RECEIVABLES PURCHASE AGREEMENT

among

CINCINNATI BELL FUNDING LLC,

as Seller,

CINCINNATI BELL INC.,

as Servicer,

PNC BANK, NATIONAL ASSOCIATION,

as Buyer,

and

PNC CAPITAL MARKETS LLC,

as Structuring Agent

Dated as of May 10, 2018

                                                                           

 

 

 

 

 

RECEIVABLES PURCHASE AGREEMENT

This RECEIVABLES PURCHASE AGREEMENT (this “Agreement”) is entered into as of May 10, 2018, by and among CINCINNATI BELL FUNDING LLC, a Delaware limited liability company (the “Seller”), CINCINNATI BELL INC., an Ohio corporation (“CB”), as servicer (in such capacity, the “Servicer”), PNC BANK, NATIONAL ASSOCIATION (“PNC”), as buyer (in such capacity, the “Buyer”), and PNC CAPITAL MARKETS LLC, a Pennsylvania limited liability company, as structuring agent.

The Seller desires to sell certain of its Receivables and the corresponding Related Security from time to time, and the Buyer may be willing to purchase from the Seller such Receivables and Related Security, in which case the terms set forth herein shall apply to such purchase.  Each capitalized term used but not defined herein shall have the meaning set forth in, or by reference in, Exhibit A hereto, and the interpretive provisions set out in Exhibit A hereto shall be applied in the interpretation of this Agreement.

Accordingly, the parties hereto agree as follows:

 

 

material respects as of such Purchase Date or, in the case of any representation or warranty that speaks as to a particular date or period, as of that particular date or period;

 

Each Purchase Request submitted by the Seller shall constitute a representation and warranty that each of the conditions outlined in this Section 1(d) has been or will be satisfied.

            4.            Servicing Activities.

Purchased Receivable plus (ii) all fees, expenses and other amounts owing to the Buyer with respect to such Purchased Receivable, the Seller and Servicer may deduct such excess amount up to the Deferred Purchase Price Amount with respect to such Purchased Receivable and, upon such deduction, all obligations of the Buyer to deliver such Deferred Purchase Price Amount to the Seller shall be deemed satisfied. Until remitted to the Buyer’s Account, the Seller or Servicer will hold such funds in trust as the Buyer’s exclusive property and safeguard such funds for the benefit of the Buyer.

Document or (e) the same are expressly excluded by any provision of this Agreement or any other Transaction Document; provided, however that nothing contained in this sentence shall limit the liability of Seller or the Servicer or limit the recourse of any Indemnified Person to the Seller or the Servicer for any amounts otherwise specifically provided to be paid by the Seller or the Servicer hereunder.  Subject to Section 4(m) below, any amount due and payable pursuant to this section shall be paid to the Buyer’s Account in immediately available funds by no later than the first Weekly Settlement Date following demand therefor by the Buyer.

Collection into the Buyer’s Account by no later than the next Weekly Settlement Date after the Seller or Servicer obtains knowledge or notice thereof.

 

 

 

 

then, the Seller shall immediately deliver notice thereof to the Buyer and, at the time, in the manner and otherwise as hereinafter set forth, repurchase such Purchased Receivable and Related Security (or, if the Buyer agrees in writing, the portion subject to Dispute), unless the Buyer agrees in writing in its sole discretion to retain such Purchased Receivable.  The repurchase price for a Purchased Receivable shall be the amount equal to the Outstanding Purchase Amount relating to such Purchased Receivable at such time and shall be paid to the Buyer’s Account in immediately available funds by no later than the next Weekly Settlement Date.  Upon the payment in full of the repurchase price with respect to a Purchased Receivable and Related Security, such Purchased Receivable and Related Security shall hereby be, and be deemed to be, repurchased by the Seller from the Buyer without recourse to or warranty by the Buyer.

 

 

 

 

 

 

 

 

 

Subject to Section 4(m) above, any amount due and payable pursuant to this section shall be paid to the Buyer’s Account in immediately available funds by no later than the first Weekly Settlement Date following demand therefor by the Buyer.

