SECOND AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT Dated as of May 10, 2018 among VARIOUS ENTITIES LISTED ON SCHEDULE I, as the Originators CINCINNATI BELL FUNDING LLC, and CINCINNATI BELL INC., as Servicer

SECOND AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT

Dated as of May 10, 2018

among

VARIOUS ENTITIES LISTED ON SCHEDULE I,

as the Originators

CINCINNATI ▇▇▇▇ FUNDING LLC,

and

CINCINNATI ▇▇▇▇ INC.,

as Servicer

 

 

 

 

 

 

 

 

	SCHEDULES
Schedule I	List of Originators
Schedule II	State of Organization of Each Transferor
Schedule III	Location of Books and Records of Transferors
Schedule IV	Trade Names
	EXHIBITS
Exhibit A	Form of Purchase Report
Exhibit B	Form of Company Note
Exhibit C	Form of Joinder Agreement

 

THIS SECOND AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT dated as of May 10, 2018 (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”), is entered into among the VARIOUS ENTITIES LISTED ON SCHEDULE I HERETO (each, an “Originator”; and collectively, “Originators”), CINCINNATI ▇▇▇▇ FUNDING LLC, a Delaware limited liability company (the “Company”) and CINCINNATI ▇▇▇▇ INC., an Ohio corporation (“CB”) as Servicer (in such capacity, the “Servicer”).

 

DEFINITIONS

 

Unless otherwise indicated herein, capitalized terms used and not otherwise defined in this Agreement are defined in Exhibit I to the Receivables Financing Agreement dated as of the date hereof (as the same may be amended, restated, supplemented or otherwise modified from time to time, the “Receivables Financing Agreement”), among the Company and Cincinnati ▇▇▇▇ Funding Canada Ltd., as Borrowers, CB and Onx Enterprise Solutions Ltd., as initial Servicers, the various Lenders and Group Agents from time to time party thereto, and PNC Bank, National Association, as Administrator and LC Bank or, if not defined therein or if the context so requires, the Receivables Purchase Agreement dated as of the date hereof (as amended, restated, modified or otherwise supplemented from time to time, the “Receivables Purchase Agreement”), among the Company, as Seller thereunder, CB, as Servicer thereunder, and PNC Bank, National Association, as Buyer thereunder (in such capacity, the “Receivables Buyer”).  For purposes of this Agreement, the following capitalized terms shall have the following meanings assigned thereto:

 

“Agent” means the Administrator and the Receivables Buyer.

 

“Agreement” has the meaning assigned to such term in the preamble hereto.

 

“Collections” shall mean all amounts constituting “Collections” (as such term is defined in the Receivables Financing Agreement) or “Monetized Receivable Collections” (as such term is defined in the Receivables Financing Agreement).

 

“CB” has the meaning assigned to such term in the preamble hereto.

 

“Company” has the meaning assigned to such term in the preamble hereto.

 

“Contributed Receivables” has the meaning assigned to such term in Section 1.1(a).

 

“Event of Repurchase” has the meaning assigned to such term in Section 3.4(b).

 

“Merged Entity” has the meaning assigned to such term in Section 1.1(b).

 

“Original Closing Date” has the meaning assigned to such term in Section 4 of the Background hereto.

 

“Originator” has the meaning assigned to such term in the preamble hereto.

 

 

“Restated Purchase Agreement” has the meaning assigned to such term in Section 5 of the Background hereto.

 

“Securitized Receivable” means, at any time of determination, any Receivable that is not then a Monetized Receivable.

 

“Servicer” has the meaning assigned to such term in the preamble hereto.

 

“Transaction Documents” shall mean any documentation constituting a “Transaction Document” (as such term is defined in the Receivables Financing Agreement) or a “Transaction Document” (as such term is defined in the Receivables Purchase Agreement).

 

“Transferor” has the meaning assigned to such term in Section 4 of the Background hereto.

 

All references herein to months are to calendar months unless otherwise expressly indicated.

 

BACKGROUND:

 

 

 

 

 

 

agreements to indemnify such parties in connection with events or conditions arising or existing prior to the effective date of this Agreement and (b) the security interest created under the Restated Purchase and Sale Agreement shall remain in full force and effect as security for such Restated Purchase and Sale Agreement Outstanding Amounts until such Restated Purchase and Sale Agreement Outstanding Amounts shall have been paid in full.  Upon the effectiveness of this Agreement, each reference to the Restated Purchase and Sale Agreement in any other document, instrument or agreement shall mean and be a reference to this Agreement.  Nothing contained herein, unless expressly herein stated to the contrary, is intended to amend, modify or otherwise affect any other instrument, document or agreement executed and/or delivered in connection with the Restated Purchase and Sale Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual agreements herein contained, the parties hereto agree as follows:

 

ARTICLE I

AGREEMENT TO PURCHASE AND SELL

 

SECTION 1.1  Agreement To Purchase and Sell.  On the terms and subject to the conditions set forth in this Agreement, each Originator, severally and for itself, agrees to sell to the Company, and the Company agrees to purchase from such Originator, from time to time on or after the Closing Date, but before the Purchase and Sale Termination Date (as defined in Section 1.4) with respect to such Originator, all of such Originator’s right, title and interest in and to:

