Form 8-K CINCINNATI BELL INC For: Apr 09

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EXECUTION VERSION

 

THIRD AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT

THIS THIRD AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this “Amendment”), dated as of April 9, 2021, is entered into by and among CINCINNATI BELL FUNDING LLC (the “Seller”), CINCINNATI BELL INC. (“CB”), as Servicer (the “Servicer”), PNC BANK, NATIONAL ASSOCIATION (“PNC”), as buyer (the “Buyer”).

RECITALS

The parties hereto are parties to the Receivables Purchase Agreement, dated as of May 10, 2018 (as amended, amended and restated, supplemented or otherwise modified through the date hereof, the “Agreement”) and desire to amend the Agreement as hereinafter set forth.

Concurrently herewith, the Seller, the Servicer, the Buyer, and the other parties thereto are entering into that certain Fourth Amendment to the Receivables Financing Agreement, dated as of the date hereof (the “RFA Amendment”).

The parties hereto desire to amend the Agreement as set forth herein.

NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.Certain Defined Terms.  Capitalized terms that are used but not defined herein shall have the meanings set forth in the Agreement.

SECTION 2.Amendments to the Agreement.  The Agreement is hereby amended to incorporate the changes shown on the marked pages of the Agreement attached hereto as Exhibit A.

SECTION 3.Consent to Subject Merger.  

(a)RF Merger Sub Inc., an Ohio corporation, intends to be merged with and into CB pursuant to the terms and subject to the conditions set forth in that certain Agreement and Plan of Merger, dated as of March 13, 2020, whereupon the separate corporate existence of RF Merger Sub Inc. will cease, and CB will be the surviving corporation in the merger (the foregoing, the “Subject Merger”).

(b)The Buyer hereby waives any notice or other requirements set forth in Section 7(d) of the Performance Guaranty with respect to the Subject Merger so long as no event has occurred and is continuing that constitutes a Servicer Termination Event, and for avoidance of doubt, to the extent required, hereby consents to the Subject Merger.

SECTION 4.Representations and Warranties.  Each of the Seller and the Servicer hereby represents and warrants to the Buyer as follows:

4.1Representations and Warranties.  The representations and warranties made by it in the Transaction Documents are true and correct as of the date hereof and after giving effect to this

 

 

Amendment (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).

4.2Enforceability.  The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, as amended hereby, are within its organizational powers and have been duly authorized by all necessary organizational action on its part.  This Amendment and the Agreement, as amended hereby, are such Person’s valid and legally binding obligations, enforceable in accordance with its terms.

4.3No Default. After giving effect to this Amendment, no Servicer Termination Event exists or shall exist.

SECTION 5.Effect of Amendment.  All provisions of the Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement (or in any other Transaction Document) to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Agreement shall be deemed to be references to the Agreement as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as set forth herein.

SECTION 6.Effectiveness.  This Amendment shall become effective as of the date hereof upon the Buyer’s receipt of duly executed counterparts of this Amendment from each of the parties hereto.

SECTION 7.Counterparts.  This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof.

SECTION 8.Governing Law.  THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

SECTION 9.Severability.  If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment or the Agreement.

SECTION 10.Section Headings.  The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.

SECTION 11.Consents.  The Buyer hereby consents to the Seller’s and Servicer’s execution and delivery of the RFA Amendment and the performance of its respective obligations thereunder.

 

 

(Signature pages follow)

 

 

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment 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

 

CINCINNATI BELL INC.,

as Servicer

 

 

By:/s/ Joshua T. Duckworth

Name: Joshua T. Duckworth

 

Title:  

Vice President of Treasury,
Corporate Finance and Investor Relations

 

 

 

PNC BANK, NATIONAL ASSOCIATION,

as Buyer

 

 

By:/s/ Henry Chan

Name: Henry Chan

Title: Senior Vice President

 

S-1

 

Third Amendment to RPA
(Cincinnati Bell)

 

 

 

 

Exhibit A

(attached)

 

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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

 

 

 

 

 

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Table of Contents

 

Page

 

 

1.

Sale and Purchase.1

 

2.

Representations and Warranties2

 

4.

Servicing Activities.3

 

5.

Deemed Collections; Repurchase Events; Indemnities and Set-Off.5

 

8.

Interest on Overdue Amounts8

 

10.

Buyer Liabilities9

 

11.

General Provisions9

 

12.

Separate Existence10

 

13.

Agreement Not to Petition13

 

14.

Intercreditor Agreement13

 

15.

Structuring Agent13

 

 

Schedule I

-Form of Purchase Request

Schedule II

-Account Debtors

Exhibit A

-Certain Defined Terms

Exhibit B

-Conditions Precedent for Effectiveness

Exhibit C

-Representations and Warranties

Exhibit E

-Eligibility Criteria

Exhibit F

-Servicer Termination Events

 

 

 

 

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.

RECITALS

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:

1.Sale and Purchase.

(g)Sales of Receivables.  From time to time during the term of this Agreement, the Seller may submit to the Buyer a request in substantially the form of Schedule I attached hereto (a “Purchase Request”) that the Buyer purchase from the Seller the Proposed Receivables described in such Purchase Request as well as the proposed Purchase Date thereof.  The Buyer, in its sole and absolute discretion, may elect to accept or reject a Purchase Request.  If the Buyer, in its sole and absolute discretion, accepts a Purchase Request, then the Buyer shall purchase, and the Seller shall sell, all of the Seller’s right, title and interest (but none of the Seller’s underlying obligations to the applicable Account Debtor) with respect to such Proposed Receivables and Related Security as of the Purchase Date (all such Proposed Receivables, once sold and purchased hereunder, collectively the “Purchased Receivables”).

(h)UNCOMMITTED ARRANGEMENT. THE SELLER ACKNOWLEDGES THAT THIS IS AN UNCOMMITTED ARRANGEMENT, THAT THE SELLER HAS NEITHER PAID, NOR IS REQUIRED TO PAY, A COMMITMENT FEE OR COMPARABLE FEE TO BUYER NOR IS SELLER REQUIRED TO SUBMIT ANY REQUEST TO SELL ANY RECEIVABLES HEREUNDER.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, THE SELLER EXPRESSLY AGREES THAT THE BUYER WILL NOT BE OBLIGATED TO PURCHASE ANY RECEIVABLE FROM THE SELLER, AND THE BUYER MAY REFUSE, FOR ANY REASON OR FOR NO REASON, TO PURCHASE ANY RECEIVABLE OFFERED FOR PURCHASE BY THE SELLER REGARDLESS OF WHETHER THE VARIOUS CONDITIONS TO PURCHASE SET FORTH IN THIS AGREEMENT HAVE BEEN SATISFIED.

(i)Conditions to Effectiveness. This Agreement shall become effective at such time as each of the conditions precedent set forth on Exhibit B to this Agreement has been satisfied to the satisfaction of the Buyer.

 

 

(j)Conditions Precedent to Each Purchase.  The Buyer shall not purchase the Proposed Receivables and Related Security described in a Purchase Request unless:

(i)the Buyer has received a Purchase Request in substantially the form of Schedule I attached hereto with respect to such Proposed Receivables by no later than 2:00 p.m. (New York time) on the Business Day prior to the applicable Purchase Date, together with any such additional supporting documentation that the Buyer may have reasonably requested;

(ii)the Buyer has accepted such Purchase Request and notified the Seller thereof;

(iii)each of the representations and warranties made by the Seller, Servicer and the Performance Guarantor in this Agreement and each of the other Transaction Documents is true and correct in all 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;

(iv)each Proposed Receivable is an Eligible Receivable; and

(v)immediately following the sale and purchase of the Proposed Receivables and Related Security set forth in such Purchase Request, (A) the Outstanding Purchase Amount will not exceed the Maximum Outstanding Purchase Amount and (B) the Outstanding Purchase Amount with respect to the Purchased Receivables payable by any Account Debtor will not exceed such Account Debtor’s Purchase Sublimit.

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.

(k)Purchase Price.  The purchase price for each Purchased Receivable and Related Security purchased on any Purchase Date shall equal (i) the Net Invoice Amount of such Purchased Receivable, minus (ii) the Discount (such amount herein referred to as the “Purchase Price”).  Subject to Section 4(m) below, the Buyer shall pay the Purchase Price minus the Deferred Purchase Price Amount (such amount herein referred to as the “Funded Amount”) with respect to each Purchased Receivable and Related Security by depositing the Funded Amount into the Seller’s Account in immediately available funds denominated in USD on the applicable Purchase Date.  For the avoidance of doubt and not in limitation of any other provision of this Agreement, it is understood and agreed that the Deferred Purchase Price Amount represents part of the Purchase Price of its related Purchased Receivable and Related Security and, subject to payment in full by the related Account Debtor with respect to such Purchased Receivable and the Seller’s obligations for Deemed Collections otherwise described in this Agreement, is the property of the Seller.

(l)True Sale; No Recourse.  Except as otherwise provided in this Agreement, each purchase of Receivables and Related Security hereunder is made without recourse to the Seller and the Seller shall have no liability to the Buyer for the failure of any Account Debtor to pay any Purchased Receivable when it is due and payable under the terms applicable thereto. The Buyer and the Seller have structured the transactions contemplated by this Agreement as an absolute and irrevocable sale, and the Buyer and the Seller agree to treat each such transaction as a “true sale” for all purposes under Applicable Law and accounting principles, including, without limitation, in their respective books, records, computer files, tax returns (federal, state and local) and regulatory and governmental filings (and shall reflect such

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sale in their respective financial statements).  The Seller will advise all Persons inquiring about the ownership of any Purchased Receivable and Related Security that all Purchased Receivables and Related Security have been sold to the Buyer.  In the event that, contrary to the mutual intent of the parties hereto, any purchase of Purchased Receivables and Related Security is not characterized as a sale, the Seller shall, effective as of the date hereof, be deemed to have granted to the Buyer (and the Seller hereby does grant to the Buyer), in addition to and not in substitution for the rights and remedies described in Section 5(f) hereof, a first priority security interest in and to any and all present and future Purchased Receivables, Related Security and the proceeds thereof to secure all obligations of the Seller arising in connection with this Agreement and each of the other Transaction Documents, whether now or hereafter existing, due or to become due, direct or indirect, absolute or contingent.  This Agreement shall be deemed to be a security agreement under Applicable Law.  With respect to such grant of a security interest, the Buyer may at its option exercise from time to time any and all rights and remedies available to it hereunder, under the UCC or otherwise.  The Seller agrees that five (5) Business Days shall be reasonable prior notice to the Seller of the date of any public or private sale or other disposition of all or any of the Purchased Receivables and Related Security.

(m)Successor LIBORBenchmark Replacement Setting.  

(i)Benchmark Replacement.  Notwithstanding anything to the contrary herein or in any other Transaction Document, if the Buyer determines that a Benchmark Transition Event or an Early Opt-in Event has occurred, the Buyer and the Seller may amend this Agreement to replace LIBOR withElection, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement.  Until the is determined in accordance with clause (1) of the definition of “Benchmark Replacement is effective, Discount with respect to any Purchased Receivable determined with reference to LIBOR will continue to be determined with reference to LIBOR; provided, however, that during a Benchmark Unavailability Period, Discount with respect to each Purchased Receivable shall automatically begin to be determined with reference to the Base Rate (as defined in the Financing Agreement).” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance with clause (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document.

(ii)Benchmark Replacement Conforming Changes.  In connection with the implementation of a Benchmark Replacement, the Buyer will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document.

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(iii)Notices; Standards for Decisions and Determinations. The Buyer will promptly notify the Seller of (i) theany occurrence of a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1(g)(iv) and (iiiv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Buyer pursuant to this Section 1(g), including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party heretoto this Agreement or any other Transaction Document, except, in each case, as expressly required pursuant to this Section 1(g).

(iv)Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Buyer in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Buyer may modify the definition of “Discount Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Buyer may modify the definition of “Discount Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(v)Upon the Seller’s receipt of notice of the commencement of a Benchmark Unavailability Period, the Seller may revoke any Purchase Request for any Receivable with a Discount calculated by reference to LIBOR. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

(vi)Notwithstanding anything to the contrary herein or in any other Transaction Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting (the “Secondary Term SOFR Conversion Date”) and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; provided that, this Section 1(g)(vi) shall not be effective unless the Buyer has delivered to the Seller a Term SOFR Notice.

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(vii)This Section 1(g) provides a mechanism for determining an alternative rate of interest in the event that the London interbank offered rate is no longer available or in certain other circumstances.  The Buyer does not warrant or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of LIBOR or with respect to any alternative or successor rate thereto, or replacement rate therefor.

(viii)(iv) Certain Defined Terms.  As used in this Section 1(g):

“Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then current Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark that is or may be used for determining the length of a Discount Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Discount Period” pursuant to Section 1(g)(iv), or (y) if the then current Benchmark is not a term rate nor based on a term rate, any payment period for interest calculated with reference to such Benchmark pursuant to this Agreement as of such date.

“Benchmark” means, initially, LIBOR; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LIBOR or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1(g)(i).

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Buyer for the applicable Benchmark Replacement Date:

(1)the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

(2)(1) “Benchmark Replacement” means the sum of: (a) the alternate benchmark rate that has been selected by the Buyer and the Seller as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement to LIBORfor the then-current Benchmark for U.S. dollar-denominated accounts receivablenon-recourse or limited recourse receivables purchase facilities at such time and (b) the related Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the

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Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Buyer in its reasonable discretion; provided, further, that, with respect to a Term SOFR Transition Event, on the applicable Benchmark Replacement Date, the “Benchmark Replacement” shall revert to and shall be determined as set forth in clause (1) of this definition. If the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor for any setting of such Unadjusted Benchmark Replacement:

(1) for purposes of clause (1) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Buyer:

(a)the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Available Tenor that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

(b) the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Available Tenor that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

(2) (2) for purposes of clause (2) of the definition of “Benchmark Replacement Adjustment” means, with respect to any replacement of LIBOR with an alternate benchmark rate for each applicable Discount Period,,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Buyer and the Seller (a)for the applicable Corresponding Tenor

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giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of LIBORsuch Benchmark with the applicable Unadjusted Benchmark Replacement (excluding such spread adjustment) by the Relevant Governmental Body on the applicable Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for suchthe replacement of LIBORsuch Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated accounts receivablenon-recourse or limited recourse receivables purchase facilities at such time and (b) which may also reflect adjustments to account for (i) the effects of the transition from LIBOR to the Benchmark Replacement and (ii) yield- or risk-based differences between LIBOR and the Benchmark Replacement.;

provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Buyer in its reasonable discretion and (y) if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be the Available Tenor that has approximately the same length (disregarding business day adjustments) as the payment period for interest calculated with reference to such Unadjusted Benchmark Replacement.

(3) Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base RateBusiness Day,” the definition of “Discount Period,” timing and frequency of determining rates and making payments of interest and other, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Buyer decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Buyer in a manner substantially consistent with market practice (or, if the Buyer decides that adoption of any portion of such market practice is not administratively feasible or if the Buyer determines that no market practice for the administration of thesuch Benchmark Replacement exists, in such other manner of administration as

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the Buyer decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).

(4) Benchmark Replacement Date” means the earlierearliest to occur of the following events with respect to LIBORthe then-current Benchmark:

a. (1)in the case of clause a. or b.(1) of the definition of “Benchmark Transition Event,” the later of (xa) the date of the public statement or publication of information referenced therein and (yb) the date on which the administrator of the London Interbank Offered Rate for interbank deposits in USD (“USD LIBORsuch Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide USD LIBOR; orall Available Tenors of such Benchmark (or such component thereof);

b. (2)in the case of clause c.(2) of the definition of “Benchmark Transition Event,” the date determined by the Buyer, which date shall promptly follow the date of the public statement or publication of information referenced therein.;

(3)in the case of a Term SOFR Transition Event, the date that is set forth in the Term SOFR Notice provided to the Seller pursuant to Section 1(g), which date shall be at least 30 days from the date of the Term SOFR Notice; or

(4)in the case of an Early Opt-in Election, the date notice of such Early Opt-in Election is provided to the Seller.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

(5) Benchmark Transition Event” means the occurrence of one or more of the following events with respect to LIBORthe then-current Benchmark:

a. (1)a public statement or publication of information by or on behalf of the administrator of USD LIBORsuch Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide USD

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LIBORall Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide USD LIBORany Available Tenor of such Benchmark (or such component thereof);

b. (2)a public statement or publication of information by a Governmental Authority having jurisdiction over the Buyer, the regulatory supervisor for the administrator of USD LIBOR, the U.S.such Benchmark (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for USD LIBORsuch Benchmark (or such component), a resolution authority with jurisdiction over the administrator for USD LIBORsuch Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for USD LIBORsuch Benchmark (or such component), which states that the administrator of USD LIBORsuch Benchmark (or such component) has ceased or will cease to provide USD LIBORall Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide USD LIBORany Available Tenor of such Benchmark (or such component thereof); or

c. (3)a public statement or publication of information by the regulatory supervisor for the administrator of USD LIBORsuch Benchmark (or the published component used in the calculation thereof) or a Governmental Authority having jurisdiction over the Buyer announcing that USD LIBOR isall Available Tenors of such Benchmark (or such component thereof) are no longer representative.

For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

(6) Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to LIBOR and solely to the extent that LIBOR (as the case may be) has not been replaced with a Benchmark Replacement, the period (if any) (x) beginning at the time that sucha Benchmark Replacement Date pursuant to clause (1) or (2) of that definition has occurred if, at such

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time, no Benchmark Replacement has replaced LIBORthe then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with this Section 1(g)(iv) and (y) ending at the time that a Benchmark Replacement has replaced LIBORthe then-current Benchmark for all purposes hereunder pursuant to thisand under any Transaction Document in accordance with Section 1(g)(iv).

(7) “Early Opt-in Event” means a determination by the Buyer that U.S. dollar-denominated accounts receivable purchase facilities being executed at such time, or that include language similar to that contained in this Section 1(g), are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace USD LIBOR.

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Early Opt-in Election” means, if the then-current Benchmark is LIBOR, the occurrence of:

(1)a notification by the Buyer to (or the request by the Seller to the Buyer to notify) each of the other parties hereto that at least five currently outstanding U.S. dollar-denominated non-recourse or limited recourse receivables purchase facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such non-recourse or limited recourse receivables purchase facilities are identified in such notice and are publicly available for review); and

(2)the joint election by the Buyer and the Seller to trigger a fallback from LIBOR.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LIBOR or, if no floor is specified, zero (0.00).

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is LIBOR, 11:00 a.m. (London

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time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not LIBOR, the time determined by the Buyer in its reasonable discretion.

(8) Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto.

“Secondary Term SOFR Conversion Date” has the meaning set forth in Section 1(g)(vi).

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Term SOFR Notice” means a notification by the Buyer to the Seller of the occurrence of a Term SOFR Transition Event.

“Term SOFR Transition Event” means the determination by the Buyer that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, and is determinable for each Available Tenor, (b) the administration of Term SOFR is administratively feasible for the Buyer and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with Section 1(g) that is not Term SOFR.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

2.Representations and Warranties

.  Each of the Seller and the Servicer represents and warrants to the Buyer on each Purchase Date that (i) the representations and warranties set forth on Exhibit C hereto are true and correct in all material respects as of such Purchase Date or, in the case of

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any representation or warranty that speaks as to a particular date or period, as of that particular date or period and (ii) each Proposed Receivable is an Eligible Receivable.

3.Covenants

.  The Seller and the Servicer agree to perform each of the covenants set forth on Exhibit D hereto.

4.Servicing Activities.

(g)Appointment of Servicer.  The Buyer appoints the Servicer as its servicer and agent (each, in such capacity, the “Servicer”) for the administration and servicing of its Purchased Receivables sold by such Person to the Buyer hereunder, and the Servicer hereby accepts such appointment and agrees to assume the duties and the administration and servicing obligations as Servicer, and perform all necessary and appropriate commercial servicing and collection activities in arranging the timely payment of amounts due and owing by any Account Debtor (including the identification of the proceeds of the Purchased Receivables and Related Security and related record-keeping that shall be made available to the Buyer upon its reasonable request) all in accordance with Applicable Laws, with reasonable care and diligence, including, without limitation, diligently and faithfully performing all servicing and collection actions (including, if necessary, acting as party of record in foreign jurisdictions).  In connection with its servicing obligations, the Servicer will perform its duties under the Receivable Documentation related to the Purchased Receivables with the same care and applying the same policies as it applies to its own Receivables generally and would exercise and apply if it owned the Purchased Receivables and shall act to maximize Collections thereon. The Servicer may delegate its duties and obligations hereunder to any other Originator as its subservicer (each a “Sub-Servicer”); provided, that, in each such delegation: (i) such Sub-Servicer shall agree in writing to perform the duties and obligations of the Servicer pursuant to the terms hereof, (ii) the Servicer shall remain liable for the performance of the duties and obligations so delegated, (iii) the Buyer shall have the right to look solely to the Servicer for performance, and (iv) the terms of any agreement with any Sub-Servicer that is an Affiliate of the Servicer shall provide that the Buyer may terminate such agreement upon the termination of the Servicer hereunder by giving notice of its desire to terminate such agreement to the Servicer (and the Servicer shall provide appropriate notice to each such Sub-Servicer); provided, however, that if any such delegation is to any Person other than an Originator or an Affiliate thereof, the Buyer shall have consented in writing in advance to such delegation (which consent shall not be unreasonably withheld or delayed); and provided, further, that the Servicer may delegate the following duties and obligations to a Sub-Servicer without consent by any party: (w) data processing, including customer care and billing, (x) customer acquisition and retention and market research, (y) inbound and outbound teleservices and (z) computer system maintenance, enhancement, machine processing and production support.

(h)Lock-Box Accounts; Lock-Box Agreements. The Seller and Servicer covenant and agree (i) to direct each Account Debtor to pay all amounts owing under such Purchased Receivables only to a Lock-Box Account, (ii) not to change such payment instructions while any Purchased Receivable remains outstanding, (iii) to take any and all other reasonable actions, including actions requested by the Buyer, to ensure that all amounts owing under the Purchased Receivables will be deposited exclusively to such Lock-Box Account or directly to the Buyer’s Account and (iv) to hold in trust as the Buyer’s exclusive property and safeguard for the benefit of the Buyer all Collections and other amounts remitted or paid to the Seller or Servicer (or any of their respective Affiliates) in respect of Purchased Receivables and Related Security for prompt deposit into the Buyer’s Account in the manner set forth in Section 4(c) below. The Seller hereby grants to the Buyer a security interest in the Seller’s Lock-Box Account as

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additional collateral to secure the payment and performance of the Seller’s obligations to the Buyer hereunder and under each of the other Transaction Documents or as may be determined in connection therewith by Applicable Law.  On and after the date on which the Seller and the Servicer (A) deliver to the Buyer a duly executed Lock-Box Agreement entered into with Wells Fargo Bank, N.A. as depositary bank, relating to the Lock-Box Account listed on Exhibit G, reasonably satisfactory to the Buyer or (B) direct Account Debtors to cease remitting payments to the Lock-Box Account listed on Exhibit G and begin remitting payments to another Lock-Box Account that is subject to a Lock-Box Agreement reasonably satisfactory to the Buyer, in each case in accordance with Section 16 , each Lock-Box Account shall at all times be subject to a Lock-Box Agreement.  Prior to the occurrence of the Servicer Termination Event, the Seller (or Servicer on their behalf) shall be permitted to make withdrawals and distributions from each applicable Lock-Box Account.  After the occurrence of the Servicer Termination Event, the Buyer will be authorized to instruct the Securitization Administrator to give notice of exclusive control under each Lock-Box Agreement and, upon giving such notice (each, an “Activation Notice”), the Securitization Administrator will have exclusive authority to make withdrawals and distributions from each Lock-Box Account until the Final Collection Date.

