the Funding Limit and shall notify the Funding Seller and the other Purchasing Entities in writing of such determination within thirty (30) Business Days of receipt of a Funding Limit Increase Request; and
|
(c)
|
if any Bank Purchaser fails to so notify the Funding Seller or the Bank Purchasing Agent, such Bank Purchaser shall be deemed to have refused to consent to such Funding Limit Increase Request.
|
2.14
|
Decrease in Funding Limit
. The Funding Seller may, at any time and from time to time, request in writing, with a copy to each of the Purchasing Entities, that the Bank Purchasers decrease the Funding Limit (a “
Funding Limit Decrease Request
”); provided that no such requested decrease shall be in an amount less than $10,000,000 and the aggregate of all of such requested decreases shall not exceed 20% of the greatest Funding Limit at any time since the Closing Date. Any such decrease shall take effect on the Settlement Date following such Funding Limit Decrease Request.
|
3.
|
SERVICING OF PURCHASED RECEIVABLES
|
3.1
|
Appointment of Servicer
. The servicing, administration and collection of the Purchased Receivables shall be conducted by the Servicer so designated hereunder from time to time. Until the Bank Purchasing Agent gives prior notice to the Funding Seller of the designation of a new Servicer in accordance with the terms hereof, T-Mobile PCS Holdings is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer pursuant to the terms hereof. The Bank Purchasing Agent, at any time (i) after the occurrence of a Servicer Termination Event or (ii) following receipt by the Funding Seller of three months’ prior written notice of the Bank Purchasing Agent’s election to designate a new Servicer (a “
Servicer Replacement Event
”), may designate as Servicer any Person (including itself) to succeed T-Mobile PCS Holdings or any successor Servicer, if such Person shall consent and agree to the terms hereof, and so long as such Person is not a Competitor. The Servicer may subcontract with an Affiliate of the Servicer for the servicing, administration or collection of the Purchased Receivables. Any such subcontract shall not affect the Servicer’s liability for performance of its duties and obligations pursuant to the terms hereof. Any termination of the Servicer shall also terminate such subcontract.
|
3.2
|
Servicing of Receivables; Standard of Care
.
|
(a)
|
The Servicer shall take or cause to be taken all such actions as may be necessary or advisable to collect each Purchased Receivable from time to time, all in accordance with applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policy. The Funding Seller and the Purchaser hereby appoint the Servicer, from time to time designated pursuant to Section 3.1, as agent for themselves to enforce their respective rights and interests in the Purchased Receivables and the Related Rights. In performing its duties as Servicer, the Servicer shall exercise the same care and apply the same policies as it would exercise and apply if it owned such Purchased Receivables.
|
(b)
|
If no Termination Event shall have occurred and be continuing, the Servicer, may, in accordance with the Credit and Collection Policy, extend the maturity or adjust the Outstanding Balance or otherwise modify the payment terms of any Purchased Receivable as it deems appropriate; provided that such modification shall not (i) modify or alter the status of any Purchased Receivable as an Aged Receivable or Delinquent Receivable or (ii) limit the rights of the Purchaser or the Bank Purchasing Agent.
|
(c)
|
The Servicer shall, as soon as practicable following receipt, turn over to the owner thereof any cash collections or other cash proceeds received with respect to receivables not constituting Purchased Receivables.
|
(d)
|
The Funding Seller, the Initial Purchaser and the Originators shall perform their respective obligations under the Contracts related to the Purchased Receivables to the same extent as if Purchased Receivables had not been sold and the exercise by the Purchaser of its rights under this Agreement shall not release the Servicer, any Originator, the Initial Purchaser or the Funding Seller from any of their duties or obligations with respect to any Purchased Receivables or related Contracts. The Purchaser shall have no obligation or liability with respect to any Purchased Receivables or related Contracts, nor shall it be obligated to perform the obligations of the Funding Seller, the Initial Purchaser or the Originators thereunder.
|
(e)
|
Subject to Section 3.2(b), the Servicer shall not, without the prior written consent of the Bank Purchasing Agent, make any change to its Credit and Collection Policy that would have a material adverse effect on the Bank Purchasers or the credit quality of the Purchased Receivables.
|
3.3
|
Reporting
.
|
(a)
|
On or before each Reporting Date, the Servicer shall prepare and forward to each of the Purchasing Entities a Monthly Report relating to the Purchased Receivables outstanding on the last day of the immediately preceding Collection Period.
|
(b)
|
On or before each Reporting Date, the Servicer shall prepare and provide to the Bank Purchasing Agent the T-Mobile Information relating to the Purchased Receivables outstanding on the last day of the immediately preceding Collection Period. The parties hereto acknowledge and agree that such T-Mobile Information shall be maintained by the Bank Purchasing Agent in the United States of America and such T-Mobile Information may be viewed, but cannot be shared or distributed outside the United States of America.
|
3.4
|
Cooperation of the Funding Seller, the Initial Purchaser, and the Originators
. The Funding Seller will, and will cause each of the Initial Purchaser and the Originators to, from time to time, at its own expense, promptly execute and deliver all further instruments and documents and take all further actions that may be reasonably necessary or desirable, or that the Bank Purchasing Agent may reasonably request, to perfect, protect or more fully evidence the transfers and/or ownership of the Purchased Receivables under the Transaction Documents, or to enable the Purchaser to exercise and enforce its rights and remedies hereunder.
|
3.5
|
Remedies following a Servicer Event
. At any time following a Servicer Event, unless the Final Termination Date has occurred:
|
(a)
|
the Bank Purchasing Agent may direct the Obligors of Purchased Receivables that all payments thereunder be made directly to the Purchaser or one or more of the other Purchasing Entities (as directed by the Bank Purchasing Agent);
|
(b)
|
at the Funding Seller’s expense, the Bank Purchasing Agent may, and, at the request of the Bank Purchasing Agent, the Servicer shall, deliver a Notice of Assignment to each Obligor of Purchased Receivables and direct that payments be made directly to the Purchaser or any Person or Persons otherwise acceptable to the Bank Purchasers; and
|
(c)
|
after the replacement of T-Mobile PCS Holdings as Servicer, at the Bank Purchasing Agent’s request and at the Funding Seller’s expense, the Funding Seller and the Servicer shall (x) assemble all of the documents, instruments and other records (including, without limitation, computer tapes and disks) that evidence or relate to the Purchased Receivables and the related Contracts and Related Rights, or that are otherwise necessary or desirable to collect the Purchased Receivables, and shall make the same available to the Purchaser and the Bank Purchasing Agent at a place selected by the Bank Purchasing Agent, (y) segregate all cash, checks and other instruments received by it from time to time constituting Collections of Purchased Receivables in a manner acceptable to the Bank Purchasing Agent, and (z) promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Purchaser or one or more of the other Purchasing Entities (as directed by the Bank Purchasing Agent).
|
3.6
|
Rights of the Bank Purchasing Agent following a Termination Event
.
|
(a)
|
The Bank Purchasing Agent is authorized at any time after the occurrence of a Termination Event to deliver to the Collection Account Bank the notice of effectiveness provided for in the Account Control Agreement. The Funding Seller hereby transfers to the Bank Purchasing Agent the exclusive control of the Collection Account, subject only to the Bank Purchasing Agent’s delivery of such notice of effectiveness. The Funding Seller shall take any actions reasonably requested by the Bank Purchasing Agent to effect such transfer of control of the Collection Account to the Purchaser. All amounts in the Collection Account will be distributed on each Settlement Date in accordance with Section 2.7.
|
(b)
|
Following a Termination Event, the Funding Seller authorizes the Bank Purchasing Agent to take any and all steps in the Funding Seller’s name and on behalf of the Funding Seller that are necessary or desirable, in the determination of the Bank Purchasing Agent, to collect amounts due under the Purchased Receivables to the Bank Purchasers under the Onward Receivables Purchase Agreement, including, without limitation, endorsing the Funding Seller’s name on checks and other instruments representing Collections of Purchased Receivables and enforcing the Purchased Receivables and the Related Rights.
|
3.7
|
Periodic Audits by the Bank Purchasing Agent
.
|
(a)
|
The Servicer will, and will cause each of the Initial Purchaser and each of the Originators to, from time to time during regular business hours as may be reasonably requested by the Bank Purchasing Agent or any Bank Purchaser, permit the Bank Purchasing Agent or such Bank Purchaser:
|
(i)
|
to conduct periodic audits of the Purchased Receivables, the Related Rights and the related books and records and collections systems of the Servicer, the Funding Seller, the Initial Purchaser and the Originators, provided that information relating to specific Receivables shall be limited to the T-Mobile Information;
|
(ii)
|
upon reasonable prior notice, to examine all books, records and documents (including, without limitation, computer tapes and disks) in the possession or under
|
(iii)
|
upon reasonable prior notice, to visit the offices and properties of the Servicer, the Funding Seller, the Initial Purchaser or the Originators for the purpose of examining such materials described in Section 3.7(a)(ii) above, and to discuss matters relating to Purchased Receivables and the Related Rights or the Servicer’s performance hereunder with any of the officers or employees of the Servicer, the Funding Seller, the Initial Purchaser or the Originators having knowledge of such matters; provided that, unless a Termination Event shall have occurred and be continuing, neither the Funding Seller nor the Servicer shall be liable for the cost of any of the actions contained in this Section 3.7(a)(iii) more often than once every twelve months.
|
(b)
|
The Servicer shall assist each Bank Purchaser (including its auditors and supervisory authorities, which may include the
Bundesanstalt für Finanzdienstleistungsaufsich
) and provide them with information readily available to the Servicer upon a reasonable request, subject to applicable data protection laws and banking secrecy duty, provided that information with respect to any individual Receivables shall be limited to the T-Mobile Information.
|
3.8
|
Accountant’s Report
. Upon request by the Bank Purchasing Agent or any of the Bank Purchasers (which, at any time prior to the occurrence of a Termination Event, shall be no more frequent than once every twelve months and may be performed contemporaneously with the annual audit of the Funding Seller), the Funding Seller shall at its expense appoint independent public accountants (which may be the audit firm of the Performance Guarantor) to prepare and deliver to the Bank Purchasing Agent a written report with respect to the Purchased Receivables and the Credit and Collection Policy (including, in each case, the systems, procedures and records relating thereto) of a scope substantially as described on Annex 7 attached hereto with such changes as may be reasonably requested by the Bank Purchasing Agent and in the format to be agreed between the Bank Purchasing Agent and the Funding Seller.
|
3.9
|
Payment of Taxes
. The Servicer will, and will cause each Originator to, pay all sales, excise or other taxes with respect to the Purchased Receivables to the applicable taxing authority when due, and will, upon the request of the Bank Purchasing Agent or any Bank Purchaser, provide it with evidence of such payment.
|
3.10
|
Segregation of Collections
. From and after the occurrence, and during the continuation, of a Termination Event, the Servicer shall cause all Collections with respect to the Purchased Receivables to be deposited to deposit accounts of the Servicer or of the related Originator which contain no cash other than Collections of Purchased Receivables and collections of other Receivables. The Servicer shall, within 2 Business Days of their receipt, identify all Collections received into such deposit accounts and shall deposit such Collections to the Collection Account. The Servicer shall not transfer any funds, and shall not permit any funds to be transferred, out of
|
3.11
|
Servicer Indemnity
. Without limiting any other rights that any of the Purchasing Entities or any of their respective Affiliates or agents (each, a “
Special Indemnified Party
”) may have hereunder or under applicable law, and in consideration of its appointment as Servicer, the Servicer hereby agrees to indemnify each Special Indemnified Party from and against any and all claims, damages, costs, expenses, losses and liabilities (including reasonable attorneys’ fees) (all of the foregoing being collectively referred to as “
Special Indemnified Amounts
”) arising out of or resulting from any of the following, excluding, however, (a) Special Indemnified Amounts to the extent resulting from gross negligence or willful misconduct on the part of a Special Indemnified Party, (b) recourse for uncollectible Receivables and (c) any Excluded Taxes:
|
(a)
|
any representation or warranty or statement made by the Servicer under or in connection with this Agreement or the Transaction Documents that shall have been incorrect in any material respect when made or deemed made;
|
(b)
|
the failure by the Servicer to comply with any applicable law, rule or regulation with respect to any Purchased Receivable or Contract, including payment of all unpaid sales, excise or other taxes when due;
|
(c)
|
any failure of the Servicer to perform its duties or obligations in accordance with the provisions of this Agreement;
|
(d)
|
the commingling of Collections of Purchased Receivables at any time by the Servicer with other funds;
|
(e)
|
any action or omission by the Servicer not in compliance with the Credit and Collection Policy that has the effect of reducing or impairing the rights of any of the Purchasing Entities with respect to any Purchased Receivable or the value of any Purchased Receivable;
|
(f)
|
any claim brought by any Person arising from any activity by the Servicer or its Affiliates in servicing, administering or collecting any Purchased Receivable; or
|
(g)
|
any dispute, claim, offset or defense of the Obligor to the payment of any Purchased Receivable as a result of the collection activities with respect to such Purchased Receivable by the Servicer.
|
3.12
|
Representations of the Servicer
. The Servicer hereby represents and warrants to each of the Purchasing Entities that, as of the date hereof, the Closing Date and each Purchase Date:
|
(a)
|
the Servicer (i) is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) is duly qualified to do business and (iii) has all corporate or other organizational power and all licenses, authorizations, consents, approvals and qualifications, of and from all third parties required to execute and deliver and perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted
|
(b)
|
the execution, delivery and performance by the Servicer of this Agreement and any other Transaction Document to which it is a party, (i) are within the Servicer’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not, with respect to execution and delivery, and will not, with respect to the performance of its obligations, contravene or constitute a default under (A) the Servicer’s organic documents, (B) any applicable law, (C) any contractual restriction binding on or affecting the Servicer or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Servicer or its property;
|
(c)
|
each Transaction Document to which the Servicer is a party has
been duly executed and delivered by the Servicer;
|
(d)
|
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any
governmental body or agency or official thereof or any third party is required for the due execution, delivery and performance by the Servicer of this Agreement or any other Transaction Document to which the Servicer is a party or any other document to be delivered by the Servicer hereunder or thereunder, all of which have been duly made or taken, as the case may be, and are in full force and effect;
|
(e)
|
each Transaction Document to which the Servicer is a party constitutes the legal, valid and binding obligations of the Servicer enforceable against the Servicer in accordance with its terms, subject to any limitation on the enforceability thereof against the Funding Seller arising from the application of any applicable bankruptcy law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
|
(f)
|
(i) there are no actions, suits, investigations by any governmental body or agency, litigation or proceedings at law or in equity or by or before any governmental body or agency or in arbitration now pending, or credibly threatened, against or affecting the Servicer or any of its businesses, properties or revenues that could reasonably be expected to result in a Material Adverse Change; and (ii) the Servicer is not in default or violation of any order, judgment or decree of any governmental body or agency or arbitrator that could reasonably be expected to result in a Material Adverse Change;
|
(g)
|
no Bankruptcy Event has occurred with respect to the Servicer;
|
(h)
|
the Servicer (i) is not overdue in the filing of any income tax returns or any other material tax returns required to be filed; and (ii) has made adequate provision for the payment of all income taxes and all other material taxes, assessments and other government charges;
|
(i)
|
the Servicer has the capability to identify each Purchased Receivable sold and assigned hereunder on a daily basis and the Collections received with respect thereto within 2 Business Days after receipt;
|
(j)
|
t
he Servicer has not breached any laws applicable to it or its business or property that could reasonably be expected to result in a Material Adverse Change;
|
(k)
|
each Monthly Report, information, exhibit, financial statement, document, book, record or report furnished at any time by or on behalf of the Servicer to the Purchaser or the Bank Purchasing Agent in connection with this Agreement is true, complete and accurate in all material respects as of its date or as of the date so furnished, and, as of such date, no such document contains any untrue statement of a material fact or (taken as a whole) omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading;
|
(l)
|
each Purchased Receivable is an Eligible Receivable as of its Purchase Date;
|
(m)
|
all sales, excise or other taxes with respect to the goods, insurance or services that are the subject of any Contract for a Purchased Receivable have been paid as and when due unless such amounts are being disputed in good faith; and
|
(n)
|
the name and address of the Payment Account Banks, together with the account names and numbers of the Payment Accounts, are specified in the Master Receivables Purchase Agreement Side Letter;
|
4.
|
FEES AND PAYMENTS; INCREASED COSTS; SET-OFF
|
4.1
|
Commitment Fee
. On each Settlement Date, the Purchaser shall be entitled to receive from Collections a commitment fee (the “
Commitment Fee
”) in an amount equal to the product of (a) the Commitment Fee Rate, (b) the Unused Part of the Funding Limit as of such Settlement Date, and (c) a fraction, (i) the numerator of which is the actual number of days that elapsed during the most recently ended Collection Period and (ii) the denominator of which is 360.
|
4.2
|
Factoring Fee
. On each Settlement Date, the Purchaser shall be entitled to receive from Collections a fee (the “
Factoring Fee
”) in an amount equal to the product of (a) LIBOR for the immediately preceding Accrual Period plus the Factoring Fee Margin in effect during such Accrual Period, (b) the Funded Amount on the immediately preceding Settlement Date (which, for purposes of the first Settlement Date, shall be deemed to have been the Closing Date Funded Amount), and (c) a fraction, (i) the numerator of which is the actual number of days that elapsed during the most recently ended Accrual Period and (ii) the denominator of which is 360.
|
4.3
|
Servicer Fee
.
|
(a)
|
On each Settlement Date, the Servicer shall be entitled to receive a fee (the “Servicer Fee”) in an amount equal to the product of (a) 0.20%, (b) the Funded Amount on the immediately preceding Settlement Date (which, for purposes of the first Settlement Date, shall be deemed to have been the Closing Date Funded Amount), and (c) a fraction, (i) the numerator of which is the actual number of days that elapsed during the most recently ended Collection Period and (ii) the denominator of which is 360. If the Servicer shall at any time cease to be a member of the T-Mobile Group, the Bank Purchasing Agent and such Servicer may agree to a different percentage per annum, but in no event in excess of
|
(b)
|
The Servicer shall issue a separate invoice to each of the Bank Purchasers on the services rendered during any month and the Servicer Fee thereon by the Settlement Date in the following month. Such invoices shall be materially in the form specified in Annex 10. The Bank Purchasing Agent shall inform the Servicer of any required change to the invoicing should the relevant statutory VAT provisions or their interpretation change. Notwithstanding the receipt of invoices by the Bank Purchasers from the Servicer, the Servicer Fee shall be payable only from Collections pursuant to Section 2.7.
|
4.4
|
Increased Costs
. If the Bank Purchasing Agent or any of the Bank Purchasers shall have determined that any Change in Law shall have the effect of reducing the rate of return on such party’s respective capital or assets as a consequence of its obligations or the purchases of Purchased Receivables hereunder or under the Onward Receivables Purchase Agreement to a level below that which such party could have achieved but for such adoption, change or compliance (taking into consideration such party’s policies with respect to capital adequacy) by an amount deemed by such party to be material, then from time to time, within 15 days of submission by such party to the Funding Seller of a written request therefor, the Funding Seller shall pay to such party such additional amount or amounts as will compensate such party for such reduction (the “
Increased Costs
”). A certificate as to any additional amounts payable pursuant to this Section 4.4 submitted by such party to the Funding Seller shall be conclusive in the absence of manifest error. The obligations of the Funding Seller pursuant to this Section 4.4 shall survive the termination of this Agreement and the payment of all other amounts owing by the Funding Seller to such party hereunder.
|
4.5
|
Set-Off
. No Purchasing Entity shall have any right of set-off with respect to the obligations of the parties to the Transaction Documents other than those rights arising under applicable law.
|
4.6
|
Obligations of Funding Seller, Servicer and Performance Guarantor
. Except as otherwise expressly provided herein, the obligations of the Funding Seller, the Servicer and the Performance Guarantor to make the deposits and other payments contemplated by this Agreement are absolute and unconditional and all payments to be made by the Funding Seller, the Servicer or the Performance Guarantor under or in connection with this Agreement shall be made free and clear of, and each of the Funding Seller, the Servicer and the Performance Guarantor hereby irrevocably and unconditionally waives all rights of, any counterclaim, set-off, deduction or other analogous rights or defenses, in connection with such obligations, which it may have against any of the Purchasing Entities (including any obligation of any Purchasing Entity in respect of payment of the Deferred Purchase Price). All stamp, documentary, registration or similar duties or taxes, including withholding taxes and any penalties, additions, fines, surcharges or interest relating thereto, which are imposed or chargeable in connection with this Agreement shall be paid by the Funding Seller; provided that each of the Purchasing Entities shall be entitled but not obliged to pay any such duties or taxes whereupon the Funding Seller shall on demand indemnify such party against those duties or taxes and against any costs and expenses so incurred by it in discharging them.