Buyer such additional amount or amounts as shall compensate the Buyer for such event.  Any amount owing pursuant to this section shall be paid to the Buyer’s Account in immediately available funds. A certificate as to such amounts submitted to the Seller by the Buyer shall be conclusive and binding for all purposes as to the calculations therein, absent manifest error.

The Seller and Servicer agree that the Buyer may presume the authenticity, genuineness, accuracy, completeness and due execution of any email bearing a scanned signature resembling a signature of an authorized Person of the Seller or Servicer without further verification or inquiry by the Buyer.  Notwithstanding the foregoing, the Buyer in its sole discretion may elect not to act or rely upon such a communication and shall be entitled (but not obligated) to make inquiries or require further Seller or Servicer action to authenticate any such communication.

Any Purchase Request, and any supporting documentation in connection herewith or therewith, such as copies of invoices, may be sent by the Seller or Servicer by electronic mail attachment in portable document format (.pdf).

A party may change the address at which it is to receive notices hereunder by written notice in the foregoing manner given to the other parties hereto.

 

 

Persons that the Seller is an entity with assets and liabilities distinct from those of the Performance Guarantor, any Originator, the Servicer and any other Person, and is not a division of the Performance Guarantor, any Originator, the Servicer or any other Person.  Without limiting the generality of the foregoing and in addition to and consistent with the other covenants set forth herein, each of the Seller and the Servicer shall take such actions as shall be required in order that:

any agents other than its attorneys, auditors and other professionals, and a servicer and any other agent contemplated by the Transaction Documents for the Receivables and Related Security and a manager, which manager will be fully compensated from the Seller’s funds;

entity has offices in the same location, there shall be a fair and appropriate allocation of overhead costs between them, and each shall bear its fair share of such expenses.

[Signatures Commence on the Following Page]

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above.

 

	CINCINNATI BELL FUNDING LLC, as Seller
	By:	/s/ Joshua T. Duckworth
	Name:	Joshua T. Duckworth
	Title:	Vice President of Treasury, Corporate Finance and Investor Relations

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Exhibit A
Certain Defined Terms

As used herein, the following terms shall have the following meanings:

“Account Debtor” means a Person listed as an account debtor on Schedule II to this Agreement, as such Schedule may be modified or supplemented from time to time, as approved in advance by the Buyer in writing in its sole and absolute discretion.

“Account Debtor Discount Rate” means with respect to any Account Debtor, the “Account Debtor Discount Rate” specified for such Account Debtor on Schedule II to this Agreement, as such Schedule may be modified or supplemented from time to time, as approved in advance by the Buyer in writing in its sole and absolute discretion.

“Account Debtor Supplemental Period” means for each Account Debtor, the number of days set forth under the heading “Account Debtor Supplemental Period” for such Account Debtor on Schedule II to this Agreement, as such Schedule may be modified or supplemented from time to time, as approved in advance by the Buyer in writing in its sole and absolute discretion.

“Adverse Claim” means a lien, security interest or other charge or encumbrance, or any other type of preferential arrangement; it being understood that any thereof in favor of the Buyer shall not constitute an Adverse Claim.

“Affiliate” means, as to any Person: (a) any Person that, directly or indirectly, is in control of, is controlled by or is under common control with such Person, or (b) who is a director or officer: (i) of such Person or (ii) of any Person described in clause (a).  For purposes of this definition, control of a Person shall mean the power, direct or indirect: (x) to vote 25% or more of the securities having ordinary voting power for the election of directors of such Person, or (y) to direct or cause the direction of the management and policies of such Person, in either case whether by ownership of securities, contract, proxy or otherwise.

“Agreement” has the meaning set forth in the preamble hereto.

“Anti-Terrorism Laws” means any Applicable Law relating to terrorism, trade sanctions programs and embargoes, import/export licensing, money laundering or bribery, and any regulation, order, or directive promulgated, issued or enforced pursuant to such Applicable Laws, all as amended, supplemented or replaced from time to time.

“Applicable Law” means, with respect to any Person, (x) all provisions of law, statute, treaty, constitution, ordinance, rule, regulation, requirement, restriction, permit, executive order, certificate, decision, directive or order of any Governmental Authority applicable to such Person or any of its property and (y) all judgments, injunctions, orders, writs, decrees and awards of all courts and arbitrators in proceedings or actions in which such Person is a party or by which any of its property is bound.