 

 

 

 

 

 

 

received by such Originator, the Company or the Servicer from or on behalf of the Obligors in payment of any amounts owed (including, without limitation, invoice price, finance charges, interest and all other charges) in respect of any of the above Receivables or are applied to such amounts owed by the Obligors (including, without limitation, any insurance payments that such Originator, the Company or the Servicer applies in the ordinary course of its business to amounts owed in respect of any of the above Receivables, and net proceeds of sale or other disposition of repossessed goods or other collateral or property of the Obligors in respect of any of the above Receivables or any other parties directly or indirectly liable for payment of such Receivables); and

 

All purchases and contributions, as the case may be, hereunder shall be made without recourse, but shall be made pursuant to, and in reliance upon, the representations, warranties and covenants of the Transferors set forth in this Agreement and each other Transaction Document.  No obligation or liability to any Obligor on any Receivable is intended to be assumed by the Company hereunder, and any such assumption is expressly disclaimed.  The Company’s foregoing commitment to purchase Receivables and the proceeds and rights described in clauses (c) through (g) with respect to such Receivables (collectively, the “Related Rights”) is herein called the “Purchase Facility.”  For the avoidance of doubt, the “Related Rights” with respect to the Contributed Receivables, shall include the proceeds and rights described in clauses (c) through (g) above.

 

For the avoidance of doubt, the parties hereto hereby ratify and confirm each purchase, sale and contribution made under the Restated Purchase and Sale Agreement prior to the Closing Date.

 

SECTION 1.2  Timing of Purchases.

 

 

 

SECTION 1.3  Consideration for Purchases and Contributions.  On the terms and subject to the conditions set forth in this Agreement, the Company agrees to make Purchase Price payments to the Originators in accordance with Article III and to reflect all contributions in accordance with Section 3.1.

 

SECTION 1.4  Purchase and Sale Termination Date.  The “Purchase and Sale Termination Date” shall mean with respect to a Transferor, the earlier to occur of (a) the date the

 

 

Purchase Facility is terminated (or deemed terminated) with respect to such Transferor pursuant to Section 8.2 and (b) the Payment Date immediately following the day on which such Transferor, if such Transferor is an Originator, shall have given written notice to the Company, each Agent and each Group Agent at or prior to 10:00 a.m. (New York City time) that such Transferor desires to terminate the Purchase Facility with respect to such Transferor and terminate its rights, obligations and liabilities under this Agreement (other than those which expressly survive termination of this Agreement).

 

SECTION 1.5  Intention of the Parties.  It is the express intent of each Transferor and the Company (a) that each conveyance by such Transferor to the Company pursuant to this Agreement of the Receivables and Related Rights, including without limitation, all Receivables, if any, constituting general intangibles as defined in the UCC, and all Related Rights be construed as a valid and perfected sale or contribution, as applicable, and absolute assignment of such Receivables and Related Rights by such Transferor to the Company (rather than the grant of a security interest to secure a debt or other obligation of such Transferor) without recourse to such Transferor; provided, that each Transferor shall be liable to the Company for all representations, warranties and covenants made by such Transferor pursuant hereto and (ii) such sale or contribution, as applicable, does not constitute and is not intended to result in an assumption by the Company or any assignee thereof of any obligation of any Transferor or any other Person arising in connection with the Receivables and Related Rights or any other obligations of any Transferor and (b) that the right, title and interest in and to such Receivables and Related Rights conveyed to the Company be prior to the rights of and enforceable against all other Persons at any time, including, without limitation, lien creditors, secured lenders, purchasers and any Person claiming through such Transferor.  Each Transferor hereby authorizes the Company (and each Agent, as assignees of the Company) to file financing statements, continuation statements and amendments to financing statements in connection with the sales and contributions, as applicable, contemplated by this Agreement, and agrees and acknowledges that this Agreement is an authenticated record for purposes of the UCC.

 

ARTICLE II

PURCHASE REPORT; CALCULATION OF PURCHASE PRICE

 

SECTION 2.1  Purchase Report.  On the 20^th day of each calendar month (or if such day is not a Business Day, the next occurring Business Day) (each such date, a “Monthly Purchase Report Date”), the Servicer shall deliver to the Company and each Transferor a report in substantially the form of Exhibit A (each such report being herein called a “Purchase Report”) setting forth, among other things:

 

 

 

 

SECTION 2.2  Calculation of Purchase Price.  The “Purchase Price” to be paid to each Originator for the Receivables that are purchased hereunder from such Originator shall be determined in accordance with the following formula:

 

 

“Payment Date” means (i) the Original Closing Date and (ii) each Business Day thereafter that the Originators are open for business.

 

ARTICLE III

PAYMENT OF PURCHASE PRICE

 

SECTION 3.1  Contribution of Receivables and Initial Purchase Price Payment.