|
4.7
|
Taxes
.
|
(a)
|
Any and all payments and distributions made by, or on behalf of, the Funding Seller in respect of the Purchased Receivables and the Related Rights that shall be conveyed by the Funding Seller to the Purchaser hereunder or otherwise, and all payments and distributions required to be made or deemed to have been made by, or on behalf of, the Funding Seller or any other Person (including the Purchaser) to any of the Purchasing Entities pursuant to any Transaction Document shall be made free and clear of, and without deduction for, any Indemnified Taxes, provided that:
|
(i)
|
if the Funding Seller or any other Person shall be required to deduct any Indemnified Taxes from such payments, then (1) the sum payable shall be increased as necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 4.7) such Purchasing Entity receives an amount equal to the sum it would have received had no such deductions been made, (2) the Funding Seller or such Person shall make such deductions, and (3) the Funding Seller or such Person shall pay the full amount deducted to the relevant Governmental Authority in accordance with applicable law; and
|
(ii)
|
the Funding Seller shall not be obligated to make a payment under this Section 4.7 in respect of penalties, interest, and additions to Tax attributable to any Indemnified Taxes (and, for the avoidance of doubt, reasonable expenses arising therefrom or with respect thereto), if (1) such penalties, interest or additions to Tax are attributable to the failure of the Purchaser to pay the relevant Governmental Authority amounts received by it from the Funding Seller or any other Person, as the case may be in respect of Indemnified Taxes within 30 days after receipt of such amount from the Funding Seller or any such other Person or (2) such penalties, interest or additions to Tax are attributable to the gross negligence or willful misconduct of the Purchaser.
|
(b)
|
Notwithstanding any other provision of this Agreement, the Funding Seller shall comply with all federal and state withholding requirements with respect to payments to any of the Purchasing Entities of amounts that the Funding Seller reasonably believes are applicable under the Code, the treasury regulations or any applicable state or local law. The Funding Seller will withhold on payments to each of the Purchasing Entities unless such Purchasing Entity provides at such time or times as required by law (i) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8BEN claiming eligibility of such Purchasing Entity for benefits of an income tax treaty to which the United States is a party, (ii) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8ECI, (iii) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8BEN and a certificate of a duly authorized officer of such Purchasing Entity to the effect that such Purchasing Entity is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Funding Seller within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation receiving interest from a related person within the
|
(c)
|
If a payment made to any of the Purchasing Entities under any Transaction Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such party shall deliver to the Funding Seller, at the time or times prescribed by law and at such time or times reasonably requested by the Funding Seller, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Funding Seller as may be necessary for the Funding Seller to comply with its obligations under FATCA, to determine that such party has or has not complied with its obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment.
|
4.8
|
Late Fees
. If the Funding Seller, the Servicer or the Performance Guarantor shall default in the payment, when due, of any amount owed by it to any of the Purchasing Entities hereunder, then the Funding Seller, the Servicer or the Performance Guarantor, as the case may be, shall owe to such Purchasing Entity interest on the amount of such payment at a per annum rate equal to the sum of (i) LIBOR during the related Accrual Period plus the Factoring Fee Margin in effect during such Accrual Period plus (ii) 2.00% for the period beginning on (and including) the first day on which such payment was due and ending on (but not including) the day on which such payment is remitted to such Purchasing Entity, which interest shall be calculated on the basis of the actual number of days included in such period and a year consisting of 360 days.
|
5.
|
REPURCHASE OF RECEIVABLES; ALLOCATION AND SHARING OF LOSSES
|
5.1
|
Retransfer and Repurchase of Certain Receivables
.
|
(a)
|
Imminent Write-Offs
. On each Business Day, each Purchased Receivable that the Servicer has determined will become the subject of a Write-Off and any Aged Receivable that has not been repurchased by the Funding Seller in accordance with Section 5.1(b) below shall be retransferred by the Purchaser to the Funding Seller, automatically, and without any further action by the Purchaser or the Funding Seller.
|
(b)
|
Aged Receivables Repurchases
. In addition to the foregoing, unless the Servicer at any time shall have failed to pay the Required Amount into the Collection Account in accordance with Section 2.6(c), during each Collection Period, on each Business Day that
|
(c)
|
All of the transfers and repurchases of Receivables contemplated by Sections 5.1(a) and 5.1(b) shall occur without recourse to, and without warranty of any kind made or deemed to have been made by, the Purchaser, and all representations and warranties are hereby expressly disclaimed. Notwithstanding any of the foregoing, the Servicer shall continue to monitor the status of all of the Receivables transferred back to the Funding Seller pursuant to Section 5.1(a) above and all of the Aged Receivables repurchased by the Funding Seller pursuant to Section 5.1(b) above in order to determine if and when such Receivables become Written-Off Receivables and to identify and report to the Funding Seller and each of the Purchasing Entities any Recoveries thereon.
|
5.2
|
Order of Repurchase
. The Servicer shall designate the order in which Purchased Receivables (which will become Written-Off Receivables or are Aged Receivables) are to be transferred back during a Collection Period in a notice delivered to the Purchaser and the Funding Seller. The Purchaser and the Funding Seller acknowledge initial receipt of such notice. The Servicer may change such designation by means of an additional notice delivered by it to each of the Purchasing Entities.
|
5.3
|
Allocation of Write-Offs
.
|
(a)
|
On each Settlement Date until and including the Final Termination Date, the Servicer will determine, for each Batch and such Settlement Date, the Allocated Write-Off Amount related thereto, together with the Immediate Write-Off Amount and the Aged Receivables
|
(b)
|
On each Settlement Date until and including the Final Termination Date,
before
giving effect to Section 5.3(c) below, for each Batch, that portion of the Allocated Write-Off Amount for such Settlement Date that is not attributable to Aged Receivables that have been repurchased by the Funding Seller and paid for pursuant to Section 5.1(b) above (the amount of such portion of the Allocated Write-Off Amount is referred to herein as the “
Immediate Write-Off Amount
” for such Settlement Date) shall be allocated between the Funding Seller and the Purchaser as follows:
|
(i)
|
FIRST, the Funding Seller shall bear the losses associated with the Immediate Write-Off Amount for such Settlement Date by paying to the Purchaser an amount equal to the lesser of (A) the Maximum Batch Mandatory Repurchase Amount for such Settlement Date and (B) the Immediate Write-Off Amount for such Settlement Date, which amount shall be deemed to have been paid by requiring the Purchaser to reduce the Mandatory Repurchase Reserve Payment Amount for such Settlement Date (and the Maximum Batch Mandatory Repurchase Amount as contemplated in the definition of such term) by a corresponding amount, it being understood between the parties that such reduction may result in a negative Mandatory Repurchase Reserve Payment Amount;
|
(ii)
|
SECOND, until the Discount Ledger Adjusted Balance is reduced to zero, the Purchaser shall deposit to the Collection Account (for application pursuant to Section 2.7 on such date) an amount equal to the excess, if any, of the Immediate Write-Off Amount for such Settlement Date over the Maximum Batch Mandatory Repurchase Amount for such Settlement Date; and, simultaneously, the Bank Purchasing Agent shall reduce the Discount Ledger Balance by the amount of such deposit;
|
(iii)
|
THIRD, until the Level 3 Maximum Amount is reduced to zero: (A) the Funding Seller shall deposit to the Collection Account (for application pursuant to Section 2.7 on such date) an amount equal to the product of (i) 85% and (ii) the amount by which the Immediate Write-Off Amount for such Settlement Date exceeds the sum of the amount to be borne by the Funding Seller pursuant to clause FIRST above and the amount deposited by the Purchaser pursuant to clause SECOND above (the amount of such excess is referred to herein as the “
Aggregate Level 3 Loss Sharing Payment Amount
” for such Settlement Date); and (B) the Purchaser shall deposit to the Collection Account (for application pursuant to Section 2.7 on such date) an amount equal to the product of (i) 15% and (ii) the Aggregate Level 3 Loss Sharing Payment Amount for such Settlement Date; and (C) and, upon the making of such payments, the Level 3 Maximum Amount shall be reduced by an amount equal to the sum of the deposits made pursuant to subclauses (A) and (B) of this clause THIRD on such Settlement Date;
|
(iv)
|
FOURTH, if the Immediate Write-Off Amount for such Settlement Date shall be greater than the aggregate amount of the allocations made pursuant to clauses
|
(v)
|
FIFTH, if the Immediate Write-Off Amount for such Settlement Date shall be greater than the aggregate amount of the allocations made pursuant to clauses FIRST, SECOND, THIRD and FOURTH of this Section 5.3(b) on such Settlement Date, the Purchaser shall then reduce the Funded Amount by the amount of such excess.
|
(c)
|
On each Settlement Date until and including the Final Termination Date,
after
giving effect to Section 5.3(b) above, for each Batch, that portion of the Allocated Write-Off Amount for such Settlement Date that is attributable to Aged Receivables that have been repurchased by the Funding Seller pursuant to Section 5.1 above (the amount of such portion of the Allocated Write-Off Amount is referred to herein as the “
Aged Receivables Write-Off Amount
” for such Settlement Date) shall be allocated between the Funding Seller and the Purchaser as follows:
|
(i)
|
FIRST, the Funding Seller shall bear the losses associated with the Aged Receivables Write-Off Amount up to an amount equal to the excess of (A) the Maximum Batch Mandatory Repurchase Amount for such Settlement Date over (B) the amounts deemed to have been paid by the Funding Seller on such Settlement Date pursuant to clause FIRST of Section 5.3(b) above; it being understood (for the avoidance of doubt) that no payment by the Funding Seller shall be required to give effect the allocation of Write-Offs to the Funding Seller pursuant to this clause FIRST;
|
(ii)
|
SECOND, until the Discount Ledger Adjusted Balance is reduced to zero, the Purchaser shall pay directly to the Funding Seller an amount equal to the excess, if any, of the Aged Receivables Write-Off Amount for such Settlement Date over the amount borne by the Funding Seller pursuant to clause FIRST above; and, simultaneously, the Bank Purchasing Agent shall reduce the Discount Ledger Balance by the amount of such deposit;
|
(iii)
|
THIRD, until the Level 3 Maximum Amount is reduced to zero and taking into account any reduction of the Level 3 Maximum Amount made on such Settlement Date pursuant to clause THIRD of Section 5.3(b) above: (A) the Purchaser shall pay directly to the Funding Seller an amount equal to the product of (i) 15% and (ii) the amount by which the Aged Receivables Write-Off Amount for such Settlement Date exceeds sum of the amount to be borne by the Funding Seller pursuant to clause FIRST above and the amount deposited by the Purchaser pursuant to clause SECOND above (such amount is referred to herein as the “
Aggregate Level 3 Excess Loss Sharing Payment Amount
” for such Settlement Date); and (B) the Funding Seller shall bear losses in an amount equal to the product of (i) 85% and (ii) the Aggregate Level 3 Excess Loss Sharing Payment
|
(iv)
|
FOURTH, until the Level 4 Reserve Amount is reduced to zero and taking into account any reduction of the Level 4 Reserve Amount made on such Settlement Date pursuant to clause FOURTH of Section 5.3(b) above, if the Aged Receivables Write-Off Amount for such Settlement Date shall be greater than the aggregate amount of the allocations made pursuant to clauses FIRST, SECOND and THIRD of this Section 5.3(c) on such Settlement Date (the “
Excess Level 3 Excess Amount
”), the Servicer shall deposit Collections in the Collection Account in an amount equal to the lesser of the (A) the Level 4 Reserve Amount and (B) the Excess Level 3 Excess Amount, and the Level 4 Reserve Amount shall be reduced by the amount of such deposit on such Settlement Date; and
|
(v)
|
FIFTH, the Purchaser shall pay directly to the Funding Seller an amount equal to the excess, if any, of the Aged Receivables Write-Off Amount for such Settlement Date over the aggregate amount of the allocations made pursuant to clauses FIRST, SECOND, THIRD and FOURTH of this Section 5.3(c) on such Settlement Date.
|
5.4
|
Allocation of Recoveries
. On each Settlement Date until and including the Final Termination Date, Recoveries for the prior Collection Period shall be paid or allocated by the Funding Seller or by the Servicer on behalf of the Funding Seller in accordance with the following order of priority:
|
(i)
|
FIRST, to the Purchaser, up to the aggregate of the amounts, if any, allocated to the Purchaser pursuant to Section 5.3(b)(v) above and/or payable by the Purchaser to the Funding Seller pursuant to Sections 5.3(c)(v) above with respect to any Batch on all prior Settlement Dates;
|
(ii)
|
SECOND, to the Funding Seller, up to the aggregate of the amounts deposited by the Servicer in the Collection Account pursuant to Section 5.3(b)(iv) and/or Section 5.3(c)(iv);
|
(iii)
|
THIRD, ratably and
pari passu
, (A) 85% to the Funding Seller and (B) 15% to the Purchaser up to the aggregate of the amounts, if any, payable by the Funding Seller and the Purchaser pursuant to Sections 5.3(b)(iii) and 5.3(c)(iii) with respect to any Batch on such Settlement Date and all prior Settlement Dates, whereupon the Level 3 Maximum Amount shall be increased by the aggregate amount so paid to the Purchaser and the Funding Seller;
|
(iv)
|
FOURTH, to the Purchaser, up to the aggregate of (A) the amounts, if any, by which the Discount Ledger Balance was required to be reduced pursuant to Section 5.3(b)(ii)and (B) the amounts, if any, payable by the Purchaser to the Funding Seller pursuant to Section 5.3(c)(ii), if any, with respect to any Batch on such
|
(v)
|
FINALLY, to pay any remainder to the Funding Seller.
|
5.5
|
Revision of Allocation Levels
.
|
(a)
|
In the event that the Discount Ledger Balance exceeds 2.00% of the Maximum Sales Amount on any Settlement Date (after giving effect to any adjustments to the Discount Ledger Balance on such Settlement Date), upon notice by the Funding Seller to the Bank Purchasing Agent and the Bank Purchasers on such Settlement Date, the Discount Rate shall be decreased to a percentage determined by the Funding Seller, but not less than 0.00%, to reflect such change in credit quality, and the Level 4 Reserve Percentage shall be increased by 1.25 times the reduction in the Discount Rate. Such adjustment shall be prospective in nature and shall only apply to succeeding Collection Periods after the adjustment is made. The notice described in this Section 5.5(a) may be issued more than once.
|
(b)
|
If the Discount Ledger Balance is less than 1.75% of the Maximum Sales Amount on any Settlement Date (after giving effect to any adjustments to the Discount Ledger Balance on such Settlement Date), upon notice by the Funding Seller to the Bank Purchasing Agent and the Bank Purchasers on such Settlement Date, the Discount Rate shall be increased to a percentage determined by the Funding Seller, and the Level 4 Reserve Percentage shall be decreased by an amount equal to 1.25 multiplied by such increase in the Discount Rate, provided that the Level 4 Reserve Percentage shall not at any time be less than the Level 4 Reserve Percentage on the Closing Date. Such adjustment shall be prospective in nature and shall only apply to succeeding Collection Periods after the adjustment is made.
|
(c)
|
The Funding Seller may, no more frequently than twice per calendar year, submit a written request to the Bank Purchasing Agent, requesting a change in the Discount Rate, the Maximum Mandatory Repurchase Percentage, the Level 3 Maximum Amount or the Level 4 Reserve Percentage, or any combination thereof, in order to adjust for changes in the credit quality of the Purchased Receivables and the history and magnitude of write-offs made with respect thereto; provided, however, that (A) any such changes shall be effective as of the first day of a Collection Period and shall be prospective only, and (B) no such changes shall cause the total credit support available to cover losses in accordance with Sections 5.3(b)(i)-(iv) and 5.3(c)(i)-(iv) (without taking into account the Discount Ledger Balance) to be less protective than such total credit support immediately prior to giving effect to the requested changes, and (C) as a condition to any increase in the Level 3 Maximum Amount to an amount in excess of $50,000,000, the Funding Seller shall provide collateral in an amount no less than 85% of such excess in form and substance, and subject to documentation in form and substance, satisfactory to the Bank Purchasing Agent, in order to secure the Funding Seller’s obligations under Sections 5.6(a)(i) and 5.6(a)(ii). Any such requested change shall be accepted or rejected by the Bank Purchasing Agent within 5 Business Days following the Reporting Date that next follows the receipt of such request. For the avoidance of doubt, the prospective changes to the
|
5.6
|
KfW Guarantee
.
|
(a)
|
The parties hereto acknowledge and agree that the Bank Purchasing Agent shall be entitled to make a demand on behalf of the Bank Purchasers under the KfW Guarantee under the following circumstances and in the following amounts. If, on any Settlement Date:
|
(i)
|
the Funding Seller fails to make all or any portion of the deposit to the Collection Account that was required to be made by it pursuant to Section 5.3(b)(iii), then, on or after such Settlement Date, the amount of the draw shall be equal to the amount that the Funding Seller shall have failed to so deposit to the Collection Account; and
|
(ii)
|
(I) the Servicer fails to deposit any of the Collections into the Collection Account, as required under this Agreement, and such Collections have been commingled with other funds of the Servicer or any other member of the T-Mobile Group and (II) as a direct result of such failure and commingling, such Collections are not readily identifiable and any of the Bank Purchasers has suffered a loss, then, on or after such, Settlement Date, the draw shall be made pursuant to clause (i) above, as if the amount of such loss was included in the determination of the Immediate Write-Off Amount for such Settlement Date.
|
(b)
|
The Bank Purchasing Agent shall specify in the related demand notice provided to KfW under the KfW Guarantee the amount of the proceeds thereof that shall be due to each Bank Purchaser and shall provide a copy of such demand notice to the Purchaser.
|
6.