(i)Transfer of Collections to the Buyer.  Subject to Sections 4(d), 4(e), 4(m) and 5(a) below, the Seller and Servicer covenant and agree to deposit in the Buyer’s Account all Collections and other amounts received by the Seller or Servicer (or any of their respective Affiliates) with respect to Purchased Receivables and Related Security (whether such amounts were received by the Seller or Servicer directly or were deposited in a Lock-Box Account or other account maintained by the Seller or Servicer or otherwise) without adjustment, setoff or deduction of any kind or nature on each Settlement Date; provided, if on any Settlement Date, the total Collections received or deemed received by the Seller and Servicer with respect to a Purchased Receivable exceed the sum of (i) the Net Invoice Amount of such 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.

(j)Misdirected Payments.  If the Buyer receives any payment from an Account Debtor not representing a Collection on a Purchased Receivable, the Buyer will return such payment to the Seller upon receipt of satisfactory evidence that such amounts do not constitute Collections on Purchased Receivables.

(k)Identifying Collections. Pursuant to its servicing obligations under Section 4(a) hereof, the Servicer shall be responsible for identifying, matching and reconciling any payments received from Account Debtors with the Receivable associated with such payment.  If any payment is received from an Account Debtor, and such payment is not identified by such Account Debtor as relating to a particular Receivable and cannot otherwise be reasonably identified as relating to a particular Receivable prior to the first Weekly Reporting Date following receipt thereof, such payment shall be applied first to the unpaid Purchased Receivables with respect to such Account Debtor in chronological order (beginning with the oldest unpaid Purchased Receivable), and then to Receivables with respect to such Account Debtor that are not Purchased Receivables, also in chronological order, or in any event in accordance with the terms of the Intercreditor Agreement.

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(l)No Changes to Receivables.  The Servicer shall not compromise or settle any Purchased Receivable or extend the Due Date with respect thereto without the consent of the Buyer except as otherwise expressly provided for in Section 5(a) hereof.  

(m)Collection Report.  (i) On each Reporting Date and (ii) concurrently with each request by the Seller for a return of payments received by the Buyer that do not represent Collections on Purchased Receivables or Related Security in accordance with Section 4(d), the Servicer shall provide to the Buyer, in form and substance reasonably satisfactory to the Buyer, a full reconciliation of all Collections and adjustments (including repurchases thereof, Servicer Incentive Fees, indemnifications and setoffs with respect thereto, if any) with respect to each Purchased Receivable and Related Security of an Account Debtor for which Collections were received (each, a “Collection Report”).  

(n)Non-Payment.  If a Purchased Receivable remains unpaid, in part or in full, past the second Weekly Settlement Date occurring after the applicable Due Date therefor, the Servicer shall report to the Buyer in the next Collection Report describing in reasonable detail the cause of such non-payment, including whether a Dispute or Insolvency Proceeding exists with respect to the applicable Account Debtor.  In the event a Purchased Receivable has not been paid in full by the date that is fifteen (15) days after the first Weekly Settlement Date occurring after the applicable Due Date therefor and the reason for such non-payment is not a Dispute or an Insolvency Proceeding, the Buyer may in its sole discretion  (i) contact such Account Debtor by phone or in person to discuss the status of such Purchased Receivable and to inquire whether such payment delay or non-payment is due to a Dispute or Insolvency and when payment can be expected and/or (ii) take any other lawful action to collect such Purchased Receivable directly from such Account Debtor and/or (iii) terminate the appointment of the Seller as Servicer with respect to such Purchased Receivable.

(o)Servicer Indemnification.  The Servicer hereby agrees to indemnify and hold harmless the Buyer and its officers, directors, employees, representatives, agents and each of their respective Affiliates, successors and assigns (each, an “Indemnified Person”) from and against any and all damages, claims, losses, costs, expenses and liabilities (including, without limitation, reasonable and documented attorneys’ fees and expenses) (all of the foregoing being collectively referred to as “Indemnified Amounts”) arising out of or resulting from or related to (i) any failure by the Servicer to perform its duties or obligations as Servicer hereunder in accordance with this Agreement or to comply with any Applicable Law, (ii) any breach of the Servicer’s representations, warranties or covenants under any Transaction Document or (iii) any claim brought by any Person other than an Indemnified Person arising from the Servicer’s servicing or collection activities with respect to the Purchased Receivables; provided, however, that in all events there shall be excluded from the foregoing indemnification any damages, claims, losses, costs, expenses or liabilities to the extent (a) a final judgment of a court of competent jurisdiction holds that such amounts resulted from gross negligence or willful misconduct of the Indemnified Person seeking indemnification, (b) due to the credit risk of the Account Debtor and for which reimbursement would constitute recourse to the Seller or the Servicer for uncollectible Receivables, (c) such amounts constitute Taxes  other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim, (d) the same have been fully and finally paid in cash to such Indemnified Person pursuant to any other provision of this Agreement or any other Transaction 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

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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.

(p)Replacement of Servicer. Following the occurrence of a Servicer Termination Event, the Buyer may, at its discretion, replace the Servicer with itself or any agent for the Buyer with respect to any and all Purchased Receivables and Related Security.  Seller shall be responsible for all reasonable costs and expenses incurred in connection with such replacement and shall promptly reimburse the Buyer with respect to same.

(q)Buyer as Attorney-in-Fact. The Seller hereby appoints the Buyer as the true and lawful attorney-in-fact of the Seller, with full power of substitution, coupled with an interest, and hereby authorizes and empowers the Buyer in the name and on behalf of the Seller at any time following removal of the Seller as Servicer pursuant to Sections 4(h) or 4(j), to take such actions, and execute and deliver such documents, as the Buyer deems reasonably necessary or advisable in connection with any applicable Purchased Receivable and Related Security (i) to perfect the purchase and sale of such Purchased Receivable and Related Security, including, without limitation, to send a notice of such purchase and sale to the Account Debtor of the transfers contemplated hereby and the sale of such Purchased Receivable and Related Security or (ii) to make collection of and otherwise realize the benefits of such Purchased Receivable and Related Security.  At any time that the Seller is no longer serving as Servicer hereunder, the Buyer shall have the right to bring suit, in the Buyer’s or the Seller’s name, and generally have all other rights of an owner and holder respecting each applicable Purchased Receivable and Related Security, including without limitation the right to accelerate or extend the time of payment, settle, compromise, release in whole or in part any amounts owing on such Purchased Receivables and issue credits in its own name or the name of the Seller.  At any time following removal of the Seller as Servicer, the Buyer may endorse or sign the Buyer’s or the Seller’s name on any checks or other instruments with respect to any applicable Purchased Receivables and Related Security or the goods covered thereby.  The Buyer shall not be liable for any actions taken by it in accordance with this Section 4(k) unless such actions constitute the gross negligence or willful misconduct of the Buyer as determined by a court of competent jurisdiction in a final and non-appealable judgment.  This power of attorney, being coupled with an interest, is irrevocable and shall not expire until the Final Collection Date.

(r)Servicer Incentive Fee. In order to incentivize the efficient servicing of the Purchased Receivables, if all Collections due to the Buyer with respect to a Purchased Receivable are paid to the Buyer before the end of the Discount Period for such Purchased Receivable, the Buyer shall pay to the Servicer the Servicer Incentive Fee.  

(s)Netting of Payments. The parties hereto agree that on each Settlement Date, for administrative convenience, the parties shall net the obligations of the Buyer to the Seller with respect to the payment of the Purchase Price of any Receivable the Purchase Date of which is such Settlement Date against the obligations of the Seller and the Servicer to the Buyer (including with respect to the remittance of Collections in accordance with Section 4(c)) and transfer the net amount via a single wire payment. To the extent that the obligations of the Seller and the Servicer to the Buyer described in the foregoing sentence exceed the obligations of the Buyer to the Seller described in the foregoing sentence, the Seller or the Servicer shall transfer the net amount to the Buyer in accordance with Section 4(c); to the extent that the obligations of the Buyer to the Seller described in the foregoing sentence exceed the obligations of the Seller and the Servicer to the Buyer in the foregoing sentence, the Buyer shall transfer the net amount to the Seller in accordance with Section 1(e). Such amounts shall be determined by the Buyer and

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all such determinations shall be conclusive absent manifest error.  For the avoidance of doubt, no netting of payments shall occur on any Purchase Date that is not a Settlement Date.

5.Deemed Collections; Repurchase Events; Indemnities and Set-Off.

(g)Deemed Collections. If on any day the outstanding balance of a Purchased Receivable is reduced (but not cancelled) as a result of any Dilution, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of such reduction.  If on any day a Purchased Receivable is cancelled (or reduced to zero) as a result of any Dilution, the Seller shall be deemed to have received on such day a Collection of such Purchased Receivable in the amount of the Outstanding Purchase Amount of such Purchased Receivable (as determined immediately prior to such Dilution). Any amount deemed to have been received under this Section 5(a) shall constitute a “Deemed Collection.”  In the event of any such Deemed Collection, the Seller shall deposit an amount equal to such Deemed 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.

(h)Events of Repurchase. If any of the following events (each, an “Event of Repurchase”) occurs with respect to a Purchased Receivable or Related Security:

(i)any representation or warranty made by the Seller with respect to such Purchased Receivable or Related Security shall be materially inaccurate, incorrect or untrue on any date as of which it is made or deemed to be made;

(ii)the Seller or Servicer fails to perform or observe any other term, covenant or agreement with respect to such Purchased Receivable set forth in any Transaction Document or any related Receivable Documentation and such failure shall or could reasonably be expected to have an adverse effect on the ability to collect the Net Invoice Amount of such Purchased Receivable on the Due Date thereof;

(iii)the Seller or Servicer instructs the related Account Debtor to pay any amount with respect to such Purchased Receivable to an account other than the applicable Lock-Box Account or the Buyer’s Account;

(iv)a Dispute has arisen with respect to any Purchased Receivable (it being understood that if a Receivable remains unpaid for thirty (30) days beyond its Due Date and such delay is not caused by the bankruptcy, insolvency, or financial inability to pay of the relevant Account Debtor, a Dispute shall be deemed to have arisen with respect to such Receivable); or

(v)the Seller and the Servicer shall fail to timely comply with the terms of Section 16 of this Agreement.

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

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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.

(i)Seller Indemnification.  The Seller hereby agrees to indemnify each Indemnified Person and hold each Indemnified Person harmless from and against any and all Indemnified Amounts at any time imposed on or incurred by any Indemnified Person to the extent arising out of or otherwise relating to any Transaction Document, the transactions contemplated thereby or the purchase of any Receivable or Related Security, or any action taken or omitted by any of the Indemnified Persons (including any action taken by the Buyer as attorney in fact for the Seller hereunder or under any other Transaction Document), whether arising by reason of the acts to be performed by the Seller hereunder or otherwise, excluding only Indemnified Amounts to the extent (a) a final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct of the Indemnified Person seeking indemnification, (b) due to the credit risk or financial inability to pay of the Account Debtor and for which reimbursement would constitute recourse to the Performance Guarantor, the Seller or the Servicer for uncollectible Receivables, (c) such Indemnified Amounts constitute Taxes (which shall be governed by Section 5(d)), (d) the same have been fully and finally paid in cash to such Indemnified Person pursuant to any other provision of this Agreement or any other Transaction 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 the 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.  Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b), (c), (d), and (e) of the previous sentence, the Seller shall indemnify each Indemnified Person for Indemnified Amounts (including losses in respect of uncollectible Receivables, regardless, for purposes of these specific matters, of whether reimbursement therefor would constitute recourse to the Seller or the Servicer) to the extent relating to or resulting from:

(i)any representation or warranty made by the Seller (or any employee or agent of the Seller) under or in connection with this Agreement, any Collection Report or any other information or report delivered by or on behalf of the Seller pursuant hereto, which shall have been false or incorrect in any respect when made or deemed made;

(ii)the failure by the Seller to comply with any Applicable Law related to any Receivable and Related Security, or the nonconformity of any Receivable and Related Security with any such Applicable Law;

(iii)the failure of the Seller to vest and maintain vested in the Buyer a perfected ownership interest in the Purchased Receivables and Related Security and the property conveyed hereunder, free and clear of any Adverse Claim;

(iv)any commingling of funds to which the Buyer is entitled hereunder with any other funds of the Seller or its Affiliates;

(v)any failure of the Account Bank to comply with the terms of the Lock-Box Agreement;

(vi)any Dispute;

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(vii)any failure of the Seller to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document to which it is a party;

(viii)any action taken by the Buyer as attorney in fact for the Seller pursuant to this Agreement or any other Transaction Document unless such action constitutes the gross negligence or willful misconduct of the Buyer as determined by a court of competent jurisdiction in a final and non-appealable judgment; or

(ix)any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort, arising out of or in connection with any Purchased Receivable and Related Security or any other suit, claim or action of whatever sort relating to any of the Transaction Documents.

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.

(j)Tax Indemnification.  All payments on the Purchased Receivables from the Account Debtors will be made free and clear of any present or future taxes, withholdings or other deductions whatsoever that arise by reason of the sale of the Purchased Receivables to the Buyer (“Sale Transaction Taxes”) or relating to the underlying transactions between the Seller and the related Account Debtors that gave rise to such Purchased Receivables (“Prior Transaction Taxes”).  The Seller will indemnify the Buyer and hold the Buyer harmless from any Sale Transaction Taxes and Prior Transaction Taxes (excluding any taxes imposed upon the Buyer with respect to its overall net income).  Further, the Seller shall pay and indemnify and hold the Buyer harmless from and against, any Sale Transaction Taxes or Prior Transaction Taxes that may at any time be asserted (including any sales, occupational, excise, gross receipts, personal property, privilege, license, telecom, surcharge, service or use taxes, or withholdings, but not including taxes imposed upon the Buyer with respect to its overall net income) and costs, expenses and reasonable attorneys’ fees and expenses in defending against the same, whether arising by reason of the acts to be performed by the Seller hereunder or otherwise.  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.

(k)Increased Costs. If the Buyer shall determine that any Regulatory Change regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on the Buyer’s capital or assets or increasing its amount of required liquidity as a consequence of (i) this Agreement or any other Transaction Document, (ii) any of the Buyer’s obligations under this Agreement or any other Transaction Document or (iii) the Buyer’s purchase or the ownership, maintenance or funding of any Purchased Receivables and Related Security hereunder, to a level below that which the Buyer would have achieved but for such Regulatory Change (taking into consideration the Buyer’s policies with respect to capital adequacy), then, from time to time, within two (2) Business Days following demand by the Buyer, the Seller shall pay to the 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.

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(l)Right of Set-Off.  The Buyer is hereby authorized (in addition to any other rights it may have) at any time after the occurrence and during the continuation of a Servicer Termination Event, to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by the Buyer (including by any branches or agencies of the Buyer) to, or for the account of, the Seller against amounts then due and owing by the Seller hereunder.

(m)UCC.  The rights granted to the Buyer hereunder are in addition to all other rights and remedies afforded to the Buyer as a secured party under the UCC.

6.Notices

.  All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including e-mail communication) and shall be personally delivered or sent by e-mail or by overnight mail, to the intended party at the mailing address, e-mail address of such party set forth under its name on the signature pages hereof (or in any other document or agreement pursuant to which it is or became a party hereto), or at such other address as shall be designated by such party in a written notice to the other parties hereto.  All such notices and communications shall be effective (i) if delivered by overnight mail, when received, and (ii) if transmitted by e-mail, when sent, receipt confirmed by telephone or electronic means.

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.

7.Expenses

.  The Seller hereby agrees to reimburse the Buyer on demand for:

(g)all reasonable costs (including reasonable attorneys’ fees and expenses) and expenses the Buyer incurs in connection with the preparation, negotiation, documentation and delivery of this Agreement and the other Transaction Documents and any amendment of or consent or waiver under any of the Transaction Documents (whether or not consummated), or the enforcement of, or any actual or reasonably claimed breach of, this Agreement or any of the other Transaction Documents, including reasonable independent accountants’, auditors’, consultants’ and attorneys’ fees and expenses to the Buyer and the fees and charges of any independent accountants, auditors, consultants or other agents incurred in connection with any of the foregoing or in advising the Buyer as to its rights and remedies under any of the Transaction Documents in connection with any of the foregoing;

(h)the administration (including periodic auditing as provided for herein) of this Agreement and the other Transaction Documents and the transactions contemplated thereby, including all reasonable expenses and accountants’, consultants’ and attorneys’ fees incurred in connection with the

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administration and maintenance of this Agreement and the other Transaction Documents and the transactions contemplated thereby; and

(i)all Other Taxes.

8.Interest on Overdue Amounts

.  All amounts due for payment by the Seller or Servicer to the Buyer pursuant to this Agreement shall accrue interest at the Overdue Payment Rate from the date on which payment thereof is due until the date on which payment thereof is made in accordance with the terms of this Agreement.

9.Governing Law

.  THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL, ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.

10.Buyer Liabilities

.  The obligations of the Buyer under the Transaction Documents are solely the corporate obligations of the Buyer.  Except with respect to any claim arising out of the willful misconduct or gross negligence of the Buyer, no claim may be made by the Seller or the Servicer or any other Person against the Buyer or its Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection therewith; and each of Seller and Servicer hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.  No Indemnified Person shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Transaction Documents or the transactions contemplated hereby or thereby; provided that the waiver provided for in this sentence shall not apply to damages resulting directly from such Indemnified Person’s own gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final and non-appealable judgment.

11.General Provisions

.  

(g)Entire Agreement; Successors and Assigns.  This Agreement and the other Transaction Documents embody the entire agreement and understanding between the parties hereto, and supersede all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Except as otherwise provided herein, (i) neither the Seller nor the Servicer may assign or transfer any of its rights or delegate any of its duties hereunder or under any Transaction Document without the prior consent of the Buyer and (ii) the Buyer shall not assign or transfer any of its rights or delegate any of its duties hereunder or under any Transaction Document without the prior consent of the Seller (such consent not to be unreasonably withheld or delayed); provided that the Seller’s consent shall not be required if a Servicer Termination Event has occurred and is continuing.  Notwithstanding the foregoing, the Buyer shall have the right,

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without the consent of or notice to the Seller, to sell, transfer, negotiate, or grant participations in all or any part of, or any interest in, any Purchased Receivables.

(h)Severability.  Any provisions of this Agreement that are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.  

(i)Execution in Counterparts.  This Agreement may be executed in any number of 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.  Delivery of an executed counterpart of a signature page to this Agreement by electronic mail attachment in portable document format (.pdf) shall be effective as delivery of a manually executed counterpart of this Agreement.

(j)Termination.  Either the Buyer or the Seller may terminate this Agreement for convenience at any time by providing thirty (30) days’ prior written notice to the other party.  Notwithstanding the foregoing, this Agreement, including all covenants, representations and warranties, repurchase obligations and indemnities made herein shall continue in full force and effect until the Final Collection Date. The Seller’s and Servicer’s obligations to indemnify the Buyer with respect to the expenses, damages, losses, costs and liabilities shall survive until the later of (x) the Final Collection Date and (y) all applicable statute of limitations periods with respect to actions that may be brought by the Buyer under the Transaction Documents have run.

(k)Calculation of Interest.  All interest amounts calculated on a per annum basis hereunder are calculated on the basis of a year of three hundred and sixty (360) days.

(l)WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE.  EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.  WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

(m)CONSENT TO JURISDICTION.  ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-

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EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.  EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

(n)WAIVER OF IMMUNITIES.  EACH PARTY HERETO HEREBY ACKNOWLEDGES AND AGREES THAT TO THE EXTENT THAT IT HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM THE JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID TO EXECUTION, EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER OR IN CONNECTION WITH THIS AGREEMENT.

(o)Captions and Cross References.  The various captions in this Agreement are provided solely for convenience of reference and shall not affect the meaning or interpretation of any provision of this Agreement.  Unless otherwise indicated, references in this Agreement to any Section, Schedule or Exhibit are to such Section of or Schedule or Exhibit to this Agreement, as the case may be, and references in any Section, subsection, or clause to any subsection, clause or subclause are to such subsection, clause or subclause of such Section, subsection or clause.

(p)No Party Deemed Drafter.  The Servicer, Seller and the Buyer agree that no party hereto shall be deemed to be the drafter of this Agreement.

(q)PATRIOT Act.  The Buyer hereby notifies the Seller and the Servicer that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Buyer may be required to obtain, verify and record information that identifies the Seller, the Servicer and the Performance Guarantor, which information includes the name, address, tax identification number and other information regarding the Seller, the Servicer and the Performance Guarantor that will allow the Buyer to identify the Seller, the Servicer and the Performance Guarantor in accordance with the PATRIOT Act. This notice is given in accordance with the requirements of the PATRIOT Act.  Each of the Seller and the Servicer agrees to provide the Buyer, from time to time, with all documentation and other information required by bank regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.