 

 

 

 

or renewal thereof in accordance with the Transaction Documents, each being herein called a “Company Note”).

 

SECTION 3.2  Subsequent Purchase Price Payments.  On each Payment Date subsequent to the Closing Date, on the terms and subject to the conditions set forth in this Agreement, the Company shall pay to each Originator the Purchase Price for the Receivables generated by such Originator on such Payment Date:

 

 

 

Notwithstanding the foregoing, all amounts paid by the Company to any Originator shall be allocated first to the payment of accrued and unpaid interest on the Company Note of such Originator and second to the repayment of the principal outstanding on the Company Note of such Originator to the extent of such outstanding principal thereof as of the date of such payment before such amounts may be allocated for any other purpose.  The applicable Servicer shall make all appropriate record keeping entries with respect to each of the Company Notes to reflect the foregoing payments and reductions made pursuant to Section 3.3, reductions on account of repayments of the principal amount of the Company Notes and accrued interest on the Company Notes and the applicable Servicer’s books and records shall constitute rebuttable presumptive evidence of the principal amount of, and accrued interest on, each of the Company Notes at any time.  Each Originator hereby irrevocably authorizes the applicable Servicer to ▇▇▇▇ the Company Notes “CANCELED” and to return such Company Notes to the Company upon the final payment thereof after the occurrence of the Purchase and Sale Termination Date with respect to such Originator.

 

Notwithstanding the foregoing, if, as of any date (the “Determination Date”), after giving effect to payments of such Purchase Price in accordance with Section 3.2, (x) the sum of the aggregate stated amount of Letters of Credit issued on behalf of any Originator or its designee during the period from the Original Closing Date to the Determination Date plus any related fees and expenses payable by the Company in connection with the issuance of such Letters of Credit plus the aggregate of the amounts of indebtedness under the Company Note payable to such Originator that remain unpaid for more than ninety (90) days during such period (the “Aged Amounts”) would exceed (y) an amount equal to 25% of the aggregate Purchase Price payable by the Company to such Originator for all Receivables generated by such Originator during such period, the Company shall pay the Purchase Price for such Receivable in cash and/or make a prepayment of such Aged Amounts to the extent necessary such that the sum of the amounts described in clause (x) above would not exceed the amount in clause (y) above.

 

In the event an Originator requests that any purchases be paid for by issuance of a Letter of Credit, such Originator shall on a timely basis provide the Company with such information as is necessary for the Company to obtain such Letter of Credit from the LC Bank.  None of CB, any Originator nor any Affiliate thereof (other than the Company) shall have any reimbursement or recourse obligations in respect of any Letter of Credit.

 

SECTION 3.3  Settlement as to Specific Securitized Receivables and Dilution.

 

 

 

 

 

 

provided, further, that at any time (y) when a Event of Default exists under the Receivables Financing Agreement or (z) on or after the Purchase and Sale Termination Date with respect to such Originator, the amount of any such credit shall be paid by such Originator to the Company by deposit in immediately available funds into a Lock-Box Account for application by the Servicer to the same extent as if Collections of the applicable Receivable in such amount had actually been received on such date.

 

 

SECTION 3.4  Settlement as to Specific Monetized Receivables.

 

 

 

 

 

 

 

then, such Originator shall immediately deliver notice thereof to the Receivables Buyer and, at the time, in the manner and otherwise as hereinafter set forth, repurchase such Monetized Receivable and Related Monetized Assets (or, if the Receivables Buyer agrees in writing, the portion subject to Dispute) at the Receivables Buyer’s option and demand.  The repurchase price for a Monetized Receivable shall be the amount equal to the Outstanding Purchase Amount relating to such Monetized Receivable at such time and shall be paid to the account so designated by the Receivables Buyer by no later than the next Weekly Settlement Date following demand therefor by the Receivables Buyer.  Upon the payment in full of the repurchase price with respect to a Monetized Receivable and Related Monetized Assets, such Monetized Receivable and Related Monetized Assets shall hereby be, and be deemed to be, repurchased by the Company from the Receivables Buyer without recourse to or warranty by the Receivables Buyer.

 

 

 

 

Originators plus the aggregate outstanding principal balance of, and accrued but unpaid interest on, the Company Notes payable to the Originators on such Payment Date.  In the event that any such Letter of Credit issued pursuant to this Section 3.6 (i) expires or is cancelled or otherwise terminated with all or any portion of its stated amount undrawn, (ii) has its stated amount decreased (for a reason other than a drawing having been made thereunder) or (iii) the Company’s Reimbursement Obligation in respect thereof is reduced for any reason other than by virtue of a payment made in respect of a drawing thereunder, then an amount equal to such undrawn amount, such decrease or such reduction, as the case may be, shall either be paid in cash to such Originator on the next Payment Date or, if the Company does not then have cash available therefor, shall be added to the outstanding principal balance of the Company Note issued to such Originator.  Under no circumstances shall any Originator (or any Affiliate thereof (other than the Company)) have any reimbursement or recourse obligations in respect of any Letter of Credit.