|
REPRESENTATIONS AND WARRANTIES OF THE FUNDING SELLER AND THE PERFORMANCE GUARANTOR
|
6.1
|
The Funding Seller
. The Funding Seller hereby represents and warrants to each of the Purchasing Entities that, as of the date hereof, the Closing Date, and each Purchase Date:
|
(a)
|
the Funding Seller (i) is a limited liability company, duly organized solely, validly existing and in good standing under the laws of the State of Delaware, (ii) is duly qualified to do business and (iii) has all corporate or other organizational power and all licenses, authorizations, consents, approvals and qualifications, of and from all third parties required to execute and deliver and perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted;
|
(b)
|
the execution, delivery and performance by the Funding Seller of this Agreement and any other Transaction Document to which it is a party, including the Funding Seller’s sales
|
(c)
|
each Transaction Document to which the Funding Seller is a party has
been duly executed and delivered by the Funding Seller;
|
(d)
|
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any
governmental body or agency or official thereof or any third party is required for the due execution, delivery and performance by the Funding Seller of this Agreement or any other Transaction Document to which the Funding Seller is a party or any other document to be delivered by the Funding Seller hereunder or thereunder, all of which have been duly made or taken, as the case may be, and are in full force and effect;
|
(e)
|
each Transaction Document to which the Funding Seller is a party constitutes the legal, valid and binding obligations of the Funding Seller enforceable against the Funding Seller in accordance with its terms, subject to any limitation on the enforceability thereof against the Funding Seller arising from the application of any applicable bankruptcy law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
|
(f)
|
there are no actions, suits, investigations by any governmental body or agency, litigation or proceedings at law or in equity or by or before any governmental body or agency or in arbitration now pending, or credibly threatened, against or affecting the Funding Seller or any of its businesses, properties or revenues; and (ii) the Funding Seller is not in default or violation of any order, judgment or decree of any governmental body or agency or arbitrator;
|
(g)
|
no event has occurred and is continuing, or would result from any purchase by the Purchaser of Receivables from the Funding Seller or the application of the proceeds therefrom, which constitutes a Bankruptcy Event;
|
(h)
|
no proceeds of any purchase by the Purchaser of Purchased Receivables from the Funding Seller pursuant to this Agreement will be used to purchase or carry, or to extend credit to others for the purpose of purchasing or carrying, “margin stock” within the meaning of Regulation T, U or X promulgated by the Board of Governors of the Federal Reserve System from time to time;
|
(i)
|
the Funding Seller (i) is not overdue in the filing of any income tax returns or any other tax returns required to be filed; (ii) has made adequate provision for the payment of all income taxes and all other taxes, assessments and other government charges; and (iii) is wholly-owned (or so treated for U.S. federal tax purposes) by one member of the consolidated tax group of which TMUS is the common parent and has not made, and will not make, an election to be treated as an association taxable as a corporation for U.S. federal tax purposes;
|
(j)
|
the Funding Seller has not changed its name or legal structure in the four months immediately preceding the Closing Date and is not known by and does not use any trade name or doing-business-as name;
|
(k)
|
the Funding Seller is not an “investment company” under, and as defined in, the Investment Company Act of 1940, as amended;
|
(l)
|
(i)
no purchase by the Purchaser of Purchased Receivables from the Funding Seller pursuant to this Agreement has been made for or on account of an antecedent debt owed by the Funding Seller to the Purchaser and no such purchase is or may be voidable or subject to avoidance under any section of any applicable bankruptcy law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and (ii) the sale of Purchased Receivables by the Funding Seller to the Purchaser pursuant to this Agreement, and all other transactions between the Funding Seller and the Purchaser, have been and will be made in good faith and without intent to hinder, delay or defraud creditors of the Funding Seller or any other member of the T-Mobile Group;
|
(m)
|
the Funding Seller has not breached any laws applicable to it or its business or property;
|
(n)
|
the Funding Seller is not required to account to any governmental body or agency for any value added or other similar tax in respect of the assignment by the Funding Seller of any Purchased Receivable and no withholding or other tax is deductible or payable on any payment made by any Obligor with respect to any Purchased Receivable;
|
(o)
|
the Funding Seller is exclusively resident for tax purposes in the United States and, for the purposes of this Agreement and the other Transaction Documents to which it is a party, will not act through any branch or permanent establishment located outside of the United States;
|
(p)
|
the Funding Seller is not required to make any deduction for or on account of taxes from any payment made by it under a Transaction Document;
|
(q)
|
duly completed and sufficient UCC financing statements covering all Receivables and Related Rights sold by the Funding Seller to the Purchaser hereunder have been filed (A) with the Secretary of State of Delaware, naming the Funding Seller as debtor, the Purchaser as secured party, and the Bank Purchasing Agent as the assignee of the secured party, and (B) with respect to each Originator, with the Secretary of State of the state in which such Originator is organized or otherwise “located” for purposes of the UCC, naming such Originator as debtor, the Initial Purchaser as secured party, and the Funding
|
(r)
|
the Funding Seller is not an employee benefit plan that is subject to Title I of ERISA or Section 4975 of the Code or a “benefit plan investor” as defined in Section 3(42) of ERISA and the Funding Seller shall not use the assets of an employee benefit plan that is subject to Title I of ERISA or Section 4975 of the Code or any “benefit plan investor” as defined in Section 3(42) of ERISA to discharge any of its obligations under this Agreement or the Contribution Agreement;
|
(s)
|
upon each purchase of Purchased Receivables hereunder, the Purchaser shall acquire (i) a valid and perfected ownership interest in each such Purchased Receivable and all identifiable cash proceeds thereof and (ii) a valid ownership interest in all Related Rights with respect thereto;
|
(t)
|
no effective financing statement or other instrument similar in effect covering any Contract or any Purchased Receivable or the Related Rights or Collections with respect thereto is on file in any recording office, except those filed in favor of the Bank Purchasing Agent relating to this Agreement and the other Transaction Documents;
|
(u)
|
each Monthly Report (if prepared by the Funding Seller, or to the extent that information contained therein is supplied by the Funding Seller), information, exhibit, financial statement, document, book, record or report furnished at any time by or on behalf of the Funding Seller to the Purchaser in connection with this Agreement is true, complete and accurate in all material respects as of its date or as of the date so furnished, and, as of such date, no such document contains any untrue statement of a material fact or omits to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they were made, not misleading;
|
(v)
|
the principal place of business and chief executive office of the Funding Seller and the office where the Funding Seller keeps its records concerning the Purchased Receivables are located at the address or addresses in Annex 1 hereto;
|
(w)
|
the name and address of the Collection Account Bank, together with the account number of the Collection Account, are specified in the Master Receivables Purchase Agreement Side Letter;
|
(x)
|
he Funding Seller was formed on November 8, 2013 and the Funding Seller did not engage in any business activities prior to the Closing Date; the Funding Seller has no Subsidiaries; and
|
(y)
|
no event has occurred and is continuing that constitutes a Termination Event.
|
6.2
|
The Performance Guarantor
. The Performance Guarantor hereby represents and warrants to each of the Purchasing Entities that, as of the date hereof, the Closing Date, each Purchase Date:
|
(a)
|
the Performance Guarantor (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, (ii) is duly qualified to do business and (iii) has all corporate or other organizational power and all licenses, authorizations, consents, approvals and qualifications, of and from all third parties required to execute and deliver and perform its obligations under the Transaction Documents to which it is a party and to carry on its business in each jurisdiction in which its business is now conducted except where the failure to so qualify could not be expected to have a material adverse effect on the Performance Guarantor’s ability to perform its duties or obligations under the Transaction Documents;
|
(b)
|
the execution, delivery and performance by the Performance Guarantor of this Agreement and any other Transaction Document to which it is a party, (i) are within the Performance Guarantor’s corporate powers, (ii) have been duly authorized by all necessary corporate action, (iii) do not, with respect to execution and delivery, and will not, with respect to the performance of its obligations, contravene or constitute a default under (A) the Performance Guarantor’s organic documents, (B) any applicable law, (C) any contractual restriction binding on or affecting the Performance Guarantor or its property or (D) any order, writ, judgment, award, injunction or decree binding on or affecting the Servicer or its property;
|
(c)
|
each Transaction Document to which the Performance Guarantor is a party has
been duly executed and delivered by the Performance Guarantor;
|
(d)
|
no authorization, approval, license, consent, qualification or other action by, and no notice to or filing or registration with, any governmental body or agency or official thereof or any third party is required for the due execution, delivery and performance by the Performance Guarantor of this Agreement or any other Transaction Document to which the Performance Guarantor is a party or any other document to be delivered by the Performance Guarantor hereunder or thereunder, all of which have been duly made or taken, as the case may be, and are in full force and effect;
|
(e)
|
each Transaction Document to which the Performance Guarantor is a party constitutes the legal, valid and binding obligations of the Performance Guarantor enforceable against the Performance Guarantor in accordance with its terms, subject to any limitation on the enforceability thereof against the Performance Guarantor arising from the application of any applicable bankruptcy law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
|
(f)
|
no Bankruptcy Event has occurred with respect to the Performance Guarantor; and
|
(g)
|
each of the Originators is a direct or indirect, wholly owned subsidiary of the Performance Guarantor and is duly organized and validly existing under the laws of the state specified as its jurisdiction of organization in Annex 4.
|
6.3
|
The Receivables
. The Funding Seller hereby represents, warrants and covenants to each of the Purchasing Entities as of each Purchase Date with respect to each Receivable purchased or purported to be purchased on such date, that:
|
(a)
|
such Receivable is a validly existing Eligible Receivable and each Contract with respect to such Receivable is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the Outstanding Balance of the Receivable created thereunder and any accrued interest thereon, enforceable against the Obligor in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws relating to or limiting creditors’ rights generally and by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law);
|
(b)
|
the Funding Seller has sole legal, good and marketable, and beneficial title to such Receivable;
|
(c)
|
the Funding Seller has not entered into any agreements that would impair the rights of the Purchaser in, or altered any of the material terms (including the maturity or Due Date) of, such Receivable;
|
(d)
|
the Funding Seller has not previously sold, transferred or otherwise disposed of such Receivable to, or in favor of, any Person other than the Purchaser;
|
(e)
|
the sale of such Receivable, together with any and all Related Rights, to the Purchaser pursuant to this Agreement constitutes a valid sale, transfer and assignment of all of the Funding Seller’s right, title and interest in, to and under such Receivable and Related Rights to the Purchaser that is perfected and of first priority under the UCC and otherwise, enforceable against creditors of, and subsequent purchasers from, the Funding Seller and free and clear of any Adverse Claim (other than any Adverse Claim arising under any Transaction Document); such sale, transfer and assignment is made for “reasonably equivalent value” (as such term is used in Section 548 of the Bankruptcy Code) and not for, or on account of, “antecedent debt” (as such term is used in Section 547 of the Bankruptcy Code); and without limiting any of the foregoing, such sale, transfer and assignment (i) is not voidable or subject to avoidance under applicable law and (ii) is made in good faith without the intent to defraud any creditors of the Funding Seller or any Originator;
|
(f)
|
the Funding Seller (i) shall have received such Receivable as a contribution of capital by the Initial Purchaser or (ii) shall have purchased such Receivable from the Initial Purchaser in exchange for payment (made by the Funding Seller to the Initial Purchaser in accordance with the provisions of the Contribution Agreement) of cash or a deferred purchase price in an amount that constitutes fair consideration and reasonably equivalent value. Each such sale referred to in clause (ii) of the preceding sentence shall not have been made for or on account of an antecedent Debt owed by the Originators or the Initial Purchaser to the Funding Seller and no such sale is voidable or subject to avoidance under any section of the Bankruptcy Code; and
|
(g)
|
no event would result from a purchase in respect of such Receivable or from the application of the proceeds therefrom that constitutes a Termination Event.
|
7.
|
CERTAIN COVENANTS OF THE FUNDING SELLER, THE SERVICER, THE PERFORMANCE GUARANTOR, THE BANK PURCHASING AGENT AND THE PURCHASER
|
7.1
|
Until the Final Termination Date:
|
(a)
|
The Funding Seller and the Performance Guarantor will comply in all material respects with all applicable laws, rules, regulations and orders and preserve and maintain its existence, rights, franchises, qualifications, and privileges except to the extent that the failure so to comply with such laws, rules and regulations or the failure so to preserve and maintain such existence, rights, franchises, qualifications and privileges would not materially adversely affect the collectibility of the Purchased Receivables or the ability of the Funding Seller or the Performance Guarantor to perform its obligations under the Transaction Documents.
|
(b)
|
The Funding Seller will keep its principal place of business and chief executive office and the office where it keeps its records concerning the Purchased Receivables (and all original documents relating thereto) at the address of the Funding Seller set forth in Annex 1 or, upon 30 days’ prior written notice to the Purchaser and the Bank Purchasing Agent, at any other locations in jurisdictions where all actions reasonably requested by the Bank Purchasing Agent to protect and perfect the interest in the Purchased Receivables and the Related Rights with respect thereto have been taken and completed. The Servicer also will maintain and implement administrative and operating procedures (including, without limitation, an ability to recreate records evidencing the Purchased Receivables and related Contracts in the event of the destruction of the originals thereof), and keep and maintain all documents, books, records and other information reasonably necessary or advisable for the collection of all Purchased Receivables (including, without limitation, records adequate to permit the daily identification of each Purchased Receivable and all Collections of and adjustments to each existing Purchased Receivable).
|
(c)
|
The Funding Seller will require, at its expense, that each Originator will timely and fully perform and comply with all material provisions, covenants and other promises required to be observed by it under the Contracts related to the Purchased Receivables, and timely and fully comply in all material respects with the Credit and Collection Policy in regard to each Purchased Receivable and the related Contract.
|
(d)
|
The Funding Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon or with respect to, any Purchased Receivable or Related Rights, or upon or with respect to the Collection
|
(e)
|
Neither the Funding Seller nor the Servicer nor any of their respective Affiliates (which shall include the Originators) shall be permitted to grant to any Person other than the Purchaser and the Bank Purchasing Agent a security interest (as such term is defined in the UCC) in (i) any Collections (A) before they are deposited to the Collection Account or distributed to the Funding Seller pursuant to Section 2.6 or (B) after they are deposited to the Collection Account pursuant to Section 2.6 or (ii) the Collection Account itself.
|
(f)
|
Except as provided in Section 3.3, the Funding Seller and the Servicer will not (i) extend the maturity or adjust the Outstanding Balance or otherwise modify the terms of any Purchased Receivable in a manner that would result in the Dilution of such Purchased Receivable or that would otherwise prevent such Purchased Receivable from being an Eligible Receivable unless, in each case, the Funding Seller shall have been deemed to have received a Collection in respect of such Purchased Receivable, or (ii) amend, modify or waive in any material respect any term or condition relating to payments under or enforcement of any Contract related thereto.
|
(g)
|
None of the Funding Seller, the Servicer or the Performance Guarantor will make or permit any change in the character of its business that would, in either case, materially adversely affect the collectibility of the Purchased Receivables or the ability of the Funding Seller, the Servicer, or the Performance Guarantor to perform its obligations under this Agreement.
|
(h)
|
The Servicer will, or will cause the Originators to, instruct all Obligors to make payments with respect to the Purchased Receivables to a Payment Account and will not make or permit any change in the instructions to Obligors regarding payments to be made to a Payment Account, other than a change related solely to instructions to Obligors to pay to a new Payment Account which has been identified in writing to each of the Purchasing Entities.
|
(i)
|
The Funding Seller will not terminate or cause or permit the termination of the bank as the Collection Account Bank that is listed in the Master Receivables Purchase Agreement Side Letter or terminate the Account Control Agreement. The Funding Seller will not permit any provision of the Account Control Agreement to be changed, amended, modified or waived without the prior written consent of the Bank Purchasing Agent.
|
(j)
|
At its expense, the Servicer will mark its, and the Funding Seller’s, master data processing records evidencing Purchased Receivables and related Contracts with a legend evidencing that such Purchased Receivables and related Contracts have been sold in accordance with this Agreement.
|
(k)
|
The Performance Guarantor will provide to the Purchaser and the Bank Purchasing Agent the following:
|
(A)
|
as soon as available and in any event within 45 days after the end of the first three quarters of each fiscal year of the Performance Guarantor, balance sheets of the Performance Guarantor, and its Subsidiaries as of the end of such quarter and statements of income and retained earnings of the Performance Guarantor, and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of the Performance Guarantor;
|
(B)
|
as soon as available and in any event within 90 days after the end of each fiscal year of the Performance Guarantor, a copy of the annual report for such year for the Performance Guarantor and its Subsidiaries, containing financial statements for such year audited by PriceWaterhouse Coopers LLP or other independent public accountants of recognized national standing;
|
(C)
|
at least ten (10) Business Days prior to any change in the name of an Originator or the Funding Seller, a notice setting forth the new name and the effective date thereof and UCC-3 amendments to all then existing UCC-1 financing statements filed in connection with the Transaction Documents;
|
(D)
|
no later than 2 Business Days after the Funding Seller or the Performance Guarantor has knowledge thereof notice of any Termination Event or any material breach of any representation, warranty or covenant under any other Transaction Document;
|
(E)
|
as soon as possible and in any event no later than the day of occurrence thereof, notice that any Originator or the Initial Purchaser has ceased selling or contributing (as the case may be) Receivables as required pursuant to the Conveyancing Agreement or the Contribution Agreement, respectively;
|
(F)
|
at the time of the delivery of the financial statements provided for in clauses (A) and (B) above, a certificate of the chief financial officer or the treasurer of the Funding Seller or the Performance Guarantor (x) setting forth in reasonable detail the calculation of the Consolidated Equity Ratio and the Consolidated Leverage Ratio for the period then ended, and (y) certifying, to the best of such officer’s knowledge, that no Termination Event has occurred and is continuing or, if any Termination Event has occurred and is continuing, specifying the nature and extent thereof; and
|
(G)
|
promptly after receipt thereof, copies of all consents requested from the Funding Seller by, and all notices or other documents received by the Funding Seller from, any Originator under the Conveyancing Agreement; and
|
(H)
|
promptly after request therefore, such other information, documents, records or reports respecting the condition or operations, financial or otherwise, of the Performance Guarantor as the Bank Purchasing Agent may from time to time reasonably request, provided that information relating to specific Receivables shall be limited to the T-Mobile Information.
|
(l)
|
None of the Funding Seller, the Servicer, the Performance Guarantor or any of their respective Affiliates shall exercise any option (if any) available to it under German law to have value added tax apply with respect to any supply, for German value added tax purposes, rendered in connection with the sale of the Receivables contemplated by the Transaction Documents, provided that any party having such an option right shall be required to exercise such option if the Bank Purchasing Agent shall so request in writing.
|
7.2
|
Non-Consolidation and Separateness Covenants
. Until the Final Termination Date:
|
(a)
|
(i) The Funding Seller shall at all times maintain at least one independent director who (w) is not currently and has not been during the five years preceding the date of this Agreement an officer, director or employee of, or a major vendor or supplier of services to, an Affiliate of the Funding Seller or any Other Corporation, (x) is not a current or former officer or employee of the Funding Seller or any Other Corporation, (y) is not a stockholder of any Other Corporation or any of their respective Affiliates, and (z) is an employee of a company the business of which is to provide directors with respect to special purpose entities.
|
(b)
|
The Funding Seller shall not direct or participate in the management of any of the Other Corporations’ operations.
|
(c)
|
The Funding Seller shall conduct its business from an office separate from that of the Other Corporations (but which may be located in the same facility as one or more of the Other Corporations). The Funding Seller shall have stationery and other business forms and a mailing address and a telephone number separate from that of the Other Corporations.
|
(d)
|
The Funding Seller shall at all times be adequately capitalized in light of its contemplated business.
|
(e)
|
The Funding Seller shall at all times provide for its own operating expenses and liabilities from its own funds.
|
(f)
|
The Funding Seller shall maintain its assets and transactions separately from those of the Other Corporations and reflect such assets and transactions in financial statements separate and distinct from those of the Other Corporations and evidence such assets and transactions by appropriate entries in books and records separate and distinct from those of the Other Corporations. The Funding Seller shall hold itself out to the public under the Funding Seller’s own name as a legal entity separate and distinct from the Other Corporations. The Funding Seller shall not hold itself out as having agreed to pay, or as being liable, primarily or secondarily, for, any obligations of the Other Corporations.
|
(g)
|
The Funding Seller shall not maintain any joint account with any Other Corporation or become liable as a guarantor or otherwise with respect to any Debt or contractual obligation of any Other Corporation.
|
(h)
|
The Funding Seller shall not make any payment or distribution of assets with respect to any obligation of any Other Corporation or grant an Adverse Claim on any of its assets to secure any obligation of any Other Corporation.
|
(i)
|
The Funding Seller shall not make loans, advances or otherwise extend credit to any of the Other Corporations.
|
(j)
|
The Funding Seller shall hold regular duly noticed meetings of its managers and make and retain minutes of such meetings.
|
(k)
|
The Funding Seller shall have bills of sale (or similar instruments of assignment) and, if appropriate, UCC-1 financing statements, with respect to all assets purchased from any of the Other Corporations.
|
(l)
|
The Funding Seller shall not engage in any transaction with any of the Other Corporations, except as permitted by this Agreement and the Contribution Agreement.
|
(m)
|
The Funding Seller shall not, and shall not permit the Initial Purchaser to, amend, waive or modify any provision of any of the Transaction Documents without the prior written consent of the Bank Purchasing Agent. The Funding Seller will perform all of its obligations under the Transaction Documents in all material respects and will enforce the Transaction Documents in accordance with their terms in all material respects.
|
(n)
|
The Funding Seller shall not engage in any business other than the purchase of Receivables and Related Rights from the Originators and the transactions contemplated by this Agreement. The Funding Seller will not create or form any Subsidiary.
|
(o)
|
The Funding Seller shall not merge with or into or consolidate (other than for accounting purposes) with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions), all or substantially all of its assets (whether now owned or hereafter acquired) to, or acquire all or substantially all of the assets or capital stock or other ownership interest of, or enter into any joint venture or partnership agreement with, any Person.
|
(p)
|
The Funding Seller shall not declare or make any dividend payment or other distribution of assets, properties, cash, rights, obligations or securities on account of any shares of any class of capital stock of the Funding Seller, or return any capital to its shareholders as such, or purchase, retire, defease, redeem or otherwise acquire for value or make any payment in respect of any shares of any class of capital stock of the Funding Seller or any warrants, rights or options to acquire any such shares, now or hereafter outstanding;
provided, however
, that the Funding Seller may declare and pay cash dividends on its capital stock to its shareholders so long as (i) no Termination Event shall then exist or would occur as a result thereof, (ii) such dividends are in compliance with all applicable law including the corporate law of the state of the Funding Seller’s formation, and (iii) such dividends have been approved by all necessary and appropriate corporate action of the Funding Seller.
|
(q)
|
The Funding Seller shall not incur any Debt, other than any Debt incurred pursuant to the Transaction Documents.
|
(r)
|
The Funding Seller will not amend its limited liability company agreement without the prior written consent of the Bank Purchasing Agent.