12.Separate Existence

.  Each of the Seller and the Servicer hereby acknowledges that the Buyer is entering into the transactions contemplated by this Agreement and the other Transaction Documents in reliance upon the Seller’s identity as a legal entity separate from the Performance Guarantor, the Originators and their respective Affiliates.  Therefore, from and after the date hereof, each of the Seller and the Servicer shall take all steps specifically required by this Agreement or reasonably required by the Buyer to continue the Seller’s identity as a separate legal entity and to make it apparent to third Persons

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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:

(g)The Seller will be a limited liability company whose primary activities are restricted in its operating agreement to: (i) purchasing or otherwise acquiring from the Originators or the Performance Guarantor, owning, holding, servicing, granting security interests or selling interests in Receivables and Related Security, (ii) entering into agreements for the selling and servicing of Receivables and Related Security or for borrowing from banks, financial institutions or similar entities, (iii) purchasing, holding and selling common stock or similar equity interests (“Equity Investments”) and exercising all voting rights and other incidents of ownership with respect to the Equity Investments, (iv) using proceeds derived from sale or ownership of Receivables, Related Security and Equity Investments as determined by the board of directors of the Seller and permitted by the Transaction Documents and (v) conducting such other activities as it deems necessary or appropriate to carry out its primary activities;

(h)The Seller shall not engage in any business or activity, or incur any indebtedness or liability (including, without limitation, any assumption or guaranty of any obligation of the Performance Guarantor, any Originator, the Servicer or any Affiliate thereof), other than as expressly permitted by the Transaction Documents;

(i)Not less than one member of the Seller’s Board of Directors (the “Independent Director”) shall be a natural person (A) who is not at the time of initial appointment and has not been at any time during the five (5) years preceding such appointment: (1) an equityholder, director (other than an independent director), officer, employee, member (other than a special member or similar capacity), manager (other than an independent manager), attorney or partner of the Performance Guarantor, Seller, Servicer or any of their Affiliates; (2) a customer of, supplier to or other person who derives more than 1% of its purchases or revenues from its activities with the Performance Guarantor, Seller, Servicer or any of their Affiliates; (3) a person or other entity controlling, controlled by or under common control with any such equity holder, partner, member, manager, customer, supplier or other person; or (4) a member of the immediate family of any such equity holder, director, officer, employee, member, manager, partner, customer, supplier or other person and (B) who has (1) prior experience as an independent director for a corporation or an independent director or independent manager of a limited liability company whose charter documents required the unanimous consent of all independent directors or independent managers thereof before such corporation or limited liability company could consent to the institution of bankruptcy or insolvency proceedings against it or could file a petition seeking relief under any applicable federal or state law relating to bankruptcy and (2) at least three years of employment experience with one or more entities that provide, in the ordinary course of their respective businesses, advisory, management or placement services to issuers of securitization or structured finance instruments, agreements or securities.  Under this clause (c), the term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of management, policies or activities of a Person, whether through ownership of voting securities, by contract or otherwise.  The operating agreement of the Seller shall provide that: (A) the Seller’s Board of Directors shall not approve, or take any other action to cause the filing of, a voluntary bankruptcy petition with respect to the Seller unless the Independent Director shall approve the taking of such action in writing before the taking of such action, and (B) such provision cannot be amended without the prior written consent of the Independent Director;

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(j)The Independent Director shall not at any time serve as a trustee in bankruptcy for the Seller, the Performance Guarantor, any Originator, the Servicer or any of their respective Affiliates;

(k)The Seller shall conduct its affairs in accordance with its organizational documents and observe all necessary, appropriate and customary limited liability company formalities, including, but not limited to, holding all regular and special members’ and board of directors’ meetings appropriate to authorize all limited liability company action, keeping separate and accurate minutes of its meetings, passing all resolutions or consents necessary to authorize actions taken or to be taken, and maintaining accurate and separate books, records and accounts, including, but not limited to, payroll and intercompany transaction accounts;

(l)Any employee, consultant or agent of the Seller will be compensated from the Seller’s funds for services provided to the Seller, and to the extent that Seller shares the same officers or other employees as the Performance Guarantor, the Servicer or any Originator (or any other Affiliate thereof), the salaries and expenses relating to providing benefits to such officers and other employees shall be fairly allocated among such entities, and each such entity shall bear its fair share of the salary and benefit costs associated with such common officers and employees.  The Seller will not engage 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;

(m)The Seller will contract with the Servicer to perform for the Seller all operations required on a daily basis to service the Receivables and Related Security.  The Seller will not incur any material indirect or overhead expenses for items shared with the Performance Guarantor, the Servicer or any Originator (or any other Affiliate thereof).  To the extent, if any, that the Seller (or any Affiliate thereof) shares items of expenses not reflected in the manager’s fee, such as legal, auditing and other professional services, such expenses will be allocated to the extent practical on the basis of actual use or the value of services rendered, and otherwise on a basis reasonably related to the actual use or the value of services rendered; it being understood that CB, in its capacity as Servicer, shall pay all expenses relating to the preparation, negotiation, execution and delivery of the Transaction Documents, including legal, agency and other fees;

(n)The Seller’s operating expenses will not be paid by the Performance Guarantor, the Servicer or any Originator or any Affiliate thereof;

(o)The Seller will have its own separate stationery;

(p)The Seller’s books and records will be maintained separately from those of the Performance Guarantor, the Servicer, each Originator and any other Affiliate thereof and in a manner such that it will not be difficult or costly to segregate, ascertain or otherwise identify the assets and liabilities of Seller;

(q)All financial statements of the Performance Guarantor, the Servicer or any Originator or any Affiliate thereof that are consolidated to include Seller will disclose that (i) the Seller is a separate legal entity with its own separate creditors who will be entitled, upon its liquidation, to be satisfied out of the Seller’s assets prior to any assets or value in the Seller becoming available to the Seller’s equity holders and (ii) the assets of the Seller are not available to pay creditors of the Performance

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Guarantor, the Servicer or the Originators or any other Affiliates of the Performance Guarantor, the Servicer or the Originators;

(r)The Seller’s assets will be maintained in a manner that facilitates their identification and segregation from those of the Performance Guarantor, the Servicer, the Originators or any Affiliates thereof;

(s)The Seller will observe limited liability company formalities in its dealings with the Performance Guarantor, the Servicer, the Originators or any Affiliates thereof, and funds or other assets of the Seller will not be commingled with those of the Performance Guarantor, the Servicer, the Originators or any Affiliates thereof except as permitted by this Agreement in connection with servicing the Receivables and Related Security.  The Seller shall not maintain joint bank accounts or other depository accounts to which the Performance Guarantor or any Affiliate thereof (other than the Performance Guarantor in its capacity as the Servicer) has independent access.  The Seller is not named, and has not entered into any agreement to be named, directly or indirectly, as a direct or contingent beneficiary or loss payee on any insurance policy with respect to any loss relating to the property of the Performance Guarantor, the Originators or any Subsidiaries or other Affiliates thereof.  The Seller will pay to the appropriate Affiliate the marginal increase or, in the absence of such increase, the market amount of its portion of the premium payable with respect to any insurance policy that covers the Seller and such Affiliate;

(u)The Seller shall have a separate area from the Performance Guarantor, the Servicer and each Originator for its business (which may be located at the same address as such entities) and to the extent that any other such 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.

13.Agreement Not to Petition

.  Each party hereto agrees, for the benefit of the holders of the privately or publicly placed indebtedness for borrowed money or other lenders to or purchasers from Seller, not, prior to the date which is one (1) year and one (1) day after the payment in full of all such indebtedness, to acquiesce, petition or otherwise, directly or indirectly, invoke, or cause Seller to invoke, the process of any Governmental Authority for the purpose of (a) commencing or sustaining a case against Seller under any federal or state bankruptcy, insolvency or similar law (including the Bankruptcy Code), (b) appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official for Seller, or any substantial part of its property, or (c) ordering the winding up or liquidation of the affairs of Seller. The provisions of this Section 13 shall survive the termination of this Agreement.

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14.Intercreditor Agreement

.  Each party hereto acknowledges that it has entered into the Intercreditor Agreement. To the extent that any terms or provisions herein are inconsistent with any terms or provisions of the Intercreditor Agreement, the Intercreditor Agreement shall govern.

15.Structuring Agent

.  Each of the parties hereto hereby acknowledges and agrees that the Structuring Agent shall not have any right, power, obligation, liability, responsibility or duty under any Transaction Document, other than the Structuring Agent’s right to receive fees pursuant to the terms of the Fee Letter.  The Buyer acknowledges that it has not relied, and will not rely, on the Structuring Agent in deciding to enter into this Agreement and to take, or omit to take, any action under any Transaction Document.

16.Post-Closing Covenant

17..  The Seller and the Servicer shall on or prior to the thirtieth (30th) day after the date of this Agreement (or such later day as agreed to in writing by the Buyer), either: (A) deliver to the Buyer a duly executed Lock-Box Agreement entered into with Wells Fargo Bank, N.A. as depositary bank, relating to the Lock-Box Account listed on Exhibit G, reasonably satisfactory to the Buyer or (B) direct Account Debtors to cease remitting payments to the Lock-Box Account listed on Exhibit G and begin remitting payments to another Lock-Box Account that is subject to a Lock-Box Agreement reasonably satisfactory to the Buyer.  Upon any failure by the Seller and the Servicer to timely comply with this Section 16, an Event of Repurchase will be deemed to have occurred with respect to each Purchased Receivable then outstanding.

[Signatures Commence on the Following Page]

 

 

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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:______________________________________

Name:  Joshua T. Duckworth

Title:    Vice President of Treasury, Corporate Finance and Investor Relations

 

Address:
221 East Fourth Street

Cincinnati, Ohio 45202

 

Attention: Joshua T. Duckworth

Telephone: (513) 397-2292

Email: [email protected]

 

 

CINCINNATI BELL INC.,

as Servicer

 

 

By:______________________________________

Name:  Joshua T. Duckworth

Title:    Vice President of Treasury, Corporate Finance and Investor Relations

 

Address:

221 East Fourth Street

Cincinnati, Ohio 45202

 

Attention: Joshua T. Duckworth

Telephone: (513) 397-2292

Email: [email protected]

Signature Page 1 of 2

 

 

 

PNC BANK, NATIONAL ASSOCIATION,

as Buyer

 

 

By:______________________________________

Name:

Title:

 

 

Address:

 

The Towers at PNC Plaza

300 5thFifth Ave

Pittsburgh, PA 15222

 

Attention:Robyn ReeherBrian Stanley

Telephone:(412) 768-30902001

Email: robyn.reeherbrian.stanley@pnc.com

 

 

PNC CAPITAL MARKETS LLC,
as Structuring Agent

By:______________________________________

Name:

Title:

 

 

 

 

 

Signature Page 2 of 2

 

 

 

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.

Additional Reporting Date” means each Business Day next preceding an Additional Settlement Date.

Additional Settlement Date” means any Business Day (i) notified to the Buyer by the Servicer upon at least one (1) Business Day’s notice and (ii) approved by the Buyer in its sole 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.

Exhibit A-1

 

 

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.

Beneficial Ownership Rule” means 31 C.F.R. § 1010.230.

Beneficial Ownership Certification” means, for the Seller, a certification of the Seller as to its beneficial owner(s) complying with the Beneficial Ownership Rule.

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.

Notwithstanding the above, the acquisition by MIP V (FCC) AIV, L.P. and any other affiliate or managed funds and Ares Special Situations Fund IV, L.P., ASOF Holdings I, L.P. and any other affiliates or managed funds of CB will not be deemed a “Change in Control.”

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

Exhibit A-2

 

 

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:

(a)

as to which any payment, or part thereof, remains unpaid for more than thirty (30) days after the Due Date thereof, or

(b)

without duplication (i) as to which an Insolvency Proceeding shall have occurred with respect to the Account Debtor thereof or any other Person obligated thereon or owning any Related Security with respect thereto, or (ii) that has been written off the Seller’s books as uncollectible.

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%.

Exhibit A-3

 

 

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 sixty (60) 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.

Exhibit A-4

 

 

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.

Exhibit A-5

 

 

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.

Exhibit A-6

 

 

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:

(i)the assets, operations, business or financial condition of such Person;

(ii)the ability of any of such Person to perform its obligations under this Agreement or any other Transaction Document to which it is a party;

(iii)the validity or enforceability of any of the Transaction Documents, or the validity, enforceability or collectibility of the Purchased Receivables; or

(iv) the status, perfection, enforceability or priority of the Buyer’s interest in the Purchased Receivables and Related Security.

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)

Exhibit A-7

 

 

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

Exhibit A-8

 

 

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:

(a) any change in (or the adoption, implementation, administration, change in phase-in or interpretation or commencement of effectiveness of) any:

(i) Applicable Law applicable to such Person;

(ii)  regulation, interpretation, directive, requirement or request (whether or not having the force of law) applicable to such Person of (A) any Governmental Authority charged with the interpretation or administration of any Applicable Law referred to in clause (a)(i) or (B) any fiscal, monetary or other authority having jurisdiction over such Person;

(iii)  GAAP, IFRS or regulatory accounting principles applicable to such Person and affecting the application to such Person of any Applicable Law, regulation, interpretation, directive, requirement or request referred to in clause (a)(i) or (a)(ii) above; or

(iv)notwithstanding the forgoing, (A) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder, issued in connection therewith or in implementation thereof, and (B) all requests, rules, guidelines and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign governmental or regulatory authorities, shall in each case be deemed to be a “Regulatory Change” occurring and implemented after the date hereof, regardless of the date enacted, adopted, issued or implemented; or

(b)

any change in the application to such Person of any existing Applicable Law, regulation, interpretation, directive, requirement, request or accounting principles referred to in clause (a)(i), (a)(ii), (a)(iii) or (a)(iv) above.

Related Security” means, with respect to any Receivable:

(i)all of the Seller’s, the applicable Originator’s and CB’s interest in any goods (including returned goods), and documentation of title evidencing the shipment or storage of any goods (including returned goods), the sale of which gave rise to such Receivable;

Exhibit A-9

 

 

(ii)all instruments and chattel paper that may evidence such Receivable;

(iii)all security interests or liens and property subject thereto from time to time purporting to secure payment of such Receivable, whether pursuant to the Receivable Documentation related to such Receivable or otherwise, together with all financing statements describing any collateral securing such Receivable;

(iv)solely to the extent applicable to such Receivable, all of the Seller’s, the applicable Originator’s and CB’s rights, interests and claims under the Receivable Documentation relating to such Receivable, and all guaranties, indemnities, insurance and other agreements (including the related Receivable Documentation) or arrangements of whatever character from time to time supporting or securing payment of such Receivable or otherwise relating to such Receivable, whether pursuant to the Receivable Documentation related to such Receivable or otherwise;

(v)all of the Seller’s rights, interests and claims under the Transaction Documents;

(vi)all monies due or to become due with respect to any of the foregoing;

(vii)all books and records to the extent related to any of the foregoing; and

(viii)all Collections and other proceeds and products (as such terms are defined in the UCC) of any of the foregoing that are or were received by the Seller, the applicable Originator or CB on or after the applicable Purchase Date, including, without limitation, all funds which either are received by the Seller, such Originator, the Buyer or the Servicer from or on behalf of the Account Debtors 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 Account Debtors (including, without limitation, any insurance payments that the Seller, such Originator, the Buyer 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 Account Debtors in respect of any of the above Receivables or any other parties directly or indirectly liable for payment of such Receivables).

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.

Reporting Date” means (i) each Weekly Reporting Date and (ii) each Additional Reporting Date.

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

Exhibit A-10

 

 

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 Administrator” means PNC Bank, N.A., as the

administrator under the Securitization Documents.

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.

Settlement Date” means (i) each Weekly Settlement Date and (ii) each Additional Settlement Date.

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

(i)

the fair value and present fair saleable value of such Person’s total assets is, on the date of determination, greater than such Person’s total liabilities (including contingent and unliquidated liabilities) at such time;

(ii)

the fair value and present fair saleable value of such Person’s assets is greater than the amount that will be required to pay such Person’s probable liability on its

Exhibit A-11

 

 

existing debts as they become absolute and matured (“debts,” for this purpose, includes all legal liabilities, whether matured or unmatured, liquidated or unliquidated, absolute, fixed, or contingent);

(iii)

such Person is and shall continue to be able to pay all of its liabilities as such liabilities mature; and

(iv)

such Person does not have unreasonably small capital with which to engage in its current and in its anticipated business.

For purposes of this definition:

(A)

the amount of a Person’s contingent or unliquidated liabilities at any time shall be that amount which, in light of all the facts and circumstances then existing, represents the amount which can reasonably be expected to become an actual or matured liability;

(B)

the “fair value” of an asset shall be the amount which may be realized within a reasonable time either through collection or sale of such asset at its regular market value;

(C)

the “regular market value” of an asset shall be the amount which a capable and diligent business person could obtain for such asset from an interested buyer who is willing to Purchase such asset under ordinary selling conditions; and

(D)

the “present fair saleable value” of an asset means the amount which can be obtained if such asset is sold with reasonable promptness in an arm’s-length transaction in an existing and not theoretical market.

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

Exhibit A-12

 

 

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 A-13

 

 

 

Exhibit B
Conditions Precedent for Effectiveness

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

(a)A fully executed counterpart of this Agreement.

(b)A fully executed counterpart of the Intercreditor Agreement.

(c)A counterpart of a Performance Guaranty fully executed by the Performance Guarantor.

(d)A certificate (long form, if available) issued by the Secretary of State of the State of Delaware as to the legal existence and good standing of Seller.

(e)A certificate (long form, if available) issued by the Secretary of State of the State of Ohio as to the legal existence and good standing of CB.

(f)A certificate of the Secretary or Assistant Secretary of the Seller and Servicer certifying attached copies of the charter and by-laws of such Person and all documents evidencing necessary corporate action to be taken by and governmental approvals, if any, to be obtained by such Person with respect to this Agreement and the names and true signatures of the incumbent officers of such Person authorized to sign this Agreement and any other documents to be delivered by it hereunder (including each Purchase Request) or thereunder or in connection herewith or therewith.

(g)A certificate of the secretary of CB certifying attached copies of the articles of incorporation of CB and all documents evidencing necessary corporate action to be taken by and governmental approvals, if any, to be obtained by such Person with respect to this Agreement and the Performance Guaranty and the names and true signatures of the incumbent officers of such Person authorized to sign this Agreement and the Performance Guaranty, as applicable, and any other documents to be delivered by it hereunder or thereunder or in connection herewith or therewith.

(h)UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a recent date listing all effective financing statements, lien notices or comparable documents that name the Seller as debtor and that are filed in those state and county jurisdictions in which the Seller is organized or maintains its principal place of business or chief executive office and such other searches that the Buyer deems necessary or appropriate.

(i)Acknowledgment copies of proper termination statements (Form UCC-3) and any other relevant filings necessary to evidence the release of all security interests, ownership and other rights of any Person previously granted by the Seller in the Proposed Receivables and Related Security.

Exhibit B-1

 

 

(j)Acknowledgment or time-stamped receipt copies of proper financing statements (showing the Seller as “debtor/seller” and the Buyer as “secured party/buyer”) duly filed on or prior to the date hereof.

(k)Payment of all fees set forth in the Fee Letter that are due and payable as of the date hereof.

(l)Favorable opinions of legal counsel to the Seller, Servicer and the Performance Guarantor in form and substance satisfactory to the Buyer, including, without limitation, as to general corporate matters, enforceability and security interest perfection.

 

Exhibit B-2

 

 

 

Exhibit C
Representations and Warranties

 

(a)Each of the Seller, Servicer and Performance Guarantor is duly incorporated or formed, validly existing and in good standing under the laws of its respective jurisdiction of organization and has all organizational power and all governmental licenses, authorizations, consents and approvals required to carry on its business in each jurisdiction in which its business is conducted.

(b)The execution, delivery and performance by the Seller, Servicer and Performance Guarantor of this Agreement and each other Transaction Document to which it is party and each other document to be delivered by it thereunder, (i) are within its organizational powers, (ii) have been duly authorized by all necessary organizational action, (iii) do not contravene, violate or breach (1) its charter or by-laws, (2) any Applicable Law, (3) any indenture, sale agreement, credit agreement, loan agreement, security agreement, mortgage, deed of trust or other agreement or instrument to which the Seller, Servicer or Performance Guarantor is a party or by which it or any of its respective property is bound, or (4) any order, writ, judgment, award, injunction or decree binding on or affecting it or its property and (iv) do not result in the creation or imposition of any Adverse Claim upon any of its properties pursuant to the terms of any such indenture, credit agreement, loan agreement, agreement, mortgage, deed of trust or other agreement or instrument, other than this Agreement and the other Transaction Documents.

(c)Each Transaction Document to which the Seller, Servicer or Performance Guarantor is party has been duly executed and delivered by such Person.

(d)No authorization or approval or other action by, and no notice to, license from or filing with, any Governmental Authority is required for the due execution, delivery and performance by the Seller, Servicer and Performance Guarantor of each Transaction Document to which it is party or any other document to be delivered by it thereunder.

(e)This Agreement and each other Transaction Document to which the Seller, Servicer or Performance Guarantor is a party constitutes the legal, valid and binding obligation of such Person enforceable against such Person in accordance with its respective 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.

(f)There are no actions, suits or proceedings pending or, to the best of the Seller’s, the Servicer’s and Performance Guarantor’s knowledge, threatened against or affecting the Seller, Servicer or Performance Guarantor or any of their respective Affiliates or their respective properties, in or before any court, arbitrator or other body.

(g)The Seller, Servicer and Performance Guarantor is Solvent and no Insolvency Proceeding has occurred with respect to the Seller, Servicer or Performance Guarantor.

Exhibit C-1

 

 

(h)No Material Adverse Change or event which, individually or in the aggregate, is reasonably likely to result in a Material Adverse Change has occurred with respect to the Seller, Servicer or Performance Guarantor.

(i)No Change in Control has occurred.

(j)All assets of the Seller are free and clear of any Adverse Claim in favor of the Internal Revenue Service or any other Governmental Authority other than inchoate tax liens resulting from an assessment of the Seller.

(k)All certificates, reports, statements, documents and other information furnished to the Buyer by or on behalf of the Seller, Servicer or Performance Guarantor pursuant to this Agreement or any other Transaction Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this Agreement or any other Transaction Document, is, at the time the same are so furnished, complete, true and correct in all material respects on the date the same are furnished to the Buyer, and does not contain any material misstatement of fact or omit to state a material fact or any fact necessary to make the statements contained therein not misleading.

(l)None of the Seller, Servicer or Performance Guarantor is an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940.

(m)The Seller has continuously treated and shall continue to treat each sale of Purchased Receivables and Related Security hereunder as a sale for all purposes, including federal and state income tax, reporting and accounting purposes.

(n)No event has occurred and is continuing and no condition exists, or would result from any sale or assignment of any Purchased Receivable or Related Security, that constitutes or may reasonably be expected to constitute, individually or in the aggregate, a Servicer Termination Event.

(o)The Purchase Price payable for each Purchased Receivable and Related Security by the Buyer will represent fair consideration and reasonably equivalent value therefore.

(p)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.

(q)With respect to the Seller, as of May 9, 2019, it is an entity that is organized under the laws of the United States or of any state thereof and at least 51% of whose common stock or analogous equity interest is owned directly or indirectly by a company listed on the New York Stock Exchange or the American Stock Exchange or designated as a NASDAQ National Market Security listed on the NASDAQ stock exchange and is excluded on that basis from the definition of “Legal Entity Customer” as defined in the Beneficial Ownership Rule.

Exhibit C-2

 

 

 

 

 

 

Exhibit C-3

 

 

 

Exhibit D
Covenants

Until the Final Collection Date:

(a)Compliance with Laws; Corporate Existence.  The Seller and Servicer will comply with all laws, rules, regulations, orders, writs, judgments, injunctions, decrees or awards to which they may be subject.  The Seller will keep its jurisdiction of incorporation or its jurisdiction of formation, as applicable, unchanged from the applicable jurisdiction as in effect on the date hereof.