 

 

 

ARTICLE IV

CONDITIONS PRECEDENT

 

SECTION 4.1  Conditions Precedent to Effectiveness of this Agreement.  The effectiveness of this Agreement is subject to the condition precedent that the Company and the each Agent (as the Company’s assignees) and each Group Agent shall have received, on or before the Closing Date, the following, each (unless otherwise indicated) dated on or before the Closing Date, and each in form and substance reasonably satisfactory to the Company and the each Agent (as the Company’s assignees) and each Group Agent:

 

 

 

 

 

 

SECTION 4.2  Certification as to Representations and Warranties.  Each Originator, by accepting the Purchase Price related to each purchase of Receivables generated by such Originator, shall be deemed to have certified that the representations and warranties contained in Article V, as from time to time amended in accordance with the terms hereof, are true and correct in all material respects on and as of such day as though made on and as of such day, except for representations and warranties which apply as to an earlier date (in which case such representations and warranties shall be true and correct as of such date).

 

SECTION 4.3  Additional Originators.  Additional Persons may be added as Originators hereunder, with the prior written consent of the Company, each Agent and each Group Agent; provided that the following conditions are satisfied on or before the date of such addition:

 

 

 

 

opinions delivered on the Closing Date, in form and substance reasonably satisfactory to the Company, each Agent (as the Company’s assignees) and each Group Agent, from external counsel reasonably satisfactory to each Agent and each Group Agent (it being understood that external counsel that delivered opinions on the Closing Date shall be satisfactory to each Agent and each Group Agent for purposes of delivering similar opinions under this clause (c));

 

 

 

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE TRANSFERORS

 

In order to induce the Company to enter into this Agreement and to make purchases and accept the contribution hereunder, each Transferor hereby makes the representations and warranties set forth in this Article V.

 

SECTION 5.1  Existence and Power.  Such Transferor is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and has all power and authority and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted, unless the failure to have such power, authority, licenses, authorizations, consents or approvals would not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.2  Company and Governmental Authorization, Contravention.  The execution, delivery and performance by such Transferor of this Agreement are within such Transferor’s company powers, have been duly authorized by all necessary company action, require no action by or in respect of, or filing with (other than the filing of the UCC financing statements and continuation statements contemplated hereunder), any governmental body, agency or official, and, do not contravene, or constitute a default under, any provision of applicable law or regulation or of the organizational documents of such Transferor or of any agreement, judgment, injunction, order, decree or other instrument binding upon such Transferor (unless such contravention or default would not reasonably be expected to have a Material Adverse Effect) or result in the creation or imposition of any lien (other than liens in favor of the Company or any Agent under the Transaction Documents or other Permitted Adverse Claims) on assets of such Transferor or any of its Subsidiaries.

 

SECTION 5.3  Binding Effect of Agreement.  This Agreement and each of the other Transaction Documents to which it is a party constitutes the legal, valid and binding obligation of such Transferor enforceable against such Transferor in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law.

 

SECTION 5.4  Accuracy of Information.  All information heretofore furnished in writing by such Transferor to the Company, any Agent or any Group Agent pursuant to or in connection with this Agreement or any other Transaction Document or any transaction contemplated hereby

 

or thereby is, and all such information hereafter furnished by such Transferor to the Company, any Agent or any Group Agent in writing pursuant to this Agreement or any Transaction Document will be, true and accurate in all material respects on the date such information is stated or certified.

 

SECTION 5.5  Actions, Suits.  There are no actions, suits or proceedings pending or, to the best of such Transferor’s knowledge, threatened against or affecting such Transferor or any of its Affiliates or their respective properties, in or before any court, arbitrator or other body, which would reasonably be expected to have a Material Adverse Effect upon the ability of such Transferor (or such Affiliate) to perform its obligations under this Agreement or any other Transaction Document to which it is a party.

 

SECTION 5.6  Taxes.  Such Transferor has filed or caused to be filed all U.S. federal income tax returns and all other returns, statements, forms and reports for taxes, domestic or foreign, required to be filed by it and has paid all taxes payable by it which have become due or any assessments made against it or any of its property and all other taxes, fees or other charges imposed on it or any of its property by any Governmental Authority, except (a) any taxes, fees, assessments and other charges that are being contested in good faith by appropriate proceedings and for which such Transferor has set aside on its books adequate reserves or (b) to the extent that the failure to do so would not reasonably be expected to have a Material Adverse Effect.

 

SECTION 5.7  Compliance with Applicable Laws.  Such Transferor is in compliance with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which it may be subject if the failure to comply would reasonably be expected to have a Material Adverse Effect.  In addition, no Receivable sold or contributed, as the case may be, hereunder contravenes in any material respect any laws, rules or regulations applicable thereto or to such Transferor.

 

SECTION 5.8  Reliance on Separate Legal Identity.  Such Transferor acknowledges that each of the Credit Parties, the Group Agents and each Agent are entering into the Transaction Documents to which they are parties in reliance upon the Company’s identity as a legal entity separate from such Transferor.