|
7.3
|
If, at any time prior to the Final Termination Date, the Purchaser determines that it may be required to take any discretionary action or to refrain from taking any discretionary action , then (A) the Purchaser may (but shall not be obligated to) consult with Helaba’s New York Branch regarding the Purchaser’s exercise of such discretion, and (B) upon the receipt of any related advice from Helaba’s New York Branch (which Helaba’s New York Branch may (but shall not be obligated) to provide to the Purchaser), the Purchaser may (but shall not be obligated to) act in accordance with such advice; provided, however, it is also hereby agreed and understood that, if the Purchaser shall seek any consultation contemplated by this Section 7.3, (i) the Purchaser shall not be permitted to, and shall not, consult with any office or personnel of the Bank Purchasing Agent or any other Person located in Germany or otherwise outside of the United States of America, and (ii) without limiting the foregoing, in connection therewith, the Bank Purchasing Agent agrees that its offices and personnel located in Germany will not provide any advice or instruction to the Purchaser even if the Purchaser shall seek to consult or engage in any other similar form of discourse directly with any of such offices or personnel. For the avoidance of doubt, and notwithstanding any of the foregoing, nothing contained in this Section 7.3 is intended, or shall be construed, to limit or otherwise apply to the ability of the Bank Purchasing Agent or any Bank Purchaser to exercise any right granted to it, or to perform any obligation of it, under any other Transaction Document or otherwise, including the place or manner of the exercise of such right or the performance of such obligation.
|
8.
|
CONDITIONS PRECEDENT
|
8.1
|
The agreement of the Purchaser to purchase Receivables shall be subject to the prior satisfaction of all of the conditions precedent set forth in Annex 5.
|
8.2
|
Notwithstanding any contrary provision of this Agreement, it is expressly understood that each purchase of new Receivables pursuant to Section 2.1(b) shall, unless otherwise directed by the Bank Purchasing Agent, occur automatically on each Business Day prior to the Facility Termination Date (to the extent that new Receivables become available for purchase in accordance with such section) without the requirement that any further action be taken on the part of any Person and notwithstanding the failure of the Funding Seller to satisfy any of the conditions precedent in respect of such purchase. If (A) any of the conditions precedent set forth in Annex 5 shall not be satisfied in respect of the purchase of any Receivables and (B) the Bank Purchasing Agent shall have elected to rescind the onward purchase and sale of such Receivables pursuant to the Onward Receivables Purchase Agreement, then the Funding Seller and the Purchaser shall be required to rescind the related purchase and the Funding Seller shall be required to deposit into the Collection Account for the Purchaser (by making a corresponding deposit to the Collection Account), an amount equal to the Collections that shall have been applied to make the affected purchase.
|
9.
|
INDEMNIFICATION BY FUNDING SELLER
|
9.1
|
Without limiting any other rights that any of the Purchasing Entities or any of their respective Affiliates or employees, officers, directors, managers, agents or counsel (each, an “
Indemnified
|
(a)
|
the sale of any Receivable that is not at the date of such sale an Eligible Receivable except to the extent it has made a payment to the Collection Account pursuant to Section 2.5;
|
(b)
|
any representation or warranty or statement made or deemed made by the Funding Seller (or any of its officers) pursuant to this Agreement and the other Transaction Documents that shall have been incorrect when made or deemed made;
|
(c)
|
the failure by the Funding Seller or any of the Originators to comply with any applicable law, rule or regulation with respect to any Purchased Receivable or the related Contract; or the failure of any Purchased Receivable or the related Contract to conform to any such applicable law, rule or regulation;
|
(d)
|
the failure to vest and maintain vested in the Purchaser a first priority perfected ownership interest in the Purchased Receivables (subject to the assignment of such interest to the Bank Purchasing Agent), in each case free and clear of any Adverse Claim.
|
(e)
|
any failure of the Funding Seller to perform its duties or obligations in accordance with the provisions hereof or of any of the Transaction Documents to which it is a party, or under any Contract;
|
(f)
|
any products liability or other claim, investigation or proceeding (including any claim for unpaid sales, excise or other taxes) arising out of or in connection with the goods or services or merchandise or insurance that are the subject of any Contract;
|
(g)
|
the failure to deposit Collections into the Collection Account pursuant to the terms hereof;
|
(h)
|
any investigation, litigation or proceeding related to this Agreement or the ownership of Purchased Receivables or in respect of any Purchased Receivable or Related Rights; or
|
(ii)
|
any Taxes payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
|
10.
|
PAYMENTS
|
10.1
|
All payments required to be made by the Funding Seller or the Performance Guarantor pursuant to this Agreement shall be remitted in full (without set-off, counterclaim, deduction or withholding) to the accounts identified in the Master Receivables Purchase Agreement Side Letter or otherwise in accordance with the terms of this Agreement. Each party hereto shall be permitted to change any of its accounts or the details related to any of its accounts identified in the Master Receivables Purchase Agreement Side Letter or otherwise in accordance with the terms of this Agreement by notifying the other parties hereto in writing of its new account information. At the direction of the Bank Purchasing Agent, any payments required to be made to the Purchaser shall be made to the accounts of the Bank Purchasers in such amounts as the Bank Purchasing Agent shall direct from time to time.
|
10.2
|
Unless explicitly stated otherwise herein, all payments required to be made pursuant to this Agreement shall be made in USD.
|
10.3
|
Notwithstanding anything to the contrary contained in, or implied by, this Agreement, the Funding Seller and the Purchaser (or the Servicer and the Bank Purchasing Agent on their behalf) intend to, and shall, net all payments from one party to another occurring on each Settlement Date so that only the party by whom the larger aggregate amount is payable shall pay, in USD and immediately available funds, the excess of the larger aggregate amount over the smaller aggregate amount to the other party.
|
11.
|
TERM; TERMINATION
|
11.1
|
This Agreement shall commence as of the date hereof and shall remain in full force and effect until the Final Termination Date.
|
11.2
|
Each of the following events or circumstances shall be considered to be a “
Funding Seller Termination Event
” under this Agreement:
|
(a)
|
a Change of Control shall occur; or
|
(b)
|
the Bank Purchasing Agent shall notify any Obligor that the Purchased Receivables have been assigned hereunder except as permitted by this Agreement, it being understood that the disclosure of this Agreement or the existence of this Agreement to the public generally shall not constitute such a notification; or
|
(c)
|
the sale of the Purchased Receivables hereunder ceases to satisfy the requirements of IFRS or GAAP for off-balance sheet treatment, as determined in good faith by the Funding Seller’s accountants; provided that such cessation is not the result of any action or inaction by the Funding Seller or any other member of the T-Mobile Group; or
|
(d)
|
(A) the Servicer or any Originator is not able to take a bad debt deduction for federal income tax purposes for Written-off Receivables or is unable to recover or receive a deduction, credit, or refund with respect to state or local sales or other similar transactional taxes paid or collected and remitted to the appropriate Governmental Authority on Written-Off Receivables, in the aggregate in a 12-month period in excess of 50% of the total possible federal income tax bad debt deduction or 50% of the transactional taxes paid or collected and remitted to a Governmental Authority, as applicable, (B) the Funding Seller shall have used commercially reasonable efforts to mitigate such inability including, without limitation, by providing each of the Purchasing Entities with a written proposal to reasonably amend the definition herein of the term “Designated State” and which may be implemented with effect in 30 days and (C) the Bank Purchasing Agent shall not have agreed to such proposal within 10 days of its receipt; or
|
(e)
|
any payment of Increased Costs is demanded from the Funding Seller pursuant to Section 4.4.
|
11.3
|
If any Funding Seller Termination Event shall occur and be continuing, the Funding Seller may, by notice to each of the Purchasing Entities, declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred).
|
11.4
|
Each of the following events or circumstances shall be considered to be a “
Termination Event
” under this Agreement; provided, however, that references to Deutsche Telekom in this Section 11.4 shall only be applicable after it shall have executed and delivered the DT Payment Guarantee:
|
(a)
|
the Funding Seller, the Servicer, any Originator, the Initial Purchaser, Deutsche Telekom or the Performance Guarantor shall fail to make any payment required under this Agreement or any other Transaction Document and any such failure shall remain unremedied for five (5) days; or
|
(b)
|
a Bankruptcy Event shall occur with respect to the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom; or
|
(c)
|
the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom shall fail, in any material manner, to perform or observe any other term, covenant or agreement contained in this Agreement or in any other Transaction Document on its part to be performed or observed and any such failure shall remain unremedied for ten (10) days after the earlier to occur of (i) the receipt of written
|
|
notice thereof from any of the Purchasing Entities or (ii) actual knowledge thereof by the Funding Seller or the Servicer; or
|
(d)
|
(i) the Performance Guarantor shall purport to revoke or terminate the Performance Guarantee, or the Performance Guarantee shall no longer be in effect; or the Performance Guarantor shall fail to perform, in a timely manner, any of its obligations hereunder or under the Performance Guarantee; or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made by the Performance Guarantor in this Agreement; or (ii) Deutsche Telekom shall purport to revoke or terminate the DT Payment Guarantee (if and as previously executed and delivered), or the DT Payment Guarantee (if and as previously executed and delivered) shall no longer be in effect; or Deutsche Telekom shall fail to perform, in a timely manner, any of its obligations under the DT Payment Guarantee (if and as previously executed and delivered); or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made by the Performance Guarantor in the DT Payment Guarantee (if and as previously executed and delivered); or
|
(e)
|
any representation or warranty made or deemed made by the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom (or any of their officers) pursuant to this Agreement or any other Transaction Document or any information or report delivered by the Funding Seller or the Servicer pursuant to this Agreement or any other Transaction Document shall prove to have been incorrect or untrue in any material respect when made or deemed made or delivered and which, if capable of cure, continues to be incorrect in any material respect for a period of ten (10) days after the earlier to occur of (i) the receipt of written notice thereof from the Bank Purchasing Agent or any of the Bank Purchasers or (ii) actual knowledge thereof by the Funding Seller or the Servicer; or
|
(f)
|
the Funding Seller shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding, or the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom 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 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 Securitization Obligation of the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom in a principal amount of at least $100,000,000 in the aggregate shall be accelerated prior to its express maturity; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt or Securitization Obligation 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 Securitization Obligation; or any such Debt or Securitization Obligation 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 repay, redeem, purchase or
|
(g)
|
it shall become unlawful under any applicable law for any of the Funding Seller, the Servicer, the Performance Guarantor, the Initial Purchaser, any Originator or Deutsche Telekom or any of the Purchasing Entities to perform any of their material obligations under this Agreement or any of the other Transaction Documents; or
|
(h)
|
the unsecured, long-term debt of the Performance Guarantor shall be rated below (i) B+ by S&P or (ii) B1 by Moody’s or shall cease to be rated by either S&P or Moody’s; or
|
(i)
|
Deutsche Telekom shall not have executed and delivered the DT Payment Guarantee (together with such certificates and corporate and enforceability opinions as the Bank Purchasers may reasonably request) within 30 days after a Change of Control, in which case a Termination Event shall be deemed to occur on the first Settlement Date that shall occur at least 30 days after such Change of Control; or
|
(j)
|
the three-month rolling average Aged Receivables Ratio on any Settlement Date exceeds 6.00%; or
|
(k)
|
the three-month rolling average Delinquency Ratio exceeds 4.50%; or
|
(l)
|
the three-month rolling average Write-Off Ratio on any Settlement Date exceeds 5.20%; or
|
(m)
|
the three-month rolling average Dilution Ratio on any Settlement Date exceeds 18.00%; or
|
(n)
|
the three-month rolling average Write-Off Horizon for Written-off Receivables and Unpaid Repurchased Receivables on any Settlement Date is less than 80 days or greater than 155 days, unless, in either case, such breach (A) shall not have been wilful, (B) shall have been caused only by technical reasons (such as a change in information technology systems or procedures) and (C) shall be cured within 60 days; or
|
(o)
|
any purchase pursuant to this Agreement shall for any reason cease to create a valid and perfected ownership or security interest in each applicable Purchased Receivable free and clear of any Adverse Claim (other than any Adverse Claim arising under any Transaction Document); or
|
(p)
|
either of the Conveyance Agreement or the Contribution Agreement shall no longer be in effect; or the Originators or the Initial Purchaser, as applicable, shall fail to perform, in a timely manner, any of its material obligations thereunder or there shall have occurred any material breach of any of the representations and warranties, or any covenants or other agreements, made thereunder by the Originators or the Initial Purchaser, as applicable; or
|
(q)
|
the Consolidated Equity Ratio shall at any time be less than 20.0%; or
|
(r)
|
the Consolidated Leverage Ratio shall at any time be greater than 450%; or
|
(s)
|
KfW’s rating shall be less than Baa3 by Moody’s or BBB- by S&P, the KfW Guarantee shall be terminated or shall otherwise cease to be in full force and effect, or KfW shall repudiate its obligations thereunder and such KfW Guarantee shall not have been replaced by another guarantee, letter of credit or cash deposit in form and substance reasonably satisfactory to the Bank Purchasing Agent; or
|
(t)
|
the Level 3 Maximum Amount shall at any time be less than 25% of the Level 3 Maximum Amount as of the Closing Date; or
|
(u)
|
on any Settlement Date, the ratio, expressed as a percentage, of:
|
(i)
|
the aggregate Nominal Value of Purchased Receivables that have not been paid in full more than 90 days after their respective Due Dates but that are not Written-Off Receivables (including Receivables that have been transferred pursuant to Section 5.1(a) or 5.1(b)); to
|
(ii)
|
the sum of (A) the Mandatory Repurchase Reserve for all Batches on such Settlement Date, (B) the product of the Discount Rate and the Settlement Date Receivables Balance, (C) the Level 3 Maximum Amount on such Settlement Date, (D) the Level 4 Reserve Amount for such Settlement Date and (E) the Discount Ledger Balance for such Settlement Date;
|
11.5
|
If any Termination Event shall occur and be continuing, the Bank Purchasing Agent may, by notice to the Funding Seller, take any or all of the following actions: (x) declare the Facility Termination Date to have occurred (in which case the Facility Termination Date shall be deemed to have occurred), provided that, automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in Section 11.4(b), the Facility Termination Date shall occur, and (y) without limiting any right under this Agreement to replace the Servicer, designate another Person to succeed the then current Servicer as the Servicer. Upon declaration or automatic occurrence of the Facility Termination Date, the Bank Purchasing Agent shall have (a) the rights of the Funding Seller as buyer under the Contribution Agreement and (b) in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the UCC of the appropriate jurisdiction or jurisdictions and under other applicable law, which rights and remedies shall be cumulative.
|
11.6
|
If the Facility Termination Date shall occur in connection with Section 11.5, the Bank Purchasing Agent may take (and the Funding Seller hereby irrevocably authorizes the Bank Purchasing Agent to take) any and all actions in the Funding Seller’s name and/or on behalf of the Funding Seller that, in the determination of the Bank Purchasing Agent, shall be necessary or desirable in order to collect any amounts due under the Purchased Receivables and any of the Related Rights or to exercise or enforce any of the Related Rights.
|
11.7
|
Notwithstanding anything herein or any other Transaction Document to the contrary, (a) the occurrence of the Final Termination Date shall not discharge the Funding Seller, the Servicer, the Performance Guarantor or any other Person from any obligations incurred by it or them prior to
|
11.8
|
If the Facility Termination Date shall occur in connection with Section 11.5, then, on the Final Termination Date, the Purchaser shall pay to the Funding Seller an amount equal to the Discount Ledger Balance as of the last Settlement Date to occur on or prior to the Final Termination Date.
|
11.9
|
At any time that the aggregate Outstanding Balance of all Purchased Receivables is less than ten percent (10%) of the amount of the highest Funding Limit in effect hereunder from and after the Closing Date, the Funding Seller may, in its sole discretion, repurchase all, but not less than all, of the then outstanding Purchased Receivables at a price, in immediately available funds, equal to the Outstanding Balance of all such Purchased Receivables plus all fees and other amounts due to the Purchaser hereunder (the “
Clean-up Call
”). The Funding Seller shall deposit such amount in the Collection Account. The Purchaser shall re-assign the outstanding Purchased Receivables to the Funding Seller if the Funding Seller exercises its right to, and pays the purchase price of, the Clean-up Call.
|
11.10
|
In the event that the Servicer (in its sole and absolute discretion) has notified the Purchaser that it has determined that the transactions contemplated by this Agreement (or one of the other Transaction Documents) no longer needs to satisfy the requirements of IFRS for off-balance sheet treatment, then, on the Final Termination Date, the Purchaser shall pay to the Funding Seller an amount equal to the Discount Ledger Balance as of the last Settlement Date to occur on or prior to the Final Termination Date.
|
12.
|
CONFIDENTIALITY
|
12.1
|
The parties shall treat as confidential this Agreement, the transactions contemplated hereunder and any and all business and trade secrets and other information received in connection with this Agreement or the performance thereof and information about a party’s business or financial matters, technical information or any other proprietary information relating to a party or its Affiliates and their respective operations, businesses, technical know-how and financial affairs, that is obtained by the other party as a result of the working relationship between the parties, whether obtained prior to or after the date hereof (the “
Confidential Information
”) during the term of this Agreement and a further period of two (2) years following its termination or expiration. Confidential Information shall include, without limitation, trade secrets, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, maps, blueprints, diagrams, flow charts and any other technical, financial, business or proprietary information of any kind or nature whatsoever. The parties shall not disclose any Confidential Information to anyone, except to any assignees, potential assignees, the Bank Purchasers, potential participants, or any of their respective directors, managers, executives, employees, affiliates, auditors, lawyers, advisors, authorized agents and/or duly appointed representatives who have a specific and reasonable interest in knowing, viewing and using such Confidential Information and agree to be bound by the confidentiality provisions of this Section 12.
|
12.2
|
The confidentiality provisions specified in Section 12.1 above shall not apply to the disclosure of Confidential Information, which:
|
(a)
|
is publicly available or is made available to the broad public by means other than a breach of this Agreement; or
|
(b)
|
has been made available by a third party, provided that neither the Bank Purchasing Agent nor the Funding Seller was aware that such third party was in breach of any duty of confidentiality; or
|
(c)
|
was already in such party’s possession or was independently developed by such party before the Confidential Information was received; or
|
(d)
|
must be disclosed pursuant to applicable law, any court order or instruction of any duly authorized Governmental Authority; or
|
(e)
|
is made publicly available or is disclosed subject to the prior written consent of the other parties with respect to the content, form and manner of its presentation and publication; or
|
(f)
|
is required for purposes of recovering the assigned Receivables or Related Rights or otherwise exercising any of the rights and remedies of the Bank Purchasing Agent under the Transaction Documents.
|
12.3
|
Notwithstanding anything to the contrary stated herein other than in Section 12.2(f), the parties hereto agree that they will be bound by the additional confidentiality provisions contained in Annex 8 hereto as it relates to the T-Mobile Information.
|
13.
|
NOTICES
|
14.
|
ASSIGNMENTS
|
14.1
|
None of the Funding Seller, the Purchaser, the Performance Guarantor or the Servicer may assign its rights or obligations hereunder or any interest herein without the prior written consent of the Bank Purchasing Agent.
|
14.2
|
The parties hereto acknowledge and agree that the Purchaser shall assign its rights hereunder to the Bank Purchasing Agent for the benefit of the Bank Purchasers under the Onward Receivables Purchase Agreement. Neither the Funding Seller, the Servicer or any other member of the T-Mobile Group shall have any rights to direct the operation or control over the Purchaser.
|
14.3
|
The parties hereto hereby agree that each of the Purchasing Entities, each of the other Indemnified Parties, and, solely for purposes of Section 2.7 and Section 23, Wells Fargo, shall be an intended third-party beneficiary of this Agreement, entitled to enforce this Agreement against the Funding Seller, the Servicer and the Performance Guarantor as if each such Person were a party hereto. Except
|
15.
|
AMENDMENTS
|
15.1
|
No amendment or waiver of any provision of this Agreement and no consent to any departure by the Funding Seller, the Purchaser, the Performance Guarantor or the Servicer therefrom shall be effective unless in a writing signed by the Bank Purchasing Agent, and, in the case of any amendment, also signed by the Funding Seller, the Purchaser, the Servicer and the Performance Guarantor. No failure on the part of the Bank Purchasing Agent 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.
|
16.
|
OTHER COSTS
|
17.
|
SEVERABILITY
|
18.
|
MONEY LAUNDERING
|
19.