(b)Fundamental Changes.  The Seller shall not, without the prior written consent of the Buyer, permit itself (i) to merge or consolidate with or into, or convey, transfer, lease or otherwise dispose of (whether in one transaction or in a series of transactions) all or substantially all of its assets (whether now owned or hereafter acquired) to, any Person or (ii) to be owned by any Person other than CB or a subsidiary thereof.  The Seller shall provide the Buyer with at least thirty (30) days’ prior written notice before making any change in the Seller’s name or location or making any other change in the Seller’s identity or structure that would impair or otherwise render any UCC financing statement filed in connection with this Agreement “seriously misleading” as such term (or similar term) is used in the applicable UCC; each notice to the Buyer pursuant to this sentence shall set forth the applicable change and the proposed effective date thereof.  The Seller will also maintain and implement (or cause the Servicer to maintain and implement) administrative and operating procedures (including an ability to recreate records evidencing Purchased Receivables and related Receivables Documentation in the event of the destruction of the originals thereof), and keep and maintain (or cause the Servicer to keep and maintain) all documents, books, records, computer tapes and disks and other information reasonably necessary or advisable for the collection of all Purchased Receivables and Related Security (including records adequate to permit the daily identification of each Purchased Receivable and all Collections of and adjustments to each existing Purchased Receivable).

(c)Sales, Liens, etc.  Except as otherwise provided herein, the Seller will not sell, assign (by operation of law or otherwise) or otherwise dispose of, or create or suffer to exist any Adverse Claim upon (including, without limitation, the filing of any financing statement) or with respect to, any Purchased Receivable or Related Security, or assign any right to receive income in respect thereof.

(d)Extension or Amendment of Receivables.  Other than as permitted by Section 5(a) and in accordance with the Credit and Collection Policy and only to the extent the Seller deposits the Deemed Collection to the Buyer’s Account in accordance with the terms thereof, neither the Seller nor the Servicer will extend, amend or otherwise modify the terms of any Purchased Receivable, or amend, modify or waive any term or condition of any Receivables Documentation related thereto, without the prior written consent of the Buyer.  Other than as permitted by Section 5(a) and only to the extent the Seller deposits the Deemed Collection to the Buyer’s Account in accordance with the terms thereof, neither the Seller nor the Servicer will take, or cause to be taken, any action that reduces the amount payable of any Purchased Receivable or materially impairs the full and timely collection thereof.

Exhibit D-1

 

 

(e)Audits and Visits.  The Seller and Servicer will furnish to the Buyer from time to time such information with respect to the Purchased Receivables and Related Security as the Buyer may reasonably request, except to the extent prohibited by Applicable Law or licenses.  The Seller and the Servicer will, at any time and from time to time during regular business hours with reasonable prior written notice, (i) at their expense, permit the Buyer, or its agents or representatives, (A) to examine and make copies of and abstracts from all books and records relating to the Purchased Receivables and Related Security and (B) to visit the offices and properties of the Seller and the Servicer for the purpose of examining such books and records, and to discuss matters relating to the Purchased Receivables, Related Security or the Seller’s or the Servicer’s performance hereunder or under the other Transaction Documents to which it is a party with any of the officers, directors, employees or independent public accountants of the Seller or the Servicer (provided that representatives of the Seller and/or the Servicer, as applicable, are present during such discussions) having knowledge of such matters and (ii) without limiting the provisions of clause (i) above, from time to time during regular business hours, upon reasonable prior written notice from the Buyer, permit certified public accountants or other auditors acceptable to the Buyer to conduct a review of 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..

(f)Reporting Requirements.  The Seller and Servicer will provide to the Buyer the following:

(i)immediately (and in no event later than two (2) Business Days following knowledge or notice thereof), written notice in reasonable detail, of any Adverse Claim or Dispute asserted or claim made against a Purchased Receivable or Related Security;

(ii)immediately (and in no event later than two (2) Business Days following knowledge or notice thereof), written notice in reasonable detail, of the occurrence of the Servicer Termination Event;

(iii)as soon as possible and in any event within two (2) Business Days after knowledge or notice of the occurrence thereof, written notice of any matter that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change; and

(iv)all notices and other documents delivered to the Securitization Administrator and the Lenders (as defined in the Financing Agreement) pursuant to the Securitization Documents simultaneously with delivery to the Securitization Administrator and the Lenders (as defined in the Financing Agreement).

Exhibit D-2

 

 

(g)Further Action Evidencing Purchases.  The Seller 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 Buyer may reasonably request in order to perfect, protect or more fully evidence the Purchased Receivables and Related Security, or to enable the Buyer 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 Buyer, the Seller will execute (if applicable), authorize and file such financing or continuation statements, or amendments thereto or assignments thereof, and such other instruments or notices, as may be necessary.

(h)Performance and Compliance with Purchased Receivables and Receivables Documentation.  The Seller and the Servicer will at their expense timely and fully perform and comply with all provisions, covenants and other promises required to be observed by them under all Receivables Documentation or other documents or agreements related to the Purchased Receivables if the failure to perform or comply would reasonably be expected to cause a Material Adverse Change.

(i)Not Adversely Affect Buyer’s Rights. The Seller and Servicer will refrain from any act or omission which might, individually or in the aggregate, in any material way prejudice, diminish or limit the Buyer’s rights under or with respect to any of the Purchased Receivables, Related Security or this Agreement.

(j)Credit and Collection Policy. The Seller and Servicer will comply in all material respects with its Credit and Collection Policy with regard to each Purchased Receivable and Related Security.

(k)No Change in Business or Credit and Collection Policy.  Neither the Seller nor the Servicer shall make any change in the character of its business or in the Credit and Collection Policy, which change would, in either case, impair the collectability of any Purchased Receivable or Related Security or otherwise have a Material Adverse Change with respect to the Seller or the Servicer.

(l)Amendments to Sale Agreement or Financing Agreement.  Neither the Seller nor the Servicer shall consent to amendment or modification of, or waiver under, the Sale Agreement or the Financing Agreement without the prior written consent of the Buyer.

(m)Restricted Payments.  The Seller shall not (i) purchase or redeem any shares of its capital stock or membership interests, (ii) declare or pay any dividend or distribution or set aside any funds for any such purpose, (iii) prepay, purchase or redeem any Debt, (iv) lend or advance any funds or (v) repay any loans or advances to, for or from any of its Affiliates if any amounts then due and payable by the Seller to the Buyer pursuant to this Agreement have not been paid to the Buyer.

(n)Anti-Money Laundering/International Trade Law Compliance.  Neither the Seller nor the Servicer will become a Sanctioned Person. No Covered Entity, either in its own right or through any third party, will (i) have 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) do business in or with, or derives any of its income from investments in or transactions with, any

Exhibit D-3

 

 

Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law; (iii) engage in any dealings or transactions prohibited by any Anti-Terrorism Law or (iv) use the proceeds of any purchase to fund any operations in, finance any investments or activities in, or, make any payments to, a Sanctioned Country or Sanctioned Person in violation of any Anti-Terrorism Law.  The funds used to repay each purchase will not be derived from any unlawful activity.  The Seller and the Servicer shall comply with all Anti-Terrorism Laws.  The Seller and the Servicer shall promptly notify the Buyer in writing upon the occurrence of a Reportable Compliance Event.  The Seller has not used and will not use the proceeds of any purchase to fund any operations in, finance any investments or activities in or make any payments to, a Sanctioned Person or a Sanctioned Country.

(o)Beneficial Ownership Certification.  Promptly following any change that would result in a change to the status as an excluded “Legal Entity Customer” under the Beneficial Ownership Rule, the Seller shall execute and deliver to the Buyer a certification of the Seller  as to its beneficial owner(s) complying with the Beneficial Ownership Rule, in form and substance reasonably acceptable to the Buyer.

 

 

 

Exhibit D-4

 

 

 

Exhibit E
Eligibility Criteria

(a)The Account Debtor of which (i) has a billing address in the United States, (ii) is not subject to any Insolvency Proceeding, (iii) is not an Affiliate (other than an officer, director or other natural Person) of CB or any Affiliate (other than an officer, director or other natural Person) of CB, (iv) is not a Sanctioned Person or not a resident of a Sanctioned Country and (v) is not a federal governmental entity.

(b)The information contained in the exhibit to the applicable Purchase Request is true, accurate and correct in all material respects and contains a true, accurate and correct list of the invoice number, Due Date and unpaid amount due in respect of such Receivable.

(c)The related Account Debtor has been instructed to make payments on such Receivable only to the applicable Lock-Box Account.

(d)Such Receivable is denominated and payable only in USD in the United States, and (except in the case of a Receivable generated in connection with any Payment-on-Delivery Transaction) the Account Debtor with respect to which has been instructed in writing by the Servicer, the Seller, the applicable Originator or the applicable Sub-Servicer, if any, to remit Collections in respect thereof to a Lock-Box Account in the United States of America (provided that such Account Debtor may make an On-Site Payment notwithstanding such instruction).

(e)Such Receivable does not have a stated maturity which is more than ninetyone hundred-twenty (90120) days after the original invoice date of such Receivable; provided that, at any time, the Seller may request the written consent of the Buyer that all Receivables payable by or on behalf of any Account Debtor may have a stated maturity which is more than ninetyone hundred-twenty (90120) days after the original invoice of such Receivables.

(f)Such Receivable arises under duly authorized Receivables Documentation for the sale and delivery of goods and services in the ordinary course of an Originator’s business.

(g)Such Receivable arises under duly authorized Receivables Documentation that is in full force and effect and that is a legal, valid and binding obligation of the related Account Debtor, enforceable against such Account Debtor 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.

(h)The applicable Originator has delivered to the related Account Debtor all property or fully performed all services required to be so delivered or performed by the terms of the Receivable Documentation and the payments due with respect to such Receivable are not contingent upon such Originator’s or any other Person’s fulfillment of any further act or obligation.

(i)Such Receivable conforms in all material respects with all Applicable Laws.

(j)Such Receivable is not the subject of any Dispute, Adverse Claim or other claim.

Exhibit E-1

 

 

(k)Such Receivable has not been modified, waived or restructured since its creation.

(l)The Seller owns good and marketable title in such Receivable and Related Security, free and clear of any Adverse Claims, and that is freely assignable by the Seller (including without any consent of the related Account Debtor).

(m)The Buyer shall have a valid and enforceable ownership interest in such Receivable and Related Security, free and clear of any Adverse Claim.

(n)Such Receivable is an “account” or “payment intangible” within the meaning of Article 9 of the UCC of all applicable jurisdictions and is not evidenced by instruments or chattel paper.

(o)None of the Originator thereof, the Seller and the Servicer has established any offset arrangements with the Account Debtor of such Receivable.

(p)Defaulted Receivables of the Account Debtor of such Receivables do not exceed 50% of the Outstanding Purchase Amount of all such Account Debtor’s Receivables.

(q)Payment of such Receivable by the applicable Account Debtor is not past due.

(r)Such Receivable (i) is not a Specified Receivable[reserved] and (ii) the invoice with respect thereto has been sent to the Account Debtor thereof.

(s)Such Receivable is not a CBTS Lease Receivable for which an invoice or bill with respect thereto has not been sent to the Account Debtor thereof by the Servicer or the related Originator.

 

 

 

Exhibit E-2

 

 

 

 

Exhibit F
Servicer Termination Events

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

(a)More than ten percent (10%) of the Purchased Receivables are either Delinquent Receivables or Defaulted Receivables.

(b)(i)  The Seller or the Servicer shall fail to perform or observe any term, covenant or agreement under this Agreement or any other Transaction Document, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty (30) days after the earlier of any such Person’s knowledge or notice thereof or (ii) the Seller, the Servicer or the Performance Guarantor shall fail to make when due any payment or deposit to be made by it under this Agreement, the Performance Guaranty or any other Transaction Document and such failure shall remain unremedied for two (2) Business Days after the earlier of any such Person’s knowledge or notice thereof.

(c)Any of the representations and warranties made or deemed made by the Seller or Servicer (or any of their respective officers) in this Agreement (including with respect to the Proposed Receivables and Related Security), or by the Performance Guarantor in the Performance Guaranty, shall fail to have been true or correct in any material respect when made or deemed made or delivered and except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty (30) days after the earlier of any such Person’s knowledge or notice thereof.

(d)The Performance Guarantor shall fail to perform any of its obligations under the Performance Guaranty and, except as otherwise provided herein, such failure shall, solely to the extent capable of cure, continue for thirty (30) days after the earlier of Performance Guarantor’s knowledge or notice thereof.

(e)The Securitization Administrator or the Seller shall fail to be in compliance in all material respects with any of its obligations under the Intercreditor Agreement.

(f)The Seller or the Servicer shall fail to maintain a Lock-Box Agreement with respect to any Lock-Box Account.

(g)An amount due for payment by the Seller or Servicer to the Buyer pursuant to this Agreement or any other Transaction Document (including interest on any overdue amount as provided for in Section 8 hereof) or by the Performance Guarantor pursuant to the Performance Guaranty shall remain outstanding for more than two (2) Business Days from the original due date therefor.

(h)(i)  The Seller, the Servicer, the Performance Guarantor or any of their respective subsidiaries shall fail to pay any principal of or premium or interest on any of its Debt that is outstanding in a principal amount of at least $35,000,000 in the aggregate (or, solely with respect to the Seller, $15,775) when the same becomes due and payable (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall continue

Exhibit A-1

 

 

after the applicable grace period, if any, specified in the agreement, mortgage, indenture or instrument relating to such Debt, (ii) any other event shall occur or condition shall exist under any agreement, mortgage, indenture or instrument relating to any such Debt and shall continue after the applicable grace period, if any, specified in such agreement, mortgage, indenture or instrument, if the effect of such event or condition is to give the applicable debtholders the right (whether acted upon or not) to accelerate the maturity of such Debt and, in the case of this clause (ii), if the agreement, mortgage, indenture or instrument relating to such Debt does not provide for a grace period upon the occurrence of such failure, event or condition, then (A) such failure, event or condition shall be continuing and such Debt shall have been accelerated or (B) such failure, event or condition shall be continuing for a period of fifteen (15) Business Days without such failure, event or condition having been cured, waived or otherwise remedied under the agreement, mortgage, indenture or instrument relating to such Debt or (iii) without limiting the foregoing, any “Event of Default”, “Purchase and Sale Termination Event” or similar event shall occur under the Securitization Documents (whether or not waived under and in accordance with the Securitization Documents).

(i)Either the Internal Revenue Service or the Pension Benefit Guaranty Corporation shall have filed one or more notices of lien asserting a claim or claims in an amount in excess of $500,000 pursuant to the Internal Revenue Code, or ERISA, as applicable, against the assets of Borrowerthe Seller, the Servicer, the Performance Guarantor or any ERISA Affiliate.

(j)There shall have occurred any event that materially adversely impairs, in the reasonable discretion of the Buyer, the collectability of the Purchased Receivables and Related Security generally or any material portion thereof.

(k)This Agreement or any security interest granted pursuant to this Agreement or any other Transaction Document shall for any reason cease to create, or for any reason cease to be, a valid and enforceable first priority perfected security interest in favor of the Buyer with respect to the Purchased Receivables and Related Security, free and clear of any Adverse Claim.

(l)A Material Adverse Change shall have occurred.

(m)A Change in Control shall have occurred.

(n)The Servicer shall fail to deliver a Collection Report in accordance with Section 4(g) and such failure shall remain unremedied for one (1) Business Day after the related Reporting Date.

(o)Any Transaction Document shall, in whole or in part, terminate, cease to be effective or cease to be the legally valid, binding and enforceable obligation of any party thereto other than Buyer or any such party shall, directly or indirectly, contest in any manner the effectiveness, validity, binding nature or enforceability of such Transaction Document.

(p)The Seller and the Servicer shall fail to timely comply with the terms of Section 16 of this Agreement.

Exhibit A-2

 

EXECUTION VERSION

 

 

FOURTH AMENDMENT TO
RECEIVABLES FINANCING AGREEMENT

FOURTH AMENDMENT, dated as of April 9, 2021 (this “Amendment”), to the RECEIVABLES FINANCING AGREEMENT, dated as of May 10, 2018 (as amended, restated, supplemented or otherwise modified from time to time, the “Agreement”), by and among CINCINNATI BELL FUNDING LLC, a Delaware limited liability company (the “U.S. Borrower”) and CINCINNATI BELL FUNDING CANADA LTD., an Ontario corporation (the “Canadian Borrower” and, together with the U.S. Borrower, the “Borrowers”), CINCINNATI BELL INC., an Ohio corporation (“CB”, the “U.S. Servicer” and the “Performance Guarantor”) and ONX ENTERPRISE SOLUTIONS LTD., an Ontario corporation (the “Canadian Servicer” and, together with the U.S. Servicer, the “Servicers”), as Servicers, THE VARIOUS LENDERS, LC PARTICIPANTS AND GROUP AGENTS FROM TIME TO TIME PARTY THERETO, PNC BANK CANADA BRANCH, as issuer of Letters of Credit and Lender, PNC BANK, NATIONAL ASSOCIATION, as Administrator (in such capacity, the “Administrator”) and as issuer of Letters of Credit, and PNC CAPITAL MARKETS (the “Structuring Agent”), a Pennsylvania limited liability company, as Structuring Agent.

RECITALS

1.The parties to the Agreement desire to amend the Agreement as hereinafter set forth.

2.Concurrently herewith, the parties hereto are entering into that certain Twelfth Amended and Restated Fee Letter (the “Fee Letter”).

3.Concurrently herewith, the U.S. Borrower, as seller, the U.S. Servicer and the Administrator, as buyer, are entering into that certain Third Amendment to the Receivables Purchase Agreement, dated as of the date hereof (the “RPA Amendment”).

NOW THEREFORE, in consideration of the mutual agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

SECTION 1.Certain Defined Terms.  Capitalized terms that are used but not defined herein shall have the meanings set forth in the Agreement.

SECTION 2.Joinder of PNC Bank Canada Branch; Rebalancing Loan.

(a)Effective as of the date hereof, PNC Bank Canada Branch hereby becomes a party to the Receivables Financing Agreement as a Lender and LC Bank in PNC’s Group and appoints PNC to act as its Group Agent.  PNC Bank Canada Branch shall fund any Loans requested by the Canadian Borrower under the Receivables Financing Agreement on PNC’s behalf.

(b)On the date hereof, on a one-time basis, the Borrowers shall make a prepayment of amounts owing to Regions in the amount set forth on a funds flow

 

 

memorandum delivered on the date hereof, which prepayment shall be funded by a non-ratable Loan made by PNC in an amount equal to the amount of such prepayment, such that after giving effect to such non-ratable prepayment and non-ratable Loan each Lender’s ratable share of the Aggregate Capital shall equal its ratable share of the aggregate Commitments, as modified pursuant to this Amendment.

(c)The parties hereto hereby consent to the joinder of PNC Bank Canada Branch as party to the Receivables Financing Agreement on the terms set forth in clause (a) above and the foregoing non-ratable Loans to be funded on the terms set forth in clause (b) above on a one-time basis.

(d)PNC Bank Canada Branch (i) confirms to the Administrator and the Lenders, that it has received a copy of the Receivables Financing Agreement, the other Transaction Documents, and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment and (ii) agrees that it will, independently and without reliance upon the Administrator, the Lenders and their respective Affiliates, based on such documents and information as each Joining Lender shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Receivables Financing Agreement and any other Transaction Document.  None of the Administrator or the Lenders makes or has made any representation or warranty or assumes or has assumed any responsibility with respect to (x) any statements, warranties or representations made in or in connection with the Receivables Financing Agreement, any other Transaction Document or any other instrument or document furnished pursuant thereto or the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Receivables Financing Agreement, the Receivables, the Collateral, any other Transaction Document or any other instrument or document furnished pursuant thereto or (y) the financial condition of the Borrowers, the Servicers, the Performance Guarantor or the Originators or the performance or observance by any of them of any of their respective obligations under the Receivables Financing Agreement, any other Transaction Document, or any instrument or document furnished pursuant thereto.

SECTION 3.Amendments to the Agreement.  The Receivables Financing Agreement is hereby amended to incorporate the changes shown on the marked pages of the Receivables Financing Agreement attached hereto as Exhibit A.

SECTION 4.Consent to Subject Merger.  

(a)RF Merger Sub Inc., an Ohio corporation, intends to be merged with and into CB pursuant to the terms and subject to the conditions set forth in that certain Agreement and Plan of Merger, dated as of March 13, 2020, whereupon the separate corporate existence of RF Merger Sub Inc. will cease, and CB will be the surviving corporation in the merger (the foregoing, the “Subject Merger”). 

(b)Each of the Seller, Administrator, each Group Agent, each LC Bank and each Lender hereby waives any notice or other requirements set forth in Section 6.3(e) of the U.S. Sale Agreement or Section 7(d) of the Performance Guaranty so long as at the

 

 

time of the Subject Merger, no event has occurred and is continuing that constitutes an Event of Default or an Unmatured Event of Default, and for avoidance of doubt, to the extent required, hereby consents to the Subject Merger.

SECTION 5.Acknowledgment.  Each of the parties hereto acknowledges and agrees that the references to “Hawaiian Telecom, Inc.” and “Hawaiian Telecom” in Schedule IV of the Purchase and Sale Agreement are incorrect and shall be understood to be references to “Hawaiian Telcom, Inc.” and “Hawaiian Telcom”, respectively.

SECTION 6.Representations and Warranties.  Each of the Borrower, the Servicer and the Performance Guarantor hereby represents and warrants to the Administrator, each Secured Party as follows:

(a)Representations and Warranties.  The representations and warranties made by it in the Agreement are true and correct as of the date hereof and after giving effect to this Amendment (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).

(b)Enforceability.  The execution and delivery by such Person of this Amendment, and the performance of each of its obligations under this Amendment and the Agreement, after giving effect to this Amendment, are within its organizational powers and have been duly authorized by all necessary organizational action on its part.  This Amendment and the Agreement, after giving effect to this Amendment, are such Person’s valid and legally binding obligations, enforceable in accordance with its terms.

(c)No Default. After giving effect to this Amendment, no Event of Default, Unmatured Event of Default or Servicer Default exists or shall exist.

SECTION 7.Effect of Amendment.  All provisions of the Agreement, as expressly amended and modified by this Amendment, shall remain in full force and effect. After this Amendment becomes effective, all references in the Agreement to “this Agreement”, “hereof”, “herein” or words of similar effect referring to the Agreement shall be deemed to be references to the Agreement, as amended by this Amendment. This Amendment shall not be deemed, either expressly or impliedly, to waive, amend or supplement any provision of the Agreement other than as set forth herein.

SECTION 8.Effectiveness.  This Amendment shall become effective as of the date hereof, upon the Administrator’s receipt of:

(a)duly executed counterparts of this Amendment from each of the parties hereto;

(b)duly executed counterparts of the RPA Amendment; and

(c)duly executed counterparts of the Fee Letter.

 

 

SECTION 9.Counterparts.  This Amendment may be executed in any number of counterparts and by different parties on separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute but one and the same instrument.  Delivery by facsimile or email of an executed signature page of this Amendment shall be effective as delivery of an executed counterpart hereof.