 

SECTION 5.9  Investment Company.  Such Transferor is not an “investment company,” or a company “controlled” by an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

 

SECTION 5.10  Perfection.  Immediately preceding its sale or contribution, as applicable, of each Receivable hereunder, such Transferor was the owner of such Receivable sold or contributed or purported to be sold or contributed, as the case may be, free and clear of any Adverse Claims other than Permitted Adverse Claims, and each such sale or contribution, as applicable, hereunder constitutes a valid sale (or contribution), transfer and assignment of all of such Transferor’s right, title and interest in, to and under the Receivables sold or contributed, as applicable, by it, free and clear of any Adverse Claims other than Permitted Adverse Claims. On or before the date hereof and before the generation by such Originator of any new Receivable to be sold, contributed or otherwise conveyed hereunder, all financing statements and other documents, if any, required to be recorded or filed in order to perfect and protect the Company’s

 

ownership interest in such Receivable against all creditors of and purchasers from such Transferor will have been duly filed in each filing office necessary for such purpose, and all filing fees and taxes, if any, payable in connection with such filings shall have been paid in full.

 

SECTION 5.11  Creation of Receivables.  If such Transferor is an Originator, it has exercised at least the same degree of care and diligence in the creation of the Receivables sold or otherwise transferred hereunder as it has exercised in connection with the creation of receivables originated by it and not so transferred hereunder.

 

SECTION 5.12  Credit and Collection Policy.  If such Transferor is an Originator, it has complied in all material respects with its Credit and Collection Policy in regard to each Receivable (other than Specified Receivables) sold by it hereunder and each related Contract, if any.

 

SECTION 5.13  Enforceability of Contracts.  Each Contract related to any Receivable sold or contributed, as applicable, by such Transferor hereunder is effective to create, and has created, a legal, valid and binding obligation of the related Obligor to pay the outstanding balance of such Receivable, enforceable against the Obligor in accordance with its terms, without being subject to any defense, deduction, offset or counterclaim, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether enforceability is considered in a proceeding in equity or at law, and such Transferor has fully performed its obligations, if any, under such Contract.

 

SECTION 5.14  Location and Offices.  As of the date hereof, such Transferor’s location (as such term is defined in the applicable UCC) is at the address set forth on Schedule II hereto, and such location has not been changed for at least four months before the date hereof.  The offices where such Transferor keeps all records concerning the Receivables (other than Specified Receivables) are located at the addresses set forth on Schedule III hereto or such other locations of which the Company and each Agent (as the Company’s assignees) has been given written notice in accordance with the terms hereof.

 

SECTION 5.15  Good Title.  Upon the sale or other conveyance hereunder by such Transferor and on the Closing Date for then existing Receivables, the Company shall have a valid and perfected first priority ownership interest in each Receivable sold or contributed, as the case may be, to it hereunder, free and clear of any Adverse Claim other than Permitted Adverse Claims.

 

SECTION 5.16  Names.  Except as described in Schedule IV, such Transferor has not, within the past five (5) years, used any corporate or company names, tradenames or assumed names other than its name set forth on the signature pages of this Agreement.

 

SECTION 5.17  Nature of Receivables.  Each Receivable sold, transferred, contributed or assigned hereunder is an Eligible Receivable on the date of sale, transfer, contribution or assignment, unless otherwise specified in the first Information Package or Purchase Request that includes such Receivable.

 

SECTION 5.18  Bulk Sales, Margin Regulations, No Fraudulent Conveyance, Investment Company.  No transaction contemplated hereby requires compliance with any bulk sales act or similar law.  No use of funds obtained by such Transferor hereunder will conflict with or contravene Regulation T, U or X of the Federal Reserve Board.  No purchase or contribution, as applicable, hereunder constitutes a fraudulent transfer or conveyance under any United States federal or applicable state bankruptcy or insolvency laws or is otherwise void or voidable under such or similar laws or principles or for any other reason.

 

SECTION 5.19  Financial Condition.

 

 

 

SECTION 5.20  Licenses, Contingent Liabilities, and Labor Controversies.

 

 

 

SECTION 5.21  Anti-Money Laundering/International Trade Law Compliance.  No Covered Entity is a Sanctioned Person.  No Covered Entity, either in its own right or through any third party, (i) has any of its assets in a Sanctioned Country or in the possession, custody or control of a Sanctioned Person in violation of any Anti-Terrorism Law; (ii) does business in or with, or derives any of its income from investments in or transactions with, any Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; or (iii) engages in any dealings or transactions prohibited by any Anti-Terrorism Law.

 

ARTICLE VI

COVENANTS OF THE TRANSFERORS

 

SECTION 6.1  Affirmative Covenants.  From the date hereof until (i) in the case of an Originator, the first date following the Purchase and Sale Termination Date with respect to such Originator when all obligations of such Originator to the Company and its assigns have been satisfied in full or (ii) in the case of CB, the first date following the Purchase and Sale

 

Termination Date with respect to all Transferors when all obligations of CB and each Originator to the Company and its assigns have been satisfied in full, each Transferor agrees that it will, unless each Agent and the Company shall otherwise consent in writing, perform the following:

 

 

 

 

them to be materially different from the procedures described to the Company, each Agent and each Group Agent on or before the date hereof as such Transferor’s then existing or planned administrative and operating procedures for collecting Receivables.