“Bankruptcy Code” means the United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.

“Business Day” means any day (other than a Saturday or Sunday) on which: (a) banks are not authorized or required to close in Pittsburgh, Pennsylvania, Atlanta, Georgia or New York City, New York, and (b) if this definition of “Business Day” is utilized in connection with LIBOR, dealings are carried out in the London interbank market.

“Buyer” has the meaning set forth in the preamble hereto.

 

 

“Buyer’s Account” means the account specified as such in Exhibit G hereto, or such other bank account identified in writing by Buyer to Seller from time to time.

“CBT” means Cincinnati Bell Telephone Company LLC, an Ohio limited liability company, and its successors and permitted assigns.

“CBT Public Notice” means a public notice, issued by the Federal Communications Commission, announcing a request by CBT to discontinue, reduce or impair service.

“CBTS” means CBTS Technology Solutions LLC, a Delaware limited liability company.

“CBTS Lease Receivables” means a Receivable the Originator of which is CBTS and for which the underlying goods and services are hardware and related services procured by the Account Debtor from CBTS, but of which the expectation for payment of such Receivable is by a third-party financier as part of a direct leasing arrangement between such third-party financier and the Account Debtor for such goods and services.

“Change in Control” means that CB ceases to own, directly or indirectly, (a) 100% of the voting equity interests of the Seller free and clear of all Adverse Claims or (b) a majority of the voting equity interests of any Originator.

“Collection Report” has the meaning set forth in Section 4(g).

“Collections” means, with respect to any Receivable:  (a) all funds that are received by the Seller, Servicer or any other Person on their behalf in payment of any amounts owed in respect of such Receivable (including purchase price, finance charges, interest and all other charges), or applied to amounts owed in respect of such Receivable (including insurance payments and net proceeds of the sale or other disposition of repossessed goods or other collateral or property of the related Account Debtor or any other Person directly or indirectly liable for the payment of such Receivable and available to be applied thereon), (b) all Deemed Collections, (c) all proceeds of all Related Security with respect to such Receivable and (d) all other proceeds of such Receivable.

“Covered Entity” shall mean (a) each of Seller, Servicer, each Originator and each of CB’s subsidiaries and (b) each Person that, directly or indirectly, is in control of a Person described in clause (a) above.  For purposes of this definition, control of a Person shall mean the direct or indirect (x) ownership of, or power to vote, 25% or more of the issued and outstanding equity interests having ordinary voting power for the election of directors of such Person or other Persons performing similar functions for such Person, or (y) power to direct or cause the direction of the management and policies of such Person whether by ownership of equity interests, contract or otherwise.

“Credit and Collection Policy” means, as the context may require, those receivables credit and collection policies and practices of each Originator and of the Servicer in effect on the date of this Agreement and described in Exhibit H to this Agreement, as modified in compliance with this Agreement.

“Debt” means: (a) indebtedness for borrowed money, (b) obligations evidenced by bonds, debentures, notes or other similar instruments, (c) obligations to pay the deferred purchase price of property or services purchased by an applicable Person (other than trade debt incurred in the ordinary course of business and due within six months of the incurrence thereof) which would appear as liabilities on a balance sheet of such Person, (d) obligations as lessee under leases that shall have been or should be, in accordance with generally accepted accounting principles, recorded as capital leases, and (e) obligations under direct or indirect guaranties in respect of, and obligations (contingent or otherwise) to purchase or otherwise acquire, or otherwise to assure a creditor against loss in respect of, indebtedness or obligations of others of the kinds referred to in clauses (a) through (d).

“Deemed Collection” has the meaning set forth in Section 5(a) hereof.

“Defaulted Receivable” means a Receivable:

“Deferred Purchase Price Amount” means with respect to any Purchased Receivable and Related Security, the Net Invoice Amount of such Purchased Receivable multiplied by 1.00%.

“Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains unpaid beyond the Due Date of such Receivable.