SECTION 10.Governing Law.  THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

SECTION 11.Severability.  If any one or more of the agreements, provisions or terms of this Amendment shall for any reason whatsoever be held invalid or unenforceable, then such agreements, provisions or terms shall be deemed severable from the remaining agreements, provisions and terms of this Amendment and shall in no way affect the validity or enforceability of the provisions of this Amendment or the Agreement.

SECTION 12.Section Headings.  The various headings of this Amendment are included for convenience only and shall not affect the meaning or interpretation of this Amendment, the Agreement or any provision hereof or thereof.

[Signature pages follow]

 

 

 

 

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

CINCINNATI BELL FUNDING LLC,
as U.S. Borrower

 

 

By: /s/ Joshua T. Duckworth
Name: Joshua T.  Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

 

CINCINNATI BELL INC., as U.S. Servicer and as Performance Guarantor

 

 

By: /s/ Joshua T. Duckworth
Name: Joshua T.  Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

 

CINCINNATI BELL FUNDING CANADA LTD., as Canadian Borrower

 

 

By: /s/ Joshua T. Duckworth
Name: Joshua T. Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

 

OnX Enterprise Solutions Ltd., as Canadian Servicer

 

 

By: /s/ Joshua T. Duckworth
Name: Joshua T. Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

S-1

Signature Page to Fourth Amendment to RFA
(Cincinnati Bell)

 

 

 

PNC BANK, NATIONAL ASSOCIATION, as a Related Committed Lender and Group Agent for the PNC Group

 

 

By: /s/ Henry Chan
Name: Henry Chan
Title: Senior Vice President

 

PNC BANK CANADA BRANCH, as a Lender and LC Bank

 

 

By: /s/ Martin Peichl
Name: Martin Peichl
Title: Senior Vice President

 

 

PNC BANK, NATIONAL ASSOCIATION,
as Administrator and LC Bank

 

 

By: /s/ Henry Chan
Name: Henry Chan
Title: Senior Vice President

 

 

PNC BANK, NATIONAL ASSOCIATION,
as the LC Bank and as an LC Participant

 

 

By: /s/ Henry Chan
Name: Henry Chan
Title: Senior Vice President

 

 

PNC CAPITAL MARKETS LLC,
as Structuring Agent

 

 

By: /s/ Henry Chan
Name: Henry Chan
Title: Managing Director

 

 

S-2

Signature Page to Fourth Amendment to RFA
(Cincinnati Bell)

 

 

 

REGIONS BANK,
as a Group Agent, as an LC Participant, as a Related Committed Lender

By:/s/ Kathy Myers
Name: Kathy Myers
Title: Managing Director

 

S-3

Signature Page to Fourth Amendment to RFA
(Cincinnati Bell)

 

 

 

 

Exhibit A

 

 

 

 

 

RECEIVABLES FINANCING AGREEMENT

dated as of May 10, 2018

among

CINCINNATI BELL FUNDING LLC and CINCINNATI BELL FUNDING CANADA LTD., as Borrowers

CINCINNATI BELL INC. and OnX Enterprise Solutions Ltd.
as Servicers

THE LENDERS AND GROUP AGENTS FROM TIME TO TIME PARTY HERETO,

PNC BANK, NATIONAL ASSOCIATION,
as Administrator and LC Bank

and

PNC CAPITAL MARKETS LLC,
as Structuring Agent

 

 

 

TABLE OF CONTENTS

Page

 

ARTICLE I

AMOUNTS AND TERMS OF THE LOANS2

 

 

Section 1.1

Loan Facility2

 

 

Section 1.2

Making Loans4

 

 

Section 1.3

Coverage Percentage Computation7

 

 

Section 1.4

Settlement Procedures7

 

 

Section 1.6

Payments and Computations, Etc.13

 

 

Section 1.7

Increased Costs14

 

 

Section 1.8

Requirements of Law15

 

 

Section 1.9

Funding Losses15

 

 

Section 1.10

Taxes16

 

 

Section 1.11

Letters of Credit20

 

 

Section 1.12

Issuance of Letters of Credit21

 

 

Section 1.13

Requirements For Issuance of Letters of Credit22

 

 

Section 1.14

Disbursements, Reimbursement22

 

 

Section 1.15

Repayment of Participation Advances23

 

 

Section 1.16

Documentation24

 

 

Section 1.17

Determination to Honor Drawing Request24

 

 

Section 1.18

Nature of Participation and Reimbursement Obligations25

 

 

Section 1.19

[Reserved]26

 

 

Section 1.20

Liability for Acts and Omissions26

 

 

Section 1.21

LC Collateral Accounts28

 

 

Section 1.22

Inability to Determine CDOR, Euro-Rate or LMIR28

 

 

Section 1.23

Extension of Termination Date29

 

 

Section 1.24

Mitigation Obligations; Replacement of Lenders30

 

 

Section 1.25

Borrowers Jointly and Severally Liable for Obligations30

 

 

Section 1.26

Successor CDOR, Euro-Rate or LMIR Index34

 

ARTICLE II

REPRESENTATIONS AND WARRANTIES; COVENANTS; EVENTS OF DEFAULT35

 

 

Section 2.1

Representations and Warranties; Covenants35

 

 

Section 2.2

Events of Default35

 

 

i

TABLE OF CONTENTS
(continued)

Page

ARTICLE III

INDEMNIFICATION36

 

 

Section 3.1

Indemnities by the Borrowers36

 

 

Section 3.2

Indemnities by the Servicers37

 

ARTICLE IV

ADMINISTRATION AND COLLECTIONS38

 

 

Section 4.1

Appointment of the Servicers38

 

 

Section 4.2

Duties of the Servicers40

 

 

Section 4.3

Lock-Box Account Arrangements41

 

 

Section 4.4

Enforcement Rights42

 

 

Section 4.5

Responsibilities of the Borrowers42

 

 

Section 4.6

Servicing Fee43

 

ARTICLE V

THE AGENTS43

 

 

Section 5.1

Appointment and Authorization43

 

 

Section 5.2

Delegation of Duties44

 

 

Section 5.3

Exculpatory Provisions44

 

 

Section 5.4

Reliance by Agents45

 

 

Section 5.5

Notice of Events of Default45

 

 

Section 5.6

Non-Reliance on Administrator, Group Agents and Other Lenders46

 

 

Section 5.7

Administrators and Affiliates46

 

 

Section 5.8

Indemnification46

 

 

Section 5.9

Successor Administrator47

 

ARTICLE VI

MISCELLANEOUS47

 

 

Section 6.1

Amendments, Etc47

 

 

Section 6.2

Notices, Etc48

 

 

Section 6.3

Successors and Assigns; Participations; Assignments48

 

 

Section 6.4

Costs, Expenses and Taxes50

 

 

Section 6.5

No Proceedings; Limitation on Payments51

 

 

Section 6.6

GOVERNING LAW AND JURISDICTION52

 

 

Section 6.7

Confidentiality52

 

 

Section 6.8

Execution in Counterparts53

 

ii

TABLE OF CONTENTS
(continued)

Page

 

Section 6.9

Survival of Termination53

 

 

Section 6.10

WAIVER OF JURY TRIAL53

 

 

Section 6.11

Sharing of Recoveries54

 

 

Section 6.12

Right of Setoff54

 

 

Section 6.13

Entire Agreement54

 

 

Section 6.14

Headings54

 

 

Section 6.15

Groups’ Liabilities54

 

 

Section 6.16

USA Patriot Act54

 

 

Section 6.17

Structuring Agent55

 

 

Section 6.18

Currency55

 

 

Section 6.19

Currency Equivalence55

 

 

Section 6.20

Criminal Interest56

 

 

Section 6.21

Québec Matters56

 

 

Section 6.22

Québec Security56

 

 

Section 6.23

Intent of the Parties57

 

 

Section 6.24

Post Closing Covenants57

 

 

iii

 

 

EXHIBIT IDefinitions

EXHIBIT IIConditions of Loans

EXHIBIT IIIRepresentations and Warranties

EXHIBIT IVCovenants

EXHIBIT VEvents of Default

SCHEDULE ICredit and Collection Policy

SCHEDULE IILock-Box Banks and Lock-Box Accounts

SCHEDULE IIIGroup Commitments

SCHEDULE IVPermitted Accounts

ANNEX AA-1Form of Information PackageMonthly Report

ANNEX A-2Form of Weekly Report

ANNEX BForm of Borrowing Notice

ANNEX CForm of Assumption Agreement

ANNEX DForm of Transfer Supplement

ANNEX EForm of Paydown Notice

ANNEX FForm of Compliance Certificate

ANNEX GForm of Letter of Credit Application

ANNEX HSpecial Obligors

ANNEX IDesignated Obligors and Designated Terms

ANNEX JDSO Trigger

ANNEX KMonetization Report

ANNEX LTax Forms

ANNEX MSubject PPSA Filings

 

 

iv

 

 

This RECEIVABLES FINANCING AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement”) is entered into as of May 10, 2018, among CINCINNATI BELL FUNDING LLC, a Delaware limited liability company (the “U.S. Borrower”) and CINCINNATI BELL FUNDING CANADA LTD., an Ontario corporation (the “Canadian Borrower”, and together with the U.S. Borrower, the “Borrowers”), CINCINNATI BELL INC., an Ohio corporation (“CB” or “U.S. Servicer”) and OnX Enterprise Solutions Ltd., an Ontario corporation (the “Canadian Servicer”, together with the U.S. Servicer, the “Servicers”), THE VARIOUS LENDERS, LC PARTICIPANTS AND GROUP AGENTS FROM TIME TO TIME PARTY HERETO, PNC BANK, NATIONAL ASSOCIATION, as Administrator for each Group (in such capacity, the “Administrator”), and as issuer of Letters of Credit (in such capacity, together with its successors and assigns in such capacity, the “LC Bank”), and PNC CAPITAL MARKETS, a Pennsylvania limited liability company, as Structuring Agent (in such capacity, the “Structuring Agent”).

PRELIMINARY STATEMENTS.  Certain terms that are capitalized and used throughout this Agreement are defined in Exhibit I.  References in the Exhibits hereto to the “Agreement” refer to this Agreement, as amended, restated, supplemented or otherwise modified from time to time.

Each Borrower has requested (a) that the Lenders make Loans from time to time to the Borrowers and (b) that the LC Bank issue or cause the issuance of one or more Letters of Credit from time to time, in each case, on the terms and subject to the conditions set forth herein.

This Agreement amends and restates in its entirety, as of the Closing Date, the Amended and Restated Receivables Purchase Agreement, dated as of June 6, 2011 (as amended, restated, supplemented or otherwise modified prior to the date hereof, the “Original Agreement”), among the U.S. Borrower, as “Seller”, the U.S. Servicer, as “Servicer”, the “Purchaser Agents” and “Purchasers” from time to time party thereto and the Administrator.  Upon the effectiveness of this Agreement, the terms and provisions of the Original Agreement shall, subject to this paragraph, be superseded hereby in their entirety.  Notwithstanding the amendment and restatement of the Original Agreement by this Agreement, (i) the U.S. Borrower and the U.S. Servicer shall continue to be liable to each of the parties to the Original Agreement or any other Indemnified Party or Affected Person (as such terms are defined in the Original Agreement) for fees and expenses which are accrued and unpaid under the Original Agreement on the date hereof (collectively, the “Original Agreement Outstanding Amounts”) and all agreements to indemnify such parties in connection with events or conditions arising or existing prior to the effective date of this Agreement and (ii) the security interest created under the Original Agreement shall remain in full force and effect as security for such Original Agreement Outstanding Amounts until such Original Agreement Outstanding Amounts shall have been paid in full; provided that any Pool Assets sold to the “Purchasers” pursuant to the Original Agreement shall be deemed to be assets of the Borrowers subject to the security interest granted hereunder in favor of the Administrator.  Upon the effectiveness of this Agreement, each reference to the Original 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 Original Agreement.

 

 

In consideration of the mutual agreements, provisions and covenants contained herein, the sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

AMOUNTS AND TERMS OF THE LOANS

Section 1.1Loan Facility.

(a)On the terms and subject to the conditions hereof, each Borrower may, from time to time before the Facility Termination Date, (i) request that the Lenders make U.S. Dollar Loans or Canadian Dollar Loans.  Each loan requested by such Borrower pursuant to Section 1.2(a) shall be made ratably (based on Ratable Share) by the respective Groups, and each Group’s Ratable Share of each Loan shall be made and funded (x) if such Group contains a Conduit Lender and such Conduit Lender elects (in its sole discretion) to make and fund such portion of such Loan, by such Conduit Lender, or (y) if such Group does not contain a Conduit Lender or if the Conduit Lender in such Group declines (in its sole discretion) to make or fund such portion of such Loan, by the Related Committed Lender in such Group and (ii) request that the LC Bank issue or cause the issuance of Letters of Credit, in each case subject to the terms hereof (each such loan or issuance is referred to herein as a “Loan”).  At no time will a Conduit Lender have any obligation to make a Loan.  Each Related Committed Lender severally hereby agrees, on the terms and subject to the conditions hereof, to make Loans to each Borrower from time to time from the date hereof to the Facility Termination Date or, if earlier, the Scheduled Termination Date with respect to such Related Committed Lender, based on the applicable Group’s Ratable Share of each Loan requested pursuant to Section 1.2(a) (and, in the case of each Related Committed Lender, its Commitment Percentage of its Group’s Ratable Share of such Loan) and, on the terms of and subject to the conditions of this Agreement, the LC Bank hereby agrees to issue Letters of Credit in return for (and each LC Participant hereby severally agrees to make Participation Advances in connection with any draws under such Letters of Credit equal to such LC Participant’s Ratable Share of such draws).  Notwithstanding anything set forth in this paragraph (a) or otherwise herein to the contrary under no circumstances shall any Lender make any Loan or issue any Letters of Credit hereunder, as applicable, if, after giving effect to such Loan, the (i) aggregate outstanding U.S. Dollar Equivalent of the amount of the Capital of such Lender, when added to all other Capital of all other Lenders in such Lender’s Group would exceed (A) its Group’s Group Commitment (as the same may be reduced from time to time pursuant to Section 1.1(c)), minus (B) the Related LC Participant’s Ratable Share of the Aggregate LC Participation Amount, (ii) Aggregate Capital plus the Aggregate LC Participation Amount would exceed the Facility Limit, (iii) the Coverage Percentage would exceed 100%, (iv) the Aggregate LC Participation Amount would exceed the aggregate of the Commitments of the LC Participants, (v) the aggregate amount of Canadian Dollar Capital would exceed the Canadian Dollar Capital Sublimit or (vi) the Canadian Dollar LC Participation Amount would exceed the Canadian Dollar LC Sublimit.

Each Borrower may, subject to this paragraph (a) and the other requirements and conditions herein, use the proceeds of any loan by the Lenders hereunder to satisfy its Reimbursement Obligation to the LC Bank and the LC Participants (ratably, based on the outstanding amounts funded by the LC Bank and each such LC Participant) pursuant to Section 1.14 below.

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(b)The Borrowers shall repay in full the outstanding Capital of each Lender on the Final Maturity Date.  Prior thereto, the Borrowers shall, on each Settlement Date, make a prepayment of the outstanding Capital of the Lenders to the extent required under Section 1.4 and otherwise in accordance therewith.  Notwithstanding the foregoing, the Borrowers, in their discretion, shall have the right to make a prepayment, in whole or in part, of the outstanding Capital of the Lenders on any Business Day upon one (1) Business Day’s prior written notice thereof to the Administrator and each Lender in the form of Annex E (each, a “Paydown Notice”); provided that each Borrower may (i) make a prepayment of U.S. Dollar Capital so long as (x) the amount of such U.S. Dollar Capital being prepaid does not exceed $15,000,000 and (y) the related Paydown Notice is received by the Administrator and each Group Agent before 1:00 p.m.  (New York City time) on the date of such prepayment and (ii) make a prepayment of Canadian Dollar Capital so long as (x) the amount of such Canadian Dollar Capital being prepaid does not exceed CAD10,000,000 and (y) the related Paydown Notice is received by the Administrator and each Group Agent before 12:00 p.m.  noon (Toronto, Ontario time).  Each such prepayment shall be in a minimum aggregate amount of $200,000; provided, however, that notwithstanding the foregoing, (i) a prepayment may be made in an amount necessary to reduce the Coverage Percentage to 100% and (ii) any accrued Interest and Fees in respect of such prepaid Capital shall be paid on the immediately following Settlement Date.

(c)The Borrowers may, upon at least thirty (30) Business Days’ written notice to the Administrator and each Group Agent, terminate the credit facility evidenced by this Agreement in whole or, upon at least fifteen (15) Business Days’ prior written notice to the Administrator, from time to time, irrevocably reduce in part the unused portion of the Facility Limit (but not below the amount that would cause the Aggregate Capital plus the Aggregate LC Participation Amount to exceed the Facility Limit or would cause the U.S. Dollar Equivalent amount of the Group Capital of any Group to exceed its Group Commitment, in each case after giving effect to such reduction); provided that each partial reduction shall be in the amount of at least $5,000,000, or an integral multiple of $1,000,000 in excess thereof, and that, unless terminated in whole, the Facility Limit shall in no event be reduced below $20,000,000.  Each reduction in the Commitments hereunder shall be made ratably among the Related Committed Lenders in accordance with their respective Commitment Percentages and their respective Commitments.  The Administrator shall promptly advise the Group Agents of any notice received by it pursuant to this Section 1.1(c); it being understood that (in addition to and without limiting any other requirements for termination, prepayment and/or the funding of the LC Collateral Account hereunder) no such termination or reduction shall be effective unless and until (i) in the case of a termination, the amount on deposit in the LC Collateral Account is at least equal to the then outstanding Aggregate LC Participation Amount plus the LC Fee Expectation and (ii) in the case of a partial reduction, the amount on deposit in the LC Collateral Account is at least equal to the amount, if any, by which the Facility Limit as so reduced by such partial reduction exceeds the sum of the Aggregate Capital plus the Aggregate LC Participation Amount.

(d)From time to time, the U.S. Borrower may sell certain Receivables to the Receivables Buyer pursuant to the Monetization Documents; provided that, unless otherwise consented to in writing by the Administrator, (i) the Purchase Date with respect to any such sale shall be a date permitted from time to time under the Monetization Documents, (ii) each Receivable subject to the related Purchase Request shall be a Permitted Monetization Receivable and (iii) not less than one (1) Business Day prior to any proposed Purchase Date, the U.S. Servicer shall deliver

3

 

to the Administrator and each Group Agent a report in substantially the form set forth on Annex K (such report, a “Monetization Report”).  Any Receivable identified on any Purchase Request and sold to the Receivables Buyer in accordance with the Monetization Documents shall constitute a “Monetized Receivable”.  On the related Purchase Date therefor, a Monetized Receivable shall cease to constitute a Pool Receivable and the Administrator’s security interest under this Agreement in such Monetized Receivable and Related Monetized Assets (but not in any other Receivable or any other Pool Assets) shall automatically and without any further action be released and of no further force or effect; provided that if such Monetized Receivable and Related Monetized Assets is transferred, reconveyed or returned to the U.S. Borrower by the Receivables Buyer (including in connection with an “Event of Repurchase” pursuant to the Monetization Documents with respect to such Receivable), then (x) such Receivable shall cease to constitute a Monetized Receivable and shall thereafter constitute a Pool Receivable and (y) the security interest granted herein shall immediately be reinstated with respect to such Receivable.

Section 1.2Making Loans.

(a)Each Borrower may request a Loan to be made in cash on any day upon such Borrower’s irrevocable written notice in the form of Annex B (each, a “Borrowing Notice”) delivered to the Administrator and each Group Agent in accordance with Section 6.2 (which notice must be received by the Administrator and each Group Agent before 12:00 p.m.  (New York City time)) at least one (1) Business Day before the date of the requested Loan; provided that (i) each Borrower may request a U.S. Dollar Loan on the date of the requested Loan so long as (x) the amount of such Loan does not exceed $15,000,000 and (y) the related Borrowing Notice is received by the Administrator and each Group Agent before 1:00 p.m.  (New York City time) and (ii) each Borrower may request a Canadian Dollar Loan on the date of the requested Loan so long as (x) the amount of such Loan does not exceed CAD10,000,000 and (y) the related Borrowing Notice is received by the Administrator and each Group Agent before 12:00 p.m.  noon (Toronto, Ontario time).  Each Borrowing Notice shall specify: (A) the amount requested to be paid to such Borrower (such amount, which shall not be less than (x) with respect to U.S. Dollar Loans, $500,000 or (y) with respect to Canadian Dollar Loans, CAD500,000 or, in either case, such lesser amount as agreed to by the Administrator and each Group Agent), being the Capital then being funded with respect to each Group, (B) the date of such Loan (which shall be a Business Day) and (C) the pro forma calculation of the Coverage Percentage after giving effect to the increase in the Aggregate Capital resulting from such Loan.  Upon delivering any Borrowing Notice, the Borrowers shall indicate the percentage share of each of the U.S. Borrower and the Canadian Borrower of the Aggregate Capital (such percentage share, the “U.S. Borrower’s Share” and the “Canadian Borrower’s Share”, as applicable) after giving effect to such Loan.  The Borrowers may from time to time adjust the U.S. Borrower’s Share and the Canadian Borrower’s Share in connection with the delivery of any Paydown Notice pursuant to Section 1.1(b) or by written notice to each Purchaser Agent and the Administrator.  The Servicers shall indicate the then-applicable U.S. Borrower’s Share and the Canadian Borrower’s Share on each Information Package delivered pursuant to this Agreement.  Notwithstanding the foregoing, unless otherwise approved in writing by the Administrator, the Canadian Borrower shall only request Canadian Dollar Loans.

(b)On the date of each Loan requested by any Borrower pursuant to Section 1.2(a), each applicable Conduit Lender or Related Committed Lender, as the case may be, shall, upon satisfaction of the applicable conditions set forth in Exhibit II, make available to such Borrower in

4

 

same day funds, at such account so designated in writing by such Borrower to the Administrator and each Group Agent, an amount equal to such Lender’s Ratable Share of the amount of such Loan requested. With respect to each provision of this Agreement relating to the funding or participation in any Loan requested by the Canadian Borrower and the repayment thereof by the Canadian Borrower in connection therewith, each reference to and all Loans to be funded with respect to the Commitment hereunder of PNC as a Related Committed Lender shall be funded by PNC Bank Canada Branch.  With respect to any Loans funded by PNC Bank Canada Branch, each reference to a Lender herein shall include PNC Bank Canada Branch, including, without limitation, any references to any rights of set-off, any rights of indemnification or expense reimbursement and references to reserves, capital adequacy or other provisions of a similar nature.