 

 

 

 

 

 

SECTION 6.2  Reporting Requirements.  From the date hereof until (i) in the case of an Originator, the first date following the Purchase and Sale Termination Date with respect to such Originator when all obligations of such Originator to the Company and its assigns have been satisfied in full or (ii) in the case of CB, the first date following the Purchase and Sale Termination Date with respect to all Transferors when all obligations of CB and each Originator to the Company and its assigns have been satisfied in full, each Transferor agrees that it will, unless the Company, each Agent and the Majority Group Agents shall otherwise consent in writing, furnish to the Company, each Agent and the Majority Group Agents:

 

 

with notice or the passage of time or both would become a Purchase and Sale Termination Event (an “Unmatured Purchase and Sale Termination Event”) with respect to such Transferor, a written statement of the chief financial officer, treasurer or chief accounting officer of such Transferor describing such Purchase and Sale Termination Event or Unmatured Purchase and Sale Termination Event and any action that such Transferor proposes to take with respect thereto, in each case in reasonable detail;

 

 

 

 

SECTION 6.3  Negative Covenants.  From the date hereof until the latest of the Final Payout Date under the Receivables Financing Agreement or the Final Collection Date under the Receivables Purchase Agreement, each Transferor agrees that, unless the Company, each Agent and the Majority Group Agents shall otherwise consent in writing, it shall not:

 

 

 

 

 

 

 

 

 

shall promptly notify each Agent and each Group Agent in writing upon the occurrence of a Reportable Compliance Event.

 

SECTION 6.4  Substantive Consolidation.  Each Transferor hereby acknowledges that this Agreement and the other Transaction Documents are being entered into in reliance upon the Company’s identity as a legal entity separate from such Transferor and its Affiliates.  Therefore, from and after the date hereof, each Transferor shall take all reasonable steps necessary to make it apparent to third Persons that the Company is an entity with assets and liabilities distinct from those of such Transferor and any other Person, and is not a division of such Transferor, its Affiliates or any other Person.  Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, such Transferor shall take such actions as shall be required in order that:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ARTICLE VII

ADDITIONAL RIGHTS AND OBLIGATIONS

IN RESPECT OF RECEIVABLES

 

SECTION 7.1  Rights of the Company.  Each Transferor hereby authorizes the Company or the Servicer or their respective designees or assignees under the Receivables Financing Agreement or Receivables Purchase Agreement (including, without limitation, any Agent) to take, subject to the terms of the Receivables Financing Agreement, the Receivables Financing

 

Agreement and any applicable regulatory restrictions, any and all steps in such Transferor’s name necessary or desirable, in their respective determination, to collect all amounts due under any and all Receivables sold, contributed or otherwise conveyed or purported to be conveyed by it hereunder, including, without limitation, endorsing the name of such Transferor on checks and other instruments representing Collections and enforcing such Receivables and the provisions of the related Contracts that concern payment and/or enforcement of rights to payment.

 

SECTION 7.2  Responsibilities of the Transferors.  Anything herein to the contrary notwithstanding:

 

 

 

 

 

SECTION 7.3  Further Action Evidencing Purchases.  Each Transferor agrees that from time to time, at its expense, it will promptly execute and deliver all further instruments and documents, and take all further action that the Company, the Servicer, any Agent or any Group Agent may reasonably request in order to perfect, protect or more fully evidence the Receivables and Related Rights purchased by or contributed, as applicable, to the Company hereunder, or to

 

enable the Company to exercise or enforce any of its rights hereunder or under any other Transaction Document.  Without limiting the generality of the foregoing, upon the request of the Company, any Agent or any Group Agent, such Transferor will:

 

 

 

Each Transferor hereby authorizes the Company or its designees (including, without limitation, any Agent) to file one or more financing or continuation statements, and amendments thereto and assignments thereof, without the signature of such Transferor, relative to all or any of the Receivables and Related Rights sold, contributed or otherwise conveyed or purported to be conveyed by it hereunder now existing or hereafter generated, as the case may be, by such Transferor.  If any Transferor fails to perform any of its agreements or obligations under this Agreement, the Company or its designees (including, without limitation, any Agent) may (but shall not be required to) itself perform, or cause the performance of, such agreement or obligation, and the expenses of the Company or its designee (including, without limitation, the Administrator) incurred in connection therewith shall be payable by such Transferor.

 

SECTION 7.4  Application of Collections.  Subject to the Monetization Intercreditor Agreement, any payment by an Obligor in respect of any indebtedness owed by it to any Transferor shall, except as otherwise specified by such Obligor or required by contract or applicable law and unless otherwise instructed by the Servicer (with the prior written consent of the Administrator) or the Administrator, be applied as a Collection of any Receivable or Receivables of such Obligor to the extent of any amounts then due and payable thereunder before being applied to any other indebtedness of such Obligor.