|
PERFORMANCE GUARANTEE
|
19.1
|
The Performance Guarantor (A) hereby irrevocably, absolutely and unconditionally guarantees to the Purchaser, the Bank Purchasing Agent and the Bank Purchasers and their respective assignees the prompt performance when due of all obligations of the Servicer, the Originators and the Initial Purchaser hereunder and under each of the other Transaction Documents (including, without limitation, payment in full when due, whether at stated maturity, by acceleration or otherwise, of all amounts owing by the Servicer, the Originators or the Initial Purchaser to the Funding Seller, the Purchaser and the Bank Purchasing Agent) strictly in accordance with the terms hereof and thereof; and (B) accordingly agrees that, whenever the Servicer, any Originator or the Initial Purchaser shall fail to perform any such obligation when due hereunder or thereunder, the Performance Guarantor shall immediately perform, or cause to be performed, such obligation as if it were the principal obligor and regardless of the reason for such failure (such obligations being herein collectively referred to as the “
TMUS Guaranteed Obligations
”). For the avoidance of doubt, the Performance Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Funding Seller under the Transaction Documents. For the sake of clarity, it is expressly acknowledged that the TMUS Guaranteed Obligations do not include any act, inaction, obligation or liability of the Funding Seller to fully and punctually pay, perform or comply with any of the terms, covenants, conditions, agreements, undertakings and obligations on the part of the Funding Seller to be paid, performed or complied with by it under this Agreement, any other Transaction Document or any document entered into in connection with the foregoing.
|
19.2
|
The obligations of the Performance Guarantor under this Performance Guarantee will not be affected by:
|
(a)
|
any amendment (however fundamental) or replacement of this Agreement, the Conveyancing Agreement or any other document or security;
|
(b)
|
any Bankruptcy Event with respect to the Funding Seller, the Servicer, any Originator or any other Person.
|
19.3
|
The obligations of the Performance Guarantor under this Performance Guarantee are absolute and unconditional, irrespective of the validity or enforceability of any other section of this Agreement or any Transaction Document, the value of any collateral provided to the Bank Purchasing Agent or the release or exchange of any such collateral. The Performance Guarantor waives any right it may have of first requiring the Bank Purchasing Agent to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Agreement to the contrary. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Performance Guarantor hereunder, which shall remain absolute and unconditional as described above:
|
(a)
|
at any time or from time to time, without notice to the Performance Guarantor, the time for any performance of or compliance with any of the obligations of the Servicer or an Originator under the Transaction Documents shall be waived;
|
(b)
|
any of the acts mentioned in any of the provisions of this Agreement or any other Transaction Document shall be done or omitted;
|
(c)
|
any of the TMUS Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under this Agreement or any other Transaction Document shall be waived or any of the TMUS Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
|
(d)
|
any lien or security interest granted to, or in favor of, the Bank Purchasing Agent as security for the TMUS Guaranteed Obligations shall fail to be effective or perfected.
|
19.4
|
The obligations of the Performance Guarantor under this Section 19 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Originator or the Servicer under this Agreement or any other Transaction Document is rescinded or must otherwise be restored by any holder of any of the TMUS Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Performance Guarantor agrees that it will indemnify the Bank Purchasing Agent on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by the Bank Purchasing Agent in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
|
19.5
|
The Performance Guarantor hereby waives all rights of subrogation or contribution, whether arising by contract or operation of law or otherwise by reason of any payment by it pursuant to the provisions of this Section 19.
|
19.6
|
The Performance Guarantor agrees that, as between the Performance Guarantor and any of the Purchasing Entities, the obligations of the Originators and the Servicer under this Agreement and each other Transaction Document may be declared to be forthwith due and payable as provided herein and therein (and shall be deemed to have become automatically due and payable as provided herein and therein) for the purposes of Section 19.1 hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against any Originator or the Servicer and that, in the event of such declaration (or such obligations being deemed to have become automatically due and payable), such obligations (whether or not due and payable by any Originator or the Servicer, as applicable) shall forthwith become due and payable by the Performance Guarantor for purposes of Section 19.1.
|
19.7
|
The guarantee in this Section 19 is a continuing guarantee, and shall apply to all TMUS Guaranteed Obligations whenever arising.
|
19.8
|
Without limiting or being limited by the foregoing, the Performance Guarantor 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 relating to or resulting from either of the following:
|
(a)
|
any value added tax plus any interest and other ancillary Tax charges (A) applicable to the payment of the Servicer Fee, the supply of the services rendered by the Servicer or the sale of the Receivables and the Related Rights pursuant to this Agreement or the Onward Receivables Purchase Agreement or (B) arising as a result of a breach by the Funding Seller, the Servicer, the Performance Guarantor or any of their Affiliates of Section 7.1(l) (less any respective value added tax credits or deductions as are obtained by or credited to the Purchasing Entities, which credits or deductions shall be taken into account following the final and unchangeable determination thereof by the German tax authorities; whereby the Bank Purchaser shall take reasonable steps to receive eligible value added tax credits or deductions by filing respective returns); or
|
(b)
|
any Taxes, other than Excluded Taxes, payable by the Purchaser to the relevant German tax authorities if (contrary to the expectations of the parties hereto) the Purchaser is determined by the relevant German tax authorities to have a permanent establishment or other taxable presence located in the Federal Republic of Germany.
|
20.
|
TERMINATION OF KFW GUARANTEE
|
20.1
|
Notwithstanding anything to the contrary stated herein, the Funding Seller may terminate the KfW Guarantee in the event that the Funding Seller provides the Bank Purchasing Agent with a cash deposit, another guarantee or a letter of credit in form and substance reasonably satisfactory to the Bank Purchasing Agent. The parties hereto shall cooperate with the Funding Seller to effectuate such termination.
|
21.
|
PURCHASING ENTITIES’ UNDERTAKINGS RELATED TO GERMAN VAT
|
21.1
|
No Purchasing Entity nor any of its Affiliates shall exercise any option (if any) available under German law to have value added tax apply with respect to any supply, for German value added tax purposes, rendered in connection with the sale of the Receivables contemplated by the Transaction Documents, unless the recipient of such Taxes suffers no disadvantage. In addition to the foregoing, the Funding Seller, the Servicer and the Performance Guarantor believe that the servicing obligations of the Servicer in connection with this agreement rendered to a Bank Purchaser located in Germany are subject to German value added tax and that such value added tax should be fully recoverable as input value added tax by the respective Bank Purchaser.
|
22.
|
BANKRUPTCY
|
22.1
|
Each party hereto hereby covenants and agrees that prior to the date which is one year and one day after the Final Termination Date, it will not institute against or join any other person in instituting against the Funding Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or other similar proceeding under the laws of the United States or any state of the United States or any other country.
|
23.
|
LIMITED RECOURSE AGAINST WELLS FARGO
|
23.1
|
It is expressly understood and agreed by the parties to this Agreement that (a) this Agreement is executed and delivered by Wells Fargo, as trustee of Billing Gate One Trust, not in Wells Fargo’s individual or personal capacity but solely in such under the trust agreement of Billing Gate One Trust, in the exercise of the powers and authority conferred and vested in it as trustee under such trust agreement, subject to the protections, indemnities and limitations from liability afforded to Wells Fargo as trustee thereunder; (b) in no event shall Wells Fargo, in its individual capacity have any liability for the representations, warranties, covenants, agreements or other obligations of the Purchaser or any other party hereto; (c) in no event shall Wells Fargo have any obligation to perform any of the obligations and covenants of the Purchaser or any other party to this Agreement; and (d) under no circumstances shall Wells Fargo be personally liable for the payment of any fees, costs, indebtedness or expenses of any kind whatsoever or be personally liable for the breach or failure of any obligation, representation, agreement, warranty or covenant whatsoever made or undertaken by the Purchaser or any other party hereunder.
|
24.
|
CHOICE OF LAW AND JURISDICTION; WAIVER OF JURY TRIAL
|
24.1
|
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE PERFECTION OF THE INTERESTS OF THE BANK PURCHASING AGENT AND THE PURCHASER IN THE PURCHASED RECEIVABLES AND THE RELATED RIGHTS ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.
|
24.2
|
EACH PARTY HERETO HEREBY (A) IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, (B) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, AND (C) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR AFFECT THE RIGHT OF ANY PARTY HERETO TO BRING ANY ACTION OR PROCEEDING AGAINST ANY OR ALL OF THE OTHER PARTIES HERETO OR ANY OF THEIR RESPECTIVE PROPERTIES IN THE COURTS OF ANY OTHER JURISDICTION.
|
24.3
|
EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF ANY OF THE PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING IN
|
25.
|
COUNTERPARTS
|
26.
|
EXECUTION
|
By:
/s/ J. Braxton Carter
|
|
Name: J. Braxton Carter
Title: Executive Vice President & Chief Financial Officer
|
|
By:
/s/ J. Braxton Carter
|
|
Name: J. Braxon Carter
Title: Executive Vice President & Chief Financial Officer
|
|
By:
/s/ J. Braxton Carter
|
|
Name: J. Braxton Carter
Title: Executive Vice President & Chief Financial Officer
|
|
By: Billing Gate One Trust, as Manager
By: Wells Fargo Delaware Trust Company, National Association, solely as Trustee and not in its individual capacity
By:
/s/ Sandra Battaglia
|
|
Name: Sandra Battaglia
Title: Vice President
|
|
By:
/s/ Martin Scheele
|
By:
/s/ Matthias Wyrwoll
|
Name: Martin Scheele
Title: Senior Vice President
|
Name: Matthias Wyrwoll
Title: Director
|
(a)
|
The Contract underlying the Receivable is a standard telecommunications services agreement of the related Originator and is governed by the federal and/or state laws of the United States.
|
(b)
|
The Outstanding Balance of such Receivable shall not cause the aggregate Outstanding Balance of all Purchased Receivables (not including Aged Receivables) due from the Obligor with respect to such Purchased Receivable to exceed $50,000 (it being understood that the Servicer will make this determination monthly as of the end of each Collection Period).
|
(c)
|
Such Receivable is non-interest bearing and the Nominal Value of such Receivable does not include any default interest or other penalties, fines, fees for late payment or any other breach of the related Contract.
|
(d)
|
The period from the Invoice Date to the Due Date with respect to such Receivable does not exceed 30 days.
|
(e)
|
The Obligor of such Receivable (i) is a natural person, or, if a corporation, governmental or other business organization, is organized under the laws of the United States or any political subdivision thereof; and (ii) is not an Affiliate of the Originators or the Funding Seller. The telephone number related to the Receivable relates to one of the Designated States.
|
(f)
|
The Receivable is denominated and payable in USD in the United States.
|
(g)
|
The Receivable is not overdue by more than 30 days or an Aged Receivable.
|
(h)
|
The Receivable arises pursuant to a Contract with respect to which the applicable Originator has performed all obligations in all material respects required to be performed by it thereunder in order to have such Receivable become due and payable, including delivery of a bill to the applicable Obligor.
|
(i)
|
The Receivable:
|
(i)
|
is an “account” or “general intangible” within the meaning of Article 9 of the UCC;
|
(ii)
|
is a right to payment of a monetary obligation for goods or services rendered to Obligor; and
|
(iii)
|
is not evidenced or otherwise payable by a promissory note, a bill of exchange or other instrument.
|
(j)
|
The Receivable, together with the contract related thereto, does not contravene any laws applicable thereto (including laws relating to truth in lending, cost of credit disclosure, fair credit billing, equal credit opportunity, fair debt collection practices and privacy).
|
(k)
|
The Receivable was originated in accordance with and satisfies in all material respects all applicable requirements of the Credit and Collection Policies.
|
(l)
|
The terms of the underlying Contract with respect to the Receivable do not expressly permit the related Obligor to exercise any right of set-off with respect thereto.
|
(m)
|
The Receivable is not a Restricted Receivable.
|
(n)
|
The Receivable has been originated by an Originator and validly sold or contributed by such Originator to the Funding Seller with the result that such Funding Seller has good and marketable title thereto (together with the Collections and Related Rights related thereto), free and clear of all Adverse Claims.
|
(o)
|
The Receivable is in full force and effect and constitutes the legal, valid and binding obligation of the related Obligor, enforceable against such Obligor in accordance with its terms except as such enforcement against such Obligor may be limited by any applicable insolvency law or by general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law), in each case, under all applicable law, and is, not subject to any litigation, offset, counterclaim or other defense.
|
(p)
|
The Receivable was originated in the ordinary course of the applicable Originator’s business and represents the purchase price of “subscriber / air time” services sold by such Originator.
|
(q)
|
The Receivable has not been compromised, altered, adjusted or modified for credit reasons nor is it subject to any downward adjustment for Taxes, rebates or other reasons (including by the extension of time for payment or the granting of any discounts, allowances or credits), in each case, other than as permitted or required by the Credit and Collection Policies.
|
(r)
|
The disclosure of information necessary to permit the Funding Seller or its assigns to enforce such Receivable against the related Obligor would not result in the breach of any law, agreement (including the underlying Contract), judgment or other instrument by which the related Originator or the Funding Seller is bound.
|
(s)
|
At the Closing Date, the Obligor with respect to the Receivable is not the Obligor with respect to any Overdue Receivable payment for which is more than 30 days past due.
|
(t)
|
If purchased, the Outstanding Balance of such Receivable would not cause the percentage of the Outstanding Balance of all Purchased Receivables owing from Obligors that are individuals to be less than 51%.
|
(u)
|
If purchased, the Outstanding Balance of such Receivable would not cause the percentage of the Outstanding Balance of all Purchased Receivables owing from commercial Obligors to exceed 25% or the Obligors that are governmental entities to exceed 5%.
|
(v)
|
If purchased, the Outstanding Balance of such Receivable would not cause the percentage of the Outstanding Balance of all Purchased Receivables in the related Batch owing from Obligors who are identified by the Funding Seller and the Bank Purchasing Agent as “subprime” (Obligors who are not considered part of the ABCL Credit Classes) to exceed 40% on more than two (2) consecutive Settlement Dates.
|
(w)
|
Such Receivable is not subject to any Adverse Claim (other than Adverse Claims arising pursuant to the Transaction Documents) or Subject to Defenses.
|
(x)
|
The Funding Seller is not aware of any claims or other facts or circumstances that could result in such Receivable, in whole or in part, becoming subject to any Adverse Claims (other than Adverse Claims arising pursuant to the Transaction Documents) or Subject to Defenses for more than two consecutive Settlement Dates.
|
(y)
|
The Funding Seller has all necessary rights in such Purchased Receivable required for the Funding Seller to sell and assign such Receivable to the Purchaser pursuant to this Agreement.
|
(z)
|
The related Originator shall have complied with all Requirements of Law in connection with the origination of such Receivable.
|
(aa)
|
The related Originator shall have complied in all material respects with the related Contract in connection with the origination of such Receivable.
|
(bb)
|
All sales, excise or other taxes with respect to such Receivable shall have been paid to the applicable taxing authority when due other than those being contested in good faith.
|
(cc)
|
If purchased, the Outstanding Balance of such Receivable would cause the Average of the Nominal Value of all Receivables purchased hereunder during the three immediately preceding Collection Periods to exceed the Maximum Sales Amount.
|
(dd)
|
If purchased, the Outstanding Balance of such Receivable would not cause the percentage of the Outstanding Balance of all Purchased Receivables in the related Batch related to phone numbers in any Designated State to exceed the maximum percentage specified below on more than two (2) consecutive Settlement Dates.
|
State
|
Maximum Percentage
|
MS
|
0.10%
|
ND
|
0.10%
|
SD
|
0.10%
|
VT
|
0.10%
|
AR
|
0.25%
|
IA
|
0.25%
|
KY
|
0.25%
|
NC
|
0.25%
|
WV
|
0.25%
|
WY
|
0.25%
|
ME
|
0.50%
|
TN
|
0.50%
|
DE
|
1.00%
|
ID
|
1.00%
|
LA
|
1.00%
|
NH
|
1.00%
|
SC
|
1.00%
|
WI
|
1.00%
|
AL
|
5.00%
|
CO
|
5.00%
|
CT
|
5.00%
|
DC
|
5.00%
|
HI
|
5.00%
|
IN
|
5.00%
|
KS
|
5.00%
|
MA
|
5.00%
|
MD
|
5.00%
|
MI
|
5.00%
|
MO
|
5.00%
|
NM
|
5.00%
|
NV
|
5.00%
|
OH
|
5.00%
|
OK
|
5.00%
|
OR
|
5.00%
|
RI
|
5.00%
|
UT
|
5.00%
|
VA
|
5.00%
|
MN
|
5.00%
|
PA
|
5.00%
|
AZ
|
5.00%
|
GA
|
10.00%
|
NJ
|
10.00%
|
WA
|
10.00%
|
IL
|
10.00%
|
FL
|
15.00%
|
NY
|
15.00%
|
TX
|
20.00%
|
CA
|
25.00%
|
(ee)
|
Such Receivable does not relate to Partner Branded Services, Flexpay or No Credit Family Plans, as each of such terms is used or defined in the books and records of the Originators.
|
Name
|
Jurisdiction of Organization
|
Address
|
T-Mobile West LLC
|
Delaware
|
12920 SE 38
th
Street
Bellevue, Washington 98006 |
T-Mobile Central LLC
|
Delaware
|
12920 SE 38
th
Street
Bellevue, Washington 98006 |
T-Mobile Northeast LLC
|
Delaware
|
12920 SE 38
th
Street
Bellevue, Washington 98006 |
T-Mobile South LLC
|
Delaware
|
12920 SE 38
th
Street
Bellevue, Washington 98006 |
(a)
|
Agreements
. The Transaction Documents duly executed and delivered by each party thereto, each of which shall be in full force and effect, including, without limitation:
|
(b)
|
Certificate as to Organizational Documents; Authorization
. Certificates dated the Closing Date from an officer of each of the Originators, the Funding Seller, the Performance Guarantor and the Servicer, which shall include the following certifications and to which the following documents shall be attached, all in form and substance satisfactory to the Bank Purchasing Agent: (i) the articles of incorporation, bylaws and any other constitutive or organizational document of such party, certified by an officer of such party as true and correct and in full force and effect, (ii) a certificate of good standing of such party issued as of recent date, (iii) the resolutions of the board and/or shareholders or other equivalent instruments of such party authorizing the execution, delivery and performance of the Transaction Documents to which it is a party and the transactions contemplated hereby and thereby, certified by an officer of such party as true and correct and in full force and effect., and (iv) the names and true signatures of the officers of such party authorized to sign the Transaction Documents to be signed by it.
|
I
|
Opinions of Counsel
. The following opinions (in form and substance satisfactory to the Bank Purchasing Agent and each Bank Purchaser) each dated the Closing Date:
|
(i)
|
An opinion of counsel to the Originators, the Initial Purchaser, the Funding Seller, the Servicer and the Performance Guarantor (which may be in-house counsel) regarding corporate organization, existence and authority and such other matters as the Bank Purchasing Agent may reasonably request.
|
(ii)
|
An opinion of counsel to the Originators, the Initial Purchaser, the Funding Seller, the Servicer and the Performance Guarantor regarding enforceability, no conflicts, creation
|
(iii)
|
An opinion of counsel to the Originators, the Initial Purchaser, the Funding Seller, the Servicer and the Performance Guarantor regarding such tax matters as the Bank Purchasers may request.
|
(iv)
|
An opinion of counsel to the Originators, the Initial Purchaser and the Funding Seller regarding issues of true-sale in connection with the sale of Receivables under the Conveyance Agreement and the Contribution Agreement and as to substantive consolidation between the Initial Purchaser and the Funding Seller.
|
(d)
|
UCC Financing Statement
. A copy of the UCC financing statements to be filed on the Closing Date pursuant to Section 2.8 of the Agreement.
|
|
|
|
|
•
|
Review whether the selected sample of Receivables meet the Eligibility Criteria as described in Annex 3 of the Master Receivables Purchase Agreement
|
•
|
Review whether the selected sample of Receivables assigned by the Funding Seller are stated as being assigned to the Purchaser in the Funding Seller’s accounts
|
•
|
Review whether the payments for the selected sample of Purchased Receivables have been applied appropriately
|
•
|
Select a sample of Monthly Reports and re-perform calculations contained therein
|
•
|
Sample selection: The adherence to the Eligibility Criteria shall be verified by means of a generally accepted procedure, with a sample size of Purchased Receivables that is mutually agreed upon by the Bank Purchasing Agent and the Servicer. We will use random selection applied through a random number generator as a generally accepted non-statistical sampling method to select the sample of Purchased Receivables.
