THAT IT HAS,
INDEPENDENTLY AND WITHOUT RELIANCE UPON THE COLLATERAL AGENT OR TRIPLE-A, AND
BASED ON SUCH DOCUMENTATION AND INFORMATION AS IT HAS DEEMED APPROPRIATE, MADE
ITS OWN DECISION TO ENTER INTO THIS RECEIVABLES PURCHASE AGREEMENT AND
(II) AGREES THAT IT SHALL, INDEPENDENTLY AND WITHOUT RELIANCE UPON THE
COLLATERAL AGENT OR TRIPLE-A AND BASED ON SUCH DOCUMENTS AND INFORMATION AS IT
SHALL DEEM APPROPRIATE AT THE TIME, CONTINUE TO MAKE ITS OWN CREDIT DECISIONS IN
TAKING OR NOT TAKING ACTION UNDER ANY OF THE FACILITY DOCUMENTS.
(D)
ON THE EFFECTIVE DATE, IN CONSIDERATION FOR
THE ASSIGNED PORTION, MERRILL SHALL PAY TO TRIPLE-A $82,458,825.00, IN FULLY
AVAILABLE FUNDS, BY WIRE TRANSFER TO DEUTSCHE BANK TRUST COMPANY, ABA#
021-001-033, CORPORATE TRUST ACCOUNT # 0141-9647, NO LATER THAN 11:00 A.M. NEW
YORK TIME.
(E)
EXCEPT AS OTHERWISE PROVIDED IN THIS
SECTION 10.01(E), AS OF THE EFFECTIVE DATE, MERRILL SHALL BE TRIPLE-A'S
SUCCESSOR-IN-INTEREST WITH RESPECT TO, AND TRIPLE-A SHALL BE RELEASED FROM, AND
HAVE NO FURTHER INTEREST IN, THE ASSIGNED PORTION DESCRIBED ABOVE IN SECTION
10.01(A).
NOTWITHSTANDING THE FOREGOING, TO THE EXTENT THAT ANY PAYMENTS OR
PROCEEDS HERETOFORE RECEIVED BY TRIPLE-A RELATED TO THE FACILITY DOCUMENTS OR
ANY PART THEREOF SHALL BE SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR
PREFERENTIAL, SET ASIDE AND/OR REQUIRED TO BE REPAID TO A TRUSTEE, RECEIVER OR
ANY OTHER PARTY UNDER ANY BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR
EQUITABLE CAUSE THEN, TO THE EXTENT OF SUCH PAYMENT OR PROCEEDS RECEIVED,
TRIPLE-A'S RIGHTS, TITLE AND INTERESTS IN ANY PAYMENTS OR PROCEEDS SO RETURNED
OR REPAID SHALL BE REVIVED AND CONTINUE IN FULL FORCE AND EFFECT, AS IF SUCH
PAYMENT OR PROCEEDS HAD NEVER BEEN RECEIVED.
SECTION 10.02.
ASSIGNMENT BY CAPMAC TO MBIA.
CONCURRENTLY WITH THE
EFFECTIVENESS OF THIS RECEIVABLES PURCHASE AGREEMENT, (I) CAPMAC, BY ITS
SIGNATURE HERETO, HEREBY RESIGNS AS COLLATERAL AGENT AND AS "ADMINISTRATIVE
AGENT" FOR TRIPLE-A UNDER THE SECOND AMENDED AND RESTATED LRPA (AS DEFINED IN
THE RECITALS TO THIS RECEIVABLES PURCHASE
47
Agreement) and (ii) MBIA, by its signature hereto, hereby accepts appointment
as, and agrees to perform the duties of, the Collateral Agent and the Managing
Agent for Triple-A, and MBIA hereby is and shall be vested with the duties and
powers of the Collateral Agent and the Managing Agent for Triple-A as more fully
described in Article IX.
The other parties hereto acknowledge and agree that,
pursuant to the foregoing resignation by CapMAC and acceptance by MBIA, CapMAC
shall be discharged from any further duties and obligations as Collateral Agent
or as "Administrative Agent" under the Second Amended and Restated LRPA;
provided, that the foregoing shall not impair any rights of CapMAC in respect of
any surety bonds issued to or for the benefit of Triple-A or its Liquidity Agent
or any Swap Provider nor otherwise impair any obligations of the Seller or the
Servicer in respect thereof, and the provisions of Articles VIII and IX
hereunder shall continue in effect for CapMAC's benefit with respect to all
actions taken or