“Dilution” means on any date after the date of the related Purchase Request, an amount equal to the sum, without duplication, of the aggregate reduction effected on such day in the outstanding balance of any Purchased Receivable as a result of any defective, rejected or returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by the Seller or any Affiliate of the Seller, or the Servicer or any Affiliate of the Servicer that are made in respect of Account Debtors; provided, however, that (a) writeoffs to the extent related to the financial or credit condition of an Account Debtor (including the occurrence of an Insolvency Proceeding with respect to the applicable Account Debtor) and (b) Disputes, in each case, shall not constitute Dilution.

“Discount” means, with respect to each Purchased Receivable purchased on a Purchase Date related to a specific Account Debtor, the discount cost applied by the Buyer to such Purchased Receivable, equal to the product of (a) the Net Invoice Amount of such Purchased Receivable minus the applicable Deferred Purchase Price Amount of such Purchased Receivable multiplied by (b) the applicable Account Debtor Discount Rate per annum, determined as of the Purchase Date for such Purchased Receivables, multiplied by (c) the result of (i) the applicable Discount Period, divided by (ii) 360.

“Discount Period” means with respect to any Purchased Receivable, the sum of the number of days from and including the Purchase Date thereof to but excluding the first Weekly Settlement Date occurring after (i) the Due Date with respect thereto plus (ii) the Account Debtor Supplemental Period for the applicable Account Debtor of such Purchased Receivable; provided, however, that in no event shall the Discount Period with respect to any Purchased Receivable end prior to thirty (30) days after the first Weekly Settlement Date following the Due Date with respect to such Purchased Receivable.

“Dispute” means any dispute, claim, offset or defense (other than discharge in bankruptcy of the Account Debtor) of the Account Debtor to the payment of any Receivable, or any other claim resulting from the sale or lease of goods or the rendering of services related to such Receivable or the furnishing or failure to furnish any such goods or services or other similar claim or defense not arising from the credit risk or financial inability of any Account Debtor to pay undisputed indebtedness.

“Due Date” means, with respect to any Purchased Receivable, the date the related Receivable Documentation provides for timely payment in full of the amounts owing thereunder.

“Eligible Receivable” means a Receivable with respect to which each of the Eligibility Criteria set forth in Exhibit E is satisfied.

“Equipment Lease Receivable” means a Receivable that arises in connection with the provision by CBTS of goods or services to an Account Debtor which provision of goods or services includes equipment or software leased by CBTS from a third-party equipment lessor until such time as the Equipment Lessor’s Lien no longer attaches to the Receivables.

“Equipment Lessor’s Lien” means a Lien in favor of a third-party equipment lessor under a lease agreement covering equipment or software leased by CBTS in connection with the provision of goods or services to an Account Debtor which provision of goods and services includes such equipment or software.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time.  References to sections of ERISA also refer to any successor sections.

“ERISA Affiliate” means: (a) any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Internal Revenue Code) as the Seller, any Originator, the Servicer or the Performance Guarantor, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Internal Revenue Code) with the Seller, any Originator, the Servicer or the Performance Guarantor, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Internal Revenue Code) as the Seller, any Originator, the Servicer or the Performance Guarantor, any corporation described in clause (a) or any trade or business described in clause (b).

“Events of Repurchase” has the meaning set forth in Section 5(b) hereof.

“Exchange Act” means the Securities Exchange Act of 1934, as amended or otherwise modified from time to time.

“Fee Letter” means the Fee Letter, dated as of the date hereof, among the Seller and the Buyer, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Final Collection Date” means the date following the termination of this Agreement on which the Buyer has received (i) all Collections owing on the Purchased Receivables and (ii) all payments, if any, required to be paid by the Seller or Servicer under this Agreement or any other Transaction Document, including with respect to Events of Repurchase and Indemnified Amounts.

“Financing Agreement” means the Receivables Financing Agreement, dated as of the date hereof, among the Seller and Cincinnati Bell Funding Canada Ltd., as borrowers, CB and OnX Enterprise Solutions Ltd., as servicers, the various lenders and group agents from time to time party thereto, and PNC Bank, National Association, as administrator and LC bank, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Funded Amount” has the meaning set forth in Section 1(e) hereof.

“GAAP” means the generally accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board and the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or such other principles as may be approved by a significant segment of the accounting profession in the United States, as in effect on the date hereof; provided that CB shall be entitled to adopt and apply, at their sole election, changes to their respective definition of “GAAP” after the date hereof.