|
•
|
Such other reasonable procedures that are agreed upon by the Bank Purchasing Agent and the Servicer
|
(A)
|
We refer to that certain Master Receivables Purchase Agreement, dated as of February 26, 2014, by and among T-Mobile US, Inc. (“
TMUS
”), T-Mobile PCS Holdings LLC (“
PCS
” or the “
Servicer
”), T-Mobile Airtime Funding LLC (the “
Funding Seller
”), Billing Gate One LLC (“
Billing Gate One
”), and Landesbank Hessen-Thüringen Girozentrale (“
Helaba
”) in its capacity as “
Bank Purchasing Agent
” thereunder (the
“Master Receivables Purchase Agreement
”); and that certain Onward Receivables Purchase Agreement, dated as of February 26, 2014, by and among Billing Gate One, the “
Bank Purchasers
” from time to time party thereto, and the Bank Purchasing Agent (the
“Onward Receivables Purchase Agreement
”). The transactions contemplated by the Master Receivables Purchase Agreement, the Onward Receivables Purchase Agreement and the other Transaction Documents (as such term is defined in the Master Receivables Purchase Agreement) are collectively referred to herein as the “
Transaction
.” Each capitalized term that is used, but not defined herein, shall have the meaning prescribed by the Master Receivables Purchase Agreement and/or the Onward Receivables Purchase Agreement.
|
(B)
|
This guarantee (this
“Guarantee”
) is the “DT Payment Guarantee” (as such term is defined in the Master Receivables Purchase Agreement), and is being delivered to each of the Purchasing Entities in connection with Section 11.4(i) of the Master Receivables Purchase Agreement.
|
1.
|
Guarantee
|
1.1
|
The Guarantor:
|
(a)
|
hereby irrevocably, absolutely and unconditionally guarantees to each of the Purchasing Entities, severally and jointly, as a continuing obligation, the payment of any obligation owing by any member of the T-Mobile Group under the Transaction Documents, whether or not such obligation shall be owed directly or indirectly to any of the Purchasing Entities pursuant thereto (the “
Guaranteed Obligations
”), which obligations shall include, but not be limited to, the following:
|
(i)
|
all of the obligations of the Servicer related to the servicing of the Purchased Receivables, the Related Rights, Collections and other funds pursuant to the Transaction Documents;
|
(ii)
|
all of the respective obligations of any member of the T-Mobile Group related to (1) the sale of Receivables and Related Rights, (2) the segregation and application of Collections and the repurchase of Receivables by the Funding Seller, (3) excess Dilutions and breaches of representations or warranties concerning the Receivables, and (4) the monthly settlement or other periodic settlement of transactions under the Transaction Documents contemplated by, among other sections of the Transaction Documents, Article 2 of the Master Receivables Purchase Agreement; and
|
(iii)
|
without limiting the foregoing, the payment when due (from Collections or otherwise), in accordance with the terms of the Transaction Documents, of any amount, other than any amount attributable to an Excluded Amount (as such term is defined below), that may be payable by a member of the T-Mobile Group pursuant to the Transactions, including, without limitation, any and all of the Indemnified Amounts contemplated by Article 9 of the Master Receivables Purchase Agreement and any amount payable by the Performance Guarantor pursuant to Section 19 of the Master Receivables Purchase Agreement; and
|
(b)
|
undertake to pay upon demand any amount owed by any member of the T-Mobile Group as a Guaranteed Obligation.
|
1.2
|
Each of the Purchasing Entities, acting severally, or one or more of the Purchasing Entities, acting jointly, from time to time, shall be entitled to make one or more demands for payment under this Guarantee. Each demand for payment must be signed by its or their legal representative(s) or authorized representative(s). It is agreed and understood that the Bank Purchasing Agent itself shall be entitled to make demands on behalf of one or more of the other Purchasing Entities. Any demand hereunder shall be made in writing (without the requirement that any demands or remedies be made or exercised, or any other steps be taken, previously against any member of the T-Mobile Group or any other Person). Any payment to be made by the Guarantor hereunder shall be made after the making of any such demand within three (3) days on which banks are open for general business in Düsseldorf, Germany, and Frankfurt am Main, Germany (each a “
Banking Day
”).
|
1.3
|
We have received a copy of each of the Transaction Documents and are aware of their entire contents. We are also aware that the provisions of such agreements are only binding upon the Purchasing Entities and certain of the members of the T-Mobile Group, whereas our rights and obligations are set out exhaustively in this Guarantee.
|
1.4
|
We shall not be entitled to any right to set-off or counterclaim whatsoever. All payments under this Guarantee shall be made free from any withholding or deduction.
|
1.5
|
This Guarantee shall apply with regard to the Transaction as amended or varied from time to time (which may be without our consent, except as may be expressly provided therein). We hereby authorize the parties to the Transaction Documents to agree to any such amendment or variation, the due performance of which and compliance with which by the members of the T-Mobile Group are likewise guaranteed hereunder. Our obligations and liabilities under this Guarantee shall not be discharged by any allowance of time or other indulgence whatsoever by any of the Purchasing Entities to any member of the T-Mobile Group, or by any variation or suspension of the obligations to be performed under the Transaction, or by any amendments to any of the Transaction Documents or to the constitution of any party to the Transaction, or by any Bankruptcy Event with respect to any party to the Transaction, or by any other matters, whether with or without our knowledge or consent.
|
1.6
|
Unless otherwise specified in a Purchasing Entity’s written demand, all amounts payable hereunder by us shall be paid to: [
refer to relevant accounts in the Transaction Documents
].
|
2.
|
Maximum Liability
|
3.
|
Validity Period
|
4.
|
Assignment
|
4.1
|
This Guarantee shall be effective for the benefit of each of the Purchasing Entities and their respective successors, assignees, and any other company with which any of them may at any time amalgamate. We and our successors shall be bound by this Guarantee notwithstanding any change in our constitution or status or any of our successors.
|
4.2
|
We may not assign all or part of our rights or transfer or novate all or part of our obligations under this Guarantee to another party without the prior written consent of each of the Purchasing Entities.
|
5.
|
Communications
|
5.1
|
Any notice required to be given by a party shall be sent to the other party’s
address or facsimile number given herein or such other address or facsimile number as may from time to time be notified for this purpose. The initial addresses and telefax numbers of the parties are:
|
The Purchasing Entities
|
:
|
[
Purchasing Entities
]
|
Fax Number
|
:
|
[•]
|
Address
|
:
|
[•]
|
Attention
|
:
|
[•]
|
The Guarantor
|
:
|
Deutsche Telekom AG
|
Fax Number
|
:
|
[•]
|
Address
|
:
|
[•]
|
Attention
|
:
|
[•]
|
5.2
|
Any such notice shall be deemed to have been served:
|
(a)
|
if delivered by hand, when left at the address required by this clause 4; or
|
(b)
|
if posted by prepaid ordinary mail or by prepaid registered letter, at the expiration of three (3) Banking Days after posting thereof; or
|
(c)
|
if sent by facsimile and received in readable form, upon the receipt by the sender of the transmission report indicating that the notice has been sent in full to the recipient’s facsimile machine, or such other similar medium of receipt; or
|
(d)
|
if sent by courier, at the expiration of three (3) Banking Days after the package containing the same shall have been received by the relevant courier company.
|
6.
|
Miscellaneous
|
6.1
|
The validity of the remaining provisions of this Guarantee shall not be affected if any particular provision or provisions of this Guarantee or any Transaction Document is or are properly declared illegal, unenforceable or contrary to law or public policy or if a gap in this Guarantee becomes evident and regardless of the value of any collateral provided to the beneficiaries hereof or the release or exchange of any such collateral. In the event that as a result of such declaration or gap any of the rights or obligations of a party are materially affected, the parties shall meet and negotiate in good faith in order to arrive at an amendment of this Guarantee that will as closely as possible reflect what the parties would have intended if they had considered the point at the time of conclusion of this Guarantee. If the parties after such consultations do not agree upon an appropriate amendment to this Guarantee, there shall be deemed to exist a dispute that may be referred to legal proceedings.
|
6.2
|
The Guarantor waives any right it may have of first requiring any of the beneficiaries hereunder to proceed against, or enforce any other rights or security or claim from, any person before claiming from it under this Guarantee. This waiver applies irrespective of any non-mandatory law or any provision of this Guarantee or any Transaction Document to the contrary.
|
6.3
|
Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Guarantor hereunder, which shall remain absolute and unconditional as described above:
|
(i)
|
at any time or from time to time, without notice to the Guarantor, the time for any performance of or compliance with any of the obligations of any member of the T-Mobile Group under the Transaction Documents shall be waived;
|
(ii)
|
any of the acts mentioned in any of the provisions of the Transaction Documents shall be done or omitted;
|
(iii)
|
any of the Deutsche Telekom Guaranteed Obligations shall be modified, supplemented or amended in any respect, or any right under any Transaction Document shall be waived or any of the Deutsche Telekom Guaranteed Obligations or any security therefore shall be released or exchanged in whole or in part or otherwise dealt with; or
|
(iv)
|
any lien or security interest granted to, or in favor of, any of the beneficiaries hereunder as security for the Deutsche Telekom Guaranteed Obligations shall fail to be effective or perfected.
|
6.4
|
The obligations of the Guarantor under this Guarantee shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any member of the T-Mobile Group under any Transaction Document is rescinded or must otherwise be restored by any holder of any of the Deutsche Telekom Guaranteed Obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and the Guarantor agrees that it will indemnify each of the beneficiaries hereunder on demand for all reasonable costs and expenses (including, without limitation, fees of counsel) incurred by it or them in connection with such rescission or restoration, including any such costs or expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.
|
6.5
|
The Guarantor hereby waives its right to take recourse (
Rückgriffrecht
) against any member of the T-Mobile Group resulting from any demand under this Guarantee until the Guaranteed Obligations have been fully and finally discharged.
|
6.6
|
The Guarantor agrees that, as between the Guarantor and the beneficiaries hereunder, the obligations of any member of the T-Mobile Group under any Transaction Document may be declared to be forthwith due and payable as provided therein (and shall be deemed to have become automatically due and payable as provided therein) for the purposes hereof notwithstanding any stay, injunction or other prohibition preventing such declaration (or such obligations from becoming automatically due and payable) as against such member of the T-Mobile Group and
|
6.7
|
This Guarantee is a continuing guarantee, and shall apply to all Deutsche Telekom Guaranteed Obligations whenever arising.
|
6.8
|
This Guarantee shall be governed by, and construed in accordance with the laws of, Germany. The courts of Frankfurt am Main, Germany, shall have non-exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Guarantee.
|
__________________________________
Name: Title: |
__________________________________
Name: Title: |
1.
|
Interpretation 1
|
2.
|
The Facility 8
|
3.
|
Issue of the Guarantee 9
|
4.
|
Demand and Payment under the Guarantee 9
|
5.
|
Voluntary Prepayment and Cancellation 11
|
6.
|
Guarantee Commission 12
|
7.
|
Default Interest 13
|
8.
|
Taxes 14
|
9.
|
Increased Costs 17
|
10.
|
Illegality 18
|
11.
|
Mitigation 19
|
12.
|
Representations and Warranties 19
|
13.
|
Covenants 21
|
14.
|
Events of Default 24
|
15.
|
Cash Cover 26
|
16.
|
Payments 26
|
17.
|
Set-off 27
|
18.
|
Indemnities 28
|
19.
|
Costs and Expenses 29
|
20.
|
Changes to the Parties 29
|
21.
|
Confidentiality 31
|
22.
|
Notices 32
|
23.
|
General Provisions 33
|
24.
|
Amendments and Waivers 34
|
25.
|
CHOICE OF LAW AND JURISDICTION; WAIVER OF JURY TRIAL 34
|
26.
|
Counterparts 35
|
27.
|
German VAT regulations 35
|
(1)
|
T-Mobile US, Inc.
, a Delaware corporation, with its business address at 12920 SE 38
th
Street, Bellevue, Washington, USA 98006 (the
Company
).
|
(2)
|
T-Mobile Airtime Funding LLC
, a Delaware limited liability company, with its business address at 12920 SE 38
th
Street, Bellevue, Washington, USA 98006 (the
Funding Seller
).
|
(3)
|
KfW IPEX-Bank GmbH
, a limited liability company incorporated under German law (the
Bank
).
|
1.
|
Interpretation
|
1.1
|
Definitions.
Subject to any express provision to the contrary in this Agreement or in its Schedules or unless the context otherwise requires, in this Agreement and its Schedules the following terms have the following meaning:
|
(a)
|
is or becomes public information other than as a direct or indirect result of any breach by the Bank of clause 21 (
Confidentiality
);
|
(b)
|
is identified at the time of delivery as non-confidential by the Company, the Group or any of their advisers; or
|
(c)
|
is known by the Bank before the date the information is disclosed to it as provided above or is lawfully obtained by the Bank after that date, from a source which is, as far as the Bank is aware, unconnected with the Company or the Group and which, in either case, as far as the Bank is aware, has not been obtained in breach of, and is not otherwise subject to, any obligation of confidentiality.
|
(a)
|
a material disruption to those payment or communications systems or to those financial markets which are, in each case, required to operate in order for payments to be made in connection with this Agreement; or
|
(b)
|
the occurrence of any other event which results in a disruption (of a technical or systems-related nature) to the treasury or payments operations of either the Bank or the Company, preventing that party:
|
(i)
|
from performing its payment obligations under this Agreement; or
|
(ii)
|
from communicating with other parties,
|
(a)
|
sections 1471 to 1474 of the US Internal Revenue Code of 1986, as amended, or any associated regulations or other official guidance;
|
(b)
|
any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the US and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (a) above; or
|
(c)
|
any agreement pursuant to the implementation of paragraphs (a) or (b) above with the US Internal Revenue Service, the US government or any governmental or taxation authority in any other jurisdiction.
|
(a)
|
This Agreement.
|
(b)
|
Any other document designated as such by the Bank and the Company.
|
(i)
|
Any part of that amount which has been repaid or prepaid, in particular in respect of which Cash Cover at such time has already been provided and which is subsisting; and
|
(ii)
|
Any amount actually paid by the Bank under the Guarantee.
|
(a)
|
owns directly or indirectly more than 50% of its voting capital or similar right of ownership and, for the purposes of this Agreement, a company, partnership or legal entity is still to be treated as a subsidiary of a person even if the relevant shares are registered in the name of (i) a nominee for that person, (ii) a party holding security over such shares granted by that person, or (iii) that secured party’s nominee; or
|
(b)
|
has direct or indirect control, where
control
means the power (whether by contract or otherwise) to direct its affairs or to direct the composition of its board of directors or equivalent body.
|
1.2
|
Construction of terms.
Unless a contrary intention appears, references in this Agreement to:
|
(a)
|
Successors.
Natural persons, legal entities, partnerships or unincorporated associations include any natural persons who, or legal entities, partnerships or unincorporated associations which, succeed in whole or in part to their rights or obligations by assignment, by assumption of obligations, by operation of law or otherwise.
|
(b)
|
Amended versions.
The Finance Documents or other document or security is a reference to the Finance Documents or other document or security as amended, supplemented, novated or replaced from time to time.
|
(c)
|
Continuing event.
An event or default
continuing
means that it has not been remedied or waived.
|
(d)
|
Regulation.
A regulation includes any regulation, rule, official directive, request or guideline (whether or not having the force of law but, if not having the force of
|
1.3
|
Repayment of the Guarantee.
The Company
repaying
or
prepaying
the Guarantee means:
|
(a)
|
the Company providing Cash Cover for the Guarantee (without prejudice to the continued existence of the Guarantee);
|
(b)
|
the maximum amount payable under the Guarantee being reduced or cancelled in accordance with its terms or by agreement with the beneficiaries of the Guarantee;
|
(c)
|
the beneficiaries of the Guarantee confirming to the Bank that the Bank has no further or has reduced liability under the Guarantee; or
|
(d)
|
the Bank being satisfied (acting reasonably) that it has no further liability or has a reduced liability under the Guarantee,
|
1.4
|
Headings.
Headings in the Finance Documents have no legal significance and do not affect their interpretation.
|
1.5
|
Third party rights.
The following will apply:
|
(a)
|
No rights to third parties.
Unless expressly provided to the contrary in a Finance Document, a person who is not a party to a Finance Document may not enforce any of its terms.
|
(b)
|
Consent of third parties not required.
Notwithstanding any provision of the Finance Documents, no consent of any third party is required for any amendment (including any release or compromise of any liability) or termination of a Finance Document.
|
2.
|
The Facility
|
2.1
|
Amount.
Subject to the terms of this Agreement, the Bank makes available to the Company a guarantee facility up to the Maximum Guaranteed Amount.
|
2.2
|
Purpose.
The Facility
will
be used for the provision of the Guarantee which is referred to as the KfW Guarantee under the Purchase Agreement.
|
3.
|
Issue of the Guarantee
|
3.1
|
Conditions precedent and notice of satisfaction.
The Guarantee will not be issued before the Effective Date and the Bank agrees to give the notification referred to in the definition of the Effective Date promptly upon being satisfied as to the matters referred to in such definition.
|
3.2
|
Issue conditions
. The Bank will issue the Guarantee to its beneficiaries on the Effective Date unless an Event of Default, Potential Event of Default or Event of Mandatory Prepayment has occurred and is continuing on that date or might result from the issue of the Guarantee.
|
3.3
|
No need for prior enquiry.
The Bank need not, before issuing the Guarantee, make any enquiry or otherwise concern itself as to whether any event has occurred which would, according to the terms of this Agreement, discharge the Bank from its obligations to issue the Guarantee and the Company will not have any right to resist any claim under clause 4 (
Demand and payment under the guarantee
) or otherwise on the grounds that any such event had occurred before the issue of the Guarantee.
|
4.
|
Demand and Payment under the Guarantee
|
4.1
|
Claim under the Guarantee.
The following will apply:
|
(a)
|
The Bank may pay beneficiaries.
The Company irrevocably and unconditionally authorizes the Bank to pay any claim in writing made or purported to be made by the Bank Purchasing Agent on behalf of the beneficiaries under the Guarantee and which appears on its face to be in order (a
Claim
).
|
(b)
|
Reimbursement by the Company.
The Company shall on the later of:
|
(i)
|
the date of demand by the Bank; and
|
(ii)
|
the latest date the Bank is obliged to make payment under the Guarantee following a demand by the Bank Purchasing Agent on behalf of the beneficiaries under the Guarantee,
|
4.2
|
Preservation of the Bank's rights.
The Company acknowledges each of the following:
|
(a)
|
No investigation needed.
The Bank is not obliged to carry out any investigation or seek any confirmation from the Company or any other person before paying a Claim.
|
(b)
|
Concerned only with documents.
The Bank deals in documents only and will not be concerned with the legality of a Claim or any underlying transaction or any set-off, counterclaim or other defence available to any person.
|
(c)
|
Genuineness of a Claim.
The Company's obligations under clause 4 (
Demand and payment under the guarantee
) will not be affected by:
|
(i)
|
the sufficiency, accuracy or genuineness of any Claim or any other document; or
|
(ii)
|
any incapacity of, or limitation on the powers of, any person signing a Claim or other document.
|
4.3
|
Indemnity in respect of the Guarantee.
The following will apply:
|
(a)
|
Indemnity for the Bank's loss.
The Company shall within 3 Banking Days of demand indemnify the Bank against any loss or liability incurred by the Bank (otherwise than by reason of its gross negligence or wilful misconduct) as a result of having issued the Guarantee.
|
(b)
|
Preservation of the Bank's rights.
The Company's obligations under clause 4.3 will not be affected by any act, omission, matter or thing which, but for clause 4.3(b), would reduce, release or prejudice any of its obligations under clause 4.3 including (without limitation and whether or not known to it or any other person):
|
(i)
|
any time, waiver or consent granted to, or composition with, the Company, the beneficiaries under the Guarantee or any other person;
|
(ii)
|
the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, the Company or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realise the full value of any security;
|
(iii)
|
any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of the Company, any beneficiary under the Guarantee or any other person;
|
(iv)
|
any amendment (however fundamental) or replacement of the Transaction Documents or any other document or security;
|
(v)
|
the unenforceability, illegality or invalidity of any obligation of any person under the Transaction Documents or any other document or security; or
|
(vi)
|
any insolvency or similar proceedings.
|
4.4
|
No intermediate satisfaction.
The Company's obligations under clause 4.3 (
Indemnity in respect of the guarantee
) are continuing obligations and will extend to the ultimate balance of all sums payable by the Company under or in connection with this Agreement regardless of any intermediate payment or discharge in whole or part.
|
5.
|
Voluntary Prepayment and Cancellation
|
5.1
|
Cancellation by the Company.
The Company may, on giving to the Bank not less than 10 Banking Days' prior notice (such notice to be received before the Guarantee has been issued), cancel the Facility.
|
5.2
|
Miscellaneous provisions.