(c)To secure the payment in full and performance of all obligations under this Agreement and the other Transaction Documents to which it is a party, each Borrower hereby grants to the Administrator, for the benefit of the Secured Parties a security interest in and collaterally assigns, all of such Borrower’s right, title and interest in, to and under all of the following, whether now or hereafter owned, existing or arising:

(i)all Pool Receivables,

(ii)all Related Security with respect to such Pool Receivables,

(iii)all Collections with respect to such Pool Receivables,

(iv)(A) the Lock-Box Accounts and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such Lock-Box Accounts and amounts on deposit therein and (B) each LC Collateral Account and all amounts on deposit therein, and all certificates and instruments, if any, from time to time evidencing such LC Collateral Account and amounts on deposit therein,

(v)all rights (but none of the obligations) of such Borrower under the applicable Sale Agreement (other than any rights with respect to Monetized Receivables or Related Monetized Assets), and

(vi)all proceeds of, and all amounts received or receivable under any or all of, the foregoing (collectively, the “Pool Assets”); provided, however, that “Pool Assets” shall not include any Monetized Receivables, Related Monetized Assets or “consumer goods” (within the meaning of the PPSA).

If the grant of the security interests under this Section 1.2(c) with respect to any Contract would result in the termination or breach of such Contract, or is otherwise prohibited or ineffective (whether by the terms thereof or under Applicable Law), then such Contract, shall not be subject to the security interests granted hereunder but shall be held in trust by the applicable Borrower for the benefit of the Administrator (for its own benefit and for the benefit of the other Secured Parties) and, on the exercise by the Administrator of any of its rights or remedies under this Agreement following an Event of Default shall be assigned by such Borrower as directed by the Administrator; provided that: (a) the security interests of such Borrower shall attach to such Contract, or applicable portion thereof, immediately at such time as the condition causing such termination or breach is remedied, and (b) if a term in a Contract that prohibits or restricts the

5

 

grant of the security interests in the whole of an account or chattel paper forming part of the Pool Assets is unenforceable against the Administrator under Applicable Law, then the exclusion from the security interests set out above shall not apply to such account or chattel paper.  Each Borrower hereby authorizes the Administrator to file one or more financing statements, and amendments thereto, describing the collateral covered thereby as “ALL ASSETS” or words to that effect, notwithstanding that such wording may be broader in scope than the Collateral described in this Security Agreement.  The Administrator, on behalf of the Secured Parties, shall have, with respect to the Pool Assets, and in addition to all the other rights and remedies available to the Administrator and the other Secured Parties, all the rights and remedies of a secured party under any applicable UCC or PPSA.  Without limiting the foregoing, the Administrator may, at any time from and after an Event of Default, (i) obtain from any court of competent jurisdiction an order for the appointment of a Receiver of any or all Borrowers or of any or all of the Pool Assets of any or all Borrowers or (ii) appoint by instrument in writing one or more Receivers of any or all Borrowers or any or all of the Pool Assets of any or all Borrower with such rights, powers and authority (including any or all of the rights, powers and authority of the Administrator under this Agreement) as may be provided for in the instrument of appointment or any supplemental instrument, and remove and replace any such Receiver from time to time.  To the extent permitted by Applicable Law, any Receiver appointed by the Administrator shall (for purposes relating to responsibility for the Receiver’s acts or omissions) be considered to be the agent of any such Borrower and not of the Administrator or any of the other Secured Parties.

(d)Each Borrower confirms that value has been given by the Secured Parties to such Borrower, that such Borrower has rights in its Pool Assets existing at the date of this Agreement, and that such Borrower and the Administrator have not agreed to postpone the time for attachment of any security interest created by this Agreement to any of the Pool Assets of such Borrower.

(e)Each Borrower may, with the written consent of the Administrator and each Group Agent (and, in the case of a new Related LC Participant, the LC Bank), add additional Persons as Lenders (either to an existing Group or by creating new Groups) or cause an existing Related Committed Lender or Related LC Participant to increase its Commitment in connection with a corresponding increase in the Facility Limit; provided that the Commitment of any Related Committed Lender or Related LC Participant may only be increased with the prior written consent of such Lender (which consent may be granted or withheld in their sole discretion).  Each new Conduit Lender, Related Committed Lender or Related LC Participant (or Group) shall become a party hereto, by executing and delivering to the Administrator, each Group Agent and each Borrower, an Assumption Agreement in the form of Annex C hereto (which Assumption Agreement shall, in the case of any new Conduit Lender, Related Committed Lender or Related LC Participant, be executed by each Person in such new Lender’s Group).

(f)Each Related Committed Lender’s and Related LC Participant’s obligations hereunder shall be several, such that the failure of any Related Committed Lender or Related LC Participant to make a payment in connection with any loan hereunder, or drawing under a Letter of Credit hereunder, as the case may be, shall not relieve any other Related Committed Lender or Related LC Participant of its obligation hereunder to make payment for any Funded Loan or such drawing.  Further, in the event any Related Committed Lender or Related LC Participant fails to satisfy its obligation to make a payment with respect to such drawing as required hereunder, upon

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receipt of notice of such failure from any Borrower or the Administrator (or any relevant Group Agent or, solely to the extent no such notice has been given, notice by each Servicer), subject to the limitations set forth herein, the non-defaulting Related Committed Lenders or Related LC Participants in such defaulting Related Committed Lender’s or Related LC Participant’s Group shall fund the defaulting Related Committed Lender’s or Related LC Participant’s Commitment Percentage of the related Loan or drawing pro rata in proportion to their relative Commitment Percentages (determined without regard to the Commitment Percentage of the defaulting Related Committed Lender or Related LC Participant; it being understood that a defaulting Related Committed Lender’s or Related LC Participant’s Commitment Percentage of any Loan or drawing shall be first funded by the Related Committed Lenders or Related LC Participants in such defaulting Related Committed Lender’s or Related LC Participant’s Group and thereafter if there are no other Related Committed Lenders or Related LC Participants in such Group or if such other Related Committed Lenders or Related LC Participants are also defaulting Related Committed Lenders or Related LC Participants, then such defaulting Related Committed Lender’s or Related LC Participant’s Commitment Percentage of such Loan or drawing shall be funded by each other Group ratably (based on Ratable Share) and applied in accordance with this paragraph (f)).  Notwithstanding anything in this paragraph (f) to the contrary, no Related Committed Lender or Related LC Participant shall be required to make a Loan or payment with respect to such drawing pursuant to this paragraph for an amount which would cause the aggregate U.S. Dollar Equivalent amount of the Capital of such Related Committed Lender or the Ratable Share of the Aggregate LC Participation Amount of such Related LC Participant (after giving effect to such Loan or payment with respect to such drawing) to exceed its Commitment.

Section 1.3Coverage Percentage Computation.  The Coverage Percentage shall be initially computed on the Closing Date.  Thereafter, until the Facility Termination Date, such Coverage Percentage shall be automatically recomputed (or deemed to be recomputed) on each Business Day other than a Termination Day.  On any Termination Day, the Coverage Percentage shall be deemed to be 100%.  The Coverage Percentage shall become zero when the Final Payout Date has occurred and the Servicers shall have received the accrued Servicing Fee thereon.

Section 1.4Settlement Procedures.

(a)The U.S. Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrator, segregate in a separate account designated by the Administrator, which shall be an account maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the U.S. Servicer or the U.S. Borrower or received in any Lock-Box Account the customer of record of which at the applicable Lock-Box Bank is the U.S. Borrower (each such Lock-Box Account, a “U.S. Lock-Box Account”); provided, however, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the U.S. Servicer may release to the U.S. Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the U.S. Borrower on such date in accordance with the terms of the U.S. Sale Agreement or (ii) amounts owing by the U.S. Borrower to the U.S. Originators under the Company Notes issued to the U.S. Originators (each such release, a “U.S. Collections Release”).  On each Settlement Date, the U.S. Servicer (or, following its assumption of control of

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the U.S. Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:

(i)first, to the U.S. Servicer for the payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the U.S. Servicer);

(ii)second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), the U.S. Borrower’s Share of all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments), plus, if applicable, the U.S. Borrower’s Share of the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;

(iii)third, as set forth in clause (x), (y) or (z) below, as applicable:

(x)

if such day is not a Termination Day, to the extent that the Coverage Percentage exceeds 100% on such date: (I) first, to the Lenders (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the U.S. Borrower’s Share of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the U.S. Borrower’s Share of the amount necessary to reduce the Coverage Percentage to 100% and (II) second, to each LC Collateral Account, in reduction of the U.S. Borrower’s Share of the Aggregate Adjusted LC Participation Amount, in an amount equal to the amount necessary (after giving effect to clause (I) above) to reduce the U.S. Borrower’s Share of the Coverage Percentage to 100%;

 

(y)

if such day is a Termination Day: (I) first, to each Lender (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time) for the payment in full of the U.S. Borrower’s Share of the aggregate outstanding Capital of such Lender at such time and (II) second, to each LC Collateral Account (A) the amount necessary to reduce the U.S. Borrower’s Share of the Aggregate Adjusted LC Participation Amount to zero ($0) and (B) an amount equal to the U.S. Borrower’s Share of the LC Fee Expectation at such time; or

 

(z)

if such day is not a Termination Day, at the election of the U.S. Borrower and in accordance with Section 1.2(b), to the payment of all or any portion of the U.S. Borrower’s Share of the outstanding Capital of the Lenders at such time (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time);

 

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provided, that the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (iii), if any amounts remain due and unpaid pursuant to Section 1.4(b)(ii) below after giving effect to the distribution of Collections available therefor under Section 1.4(b);

(iv)fourth, to the Credit Parties that are then Exiting Lenders (ratably, based on the amount due and owing at such time), for the payment the U.S. Borrower’s Share of all other obligations then due and owing by the Borrowers to such Credit Parties; provided, that the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to clause (iv), if any amounts remain due and unpaid pursuant to Section 1.4(b)(iii) below after giving effect to the distribution of Collections available therefor under Section 1.4(b);

(v)fifth, to the Credit Parties, the Affected Persons and the Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of the U.S. Borrower’s Share of all other obligations then due and owing by the Borrowers to the Credit Parties, the Affected Persons and the Indemnified Parties; provided, that the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (v), if any amounts remain due and unpaid pursuant to Section 1.4(b)(iv) below after giving effect to the distribution of Collections available therefor under Section 1.4(b);

(vi)sixth, to the extent that the U.S. Borrower has failed to make any payment or deposit required to be made under the Monetization Documents and such failure has remained unremedied for one (1) or more Business Days, the balance, if any, to a separate account designated by the Administrator or, if so instructed by the Administrator, transferred to the Receivables Buyer in an amount equal to the amounts then due and owing to the Receivables Buyer under the Monetization Documents; provided, that the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (vi), if any amounts remain due and unpaid pursuant to Section 1.4(b)(v) below after giving effect to the distribution of Collections available therefor under Section 1.4(b); and

(vii)seventh, the balance, if any, to be paid to the U.S. Borrower for its own account; provided, that the U.S. Servicer (or, following its assumption of control of the U.S. Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (vii), if any amounts remain due and unpaid pursuant to Section 1.4(b)(v) below after giving effect to the distribution of Collections available therefor under Section 1.4(b).

(b)The Canadian Servicer shall set aside and hold in trust for the benefit of the Secured Parties (or, if so requested by the Administrator, segregate in a separate account designated by the Administrator, which shall be an account maintained and controlled by the Administrator unless the Administrator otherwise instructs in its sole discretion), for application in accordance with the priority of payments set forth below, all Collections on Pool Receivables that are received by the Canadian Servicer or the Canadian Borrower or received in any Lock-Box Account the customer

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of record of which at the applicable Lock-Box Bank is the Canadian Borrower (each such Lock-Box Account, a “Canadian Lock-Box Account”); provided, however, that so long as each of the conditions precedent set forth in Section 3 of Exhibit II are satisfied on such date, the Canadian Servicer may release to the Canadian Borrower from such Collections the amount (if any) necessary to pay (i) the purchase price for Receivables purchased by the Canadian Borrower on such date in accordance with the terms of the Canadian Sale Agreement or (ii) amounts owing by the Canadian Borrower to the Canadian Originators under the Company Notes issued to the Canadian Originators (each such release, a “Canadian Collections Release”).  On each Settlement Date, the Canadian Servicer (or, following its assumption of control of the Canadian Lock-Box Accounts, the Administrator) shall, distribute such Collections in the following order of priority:

(i)first, to the Canadian Servicer for the payment of the accrued Servicing Fees payable to it for the immediately preceding Interest Period (plus, if applicable, the amount of Servicing Fees payable to it for any prior Interest Period to the extent such amount has not been distributed to the Canadian Servicer), plus applicable GST/HST;

(ii)second, to each Lender and other Credit Party (ratably, based on the amount then due and owing), the Canadian Borrower’s Share of all accrued and unpaid Interest and Fees due to such Lender and other Credit Party accrued during the immediately preceding Interest Period (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments), plus, if applicable, the Canadian Borrower’s Share of the amount of any such Interest and Fees (including any additional amounts or indemnified amounts payable under Sections 1.10 and 3.1 in respect of such payments) payable for any prior Interest Period to the extent such amount has not been distributed to such Lender or Credit Party;

(iii)third, as set forth in clause (x), (y) or (z) below, as applicable:

(x)

if such day is not a Termination Day, to the extent that the Coverage Percentage exceeds 100% on such date: (I) first, to the Lenders (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time) for the payment of a portion of the Canadian Borrower’s Share of the outstanding Aggregate Capital at such time, in an aggregate amount equal to the Canadian Borrower’s Share of the amount necessary to reduce the Coverage Percentage to 100% and (II) second, to each LC Collateral Account, in reduction of the Canadian Borrower’s Share of the Aggregate Adjusted LC Participation Amount, in an amount equal to the amount necessary (after giving effect to clause (I) above) to reduce the Canadian Borrower’s Share of the Coverage Percentage to 100%;

 

(y)

if such day is a Termination Day: (I) first, to each Lender (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time) for the payment in full of the Canadian Borrower’s Share of the aggregate outstanding Capital of such Lender at such time and (II) second, to each LC Collateral Account (A) the amount necessary to reduce the Canadian Borrower’s Share of the Aggregate Adjusted LC Participation Amount

 

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to zero ($0) and (B) an amount equal to the Canadian Borrower’s Share of the LC Fee Expectation at such time; or

 

(z)

if such day is not a Termination Day, at the election of the Canadian Borrower and in accordance with Section 1.2(b), to the payment of all or any portion of the Canadian Borrower’s Share of the outstanding Capital of the Lenders at such time (ratably, based on the U.S. Dollar Equivalent of the amount of aggregate outstanding Capital of each Lender at such time); provided, that the Canadian Servicer (or, following its assumption of control of the Canadian Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (iii), if any amounts remain due and unpaid pursuant to Section 1.4(a)(ii) above after giving effect to the distribution of Collections available therefor under Section 1.4(a);

 

(iv)fourth, to the Credit Parties that are then Exiting Lenders (ratably, based on the amount due and owing at such time), for the payment the Canadian Borrower’s Share of all other obligations then due and owing by the Borrowers to such Credit Parties; provided that the Canadian Servicer (or, following its assumption of control of the Canadian Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (iv), if any amounts remain due and unpaid pursuant to Section 1.4(a)(iii) above after giving effect to the distribution of Collections available therefor under Section 1.4(a);

(v)fifth, to the Credit Parties, the Affected Persons and the Indemnified Parties (ratably, based on the amount due and owing at such time), for the payment of the Canadian Borrower’s Share of all other obligations then due and owing by the Borrowers to the Credit Parties, the Affected Persons and the Indemnified Parties; provided that the Canadian Servicer (or, following its assumption of control of the Canadian Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (v), if any amounts remain due and unpaid pursuant to Section 1.4(a)(iv) above after giving effect to the distribution of Collections available therefor under Section 1.4(a);

(vi)sixth, the balance, if any, to be paid to the Canadian Borrower for its own account; provided that the Canadian Servicer (or, following its assumption of control of the Canadian Lock-Box Accounts, the Administrator) shall not distribute Collections pursuant to this clause (vi), if any amounts remain due and unpaid pursuant to Section 1.4(a)(v) or Section 1.4(a)(vi) above after giving effect to the distribution of Collections available therefor under Section 1.4(a).

(c)All payments or distributions to be made by any Servicer, any Borrower and any other Person to the Lenders (or their respective related Affected Persons and Indemnified Parties) and the LC Bank hereunder shall be paid or distributed to the related Group Agent.  The applicable Group Agent shall distribute such amounts to the applicable Lenders, the LC Bank, Affected Persons and the Indemnified Parties ratably.

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(d)U.S. Dollar Capital and Interest and Fees relating thereto shall be payable in U.S. Dollars and all Canadian Dollar Capital and Interest and Fees relating thereto shall be payable in Canadian Dollars.

(e)For the purposes of this Section 1.4:

(i)if on any day the Outstanding Balance of any Pool Receivable is reduced or adjusted as a result of any defective, rejected or returned goods or services, or any revision, cancellation, allowance, discount or other adjustment made by any Borrower or any Affiliate of such Borrower, or the applicable Servicer or any Affiliate of the applicable Servicer, or any setoff or dispute between any Borrower or any Affiliate of such Borrower, or the applicable Servicer or any Affiliate of the applicable Servicer and an Obligor (except any such revision, cancellation, allowance, discount or other adjustment made in settlement of such Pool Receivable resulting from the financial inability of the applicable Obligor to pay such Pool Receivable and, in the case of all Pool Receivables (other than Specified Receivables),, made in accordance with the Credit and Collection Policies), the Borrower that purchased such Receivable under the applicable Sale Agreement shall be deemed to have received on such day a Collection of such Pool Receivable in the amount of such reduction or adjustment and shall immediately pay any and all such amounts in respect thereof to a Lock-Box Account for the benefit of the Lenders and their assigns and for application pursuant to Section 1.4;

(ii)if on any day it is determined that any of the representations or warranties in Sections 1(j) or 3(a) of Exhibit III was (and at the time of such determination remains) untrue with respect to any Pool Receivable at the time a Loan was made with respect to such Pool Receivable, the Borrower that purchased such Receivable under the applicable Sale Agreement shall be deemed to have received on such day a Collection of such Pool Receivable in full and shall immediately pay any and all such amounts to a Lock-Box Account (or as otherwise directed by the Administrator at such time) for the benefit of the Lenders and their assigns and for application pursuant to this Section 1.4 (Collections deemed to have been received pursuant to clause (i) or (ii) of this paragraph (e) are hereinafter sometimes referred to as “Deemed Collections”);

(iii)except as otherwise required by the Monetization Intercreditor Agreement, applicable law or the relevant Contract, all Collections received from an Obligor of any Receivable shall be applied to the Receivables of such Obligor in a manner consistent with the application and allocation procedures employed by each Servicer at such time; and

(iv)if and to the extent the Administrator, any Group Agent or any Lender shall be required for any reason to pay over to an Obligor (or any trustee, Receiver, custodian or similar official in any Insolvency Proceeding) any amount received by it hereunder, such amount shall be deemed not to have been so received by such Person but rather to have been retained by the Borrowers and, accordingly, such Person shall have a claim against the Borrowers for such amount, payable when and to the extent that any distribution from or on behalf of such Obligor is made in respect thereof.

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Section 1.5Fees.  Each Borrower shall pay to each Group Agent for the benefit of the Lenders and Liquidity Providers in the related Group in accordance with the provisions set forth in Section 1.4(a) and Section 1.4(b) and the Structuring Agent certain fees in the amounts and on the dates set forth in one or more fee letter agreements, dated the Closing Date (or dated the date any such Lender and member of its related Group become a party hereto pursuant to an Assumption Agreement, a Transfer Supplement or otherwise), between such Borrower and the applicable Group Agent, respectively, (as any such fee letter agreement may be amended, restated, supplemented or otherwise modified from time to time, each, a “Group Fee Letter” and each of the Group Fee Letters may be referred to collectively as, the “Fee Letters”).

Section 1.6Payments and Computations, Etc.

(a)All amounts to be paid or deposited by any Borrower or any Servicer hereunder shall be made without reduction for offset or counterclaim and shall be paid or deposited no later than 2:00 p.m. (New York City time) on the day when due in same day funds to the account for each Lender maintained by the applicable Group Agent (or such other account as may be designated from time to time by such Group Agent to such Borrower and such Servicer).  All amounts received after 2:00 p.m.  (New York City time) will be deemed to have been received on the next Business Day.

(b)Each Borrower or each Servicer, as the case may be, shall, to the extent permitted by law, pay interest on any amount not paid or deposited by such Borrower or such Servicer, as the case may be, when due hereunder, at an interest rate equal to 3% per annum above the applicable Base Rate, payable on demand.

(c)All computations of interest under paragraph (b) and all computations of Interest, Fees and other amounts hereunder shall be made on the basis of a year of 360 (or 365 or 366, as applicable, with respect to Interest or other amounts calculated by reference to the applicable Base Rate) days for the actual number of days elapsed.  For the purposes of the Interest Act (Canada), the annual rate to which any interest rate, discount rate or present value expressed on the basis of a year of 360 days is equivalent, is such rate or value multiplied by the actual number of days in the year, divided by 360, and each Borrower hereby represents and warrants that it understands the foregoing conversion formula and how to calculate annual rates of interest using such formula.  Whenever any payment or deposit to be made hereunder shall be due on a day other than a Business Day, such payment or deposit shall be made on the next Business Day and such extension of time shall be included in the computation of such payment or deposit.

(d)On any day when any computation or calculation hereunder requires the aggregation of amounts denominated in more than one currency, all amounts that are denominated in Canadian Dollars shall be deemed to be the U.S. Dollar Equivalent thereof on such day for purposes of such computation or calculation.

Section 1.7Increased Costs.

(a)If, after the date hereof, the Administrator, any Lender, Liquidity Provider or Program Support Provider or any of their respective Affiliates (each an “Affected Person”) determines that any Change in Law affects or would affect the amount of capital required or

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expected to be maintained by such Affected Person based upon the existence of any commitment to make Loans (or otherwise to maintain the Loans) or any related liquidity facility, credit enhancement facility and other commitments of the same type, then, upon demand by such Affected Person (with a copy to the Administrator), each Borrower shall promptly pay such Affected Person, from time to time as specified by such Affected Person, additional amounts sufficient to compensate such Affected Person in the light of such circumstances, to the extent that such Affected Person determines such increase in capital is allocable to the existence of any of such commitments.

(b)If due to any Change in Law, including a Change in Law that subjects any Affected Person to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto, there shall be any increase after the Closing Date in the cost to any Affected Person of making or maintaining the Loans (or its portion thereof) in respect of which Interest is computed by reference to the Euro-Rate, CDOR or LMIR, then, upon demand by such Affected Person, each Borrower shall promptly pay to such Affected Person, from time to time as specified by such Affected Person, additional amounts sufficient to compensate such Affected Person for such increased costs.

(c)If an Affected Person requests compensation under this Section 1.7, a certificate describing in reasonable detail such amounts and the basis for such Affected Person’s demand for such amounts shall be submitted to the Borrowers and the applicable Group Agent by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.

(d)Within a reasonable time period after any Affected Person has actual knowledge that it is subject to increased capital requirements or incurs other increased costs pursuant to this Section 1.7, such Affected Person shall notify the Borrowers and the Servicers of such fact.