“Governmental Authority” means any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government, including any court, and any Person owned or controlled, through stock or capital ownership or otherwise, by any of the foregoing.

“IFRS” means international accounting standards within the meaning of the IAS Regulation 1606/2002 to the extent applicable to the relevant financial statements and/or any successor standards.

“Indemnified Amounts” has the meaning set forth in Section 4(i) hereof.

“Indemnified Person” has the meaning set forth in Section 4(i) hereof.

“Insolvency Proceeding” means: (a) any case, action or proceeding before any court or other Governmental Authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up or relief of debtors, or (b) any general assignment for the benefit of creditors, composition, marshaling of assets for creditors, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors, in each case undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code.

“Intercreditor Agreement” means the Intercreditor Agreement, dated as of the date hereof, among the Buyer, the Securitization Administrator, CB and the Seller, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Internal Revenue Code” means the Internal Revenue Code of 1986, as amended, reformed or otherwise modified from time to time.

“LIBOR” means, for any Discount Period, the greater of (a) 0.00% and (b) the Eurodollar rate for U.S. dollar deposits with a term equal to the Discount Period as reported on the applicable Reuters Screen LIBOR Page or any other page that may replace such page from time to time for the purpose of displaying offered rates of leading banks for London interbank deposits in United States dollars, as of 11:00 a.m. (London time) on such day, or if such day is not a Business Day, then the immediately preceding Business Day (or if not so reported, then as determined by the Buyer from another recognized source for interbank quotation), in each case, changing when and as such rate changes.  Notwithstanding the foregoing, (i) if LIBOR shall be less than 0%, such rate shall be deemed 0% for purposes of this Agreement and (ii) if the Discount Period does not correspond to any available rate term, then LIBOR shall be LIBOR with a term equal to the shortest period for which LIBOR is available that exceeds the applicable Discount Period at such time

“Lock-Box Account” means each account specified as such in Exhibit G hereto.

“Lock-Box Agreement” means an agreement, by and among the Seller, the Servicer, the Securitization Administrator, as secured party, and a depositary bank, governing the terms of the related Lock-Box Accounts.

“Material Adverse Change” means, with respect to any Person (or if no Person is specified, with respect to the Seller, Servicer or Performance Guarantor) an event or circumstance that results in, or could reasonably be expect to result in, a material adverse change in:

“Maximum Outstanding Purchase Amount” means $80,000,000.

“Net Invoice Amount” means the amount of the applicable Purchased Receivable shown on the invoice for such Purchased Receivable as the total amount payable by the related Account Debtor (net of any discounts, credits or other allowances shown on such invoice and agreed to prior to the Purchase Date).

“OFAC” means the Office of Foreign Assets Control of the U.S. Department of the Treasury.

“On-Site Payment” means a payment of a Receivable made in cash or by check or credit card by an Account Debtor at a retail location, payment center or distributor of an Originator.

“Originator” means each Person from time to time party to the Sale Agreement as an Originator.

“Other Taxes” means any and all present or future stamp, court or documentary, intangible, recording, filing, sales, transfer taxes or any other excise or property taxes, charges or similar levies arising from the sale of Purchased Receivables or any payment made hereunder or from the execution, delivery, performance, registration or enforcement of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Transaction Document.

“Outstanding Purchase Amount” means, as of any time of determination and with respect to the Purchased Receivables, (x) the Net Invoice Amount for such Purchased Receivables, minus (y) the aggregate amount of all Collections with respect to such Purchased Receivables that has been deposited into the Buyer’s Account as of such time. When such term is used without reference to any specific Purchased Receivables, it shall constitute a reference to all Purchased Receivables.

“Overdue Payment Rate” means 3% per annum over and above the highest Account Debtor Discount Rate in effect at such time.

“PATRIOT Act” has the meaning set forth in Section 11(k)

“Payment-on-Delivery Transaction” means a payment of a Receivable made by check or money order by an Account Debtor at a warehouse location or distributor of an Originator upon the delivery to such Account Debtor of the goods or services giving rise to such Receivable.

“Performance Guarantor” means CB and any other Person that has guaranteed the performance obligations of the Seller under this Agreement.

“Performance Guaranty” means a performance guaranty entered into by the Performance Guarantor in favor of the Buyer.