The following will apply:
|
(a)
|
Notices of cancellation/prepayment.
Any notice of cancellation or of prepayment under this Agreement is irrevocable and shall specify the relevant date and the amount involved.
|
(b)
|
Cancellation/prepayment.
No cancellation or prepayment is allowed except as provided in this Agreement.
|
(c)
|
Guarantee Commission.
Any prepayment under this Agreement shall be made together with accrued Guarantee Commission on the amount prepaid.
|
(d)
|
No reinstatement.
The Company may not require the Bank to reinstate any Guarantee Liability that is prepaid.
|
5.3
|
Change-of-Control Event.
The following will apply:
|
(a)
|
Definitions.
For the purposes of this clause 5.3, a
Change-of-Control Event
occurs if Deutsche Telekom AG, Bonn/Germany, is no longer the direct or indirect “beneficial owner”, as defined in Rule 13d-3 under the Exchange Act, of at least 50% of the Voting Shares of the Company (or any successor entity).
|
(b)
|
Company to notify Bank.
To the extent legally permissible, the Company shall promptly inform the Bank if a Change-of-Control Event has occurred or is likely to occur.
|
(c)
|
Effect of event.
The Bank may at any time after the occurrence of a Change-of-Control Event or pursuant to clause 5.3(d) (
Consultation
) by notice to the Company:
|
(i)
|
cancel the Facility; and/or
|
(ii)
|
declare that all or any part of the amounts outstanding under the Finance Documents (excluding, for the avoidance of doubt, any sum payable in respect of Cash Cover) are immediately due and payable; and/or
|
(iii)
|
require the Company to provide immediate Cash Cover.
|
(d)
|
Consultation.
In addition, if the Company has informed the Bank that a Change-of-Control Event is about to occur, or if the Bank has reasonable cause to believe that a Change-of-Control Event is about to occur, the Bank may request that the Company consult with it. Such consultation shall take place within 30 (thirty) days from the date of the Bank’s request. After the earlier of:
|
(i)
|
the lapse of 30 (thirty) days from the date of such request for consultation; and
|
(ii)
|
the occurrence of the anticipated Change-of-Control Event,
|
(e)
|
When amount due.
The Company shall pay any amount required to be paid under clause 5.3(c) on the date specified by the Bank, such date being a date falling not less than 30 (thirty) days from the date of the Bank's notice.
|
(f)
|
Effect of notice.
Any notice given under clause 5.3(c) will take effect in accordance with its terms.
|
6.
|
Guarantee Commission
|
6.1
|
Rate
. Subject to clause 6.4, the Company shall pay a Guarantee Commission at the rate of 1.35% (in words: one point three five per cent.) per annum on the Guarantee Liability from day to day during the period from (and including) the date of this Agreement to (but excluding) the Guarantee Termination Date.
|
6.2
|
Calculation basis
. Guarantee Commission will be calculated on the basis of the actual number of days elapsed and a 360 day year.
|
6.3
|
When due
. Accrued Guarantee Commission shall be paid in arrear on each 30 March, 30 June, 30 September and 30 December of each year falling during such period and on the Guarantee Termination Date.
|
6.4
|
If the Guarantee Liability is zero
. No Guarantee Commission will be payable if the Guarantee Liability has definitely been reduced to zero in accordance with the provisions of the definition of "Guarantee Liability".
|
7.
|
Default Interest
|
7.1
|
Default interest periods.
If the Company does not pay any sum payable by it under the Finance Documents when due or if the Company does not pay any sum payable by it under any court judgment in connection with the Finance Documents on the date of such judgment, then for the purposes of clause 7 an
Interest Period
means the period beginning on:
|
(a)
|
such due date; or
|
(b)
|
the date of such judgment,
|
7.2
|
Rate of default interest.
The rate of interest on each Unpaid Sum for each Interest Period will be the percentage rate per annum determined by the Bank in accordance with market practice to be the rate equal to the aggregate of the following:
|
(a)
|
2%.
|
(b)
|
The Guarantee Commission Rate.
|
(c)
|
LIBOR.
|
(d)
|
The Bank's Mandatory Costs, if any.
|
7.3
|
Payment and calculation bases.
The Company shall pay accrued default interest on each Unpaid Sum on each Interest Payment Date. Default interest will be calculated
|
7.4
|
Compounding of default interest.
Default interest (if unpaid) arising on an Unpaid Sum will be compounded with the Unpaid Sum at the end of each Interest Period applicable to that Unpaid Sum.
|
8.
|
Taxes
|
8.1
|
No deductions.
All payments by the Company under the Finance Documents shall be made without any deduction or withholding for, or on account of, any taxes, levies or other charges or withholdings of a similar nature (including any related penalty or interest) (a
Tax Deduction
). If a Tax Deduction is required by law to be made by the Company, the amount of the payment due from the Company shall be increased to an amount which (after making any Tax Deduction) leaves an amount equal to the payment which would have been due if no Tax Deduction had been required.
|
8.2
|
Notification of withholding.
If the Company or the Bank becomes aware that the Company shall have become required to make a Tax Deduction (or that there is a change in the rate or the basis of a Tax Deduction), it shall promptly notify the Bank.
|
8.3
|
If deduction is required.
If the Company is required to make a Tax Deduction, the following will apply:
|
(a)
|
Minimum deduction.
The Company shall make the minimum Tax Deduction required.
|
(b)
|
Payment.
The Company shall make any payment required in connection with that Tax Deduction within the time allowed by law.
|
(c)
|
Evidence of payment.
Within 30 days of making either a Tax Deduction or a payment required in connection with a Tax Deduction, the Company shall deliver to the Bank evidence satisfactory to the Bank (acting reasonably) that the Tax Deduction has been made or (as applicable) that the appropriate payment has been paid to the relevant taxing authority.
|
8.4
|
Tax indemnity.
The following will apply:
|
(a)
|
Scope.
Except as provided in clause 8.4(b) and clause 8.5 (
No recovery for tax gross-up
) the Company shall indemnify the Bank against any loss or liability which it determines will be or has been suffered (directly or indirectly) by it for, or on account of, tax in relation to a payment received or receivable (or any payment
|
(b)
|
Excluded payments.
Clause 8.4(a) does not apply to any tax assessed on the Bank under the laws of any jurisdiction in which:
|
(i)
|
the Bank is incorporated or, if different, the jurisdiction (or jurisdictions) in which it is treated as resident for tax purposes; or
|
(ii)
|
the Bank's Facility Office is located in respect of amounts received or receivable in that jurisdiction,
|
8.5
|
No recovery for tax gross-up.
Clause 8.4(a) does not apply to the extent that a loss or liability is compensated for by an increased payment under clause 8.1 (
No deductions
).
|
8.6
|
Notification of claim.
If the Bank intends to make a claim under clause 8.4 (
Tax indemnity
), it shall notify the Company of the event which will give, or has given, rise to the claim.
|
8.7
|
Tax Credit.
If the Company makes a payment under clause 8.1 (
No deductions
) or clause 8.4 (
Tax indemnity
) (a
Tax Payment
) and the Bank determines (in its absolute discretion) that:
|
(a)
|
Relief from tax.
A credit, relief, remission or repayment in respect of tax is attributable to an increased payment of which that Tax Payment forms part, to that Tax Payment or to a Tax Deduction in consequence of which that Tax Payment was required; and
|
(b)
|
Relief used.
It has obtained and utilised such credit, relief, remission or repayment,
|
8.8
|
Stamp taxes.
The Company shall indemnify the Bank against any stamp duty, registration or other similar tax (together with any related penalty or interest) payable in respect of a Finance Document.
|
8.9
|
Value added tax.
The following will apply:
|
(a)
|
Amounts are VAT exclusive.
All amounts expressed to be payable under a Finance Document by the Company to the Bank which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on such supply. Accordingly, subject to clause 8.9(b), if VAT is or becomes chargeable on any supply made by the Bank to the Company under a Finance Document and the Bank is required to account to the relevant tax authority for the VAT, the Company shall pay to the Bank (in addition to and at the same time as paying any other consideration for such supply) an amount equal to the amount of the VAT (and the Bank shall promptly provide an appropriate VAT invoice to that Party).
|
(b)
|
VAT on costs and expenses.
Where a Finance Document requires the Company to reimburse or indemnify the Bank for any costs or expenses, the Company shall reimburse or indemnify (as the case may be) the Bank for the full amount of such cost or expense, including such part thereof as represents VAT, save to the extent that the Bank reasonably determines that it (or any other member of any group of which it is a member for VAT purposes) is entitled to credit or repayment in respect of such VAT from the relevant tax authority.
|
8.10
|
U.S. Federal and state withholding.
Notwithstanding any other provision of this Agreement, the Company shall comply with all U.S. federal and state withholding requirements with respect to payments to the Bank of amounts that the Company reasonably believes are applicable under the Code, the treasury regulations or any applicable state or local law. The Company will withhold on payments to the Bank unless the Bank provides at such time or times as required by law (i) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8BEN claiming eligibility of the Bank for benefits of an income tax treaty to which the United States is a party, (ii) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8ECI, (iii) a correct, complete and properly executed U.S. Internal Revenue Service Form W-8BEN and a certificate of a duly authorized officer of the Bank to the effect that the Bank is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Company within the meaning of Section 881(c)(3)(B) of the Code, or (C) a controlled foreign corporation receiving interest from a related person within the meaning of Section 881(c)(3)(C) of
|
8.11
|
FATCA withholding.
If a payment made by the Company to any party under the Finance Documents would be subject to U.S. Federal withholding Tax imposed by FATCA if such party were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such party shall deliver to the Company, at the time or times prescribed by law and at such time or times reasonably requested by the Company, such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Company as may be necessary for the Company to comply with its obligations under FATCA, to determine that such party has or has not complied with its obligations under FATCA and, as necessary, to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause 8.11, “
FATCA
” shall include any amendments made to FATCA after the date of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Company shall have no obligation to make a payment to the Bank related to a FATCA Deduction or make a “gross-up” payment of taxes or indemnification under this clause 8 to the Bank related to a FATCA Deduction. Solely for purposes of this clause 8.11, “
FATCA Deductions
” means any deductions or withholdings required by FATCA from any payments made by the Company in connection with this Agreement or any of the other Finance Documents.
|
9.
|
Increased Costs
|
9.1
|
At the Bank’s request the Company shall promptly reimburse the Bank for any Increased Costs, which are incurred as a result of
|
(a)
|
any modifications to the legal requirements to which the Bank is subject (including laws or regulations on regulatory capital, liquidity ratios, capital ratios or any other rule imposed by bank or currency regulators) or in the interpretation or application of such requirements; or
|
(b)
|
the compliance with any request or requirement issued by any central bank, the banking and/or capital market supervisory authority or any fiscal or other authority (irrespective of whether this request or requirement is legally binding) that was made or entered into force following the conclusion of this Agreement.
|
9.2
|
Increased Costs shall be:
|
(a)
|
any additional or increased costs of the Bank;
|
(b)
|
a reduction in the Bank‘s return on equity; or
|
(c)
|
any reduction of an amount owed by the Company to the Bank,
|
9.3
|
The Bank shall notify the Company of the reasons for the Increased Costs and, at the Company’s request, shall provide a reasonably detailed statement setting forth the calculation of the amount to be reimbursed.
|
10.
|
Illegality
|
10.1
|
Illegality – Notice to the Company.
If in any applicable jurisdiction it becomes unlawful for the Bank to perform any of its obligations under a Finance Document or to issue or leave outstanding the Guarantee or it becomes unlawful for any Affiliate of the Bank for the Bank to do so, it shall notify the Company promptly upon becoming aware that it is so unlawful and each of the following will apply:
|
(a)
|
Effect.
The Bank shall promptly notify the Company:
|
(i)
|
if at that time the Guarantee has not been issued, that the Bank is not obliged to issue the Guarantee and the Facility is cancelled (and in such case, for the avoidance of doubt, the Guarantee Liability shall immediately, automatically and definitely be reduced to zero); and
|
(ii)
|
if at that time the Guarantee has been issued, that the Company shall provide Cash Cover and pay all other amounts payable by the Company to
|
(b)
|
When due.
The date for the payment will be the date specified by the Bank in its notification to the Company, which date shall be the latest day allowed by law.
|
11.
|
Mitigation
|
11.1
|
Extra cost or illegality.
The Bank shall, in consultation with the Company, take all reasonable steps to mitigate any circumstances which result or would result in any amount becoming payable under, or cancelled pursuant to, clause 8 (
Taxes
), clause 9.3 (
Illegality
) or the definition of Mandatory Cost, including transferring its rights and obligations under the Finance Documents to an Affiliate or changing its Facility Office.
|
11.2
|
Company's indemnity
. The Company shall indemnify the Bank for all costs and expenses reasonably incurred by it as a result of any step taken by it under clause 11.1.
|
11.3
|
Company's obligations remain.
Clause 11.1 does not in any way limit the Company's obligations under the Finance Documents.
|
11.4
|
No adverse effect.
The Bank is not obliged to take any step under clause 11.1 if, in its opinion (acting reasonably), to do so might be prejudicial to it.
|
11.5
|
Conduct of business by the Bank
. No term of this Agreement will do any of the following:
|
(a)
|
Free to arrange its affairs.
Interfere with the Bank's right to arrange any of its affairs in whatever manner it thinks fit.
|
(b)
|
No need to make a claim.
Oblige the Bank to investigate or claim any credit, relief, remission or repayment available to it or the extent, order and manner of any claim.
|
(c)
|
No disclosure.
Oblige the Bank to disclose any information relating to any of its affairs or any tax computation.
|
12.
|
Representations and Warranties
|
12.1
|
Legal representations
. The Company makes the following representations and warranties to the Bank:
|
(a)
|
Status
. The Company is duly incorporated and validly existing as a corporation under the laws of Delaware, USA, and it has power to carry on its business as it is now being conducted and to own its property and other assets.
|
(b)
|
Corporate power.
The Company has the power to execute, deliver and perform its obligations under the Transaction Documents to which it is a party and all necessary corporate, shareholder and other action has been taken to authorize the execution, delivery and performance of the same by it.
|
(c)
|
Binding obligations
. Subject to any general principles of law limiting its obligations and referred to in a legal opinion supplied under clause 3.1 (
Conditions precedent
), the Transaction Documents to which it is a party constitute its legal, valid, binding and enforceable obligations.
|
(d)
|
Non-conflict with obligations.
The execution and delivery of, the performance of its obligations under and compliance with the provisions of the Transaction Documents to which it is a party do not and will not:
|
(i)
|
contravene or conflict in any material respect with any existing applicable law, or regulation, or any judgment, decree or authorization to which it is subject which, in each case, might reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Transaction Documents to which it is a party;
|
(ii)
|
contravene or conflict in any material respect with, or result in any material breach of any of the terms of, or constitute a material default under any other agreement or other instrument binding upon it which, in each case, might reasonably be expected to have a material adverse effect on its ability to perform its obligations under the Transaction Documents to which it is a party; or
|
(iii)
|
contravene or conflict with any provision of its statutes or by-laws.
|
(e)
|
Most recent accounts.
The latest available consolidated audited accounts of the Company have been approved by its auditors to the effect that such consolidated financial statements present fairly, in all material respects, the financial position of the Company and its subsdiaries, and results of their operations and their cash flows on a consolidated basis.
|
(f)
|
No default.
No event or circumstance which constitutes an Event of Default has occurred and is continuing unremedied or unwaived.
|
(g)
|
No litigation.
No material litigation, arbitration, administrative proceedings or investigation is current or to the best of its knowledge is threatened or pending before any court, arbitral body or agency, nor is there subsisting against it or any of its Subsidiaries any unsatisfied judgment or award, which jeopardizes or, if adversely determined is reasonably likely to jeopardize, the Company's ability to perform its obligations under this Agreement.
|
(h)
|
Authorizations.
It has obtained all necessary material consents, authorizations, licences or approvals of governmental or public bodies or authorities in connection with the Transaction Documents and all such consents, authorizations, licences or approvals are in full force and effect and admissible in evidence.
|
(i)
|
Pari passu ranking.
The Company's payment obligations under the Finance Documents rank not less than
pari passu
in right of payment with all other present and future unsecured and unsubordinated obligations under any of its debt instruments except for obligations mandatorily preferred by law applying to companies generally.
|
12.2
|
Times when made
. The following applies in relation to representations and warranties set out in clauses 12.1:
|
(a)
|
First made
. They will be made on the date of this Agreement.
|
(b)
|
Repeated.
They will be deemed to be repeated by the Company:
|
(i)
|
on the day on which the Bank gives the notification referred to in the definition of the Effective Date (
Satisfaction of the conditions precedent
); and
|
(ii)
|
on each 30 March, 30 June, 30 September and 30 December of each year,
|
13.
|
Covenants
|
13.1
|
Information regarding the Company.
The undertakings in clause 13.1 will apply from the date of this Agreement for so long as the Guarantee remains to be issued or any Guarantee Liability remains outstanding for which Cash Cover has not been provided or any sum remains payable by the Company under the Finance Documents.
|
(a)
|
The Company's annual accounts.
The Company will deliver to the Bank as soon as they become available but in any event within 90 days after the end of each of its financial years, its consolidated and unconsolidated annual report, balance sheet, profit and loss account and auditors report for that financial year as well as the consolidated and unconsolidated annual report, balance sheet, profit and loss account and auditors report for that financial year of Deutsche Telekom AG. The reporting requirements specified in this Section 13.1(a) may be satisfied by filing with the Securities and Exchange Commission through the EDGAR electronic filing system.
|
(b)
|
Quarterly information from the Company.
The Company will deliver to the Bank as soon as they become available but in any event within 45 days after the end of the first three quarters of each financial year, balance sheets of the Company and its Subsidiaries as of the end of such quarter and statements of income and retained earnings of the Company and its Subsidiaries for the period commencing at the end of the previous fiscal year and ending with the end of such quarter, certified by the chief financial officer of the Company and meeting the same requirements as the financial information required to be delivered by the Company pursuant to Section 7.1(k)(A) of the Purchase Agreement. The reporting requirements specified in this Section 13.1(b) may be satisfied by filing with the Securities and Exchange Commission through the EDGAR electronic filing system.
|
(c)
|
The Company shall provide to the Bank a copy of any certificate required to be delivered pursuant to Section 7.1(k)(F) of the Purchase Agreement at the time that such certificate is delivered pursuant to such section.
|
(d)
|
Other information.
The Company will provide the Bank from time to time such further information on its general financial situation as the Bank may reasonably require.
|
(e)
|
Notify default under this Agreement or the Purchase Agreement.
The Company will promptly upon becoming aware of its occurrence notify the Bank (i) of any Event of Default (and the steps, if any, being taken to remedy it) as well as (ii) of any Termination Event (as defined in Section 11.4 of the Purchase Agreement).
|
(f)
|
"Know your customer" checks – Information from the Company.
The Company will promptly on the Bank's request supply to it any documentation or other evidence that is reasonably required by the Bank (whether for itself or on behalf of any person to whom the Bank may, or may intend to, transfer any of its rights or obligations under this Agreement) to enable the Bank or any such person to
|
13.2
|
Financial Covenants.
|
(a)
|
Consolidated Equity Ratio
(as defined in the Purchase Agreement) shall not at any time be less than 20.0%; and
|
(b)
|
Consolidated Leverage Ratio
(as defined in the Purchase Agreement) shall not at any time be greater than 450%.
|
13.3
|
General covenants.
The undertakings in this clause 13.3 will apply from the date of this Agreement for so long as the Guarantee remains to be issued or any Guarantee Liability remains outstanding for which Cash Cover has not been provided or any sum remains payable by the Company under the Finance Documents.
|
(a)
|
Comply with laws.
The Company will comply in all material respects with all laws and regulations to which it is subject, except for any non-compliance which, in each case, would not be reasonably likely to jeopardize the Company’s ability to perform its obligations under this Agreement.
|
(b)
|
Negative pledge
. Unless the Company obtains the prior written consent of the Bank, the Company agrees not to not create or tolerate the existence of any Security upon any of its assets, except for the following:
|
(i)
|
any Security entered into prior to this Agreement;
|
(ii)
|
any Security, lien or other encumbrance arising by operation of law or in the ordinary course of business;
|
(iii)
|
to any vendor's lien or other Security on land or other assets, where such Security secures only the purchase price or any credit, having a term of not more than twelve months, obtained to finance it;
|
(iv)
|
any pledge over inventories created to secure any short-term credit;
|
(v)
|
any Security over or affecting any asset acquired by the Company after the date of this Agreement and subject to which such asset is acquired, if:
|
1)
|
such Security was not created in contemplation of the acquisition of such asset by the Company, and
|
2)
|
the amount thereby secured has not been increased in contemplation of, or since the date of, the acquisition of such asset by the Company; and
|
(vi)
|
to the extent the respective claims secured do not exceed an aggregate amount of USD 9,000,000,000 (or its equivalent in other currencies);
|
(c)
|
Change in business.