(e)Notwithstanding anything in this Section 1.7 to the contrary, (i) if any Affected Person fails to give demand for amounts or losses incurred in connection with this Section 1.7 within one hundred and eighty (180) days after it obtains knowledge that it is subject to increased capital requirements or has incurred other increased costs, such Affected Person shall, with respect to amounts payable pursuant to this Section 1.7, only be entitled to payment under this Section 1.7 for amounts or losses incurred from and after the date one hundred and eighty (180) days prior to the date that such Affected Person does give such demand and (ii) the Borrowers shall not be required to pay to any Affected Person (I) any amount that has been fully and finally paid in cash to such Affected Person pursuant to any other provision of this Agreement or any other Transaction Document, or (II) any amount, if the payment of such amount is expressly excluded by any provision of this Agreement or any other Transaction Document.

Section 1.8Requirements of Law.

(a)If, after the date hereof, any Affected Person determines that any Change in Law:

(i)does or shall impose, modify or hold applicable any reserve, special deposit, compulsory loan or similar requirement against assets held by, or deposits or other

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liabilities in or for the account of, Loans, advances or loans by, or other credit extended by, or any other acquisition of funds by, any office of such Affected Person that are not otherwise included in the determination of the Euro-Rate, CDOR or LMIR,

(ii)does or shall impose on such Affected Person any other condition,

and the result of any of the foregoing is: (1) to increase the cost to such Affected Person of agreeing to make or maintain the Loans (or interests therein) or any Portion of Capital, or (2) to reduce any amount receivable hereunder (whether directly or indirectly), then, in any such case, upon demand by such Affected Person, the Borrowers shall promptly pay to such Affected Person additional amounts necessary to compensate such Affected Person for such additional cost or reduced amount receivable.  All such amounts shall be payable as incurred.

(b)If an Affected Person requests compensation under this Section 1.8, a certificate describing in reasonable detail such amounts and the basis for such Affected Person’s demand for such amounts shall be submitted to the Borrowers and the applicable Group Agent by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.

(c)Within a reasonable time period after any Affected Person has actual knowledge that it has incurred additional costs or reduced amounts receivable pursuant to this Section 1.8, such Affected Person shall notify the Borrowers and the Servicers of such fact.

(d)Notwithstanding anything in this Section 1.8 to the contrary, (i) if any Affected Person fails to give demand for additional costs or reduced amounts receivable incurred in connection with this Section 1.8 within one hundred and eighty (180) days after it obtains knowledge that it has suffered additional costs or reduced amounts receivable, such Affected Person shall, with respect to amounts payable pursuant to this Section 1.8, only be entitled to payment under this Section 1.8 for amounts or losses incurred from and after the date one hundred and eighty (180) days prior to the date that such Affected Person does give such demand and (ii) the Borrowers shall not be required to pay to any Affected Person (I) any amount that has been fully and finally paid in cash to such Affected Person pursuant to any other provision of this Agreement or any other Transaction Document, (II) any amount, if the payment of such amount is expressly excluded by any provision of this Agreement or (III) any amount, if such amount constitutes Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes).

Section 1.9Funding Losses.

(a)Each Borrower shall compensate each Affected Person, upon written request by such Person for all losses, expenses and liabilities (including any interest paid by such Affected Person to lenders of funds borrowed by it to fund or maintain any Portion of Capital hereunder at an interest rate determined by reference to the Euro-Rate, CDOR or LMIR and any loss sustained by such Person in connection with the re-employment of such funds), which such Affected Person may sustain with respect to funding or maintaining such Portion of Capital at the Euro-Rate, CDOR or LMIR if, for any reason, after the applicable request by any Borrower to fund or maintain such Portion of Capital at an interest rate determined by reference to the Euro-Rate, CDOR or LMIR, such funding or maintenance does not occur on a date specified therefor.

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(b)If an Affected Person requests compensation under this Section 1.9, a certificate describing in reasonable detail such amounts and the basis for such Affected Person’s demand for such amounts shall be submitted to the Borrowers and the applicable Group Agent by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.

(c)Within a reasonable time period after any Affected Person has actual knowledge that such Affected Person has incurred losses pursuant to this Section 1.9, such Affected Person shall notify the Borrowers and the Servicers of such fact.

(d)Notwithstanding anything in this Section 1.9 to the contrary, no Borrower shall be required to pay to any Affected Person any amount pursuant to this Section 1.9 to the extent (i) such amount has been fully and finally paid in cash to such Affected Person pursuant to any other provision of this Agreement (including, without limitation, as a component of Interest) or any other Transaction Document or (ii) the payment of such amount is expressly excluded by any provision of this Agreement or any other Transaction Document.

Section 1.10Taxes.

(a)Each Borrower agrees that:

(i)Any and all payments by or on account of any obligation of any Borrower under this Agreement and any other Transaction Document shall be made free and clear of and without deduction or withholding for any Taxes, except as required by law.  If any applicable withholding agent shall be required by law to deduct or withhold any Tax from or in respect of any such payment, then the applicable withholding agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with Applicable Law and, if such Tax is an Indemnified Tax, then the sum payable shall be increased by the amount necessary to yield to such Person (after payment of all Taxes, including Taxes applicable to additional sums payable under this Section 1.10(a)(i)) an amount equal to the sum it would have received had no such deductions or withholdings been made.

(ii)Whenever any Indemnified Taxes are payable by any Borrower, as promptly as possible thereafter, such Borrower shall send to the Administrator for its own account or for the account of any Lender or any Liquidity Provider or other Program Support Provider, as the case may be, a certified copy of an original official receipt showing payment thereof or such other evidence of such payment as may be available to such Borrower and acceptable to the taxing authorities having jurisdiction over such Person.  If any Borrower fails to pay any Indemnified Taxes when due to the appropriate taxing authority or fails to remit to the Administrator the required receipts or other required documentary evidence, such Borrower shall indemnify the Administrator and/or any other Affected Person, as applicable, for any incremental Taxes, interest or penalties that may become payable by such party as a result of any such failure.

(b)Each Borrower shall indemnify each Affected Person within ten (10) days after written demand therefor, for the full amount of any Indemnified Taxes payable or paid by such Affected Person or required to be withhold or deducted from a payment to such Affected Party on

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or with respect to any payment by or on account of any obligation of such Borrower hereunder (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 1.10) and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority.

(c)(i)  Each Foreign Lender shall, prior to becoming a Foreign Lender and upon changing its funding office, to the extent entitled to an exemption or reduction of withholding tax, provide to the Borrowers and Administrator the applicable documentation set forth in Section 1.10(c)(ii) and all other applicable properly completed and executed documentation certifying that payments hereunder to such Foreign Lender are exempt from or not subject to withholding tax or are subject to a reduced rate of withholding (such documentation, a “Withholding Certificate”).  Each Foreign Lender shall also deliver a Withholding Certificate, if legally entitled to do so, promptly upon the obsolescence, expiration or invalidity of any Withholding Certificate previously delivered by such Foreign Lender and from time to time upon the reasonable request of any Borrower.  Each Foreign Lender shall promptly notify each Borrower at any time it determines that it is no longer in a position to provide any previously delivered Withholding Certificate to each Borrower.  No Foreign Lender may become a Lender hereunder if such Person fails to deliver a Withholding Certificate that is able to be provided pursuant to the foregoing provisions in advance of becoming a party to this Agreement.  Each Foreign Lender shall within a reasonable time period notify each Borrower that it is a Foreign Lender and shall also within a reasonable time period notify such Borrower of any change in its funding office.

(i)Without limiting the generality of the foregoing, with respect to the U.S. Borrower:

(A)any Lender that is a U.S. Person shall deliver to the U.S. Borrower and the Administrator on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the U.S. Borrower or the Administrator), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. Federal backup withholding Tax;

(B)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the U.S. Borrower and the Administrator (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the U.S. Borrower or the Administrator), whichever of the following is applicable:

(1)in the case of a Foreign Lender claiming the benefits of an income Tax treaty to which the United States is a party (x) with respect to payments of interest under this Agreement or any other Transaction Document, executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “interest” article of such Tax treaty and (y) with respect to any other applicable payments under this

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Agreement or any other Transaction Document, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, establishing an exemption from, or reduction of, U.S. Federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2)executed originals of IRS Form W-8ECI;

(3)in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Annex L-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of the U.S. Borrower within the meaning of Section 871(h)(3)(B) of the Code or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable; or

(4)to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, a U.S. Tax Compliance Certificate substantially in the form of Annex L-2 or Annex L-3, IRS Form W-9 and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Annex L-4 on behalf of each such direct or indirect partner;

(C)any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the U.S. Borrower and the Administrator (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the U.S. Borrower or the Administrator), executed originals of any other form prescribed by Applicable Law as a basis for claiming exemption from, or a reduction in, U.S. Federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by Applicable Law to permit the U.S. Borrower or the Administrator to determine withholding or deduction required to be made; and

(D)if a payment made to a Lender under this Agreement or any other Transaction Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the U.S. Borrower and the Administrator at the time or times prescribed by law and at such time or times reasonably requested by the U.S. Borrower or the Administrator such documentation prescribed by Applicable Law (including as prescribed by Section

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1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the U.S. Borrower or the Administrator as may be necessary for the U.S. Borrower and the Administrator to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment.  Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(d)If an Affected Person determines, in its sole discretion, that it has received a refund of any Taxes as to which it has been indemnified by any Borrower, it shall pay over such refund to such Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by such Borrower under this Section 1.10 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses of such Affected Person (including Taxes) and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund net of any applicable Taxes payable in respect of such interest); provided that such Borrower, upon the request of such Affected Person, agrees to repay the amount paid over to such Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to such Affected Person in the event such Affected Person is required to repay such refund to such Governmental Authority.  Notwithstanding anything to the contrary in this paragraph (d), in no event will any Affected Person be required to pay any amount to Borrowers pursuant to this paragraph (d) the payment of which would place such Affected Person in a less favorable net after-Tax position than such Affected Person would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid.  This Section 1.10 shall not be construed to require any Affected Person to make available its tax returns (or any other information relating to its Taxes which it deems confidential) to any Borrower or any other Person.

(e)If an Affected Person requests indemnification or repayment under this Section 1.10, a certificate describing in reasonable detail such amounts and the basis for such Affected Person’s demand for such amounts shall be submitted to each Borrower and the applicable Group Agent by such Affected Person and shall be conclusive and binding for all purposes, absent manifest error.

(f)Within a reasonable time period after an obligation of any Borrower to indemnify or repay an Affected Person pursuant to this Section 1.10 arises, such Affected Person shall notify the Borrowers and Servicers of such fact.

(g)Notwithstanding anything in this Section 1.10 to the contrary, no Borrower shall be required to pay to an Affected Person any amount pursuant to this Section 1.10 to the extent (i) such amount has been fully and finally paid in cash to such Affected Person pursuant to any other provision of this Agreement or any other Transaction Document, (ii) the payment of such amount is expressly excluded by any provision of this Agreement or any other Transaction Document.

(h)Notwithstanding Section 1.10(a)(i) or Section 1.10(b), (i) where an amount payable hereunder by the Canadian Borrower is receivable by a party not dealing at arm’s length with the Canadian Borrower for purposes of the Canadian Tax Act, (A) in the case of Section 1.10(a)(i),

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the amount shall be increased only if the recipient of the interest payable hereunder is a resident of the United States for purposes of the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital, and, (B) in the case of Section 1.10(b), the Canadian Borrower shall be required to indemnify only if the recipient of the interest payable hereunder is a resident of the United States for purposes of the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital and (ii) where the transfer or assignment of any Loan made to the Canadian Borrower or of any interest therein pursuant to Section 6.3 by any Lender results in interest payable under such Loan becoming “participating debt interest” within the meaning of the Canadian Tax Act, the Canadian Borrower shall not be required to increase the amount payable under the Loan by any Canadian withholding tax imposed on such interest pursuant to Section 1.10(a)(i) or indemnify for any such Canadian withholding tax pursuant to Section 1.10(b).

(i)Without limiting any other rights that any Indemnified Party may have hereunder or under applicable law and notwithstanding any other provision of this Agreement, CB hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all Indemnified Amounts to the extent arising out of or resulting from (whether directly or indirectly) any obligation of the Canadian Borrower to pay, withhold and/or remit Canadian federal, provincial or local taxes (including income, withholding, franchise or value added taxes) other than any Canadian withholding tax imposed on (i) an amount payable by the Canadian Borrower under this Agreement to a party not dealing at arm’s length with the Canadian Borrower for purposes of the Canadian Tax Act that is not a resident of the United States for purposes of the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital or (ii) interest payable on any Loan made to the Canadian Borrower where the transfer of such Loan or of any interest therein pursuant to Section 6.3 by any Lender results in such interest becoming “participating debt interest” within the meaning of the Canadian Tax Act.

Section 1.11Letters of Credit.

(a)Subject to the terms and conditions hereof, the LC Bank shall from time to time on any Business Day from the Closing Date until the Facility Termination Date issue or cause the issuance of Letters of Credit denominated in either U.S. Dollars or Canadian Dollars (“Letters of Credit”) on behalf of each Borrower (and, if applicable, on behalf of, or for the account of, any Originator or Servicer or any other Affiliate of such Borrower and the applicable Servicer); provided, however, the LC Bank’s obligation to issue a Letter of Credit shall be subject in all respects to the limitations set forth in the last sentence of the first paragraph of Section 1.1(a).

(b)Notwithstanding anything to the contrary set forth herein or in any other Transaction Document, the LC Bank shall be under no obligation to issue Letters of Credit requested by any Borrower which are denominated in Canadian Dollars if the LC Bank notifies any Borrower on or prior to the date of such issuance that the issuance of such Letter of Credit, or the funding of any draw thereunder has been made or, in the case of a draw, would be made, impracticable or unlawful by compliance by the LC Bank in good faith with any Applicable Law or any request or directive of any Governmental Authority (whether or not having the force of law). If the Canadian Borrower requests a Letter of Credit, PNC Bank Canada Branch may act as the issuing bank on behalf of the LC Bank with respect to such Letters of Credit.  With respect to any Letters of Credit issued by PNC Bank Canada Branch, each reference to the LC Bank herein

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shall include PNC Bank Canada Branch and PNC Bank Canada Branch shall be entitled to all of the rights and protections of the LC Bank set forth in this Agreement.

(c)Interest shall accrue on all amounts drawn under Letters of Credit for each day on and after the applicable Drawing Date so long as such drawn amounts shall have not been reimbursed to the LC Bank pursuant to the terms hereof.

Section 1.12Issuance of Letters of Credit.

(a)Any Borrower may request the LC Bank, upon two (2) Business Days’ prior written notice submitted on or before 11:00 a.m.  (New York City time) to issue a Letter of Credit by delivering to the Administrator, the LC Bank’s form of Letter of Credit Application (the “Letter of Credit Application”), substantially in the form of Annex G attached hereto and a Borrowing Notice, substantially in the form of Annex B hereto, in each case completed to the reasonable satisfaction of the Administrator and the LC Bank.  Each Borrower also has the right to give instructions and make agreements with respect to any Letter of Credit Application and the disposition of documents, and to agree with the Administrator upon any amendment, extension or renewal of any Letter of Credit.

(b)Each Letter of Credit shall, among other things, (i) provide for the payment of sight drafts or other written demands for payment when presented for honor thereunder in accordance with the terms thereof and when accompanied by the documents described therein and (ii) have an expiry date not later than twelve (12) months after such Letter of Credit’s date of issuance, extension or renewal, as the case may be, and in no event later than twelve (12) months after the Facility Termination Date.  The terms of each Letter of Credit may include customary “evergreen” provisions providing that such Letter of Credit’s expiry date shall automatically be extended for additional periods not to exceed twelve (12) months unless, not less than thirty (30) days (or such longer period as may be specified in such Letter of Credit) (the “Notice Date”) prior to the applicable expiry date, the LC Bank delivers written notice to the beneficiary thereof declining such extension; provided, however, that if (x) any such extension would cause the expiry date of such Letter of Credit to occur after the date that is twelve (12) months after the Facility Termination Date determined pursuant to clause (a) of the definition thereof or (y) the LC Bank determines that any condition precedent to issuing such Letter of Credit hereunder are not satisfied (other than any such condition requiring the Borrowers to submit a Borrowing Notice or Letter of Credit Application in respect thereof), then the LC Bank, in the case of clause (x) above, may (or at the written direction of any LC Participant, shall) or, in the case of clause (y) above, shall, use reasonable efforts in accordance with (and to the extent permitted by) the terms of such Letter of Credit to prevent the extension of such expiry date (including notifying the Borrowers and the beneficiary of such Letter of Credit in writing prior to the Notice Date that such expiry date will not be so extended).  Each Letter of Credit shall be subject either to the Uniform Customs and Practice for Documentary Credits (2007 Revision), International Chamber of Commerce Publication No.  600, and any amendments or revisions thereof adhered to by the LC Bank or the International Standby Practices (ISP98-International Chamber of Commerce Publication Number 590), and any amendments or revisions thereof adhered to by the LC Bank, as determined by the LC Bank.

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(c)Immediately upon the issuance by the LC Bank of any Letter of Credit (or any amendment to a Letter of Credit increasing the amount thereof), the LC Bank shall be deemed to have sold and transferred to each LC Participant, and each LC Participant shall be deemed irrevocably and unconditionally to have purchased and received from the LC Bank, without recourse or warranty, an undivided interest and participation, to the extent of such LC Participant’s Ratable Share, in such Letter of Credit, each drawing made thereunder and the obligations of the Borrowers hereunder with respect thereto, and any security therefor or guaranty pertaining thereto.  Upon any change in the Commitments or Ratable Shares of the LC Participants pursuant to this Agreement, it is hereby agreed that, with respect to all outstanding Letters of Credit and unreimbursed drawings thereunder, there shall be an automatic adjustment to the participations pursuant to this Section 1.12(c) to reflect the new Ratable Shares of the assignor and assignee LC Participant or of all LC Participants with Commitments, as the case may be.  In the event that the LC Bank makes any payment under any Letter of Credit and the Borrowers shall not have reimbursed such amount in full to the LC Bank pursuant to Section 1.14(a), each LC Participant shall be obligated to make Participation Advances with respect to such Letter of Credit in accordance with Section 1.14(b).

Section 1.13Requirements For Issuance of Letters of Credit.  Each Borrower shall authorize and direct the LC Bank to name such Borrower, the applicable Servicer or any other Affiliate of such Borrower and the applicable Servicer as the “Applicant” or “Account Party” of each Letter of Credit.

Section 1.14Disbursements, Reimbursement.

(a)In the event of any drawing under a Letter of Credit by the beneficiary or transferee thereof, the LC Bank will promptly notify the Administrator and each Borrower of such drawing.  Each Borrower shall reimburse (such obligation to reimburse the LC Bank shall sometimes be referred to as a “Reimbursement Obligation”) the LC Bank not later than (i) if such Borrower shall have received such notice by 1:00 p.m.  (New York City time) on the date of such drawing (each such date, a “Drawing Date”), 4:00 p.m.  (New York City time) on the Drawing Date and (ii) otherwise 12:00 noon (New York City time) on the Business Day immediately following the Drawing Date (the date on which such Borrower is obligated to perform a Reimbursement Obligation is referred to as a “Reimbursement Date”) in an amount equal to the amount so paid by the LC Bank.  Such Reimbursement Obligation shall be satisfied by the Borrowers (i) first, by the remittance by the Administrator to the LC Bank of any available amounts denominated in the same currency as the Letter of Credit relating to such Reimbursement Obligation then on deposit in any LC Collateral Account, (ii) second, by the remittance by or on behalf of the Borrowers to the LC Bank of any other funds of the Borrowers then available for disbursement and (iii) third, by the remittance by the Administrator to the LC Bank of any available amounts then on deposit in the LC Collateral Account denominated in a currency other than the currency of the Letter of Credit relating to such Reimbursement Obligation; provided that at the time of such remittance, such amounts shall be converted to the currency of the Letter of Credit relating to such Reimbursement Obligation.  In the event any Borrower fails to reimburse the LC Bank for the full amount of any drawing under any Letter of Credit by noon (New York City time) on a Reimbursement Date (including because the conditions precedent to a Borrowing requested by any Borrower pursuant to Section 1.2 shall not have been satisfied), the LC Bank will promptly notify each LC Participant thereof.  Any notice given by the LC Bank pursuant to this Section 1.14 may be oral if immediately

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confirmed in writing; provided that the lack of such an immediate written confirmation shall not affect the conclusiveness or binding effect of such oral notice.

(b)Each LC Participant shall upon any notice pursuant to paragraph (a) above make available to the LC Bank an amount in immediately available funds equal to its Ratable Share of the amount of the drawing (a “Participation Advance”), whereupon the LC Participants shall each be deemed to have made a Loan in that amount denominated in the same currency as the Letter of Credit relating to such Participation Amount.  If any LC Participant so notified fails to make available to the LC Bank the amount of such LC Participant’s Ratable Share of such amount by no later than 2:00 p.m.  (New York City time) on the Reimbursement Date in the applicable currency (or, if such Reimbursement Date is the Drawing Date, 12:00 noon (New York City time) on the Business Day immediately following such Reimbursement Date) (the date on which an LC Participant is obligated to make available to the LC Bank the amount of such LC Participant’s Ratable Share is referred to as the “LC Participant Reimbursement Date”), then interest shall accrue on such LC Participant’s obligation to make such payment, from the LC Participant Reimbursement Date to the date on which such LC Participant makes such payment (i) during the first three (3) days following the LC Participant Reimbursement Date, at a rate per annum equal to (x) with respect to a Participation Advance denominated in U.S. Dollars, the Federal FundsOvernight Bank Funding Rate and (y) with respect to a Participation Advance denominated in Canadian Dollars, CDOR and (ii) at a rate per annum equal to the applicable Base Rate on and after the fourth day following the LC Participant Reimbursement Date.  The LC Bank will promptly give notice of the occurrence of the LC Participant Reimbursement Date, but failure of the LC Bank to give any such notice on the LC Participant Reimbursement Date or in sufficient time to enable any LC Participant to effect such payment on the LC Participant Reimbursement Date shall not relieve such LC Participant from its obligation under this paragraph (b), provided that such LC Participant shall not be obligated to pay interest as provided in clauses (i) and (ii) above until and commencing from the date of receipt of notice from the LC Bank or the Administrator of the occurrence of the LC Participant Reimbursement Date.  Each LC Participant’s Commitment shall continue until the last to occur of any of the following events: (A) the LC Bank ceases to be obligated to issue or cause to be issued Letters of Credit hereunder, (B) no Letter of Credit issued hereunder remains outstanding and uncancelled or (C) all Persons (other than the Borrowers) have been fully reimbursed for all payments made under or relating to Letters of Credit.

Section 1.15Repayment of Participation Advances.