“PNC” has the meaning set forth in the preamble hereto.

“Person” means an individual, partnership, sole proprietorship, corporation (including a business trust), limited liability company, limited partnership, joint stock company, trust, unincorporated association, joint venture or other entity, or a government or any political subdivision or agency thereof.

“Proposed Receivables” means, with respect to any Purchase Date, the Receivables proposed by Seller to the Buyer for purchase hereunder and described in a Purchase Request to be purchased on such Purchase Date.

“Purchase Date” means each date on which the Buyer purchases Receivables and Related Security.

“Purchase Price” has the meaning set forth in Section 1(e) hereof.

“Purchase Request” has the meaning set forth in Section 1(a) hereof.

“Purchase Sublimit” means, with respect to each Account Debtor, the dollar amount set forth on Schedule II to this Agreement as the “Purchase Sublimit,” as such Schedule may be modified or supplemented from time to time, as approved in advance by the Buyer in writing in its sole and absolute discretion.

“Purchased Receivables” has the meaning set forth in Section 1(a) hereof.

“Ratings-Based Discount Percentage” has the meaning set forth in the Fee Letter.

“Receivable Documentation” means, for each Receivable, the invoice therefor and any other agreement or documentation between the Seller and the applicable Account Debtor giving rise to, and/or setting forth terms and conditions related to the creation and payment of, such Receivable, including in each case any amendments.

“Receivable” means any indebtedness and other obligations owed to any Originator, CB, the Seller or the Buyer (as assignee of Seller) or any right of the Seller, CB, any Originator or the Buyer (as assignee of Seller) to payment from or on behalf of an Account Debtor, or any right to reimbursement for funds paid or advanced by the Seller, CB or any Originator on behalf of an Account Debtor, whether constituting an account, chattel paper, payment intangible, instrument or general intangible, in each instance arising in connection with (a) the sale of goods or the rendering of services or (b) the provision or use of equipment, facilities or software, and includes, without limitation, (i) the obligation to pay any finance charges, fees and other charges with respect thereto and (ii) amounts billed to the Account Debtor for such service or any other of the foregoing to be provided during the immediate subsequent billing period.  Indebtedness and other obligations arising from any one transaction, including, without limitation, indebtedness and other obligations represented by an individual invoice or agreement, shall constitute a Receivable separate from a Receivable consisting of the indebtedness and other obligations arising from any other transaction.

“Regulatory Change” means, relative to any Person:

“Related Security” means, with respect to any Receivable:

“Reportable Compliance Event” shall mean that any Covered Entity becomes a Sanctioned Person, or is charged by indictment, criminal complaint or similar charging instrument, arraigned, or custodially detained in connection with any Anti-Terrorism Law or any predicate crime to any Anti-Terrorism Law, or has knowledge of facts or circumstances to the effect that it is reasonably likely that any aspect of its operations is in actual or probable violation of any Anti-Terrorism Law.

“Sale Agreement” means the Second Amended and Restated Purchase and Sale Agreement, dated as of May 10, 2018, among the Seller, the Originators and CB, as servicer and as sole member of the Seller, as the same may be amended, amended and restated, supplemented or otherwise modified from time to time.

“Sale Transaction Taxes” has the meaning set forth in Section 5(d) hereof.

“Sanctioned Country” means a country subject to a sanctions program maintained under any Anti-Terrorism Law.

“Sanctioned Person”  means any individual person, group, regime, entity or thing listed or otherwise recognized as a specially designated, prohibited, sanctioned or debarred person, group, regime, entity or thing, or subject to any limitations or prohibitions (including but not limited to the blocking of property or rejection of transactions), under any Anti-Terrorism Law.

“Securitization Documents” means the Financing Agreement, the Sale Agreement and the other Transaction Documents (as defined in the Financing Agreement).

“Seller” has the meaning set forth in the preamble hereto.

“Seller’s Account” means the account specified as such in Exhibit G hereto, or such other bank account identified in writing by the Seller to the Buyer from time to time.

“Servicer” has the meaning set forth in Section 4(a) hereof.