 

ARTICLE VIII

PURCHASE AND SALE TERMINATION EVENTS

 

SECTION 8.1  Purchase and Sale Termination Events.  Each of the following events or occurrences described in this Section 8.1 shall constitute a “Purchase and Sale Termination Event” with respect to a Transferor:

 

 

 

 

Transaction Document to which it is a party, or any information or report delivered by such Transferor pursuant to this Agreement or any other Transaction Document to which it is a party, shall fail to have been true or correct in any material respect when made or deemed made or delivered and such failure shall, solely to the extent capable of cure, continue for thirty (30) days after the earlier of any such Transferor’s knowledge or notice thereof; or

 

 

 

provided that, if any “Purchase and Sale Termination Event” set forth in clauses (a) through (e) listed above shall have occurred with respect to CBT, such Purchase and Sale Termination Event shall be deemed to have occurred with respect to all Transferors.

 

SECTION 8.2  Remedies.

 

 

 

ARTICLE IX

INDEMNIFICATION

 

SECTION 9.1  Indemnities by the Transferors.  Without limiting any other rights which the Company may have hereunder or under applicable law, each Transferor, severally and for itself alone, hereby agrees to indemnify the Company and each of its officers, directors, employees and agents (each of the foregoing Persons being individually called a “Purchase and Sale Indemnified Party”), forthwith on demand, from and against any and all damages, losses, claims, judgments, liabilities and related costs and expenses, including reasonable attorneys’ fees and disbursements (all of the foregoing being collectively called “Purchase and Sale Indemnified Amounts”) awarded against or incurred by any of them to the extent arising out of or as a result of (a) the breach of any representation or warranty made by such Transferor herein or in any other Transaction Document to which it is a party or (b) the failure of such Transferor to perform its obligations under this Agreement or any other Transaction Document to which it is a party; excluding, however, (x) Purchase and Sale Indemnified Amounts to the extent a final judgment of a court of competent jurisdiction holds such Purchase and Sale Indemnified Amounts resulted from gross negligence or willful misconduct on the part of such Purchase and Sale Indemnified Party, (y) any indemnification which has the effect of recourse for non-payment or uncollectibility of the Receivables due to a discharge in bankruptcy or similar insolvency proceeding or other credit related reasons with respect to the relevant Obligor and (z) any net income or franchise tax imposed on such Purchase and Sale Indemnified Party or any other taxes imposed against such Purchase and Sale Indemnified Party to the extent such taxes are measured by or against the gross income or net income or receipts of such Person.

 

If for any reason the indemnification provided above in this Section 9.1 is unavailable to a Purchase and Sale Indemnified Party or is insufficient to hold such Purchase and Sale Indemnified Party harmless, then each Transferor agrees that it shall contribute to the amount paid or payable by such Purchase and Sale Indemnified Party to the maximum extent permitted under applicable law.

 

ARTICLE X

MISCELLANEOUS

 

SECTION 10.1  Amendments, etc.

 

 

 

approval, be applicable to subsequent transactions.  No waiver or approval under this Agreement shall require any similar or dissimilar waiver or approval thereafter to be granted hereunder.

 

 

SECTION 10.2  Notices, etc.  All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including email communication) and shall be delivered or sent by email, or by overnight mail, to the intended party at the mailing address set forth on Schedule II hereto or at such other mailing address or email address shall be designated by such party in a written notice to the other parties hereto or in the case of (x) the Administrator or any Group Agent, at their respective address for notices pursuant to the Receivables Financing Agreement or (y) the Receivables Buyer, at its respective address for notices pursuant to the Receivables Purchase Agreement.  All such notices and communications shall be effective (a) if delivered by overnight mail, when received and (b) if sent by email, when sent, receipt confirmed by telephone or electronic means.

 

SECTION 10.3  No Waiver; Cumulative Remedies.  The remedies herein provided are cumulative and not exclusive of any remedies provided by law.  Without limiting the foregoing, each Transferor hereby authorizes the Company, at any time and from time to time, to the fullest extent permitted by law, to set off, against any obligations of such Transferor to the Company arising in connection with the Transaction Documents (including, without limitation, amounts payable pursuant to Section 9.1) that are then due and payable or that are not then due and payable but have accrued, any and all indebtedness at any time owing by the Company to or for the credit or the account of such Transferor.

 

SECTION 10.4  Binding Effect; Assignability.  This Agreement shall be binding upon and inure to the benefit of the Company and each Transferor and their respective successors and permitted assigns.  No Transferor may assign any of its rights hereunder or any interest herein without the prior written consent of the Company, each Agent and each Group Agent, except as otherwise herein specifically provided.  This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until such time as the parties hereto shall agree.  The rights and remedies with respect to any breach of any representation and warranty made by any Transferor pursuant to Article V and the indemnification and payment provisions of Article IX and Section 10.6 shall be continuing and shall survive any termination of this Agreement.

 

SECTION 10.5  Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.