The Company
will
procure that no substantial change is made to the core business of the Group as a whole from that carried on at the date of this Agreement.
|
(d)
|
German Money Laundering Act.
The Company
will
promptly submit to the Bank such information and documents as it may reasonably request in order to comply with its obligations to prevent money laundering and to conduct ongoing monitoring of the business relationship
with
the Company.
|
14.
|
Events of Default
|
14.1
|
Events
of Default
. Each of the following is an Event of Default:
|
(a)
|
Non-payment.
If the Company does not pay any sum payable by it under the Finance Documents at the time, in the currency and in the manner required, unless:
|
(i)
|
its failure to pay is caused by administrative or technical error or a Disruption Event; and
|
(ii)
|
payment is made within 3 Banking Days of the due date.
|
(b)
|
Breach of the Finance Documents.
If the Company does not comply with any term of the Finance Documents (other than those referred to in clauses 14.1(a)), unless such failure:
|
(i)
|
is capable of remedy; and
|
(ii)
|
is remedied within a reasonable period of time specified in a notice served by the Bank on the Company.
|
(c)
|
Misrepresentation.
If any information or document given to the Bank in writing by or on behalf of the Company or any representation or statement made or deemed to be repeated by the Company in this Agreement is or proves to have been incorrect, incomplete or misleading in any material respect when made.
|
(d)
|
Cross-default
. If the Company 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 in the aggregate, 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 Securitization Obligation of the Company in a principal amount of at least $100,000,000 in the aggregate shall be accelerated prior to its express maturity; or any other event shall occur or condition shall exist under any agreement or instrument relating to any such Debt or Securitization Obligation 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 Securitization Obligation; or any such Debt or Securitization Obligation 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 repay, redeem, purchase or defease such Debt or Securitization Obligation shall be required to be made, in each case prior to the stated maturity thereof.
|
(e)
|
Insolvency.
If a Bankruptcy Event shall occur with respect to the Company.
|
(f)
|
Effectiveness of the Finance Documents.
If it is or becomes unlawful for the Company to perform any of its obligations under this Agreement or if this Agreement is not effective in accordance with its terms or is alleged by the Company to be ineffective in accordance with its terms.
|
14.2
|
Effect of default.
The Bank may at any time after the occurrence of an Event of Default that is continuing by notice to the Company do either or each of the following:
|
(a)
|
Cancellation.
Cancel the Facility.
|
(b)
|
Cash Cover.
Require the Company to provide immediate Cash Cover.
|
14.3
|
Assignment of Recoveries
. Upon the occurrence of an Event of Default, the Funding Seller will pay to the Bank all amounts allocated to it that are attributable to Recoveries
|
15.
|
Cash Cover
|
(a)
|
Payment to the Bank.
The Company shall pay to the Bank, to be held as collateral for the Company’s obligations hereunder, an amount equal to the Guarantee Liability at that time.
|
(b)
|
When to be repaid.
The balance of the amount paid by the Company under clause 15(a) after the Bank has applied such amount in or towards discharge of the Company's liability to it consequent upon the Bank making payment under the Guarantee, will be repaid to the Company by the Bank on the Guarantee Termination Date.
|
16.
|
Payments
|
16.1
|
Payments to the Bank
. The following will apply:
|
(a)
|
Funds.
On each date on which the Company is required to make a payment under a Finance Document, the Company shall make the amount available to the Bank (unless a contrary indication appears in a Finance Document) for value on the due date, at the time and in such funds specified by the Bank as being customary at the time for settlement of transactions in the relevant currency in the place of payment.
|
(b)
|
Payment.
Payments shall be made to the Bank to its account no. 10926093 with Citibank N.A., New York (BIC CITIUS33) in favor of account no. 8220354487 with KfW (BIC KFWIDEFF), ref. ‘8220354487, T-Mobile US, KV 25928’.
|
16.2
|
Currency
. Each amount payable under the Finance Documents shall be paid in USD.
|
16.3
|
Partial payments.
If the Bank receives a payment which is less than the amount then due and payable by the Company under the Finance Documents, the Bank will, notwithstanding any appropriation of that payment by the Company, apply that amount towards payment of the Company's obligations under the Finance Documents in the following order:
|
(a)
|
Bank's costs
. First, in or towards payment pro rata of any unpaid fees, costs and expenses of the Bank under the Finance Documents.
|
(b)
|
Fees.
Secondly, in or towards payment pro rata of any accrued fee or commission due but unpaid under this Agreement.
|
(c)
|
Interest.
Thirdly, in or towards payment pro rata of any accrued interest due but unpaid under this Agreement.
|
(d)
|
Indemnity amounts.
Fourthly, in or towards payment pro rata of any amount due under clause 4.1(b) (
Reimbursement by the company
) and clause 4.3(a) (
Indemnity for the bank's loss
) which is due but unpaid under this Agreement.
|
(e)
|
Other amount
. Fifthly, in or towards payment pro rata of any other sum due but unpaid under the Finance Documents.
|
16.4
|
Non-Banking days.
The following will apply:
|
(a)
|
Interest
. Any payment under the Finance Documents which is due to be made on a day which is not a Banking Day, shall instead be made on the next Banking Day in the same calendar month (if there is one) or on the preceding Banking Day (if there is not).
|
(b)
|
Original interest rate continues.
During any extension of the due date for payment of any principal or unpaid sum under this Agreement interest is payable on that principal at the rate payable on the original due date.
|
16.5
|
Timing of payments.
If a Finance Document does not provide for when a particular payment is due, that payment will be due within five (5) Banking Days of demand by the Bank.
|
17.
|
Set-off
|
17.1
|
Not by the Company; Bank charges.
All payments by the Company under the Finance Documents shall be made without set-off or counterclaim. All payments under the Finance Documents shall be made free and clear of, and without deduction for or on account of, any bank charges.
|
17.2
|
By the
Bank.
The Bank has and may exercise each of the following rights at any time:
|
(a)
|
Matured obligations.
The right to set off any due and payable obligation owed to it by the Company under the Finance Documents against any due and payable
|
(b)
|
Different currencies.
The right, where any of the obligations referred to in clause 17.2(a) are in different currencies, to convert either obligation at a market rate of exchange in its usual course of business for the purpose of the set-off.
|
18.
|
Indemnities
|
18.1
|
Currency indemnity.
The Company shall, as an independent obligation, indemnify the Bank against any loss or liability which it incurs as a consequence of any of the following:
|
(a)
|
Receipt.
The Bank receiving an amount in respect of the Company's liability under the Finance Documents in a currency other than the currency in which the amount is expressed to be payable under the relative Finance Document.
|
(b)
|
Liability converted.
The Company's liability under the Finance Documents being converted into a claim, proof, judgment or order in a currency other than the currency in which the amount is expressed to be payable under the relative Finance Document.
|
18.2
|
Other indemnities.
Unless otherwise compensated for under another provision of clause 18, the Company shall indemnify the Bank against any loss or liability which it incurs as a consequence of any of the following:
|
(a)
|
Default in payment
. Failure by the Company to pay any sum under a Finance Document on its due date.
|
(b)
|
Prepayment event.
The occurrence of an Event of Default or an Event of Mandatory Prepayment.
|
(c)
|
Prepayment notice.
The Guarantee Liability (or any part of it) not being prepaid in accordance with a notice of prepayment.
|
(d)
|
Guarantee not issued.
The Bank making arrangements to issue the Guarantee after the Effective Date, but the Guarantee not being issued by reason of the operation of any one or more of the provisions of this Agreement.
|
18.3
|
Indemnity to the
Bank.
The Company shall indemnify the Bank against any loss or liability incurred by the Bank as a result of any of the following:
|
(a)
|
Investigating a default
. Investigating any event which the Bank reasonably believes to be an Event of Default or a Potential Event of Default.
|
(b)
|
Acting on a notice.
Acting or relying on any notice which the Bank reasonably believes to be genuine, correct and appropriately authorized.
|
19.
|
Costs and Expenses
|
19.1
|
Initial and special costs.
The Company shall do each of the following:
|
(a)
|
Initial costs.
Pay all costs and expenses (including legal fees) reasonably incurred by the Bank in connection with the negotiation, preparation, execution and perfection of the Finance Documents and the Guarantee, whether or not the transaction contemplated by this Agreement closes.
|
(b)
|
Amendment costs.
Pay all costs and expenses (including legal fees) reasonably incurred by the Bank in responding to, evaluating, negotiating and/or complying with any amendment, waiver or consent requested by the Company and relating to the Finance Documents.
|
(c)
|
Other costs.
Pay all costs and expenses (including legal fees) reasonably incurred by the Bank in connection with any other matter, not of an ordinary administrative nature, arising in connection with the Finance Documents.
|
19.2
|
Enforcement costs.
The Company shall pay all costs and expenses (including legal fees) incurred by the Bank in connection with the enforcement of, or the preservation of any rights under, the Finance Documents.
|
20.
|
Changes to the Parties
|
20.1
|
Transfers by the Company.
The Company may not assign, charge or otherwise deal with any of its rights, claims or obligations under the Finance Documents.
|
20.2
|
Transfers by the Bank.
The following will apply:
|
(a)
|
Permitted.
The Bank may, subject to the following provisions of clause 20.2, at any time:
|
(i)
|
assign any of its rights; or
|
(ii)
|
transfer by novation any of its rights and obligations,
|
(b)
|
Company's consent required.
The Company's consent is required for any assignment or transfer by novation, unless an Event of Default has occurred and is continuing.
|
(c)
|
Participations.
Nothing in this Agreement restricts the ability of the Bank to sub-contract an obligation if the Bank remains liable under this Agreement for that obligation.
|
20.3
|
Costs resulting from change of Bank or Facility Office.
If the following occur:
|
(a)
|
Transfer by the Bank
. The Bank assigns or transfers any of its rights and obligations under the Finance Documents or changes its Facility Office; and
|
(b)
|
Additional cost.
As a result of circumstances existing at the date the assignment, transfer or change occurs, the Company would be obliged to make a payment to the New Bank or to the Bank acting through its new Facility Office under clause 8 (
Taxes
),
|
(i)
|
the Company has consented to the assignment or transfer;
|
(ii)
|
the assignment, transfer or change is made by the Bank whilst there is continuing an Event of Default, a Potential Event of Default or an Event of Mandatory Prepayment; or
|
(iii)
|
the assignment, transfer or change is made as a result of clause 11 (
Mitigation
),
|
21.
|
Confidentiality
|
21.1
|
Confidential Information.
The Bank agrees to keep all Confidential Information confidential and not to disclose it to anyone, save to the extent permitted by clause 21 and to ensure that all Confidential Information is protected with security measures and a degree of care that would apply to its own confidential information.
|
21.2
|
Disclosure of Confidential Information.
The Bank may disclose such Confidential Information about the Company, the Group and the Finance Documents as the Bank considers appropriate in each of the following circumstances:
|
(a)
|
Affiliates and employees.
To any of its Affiliates and any of its or their officers, directors, employees, professional advisers, auditors, partners, managers and trustees, if any such person is informed of its confidential nature and the Bank uses all reasonable endeavours to ensure that such person complies with the provisions of clause 21 as if it were the Bank.
|
(b)
|
Transfers.
Namely:
|
(i)
|
To any person who proposes entering (or who has entered) into contractual arrangements with the Bank in relation to this Agreement (a
Participant
);
|
(ii)
|
to any person who invests in or otherwise finances (or may potentially invest in or otherwise finance), directly or indirectly, any such contractual arrangements (a
Financier
); and
|
(iii)
|
to any of such Participant's and such Financier's Affiliates and any of their officers, directors, employees, professional advisers, auditors, partners, managers and trustees.
|
(c)
|
Regulatory authority.
To any person to whom, and to the extent that, information is required or requested to be disclosed by any governmental, banking, taxation or other regulatory authority or similar body, the rules of any relevant stock exchange or pursuant to any applicable law or regulation, if such person is informed of the confidential nature of the information.
|
(d)
|
Litigation.
To any person in connection with any litigation, arbitration, administrative or other investigations, proceedings or disputes, if such person is informed of the confidential nature of the information.
|
(e)
|
With consent.
To any person with the Company's consent.
|
21.3
|
Group bound by this clause.
The Company confirms that it has authority to agree to the provisions of clause 21 (
Confidentiality
) also on behalf of the other Group members.
|
22.
|
Notices
|
22.1
|
In writing.
Any communication in connection with the Finance Documents shall be in writing. Each one shall be signed and shall be supplied as an original document or – apart from a Notice of Drawdown – by fax or by e-mail with an attachment in pdf format. If a Notice of Drawdown is given by fax or by e-mail then, without prejudice to the effectiveness and timely receipt of the fax or e-mail transmission, an original version shall in addition be supplied without delay.
|
22.2
|
Contact details.
The contact details of each Party for all communications in connection with the Finance Documents are those determined in accordance with clause 22.2.
|
(a)
The contact details of the Company are:
|
Vice President of Treasury
Telephone: 1 (425) 383 5019
Fax: +1 (425) 383-4830
Email: Dirk.Wehrse@t-mobile.com
|
|
(b)
The contact details of the Bank are:
|
KfW IPEX-Bank GmbH
Department: X1b3
Palmengartenstrasse 5–9
60325 Frankfurt am Main
Germany
Telephone: +49 69 7431-0
Fax: +49 69 7431-4013 (loan administration)
+49 69 7431-9609 (documentation & credit)
E-mail: silke.warnicke@kfw.de (loan administration)
sebastian.eberle@kfw.de (documentation & credit)
|
(c)
|
Changes.
Any Party may change its contact details by giving 7 days' prior notice to the other Party.
|
(d)
|
Nominated department.
Where a Party nominates a particular department or officer to receive a communication, a communication will not be effective if it fails to specify that department or officer.
|
22.3
|
Effectiveness.
The following will apply:
|
(a)
|
Deemed receipt.
Save as provided in clause 22.3, any communication in connection with the Finance Documents will become effective upon receipt and, unless the communication concerned is a Notice of Drawdown, each one will be deemed to be received:
|
(i)
|
if sent by letter through the normal post or by courier, 7 days after being deposited in the post or handed to the courier;
|
(ii)
|
if sent by letter by registered post, when left at the relevant address;
|
(iii)
|
if sent by fax, when despatched if the sender’s fax machine has produced a printed confirmation of a facsimile transmission transmitted error free; or
|
(iv)
|
if sent by e-mail with an attachment in pdf format, when the attachment is actually received in readable form.
|
(b)
|
Receipt when office closed.
A communication under clause 22.3(a) which is received on a non-working day or after 5.00pm in the place of receipt will be deemed to be received only on the next working day in that place.
|
(c)
|
Notices to
Bank.
A communication to the Bank will be effective only on actual receipt by it.
|
22.4
|
English language.
The following will apply:
|
(a)
|
Notices.
Any notice in connection with the Finance Documents shall be in English.
|
(b)
|
Documents from the Company.
All other documents in connection with the Finance Documents shall be:
|
(i)
|
in English; or
|
(ii)
|
(unless the Bank otherwise agrees) accompanied by a certified English translation. In this case, the English translation prevails unless the document is a statutory or other official document.
|
23.
|
General Provisions
|
23.1
|
Invalidity.
If a provision of the Finance Documents is or becomes illegal, invalid or unenforceable in any jurisdiction, each of the following will apply:
|
(a)
|
Other provisions unaffected.
That will not affect the legality, validity or enforceability in that jurisdiction of any other provision of the Finance Documents.
|
(b)
|
Other jurisdictions unaffected.
That will not affect the legality, validity or enforceability in other jurisdictions of that or any other provision of the Finance Documents.
|
23.2
|
Certificates and determination.
Any certification or determination by the Bank of a rate or amount under the Finance Documents is, in the absence of manifest error, conclusive evidence of the matters to which it relates.
|
23.3
|
Accounts.
In any litigation or arbitration proceedings arising out of or in connection with a Finance Document, the entries made in the accounts maintained by the Bank are
prima facie
evidence of the matters to which they relate.
|
24.
|
Amendments and Waivers
|
24.1
|
Only in writing.
Any supplement or amendment to the Finance Documents shall be in writing in accordance with clause 22.1. Any waiver of the requirement of written form shall also be in writing.
|
24.2
|
Waivers and exercise of rights.
No failure to exercise, nor any delay in exercising, on the part of the Bank, any right or remedy under the Finance Documents
will
operate as a waiver, nor
will
any single or partial exercise of any right or remedy prevent any further or other exercise or the exercise of any other right or remedy. The rights and remedies provided in the Finance Documents are cumulative and not exclusive of any rights or remedies provided by law.
|
25.
|
CHOICE OF LAW AND JURISDICTION; WAIVER OF JURY TRIAL
|
25.1
|
New York law.
THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
|
25.2
|
Jurisdiction.
EACH PARTY HERETO HEREBY (A) IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, NEW YORK, OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, (B) IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF THE ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR FEDERAL COURT, AND (C) IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE
|
25.3
|
No Right to Trial by Jury.
EACH PARTY HERETO WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER OR RELATING TO THIS AGREEMENT OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN CONNECTION THEREWITH OR ARISING FROM ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), ACTIONS OF ANY OF THE PARTIES HERETO OR ANY OTHER RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL HE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
|
25.4
|
Waiver of immunity
. To the extent that at the date of this Agreement or at any time in the future the Company can claim for itself or its assets immunity in any jurisdiction, whether it be immunity from proceedings, from execution or from other legal process, the Company irrevocably waives any such immunity to the extent permitted by the laws of the relative jurisdiction.
|
25.5
|
Waiver of security for costs
. The Company waives any right it may have to require the Bank to give security for costs in any court proceedings.
|
26.
|
Counterparts
|
27.
|
German VAT regulations
|
1.
|
Constitutional documents.
Copies of the Company's constitutional documents.
|
2.
|
Board resolution.
A copy of the resolutions of the Company's Managing Board or other appropriate body approving the terms of, and the transactions contemplated by, the Finance Documents and authorizing a person or persons to sign and deliver the Finance Documents and any other documents required from the Company under the Finance Documents.
|
3.
|
Certificate that copies are correct.
A certificate of a duly authorized officer of the Company certifying that each copy document specified in this Schedule and relating to the Company is correct, complete, up-to-date and in full force and effect as at a date no earlier than the date of this Agreement.
|
4.
|
Specimen signatures – Company.
Specimen signatures, authenticated by a duly authorized officer of the Company, of the person(s) authorized to sign on its behalf the Finance Documents and any related documents.
|
5.
|
KYC.
“Know your customer” documentation, including specimen signatures of the person(s) authorized to sign this Agreement and Notices of Drawdown on behalf of the Company and, in each case, copies of the passports or identity cards and address proof (utility bills, etc.) of such person(s).
|
6.
|
Copies of consents.
A copy of any authorization or other document, opinion or assurance which the Bank has notified the Company is necessary in connection with the entry into and performance of, and the transactions contemplated by, the Finance Documents or for the validity and enforceability of any Finance Document.
|
7.
|
Legal opinions.
One or several legal opinion(s) of external counsel to the Company confirming, inter alia, the valid existence and capacity of the Company and the Funding Seller, the due execution of this Agreement by the Company and the Funding Seller under applicable (Delaware) law as well as the validity and enforceability of this Agreement under the laws of New York.
|
8.
|
Fees and expenses.
Evidence that all fees and expenses then due from the Company under clause 19 (
Costs and expenses
) have been, or will be, paid.
|
9.
|
Purchase Agreement and Onward Purchase Agreement.
An executed copy of each of the Purchase Agreement and the Onward Purchase Agreement.
|
T-Mobile US, Inc.
as the Company |
/s/ Dirk Wehrse
|
Name: Dirk Wehrse
|
Title: Vice President, Treasury & Treasurer
|
|
|
|
T-Mobile Airtime Funding LLC
as the Funding Seller |
/s/ Dirk Wehrse
|
Name: Dirk Wehrse
|
Title: Vice President, Treasury & Treasurer
|
|
|
|
KfW IPEX-Bank GmbH
as the Bank |
/s/ Sven Wabbels
|
Name: Sven Wabbels
|
Title: Director
|
/s/ Sebastian Eberle
|
Name: Sebastian Eberle
|
Title: Vice President
|