“Servicer Incentive Fee” means, with respect to a Purchased Receivable, an amount equal to (a) the product of (i) the Net Invoice Amount of such Purchased Receivable multiplied by (ii) the Discount originally applied to such Purchased Receivable to determine such Purchased Receivable’s Purchase Price in accordance with Section 1(e) hereof, multiplied by (iii) the number of days from and including the day on which all Collections owing with respect to such Purchased Receivable were paid to the Buyer (or if such day occurs prior to the Maturity Date of such Purchased Receivable, such Maturity Date) to but excluding the end of Discount Period for such Purchased Receivable, divided by (b) 360.

“Servicer Termination Event” means an event specified in Exhibit F hereto.

“Solvent” means, with respect to any Person at any time, a condition under which:

For purposes of this definition:

“Specified Receivables” means Equipment Lease Receivables until the conditions set forth in the respective definitions thereof are no longer applicable.

“Structuring Agent” means PNC Capital Markets LLC, a Pennsylvania limited liability company.

“Taxes” means, with respect to any Person, any and all present or future taxes, charges, fees, levies, imposts, deductions or other assessments (including income, gross receipts, profits, withholding, excise, property, sales, use, license, occupation and franchise taxes and including any related interest, penalties or other additions)

imposed by any jurisdiction or taxing authority (whether foreign or domestic) under the laws of which such Person is organized.

“Transaction Documents” means this Agreement, the Performance Guaranty, the Fee Letter, each Lock-Box Agreement, each Purchase Request, each Collection Report and all other documents and agreements to be executed and delivered by the Seller, the Servicer or the Performance Guarantor in connection with any of the foregoing, in each case, as amended, supplemented or otherwise modified from time to time.

“UCC” means the Uniform Commercial Code in effect in the State of New York from time to time; provided, if by reason of mandatory provisions of Applicable Law, the perfection, the effect of perfection or non-perfection or the priority of the security interests of the Buyer is governed by the Uniform Commercial Code as in effect in a jurisdiction other than New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“USD” means United States Dollars, the lawful currency of the United States of America.

“Weekly Reporting Date” means each Business Day next preceding a Weekly Settlement Date.

“Weekly Settlement Date” means the Friday of each calendar week (or if such day is not a Business Day, the next preceding Business Day).

B.  Other Interpretive Matters.

All accounting terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein.  For purposes of this Agreement and all such certificates and other documents, unless the context otherwise requires: (a) except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP or IFRS, as in effect from time to time; (b) terms defined in Article 9 of the UCC and not otherwise defined in such agreement are used as defined in such Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words “hereof,” “herein” and “hereunder” and words of similar import refer to such agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of such agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to such agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term “including” means “including without limitation”; (g) references to any Applicable Law refer to that Applicable Law as amended from time to time and include any successor Applicable Law; (h) references to any agreement refer to that agreement as from time to time amended, restated, extended or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (i) references to any Person include that Person’s permitted successors and assigns; (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof; (k) unless otherwise provided, in the calculation of time from a specified date to a later specified date, the term “from” means “from and including,” and the terms “to” and “until” each means “to but excluding”; (l) terms in one gender include the parallel terms in the neuter and opposite gender; and (m) the term “or” is not exclusive.

Exhibit B
Conditions Precedent for Effectiveness

Each of the following, in form and substance satisfactory to the Buyer:

Exhibit C
Representations and Warranties

Exhibit D
Covenants

Until the Final Collection Date:

its books and records with respect to the Purchased Receivables and Related Security; provided, however, that neither the Seller nor the Servicer shall be obligated to permit such examinations, visits or reviews under clauses (i) and (ii) above, more than three times per year (commencing upon and including the date hereof) during such time that no Servicer Termination Event has occurred and is continuing and neither the Seller nor the Servicer shall be obligated to pay or reimburse any Person for the expenses of more than one such examination or visit pursuant to clause (i) above per year (commencing upon and including the date hereof) during such time that no Servicer Termination Event has occurred and is continuing..

 

 

 

Exhibit E
Eligibility Criteria

Exhibit F
Servicer Termination Events

Each of the following shall constitute a “Servicer Termination Event” for purposes of this Agreement:

Event” or similar event shall occur under the Securitization Documents (whether or not waived under and in accordance with the Securitization Documents).

 

Exhibit F-2