 

SECTION 10.6  Costs, Expenses and Taxes.  In addition to the obligations of the Transferors under Article IX, each Transferor, severally and for itself alone, agrees to pay on demand:

 

 

 

SECTION 10.7  SUBMISSION TO JURISDICTION.  EACH PARTY HERETO HEREBY IRREVOCABLY (a) SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY COURT OF THE STATE OF NEW YORK OR THE FEDERAL COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK OVER ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY TRANSACTION DOCUMENT; (b) AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH STATE OR UNITED STATES FEDERAL COURT; (c) WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING; (d) IRREVOCABLY CONSENTS TO THE SERVICE OF ANY AND ALL PROCESS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES OF SUCH PROCESS TO SUCH PERSON AT ITS ADDRESS SPECIFIED IN SECTION 10.2; AND (e) AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  NOTHING IN THIS SECTION 10.7 SHALL AFFECT THE COMPANY’S RIGHT TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST ANY ORIGINATOR OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTIONS.

 

SECTION 10.8  WAIVER OF JURY TRIAL.  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, ANY OTHER TRANSACTION DOCUMENT, OR ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, AND AGREES THAT (a) ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY AND (b) ANY PARTY HERETO (OR ANY ASSIGNEE OR THIRD PARTY BENEFICIARY OF THIS AGREEMENT) MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF ANY OTHER PARTY OR PARTIES HERETO TO WAIVER OF ITS OR THEIR RIGHT TO TRIAL BY JURY.

 

SECTION 10.9  Captions and Cross References; Incorporation by Reference.  The various captions (including, without limitation, the table of contents) in this Agreement are included for convenience only and shall not affect the meaning or interpretation of any provision of this Agreement.  References in this Agreement to any underscored Section or Exhibit are to such Section or Exhibit of this Agreement, as the case may be.  The Exhibits hereto are hereby incorporated by reference into and made a part of this Agreement.

 

SECTION 10.10  Execution in Counterparts.  This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same Agreement.

 

SECTION 10.11  Acknowledgment and Agreement.  By execution below, each Transferor expressly acknowledges and agrees that all of the Company’s rights, title, and interests in, to, and under this Agreement (but not its obligations), shall be pledged by the Company to the Administrator (for the benefit of the Secured Parties) pursuant to the Receivables Financing Agreement and the Receivables Buyer pursuant to the Receivables Purchase Agreement, and each Transferor consents to such assignment.  Each of the parties hereto acknowledges and agrees that the Secured Parties, the Group Agents and the Agents are third party beneficiaries of the rights of the Company arising hereunder and under the other Transaction Documents to which any Transferor is a party.  Notwithstanding the foregoing or anything else to the contrary in this Agreement, none of the Secured Parties, the Group Agents or the Agents shall (a) have any rights, title, or interest in, to, or under this Agreement or (b) have any rights as third party beneficiaries with respect to this Agreement after the first date following the occurrence of the Purchase and Sale Termination Date with respect to all Originators when all obligations of each Originator to the Company and its assigns under this Agreement have been satisfied in full (other than those which expressly survive termination of this Agreement).  Notwithstanding any provision to the contrary in this Agreement or any document related hereto, if and to the extent that for any reason any payment by or on behalf of a Transferor is rescinded or must be otherwise restored by the Company or its assigns, whether as a result of any proceedings in bankruptcy or reorganization or other similar proceedings or otherwise, such payment shall be treated for all purposes, as though such amounts had not been paid and the determination as to whether any such payment must be rescinded or restored shall be made by Company (or the Agents, as its assigns) in its sole discretion.

 

SECTION 10.12  No Proceeding.  Each Transferor hereby agrees that it will not institute, or join any other Person in instituting, against the Company any Insolvency Proceeding for at least one year and one day following until the latest of the Final Payout Date under the Receivables Financing Agreement or the Final Collection Date under the Receivables Purchase Agreement.  Each Originator further agrees that notwithstanding any provisions contained in this Agreement to the contrary, the Company shall not, and shall not be obligated to, pay any amount in respect of any Company Note or otherwise to such Originator pursuant to this Agreement unless in accordance with the Company Note.  Any amount which the Company does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101 of the Bankruptcy Code) against the Company by, or limited liability company obligation of the Company to, such Originator for any such insufficiency unless and until the provisions of

 

the foregoing sentence are satisfied.  The agreements in this Section 10.12 shall survive any termination of this Agreement.

 

SECTION 10.13  Limited Recourse.  Except as explicitly set forth herein, the obligations of the Company under this Agreement or any other Transaction Documents to which it is a party are solely the obligations of the Company.  No recourse under any Transaction Document shall be had against, and no liability shall attach to, any officer, employee, director, or beneficiary, whether directly or indirectly, of the Company.  The agreements in this Section 10.13 shall survive any termination of this Agreement.

 

[Signature Pages Follow]

 

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers thereunto duly authorized as of the date first above written.

 

	CINCINNATI ▇▇▇▇ FUNDING LLC
	By:	/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
	Name:	▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
	Title:	Vice President of Treasury, Corporate Finance and Investor Relations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Schedule I-1