(a)Upon (and only upon) receipt by the LC Bank for its account of immediately available funds from or for the account of any Borrower (i) in reimbursement of any payment made by the LC Bank under a Letter of Credit with respect to which any LC Participant has made a Participation Advance to the LC Bank or (ii) in payment of Interest on the Loans made or deemed to have been made in connection with any such draw, the LC Bank will pay to each LC Participant, ratably (based on the outstanding drawn amounts funded by each such LC Participant in respect of such Letter of Credit), in the same funds as those received by the LC Bank; it being understood, that the LC Bank shall retain a ratable amount of such funds that were not the subject of any payment in respect of such Letter of Credit by any LC Participant.

(b)If the LC Bank is required at any time to return to any Borrower, or to a trustee, Receiver, liquidator, custodian, or any official in any insolvency proceeding, any portion of the

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payments made by such Borrower to the LC Bank pursuant to this Agreement in reimbursement of a payment made under the Letter of Credit or interest or fee thereon, each LC Participant shall, on demand of the LC Bank, forthwith return to the LC Bank the amount of its Ratable Share of any amounts so returned by the LC Bank plus interest at (x) with respect to amounts denominated in U.S. Dollars, the Federal FundsOvernight Bank Funding Rate, and (y) with respect to amounts denominated in Canadian Dollars, CDOR, from the date the payment was first made to such LC Participant through, but not including, the date the payment is returned by such LC Participant.

(c)If any Letters of Credit are outstanding and undrawn on the close of business on the Facility Termination Date, the LC Collateral Accounts shall be funded from Collections (or, in the Borrowers’ sole discretion, by other funds available to the Borrowers) in an amount (which amount may be held in U.S. Dollars or Canadian Dollars and is subject to conversion by the Administrator in accordance with Section 1.21) equal to the U.S. Dollar Equivalent of the aggregate undrawn face amount of such Letters of Credit plus the U.S. Dollar Equivalent of all related fees to accrue through the stated expiration dates thereof, including any customary presentation, amendment and other processing fees, and other standard costs and charges, of the LC Bank relating to letters of credit (such fees to accrue, as reasonably estimated by the LC Bank, the “LC Fee Expectation”).

Section 1.16Documentation.  Each Borrower agrees to be bound by, and to cause any other Person on whose behalf a Letter of Credit is issued hereunder (including any “Account Party” or “Applicant” thereof) to comply with, and be bound by LC Bank’s written regulations and customary practices relating to letters of credit.  In the event of a conflict between the Letter of Credit Application and this Agreement, this Agreement shall govern.  It is understood and agreed that, except in the case of gross negligence or willful misconduct by the LC Bank, the LC Bank shall not be liable for any error, negligence and/or mistakes, whether of omission or commission, in following each Borrower’s instructions or those contained in the Letters of Credit or any modifications, amendments or supplements thereto.  In addition to any other fees or expenses owing under the Fee Letter or any other Transaction Document or otherwise pursuant to any Letter of Credit Application, the Borrowers shall pay to the LC Bank for its own account any customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of the LC Bank relating to letters of credit as from time to time in effect.  Such customary fees shall be due and payable upon demand and shall be nonrefundable.

Section 1.17Determination to Honor Drawing Request.  In determining whether to honor any request for drawing under any Letter of Credit by the beneficiary thereof, the LC Bank shall be responsible only to determine that the documents and certificates required to be delivered under such Letter of Credit have been delivered and that they comply on their face with the requirements of such Letter of Credit and that any other drawing condition appearing on the face of such Letter of Credit has been satisfied in the manner so set forth.

Section 1.18Nature of Participation and Reimbursement Obligations.

Each LC Participant’s obligation in accordance with this Agreement to make Participation Advances as a result of a drawing under a Letter of Credit, and the obligations of each Borrower to reimburse the LC Bank upon a draw under a Letter of Credit, shall be absolute, unconditional

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and irrevocable, and shall be performed strictly in accordance with the terms of this Article I irrespective of the following circumstances:

(i)any set-off, counterclaim, recoupment, defense or other right which such LC Participant may have against the LC Bank, the Administrator, the Group Agents, the Lenders, any Borrower or any other Person for any reason whatsoever;

(ii)the failure of any Borrower or any other Person to comply with the conditions set forth in this Agreement for the making of a Loan, Releases, requests for Letters of Credit or otherwise, it being acknowledged that such conditions are not required for the making of Participation Advances hereunder;

(iii)any lack of validity or enforceability of any Letter of Credit or any set-off, counterclaim, recoupment, defense or other right which any Borrower or any Originator on behalf of which a Letter of Credit has been issued may have against the LC Bank, the Administrator, any Lender, any Group Agent or any other Person for any reason whatsoever;

(iv)any claim of breach of warranty that might be made by any Borrower, the LC Bank or any LC Participant against the beneficiary of a Letter of Credit, or the existence of any claim, set-off, defense or other right which any Borrower, the LC Bank or any LC Participant may have at any time against a beneficiary, any successor beneficiary or any transferee of any Letter of Credit or the proceeds thereof (or any Persons for whom any such beneficiary or transferee may be acting), the LC Bank, any LC Participant, the Administrator, any Lender or any Group Agent or any other Person, whether in connection with this Agreement, the transactions contemplated herein or any unrelated transaction (including any underlying transaction between any Borrower, CB, any Servicer, any Originator or any Affiliate thereof and the beneficiary for which any Letter of Credit was procured);

(v)the lack of power or authority of any signer of, or lack of validity, sufficiency, accuracy, enforceability or genuineness of, any draft, demand, instrument, certificate or other document presented under any Letter of Credit, or any such draft, demand, instrument, certificate or other document proving to be forged, fraudulent, invalid, defective or insufficient in any respect or any statement therein being untrue or inaccurate in any respect, even if the Administrator or the LC Bank has been notified thereof, provided in each case such draft, demand, instrument, certificate or other document appeared on its face to comply with the terms of such Letter of Credit;

(vi)payment by the LC Bank under any Letter of Credit against presentation of a demand, draft or certificate or other document which does not comply with the terms of such Letter of Credit other than as a result of the gross negligence or willful misconduct of the LC Bank;

(vii)the solvency of, or any acts or omissions by, any beneficiary of any Letter of Credit, or any other Person having a role in any transaction or obligation relating to a

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Letter of Credit, or the existence, nature, quality, quantity, condition, value or other characteristic of any property or services relating to a Letter of Credit;

(viii)any failure by the LC Bank or any of the LC Bank’s Affiliates to issue any Letter of Credit in the form requested by any Borrower, unless the LC Bank has received written notice from such Borrower of such failure within three (3) Business Days after the LC Bank shall have furnished such Borrower a copy of such Letter of Credit and such error is material and no drawing has been made thereon prior to receipt of such notice;

(ix)any Material Adverse Effect on any Borrower, any Originator or any Affiliates thereof;

(x)any breach of this Agreement or any Transaction Document by any party thereto;

(xi)the occurrence or continuance of an Insolvency Proceeding with respect to any Borrower, any Originator or any Affiliate thereof;

(xii)the fact that an Event of Default or an Unmatured Event of Default shall have occurred and be continuing;

(xiii)the fact that (A) this Agreement or the obligations of any Borrower or any Servicer hereunder has terminated, (B) the Scheduled Termination Date has occurred or (C) such LC Participant has become an Exiting Lender; and

(xiv)any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge of, an LC Participant or any Borrower.

Section 1.19[Reserved].

Section 1.20Liability for Acts and Omissions.  As between any Borrower, on the one hand, and the Administrator, the LC Bank, the LC Participants, the Group Agents and the Lenders, on the other, such Borrower assumes all risks of the acts and omissions of, or misuse of any Letter of Credit by, any beneficiary, “Applicant” or “Account Party” of such Letter of Credit.  In furtherance and not in limitation of the respective foregoing, none of the Administrator, the LC Bank, the LC Participants, the Group Agents or the Lenders shall be responsible for: (i) the form, validity, sufficiency, accuracy, genuineness or legal effect of any document submitted by any party in connection with the application for an issuance of any such Letter of Credit, even if it should in fact prove to be in any or all respects invalid, insufficient, inaccurate, fraudulent or forged (even if the LC Bank or any LC Participant shall have been notified thereof); (ii) the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign any such Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason; (iii) the failure of the beneficiary of any such Letter of Credit, or any other party to which such Letter of Credit may be transferred, to comply fully with any conditions required in order to draw upon such Letter of Credit or any other claim of any Borrower against any beneficiary of such Letter of Credit, or any such transferee, or any

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dispute between or among any Borrower and any beneficiary of any Letter of Credit or any such transferee; (iv) errors, omissions, interruptions or delays in transmission or delivery of any messages, by mail, cable, telegraph, telex, facsimile or otherwise, whether or not they be in cipher; (v) errors in interpretation of technical terms; (vi) any loss or delay in the transmission or otherwise of any document required in order to make a drawing under any such Letter of Credit or of the proceeds thereof; (vii) the misapplication by the beneficiary of any such Letter of Credit of the proceeds of any drawing under such Letter of Credit or (viii) any consequences arising from causes beyond the control of the Administrator, the LC Bank, the LC Participants, the Group Agents and the Lenders, including any Governmental Acts, and none of the above shall affect or impair, or prevent the vesting of, any of the LC Bank’s rights or powers hereunder.  Nothing in the preceding sentence or in Section 1.18 shall relieve the LC Bank from liability for its gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, in connection with actions or omissions described in such clauses (i) through (viii) of the preceding sentence, in Section 1.18 or otherwise.  In no event shall the Administrator, the LC Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, be liable to any Borrower or any other Person for any indirect, consequential, incidental, punitive, exemplary or special damages or expenses (including without limitation attorneys’ fees), or for any damages resulting from any change in the value of any property relating to a Letter of Credit.

Without limiting the generality of the foregoing, the Administrator, the LC Bank, the LC Participants, the Group Agents and the Lenders and each of its Affiliates (i) may rely on any written communication believed in good faith by such Person to have been authorized or given by or on behalf of the applicant for a Letter of Credit; (ii) may honor any presentation if the documents presented appear on their face to comply with the terms and conditions of the relevant Letter of Credit; (iii) may honor a previously dishonored presentation under a Letter of Credit, whether such dishonor was pursuant to a court order, to settle or compromise any claim of wrongful dishonor, or otherwise, and shall be entitled to reimbursement to the same extent as if such presentation had initially been honored, together with any interest paid by the LC Bank or its Affiliates; (iv) may honor any drawing that is payable upon presentation of a statement advising negotiation or payment, upon receipt of such statement (even if such statement indicates that a draft or other document is being delivered separately), and shall not be liable for any failure of any such draft or other document to arrive, or to conform in any way with the relevant Letter of Credit; (v) may pay any paying or negotiating bank claiming that it rightfully honored under the laws or practices of the place where such bank is located; and (vi) may settle or adjust any claim or demand made on the Administrator, the LC Bank, the LC Participants, the Group Agents or the Lenders or their respective Affiliates, in any way related to any order issued at the applicant’s request to an air carrier, a letter of guarantee or of indemnity issued to a carrier or any similar document (each an “Order”) and may honor any drawing in connection with any Letter of Credit that is the subject of such Order, notwithstanding that any drafts or other documents presented in connection with such Letter of Credit fail to conform in any way with such Letter of Credit.

In furtherance and extension and not in limitation of the specific provisions set forth above, any action taken or omitted by the LC Bank under or in connection with any Letter of Credit issued by it or any documents and certificates delivered thereunder, if taken or omitted in good faith and without gross negligence or willful misconduct, as determined by a final non-appealable judgment of a court of competent jurisdiction, shall not put the LC Bank under any resulting liability to any Borrower, any LC Participant or any other Person.

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Section 1.21LC Collateral Accounts.

(a)Provided that no Event of Default or Unmatured Event of Default has occurred and is continuing and the Facility Termination Date has not occurred, any Borrower may from time to time advise the Administrator and each Group Agent in writing of its desire to convert certain amounts that are on deposit in an LC Collateral Account and that are denominated in one currency to another currency that is either denominated in U.S. Dollars or Canadian Dollars.  Following receipt of such request, the Administrator shall notify such Borrower in writing whether or not the Administrator is agreeable to such conversion; provided, however, that if the Administrator fails to so notify such Borrower within one (1) Business Day, the Administrator shall be deemed to have declined such conversion request.  In the event that the Administrator has so notified such Borrower in writing that it is agreeable to such conversion, such Borrower and the Administrator shall enter into such documents as the Administrator may deem necessary or appropriate to effect such conversion, and such conversion shall occur at such exchange rate as agreed to in writing between the Administrator and such Borrower.

(b)From and after any time that an Event of Default has occurred and is continuing, the Administrator may, in its sole discretion, convert any amounts that are on deposit in an LC Collateral Account and that are denominated in one currency to U.S. Dollars or Canadian Dollars.  Any such conversion shall occur at the exchange rate reasonably determined by the Administrator to exist at such time of conversion and which is available to the Administrator at such time of conversion.

(c)In connection with any such conversion occurring pursuant to this Section 1.21, the Borrowers shall promptly pay the Administrator all customary and reasonable fees and expenses as well as standard reasonable costs and charges of the Administrator in connection with such conversion as well as all reasonable out-of-pocket documented costs and expenses incurred by the Administrator in connection therewith.  The proceeds of any such conversion shall be deposited by the Administrator into the applicable LC Collateral Account.

Section 1.22Inability to Determine CDOR, Euro-Rate or LMIR.

(a)If the Administrator (or any Group Agent) determines before the first day of any Interest Period (or solely with respect to LMIR, on any day) (which determination shall be final and conclusive in the absence of manifest error) that, by reason of circumstances affecting the interbank eurodollar market generally (i) deposits in U.S. Dollars (in the relevant amounts for such Interest Period) are not being offered to banks in the interbank eurodollar market for such Interest Period, (ii) adequate means do not exist for ascertaining CDOR, the Euro-Rate or LMIR for such Interest Period (or portion thereof), or (iii) CDOR, the Euro-Rate or LMIR does not accurately reflect the cost to any Lender (as determined by such Lender or such Lender’s Group Agent) of maintaining any Portion of Capital during such Interest Period (or portion thereof), then the Administrator shall give notice thereof to each Borrower.  Thereafter, until the Administrator or such Group Agent notifies such Borrower that the circumstances giving rise to such suspension no longer exist, (a) no Portion of Capital shall be funded at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR, as applicable, and (b) the Interest for any outstanding Portions of Capital then funded at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR shall, on the last day of the then current Interest Period (or solely with respect to LMIR,

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immediately), be converted to the Alternate Rate determined by reference to the applicable Base Rate.

(b)If, on or before the first day of any Interest Period (or solely with respect to LMIR, on any day), the Administrator shall have been notified by any Lender, Group Agent or Liquidity Provider that, such Person has determined (which determination shall be final and conclusive) that, any enactment, promulgation or adoption of or any change in any applicable law, rule or regulation, or any change in the interpretation or administration thereof by a governmental authority, central bank or comparable agency charged with the interpretation or administration thereof, or compliance by such Person with any guideline, request or directive (whether or not having the force of law) of any such authority, central bank or comparable agency shall make it unlawful or impossible for such Person to fund or maintain any Portion of Capital at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR, the Administrator shall notify each Borrower thereof.  Upon receipt of such notice, until the Administrator notifies such Borrower that the circumstances giving rise to such determination no longer apply, (a) no Portion of Capital shall be funded at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR, as applicable, and (b) the Interest for any outstanding Portions of Capital then funded at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR shall be converted to the Alternate Rate determined by reference to the applicable Base Rate either (i) on the last day of the then current Interest Period (or solely with respect to LMIR, on any day) if such Person may lawfully continue to maintain such Portion of Capital at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR to such day, or (ii) immediately, if such Person may not lawfully continue to maintain such Portion of Capital at the Alternate Rate determined by reference to CDOR, the Euro-Rate or LMIR to such day.

Section 1.23Extension of Termination Date.  From time to time, any Borrower may advise the Administrator and each Group Agent in writing of its desire to extend the then current Scheduled Termination Date to a date that is (x) not more than three hundred and sixty-four (364) days after such then current Scheduled Termination Date and (y) not later than the Facility Termination Date scheduled to occur pursuant to clause (a) of the definition thereof; provided such request is made not more than one hundred and twenty (120) days prior to, and not less than ninety (90) days prior to, the then current Scheduled Termination Date.  In the event that all the Lenders in any Group are agreeable to such extension, the Administrator shall so notify such Borrower in writing (it being understood that the Lenders may accept or decline such a request in their sole discretion and on such terms as they may elect) not less than sixty (60) days prior to the then current Scheduled Termination Date and such Borrower, the applicable Servicer, the Administrator, the Group Agents and the Lenders shall enter into such documents as the Lenders may deem reasonably necessary or appropriate to reflect such extension, and all reasonable costs and expenses incurred by the Lenders, the Administrator and the Group Agents in connection therewith (including reasonable Attorneys’ Costs) shall be paid by such Borrower.  If all the Lenders in at least one Group accept such request for extension but any Lender in any other Group declines the request for such extension (all such Lenders in Groups containing Lenders that decline such a request, “Exiting Lenders”), then effective as of the Scheduled Termination Date (without giving effect to such requested extension):

(a)the Scheduled Termination Date shall be extended as agreed to by such accepting Lender(s);

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(b)the Commitments of the Exiting Lenders shall terminate; and

(c)the Facility Limit shall be reduced by the amount of the Group Commitments of such Exiting Lender’s Group terminated pursuant to clause (b) above.

Section 1.24Mitigation Obligations; Replacement of Lenders.

(a)If any Affected Person requests compensation under Section 1.7, Section 1.8 or Section 1.9, or if any Borrower is required to pay any additional amount to any Affected Person or any Governmental Authority for the account of any Affected Person pursuant to Section 1.10, then such Affected Person will use all reasonable efforts to take such action as it deems appropriate to avoid the need for, or reduce the amount of, such compensation that would not be otherwise disadvantageous to such Affected Person.

(b)At any time there is more than one Group, any Borrower shall be permitted to replace any Lender (and the related Group) who has requested compensation under Section 1.7, Section 1.8 or Section 1.9, or if such Borrower is required to pay any additional amount to such Lender or any Governmental Authority for the account of such Lender pursuant to Section 1.10, provided, however, that such Borrower shall be permitted to replace (i) the Group of which the Administrator is a member or (ii) any Lender which is administered by the Administrator or an Affiliate thereof only if, in either case, the Administrator is also replaced contemporaneously, pursuant to documents reasonably satisfactory to the Administrator; provided that (i) the replacement financial institution shall purchase, at par, all Capital and other amounts owing to such replaced Lender on or prior to the date of replacement, (ii) the replacement financial institution, if not already a member of an existing Group, shall be reasonably satisfactory to the Administrator, (iii) until such time as such replacement shall be consummated, each Borrower shall pay all additional amounts requested, subject to the terms of this Agreement, and (iv) any such replacement shall not be deemed to be a waiver of any rights that such Borrower, the Administrator or any other Lender shall have against the replaced Lender or any member of its Group.

Section 1.25Borrowers Jointly and Severally Liable for Obligations.

(a)Joint and Several Liability.  Notwithstanding anything to the contrary herein or in any other Transaction Document, each Borrower shall be jointly and severally liable for all the other Borrowers’ obligations.  Each Borrower acknowledges, agrees, represents and warrants the following:

(i)[Reserved].

(ii)Combined Liability.  Each of the Borrowers shall be jointly and severally liable to the Administrator, the Lenders and any other Secured Party for all of the Borrowers’ payment obligations hereunder, and the Administrator (on behalf of each Secured Party) may enforce any unpaid obligation of a Borrower against any one or all of the Borrowers.

(iii)Separate Exercise of Remedies.  The Administrator (on behalf of the Secured Parties) may exercise remedies against each Borrower and its property (including

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the Pool Assets) separately, whether or not the Administrator exercises remedies against the other Borrowers or their property.  The Administrator may enforce one or all Borrowers’ obligations without enforcing the other Borrowers’ obligations.  Any failure or inability of the Administrator to enforce a Borrower’s obligations shall not in any way limit the Administrator’s right to enforce the obligations of the other Borrowers.

(b)Guaranty.  Without limiting clause (a) above, jointly with the other Borrowers, each Borrower hereby unconditionally guarantees to the Administrator, each Lender, each Group Agent and each other Secured Party the prompt payment of the obligations of the other Borrowers under this Agreement and the other Transaction Documents in full when due (whether at stated maturity, as a mandatory prepayment, by acceleration or otherwise) and the timely performance by the other Borrowers of all their other obligations under this Agreement and the other Transaction Documents.  This guaranty is a guaranty of payment and not of collection and is a continuing guaranty and shall apply to each of the Borrowers’ obligations, whenever arising.  Notwithstanding any provision to the contrary contained herein or in any other Transaction Document, to the extent the liability of a Borrower for the obligations of the other Borrowers under this Section 1.25 shall be adjudicated to be invalid or unenforceable for any reason (including, without limitation, because of any applicable state or federal law relating to fraudulent conveyances or transfers) then the liability of such Borrower for the obligations of the other Borrower under this Section 1.25 shall be limited to the maximum amount that is permissible under applicable law (whether federal or state or otherwise).  If any or all of the obligations of any Borrower under this Agreement or any other Transaction Document are not duly paid or performed by such Borrower and are not paid or performed by the other Borrower in its capacity as guarantor under this Section 1.25 for any reason whatsoever, such other Borrower shall, as a separate and distinct obligation, indemnify and save each of the Administrator, each Lender, each Group Agent and each other Secured Party harmless from and against all losses, costs, damages, expenses, claims and liabilities that each of them may suffer or incur in connection with or in respect of any failure by the defaulting Borrower for any reason to pay or perform any of its obligations under this Agreement or any other Transaction Document, and shall pay all such amounts to the Administrator after demand as herein provided.

(c)Obligations Unconditional.  The obligations of each Borrower under this Section 1.25 are absolute and unconditional, irrespective of the value, genuineness, validity, regularity or enforceability of any of the Transaction Documents or any other agreement or instrument referred to therein, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor.  Each Borrower agrees that this Section 1.25 may be enforced by the Administrator, the Group Agents and the other Secured Party without the necessity at any time of resorting to or exhausting any other security or collateral and without the necessity at any time of having recourse to any other Transaction Documents or any collateral hereafter securing the Obligations of a Borrower or otherwise, and each Borrower hereby waives the right to require any Secured Party to make demand on or proceed against any Borrower, any Servicer, any Originator or any other Person (including a co-guarantor) or to require any Secured Party to pursue any other remedy or enforce any other right.  Each Borrower further agrees that it shall have no right of subrogation, indemnity, reimbursement or contribution against the other Borrowers or any other guarantor of any Borrower’s obligations for amounts paid under this Section 1.25 until the Final Payout Date.  Each Borrower further agrees that nothing contained herein shall prevent any Secured Party from suing on any of the other Transaction Documents or foreclosing its or their, as

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applicable, security interest in or lien on any collateral securing the Obligations or from exercising any other rights available to it or them, as applicable, under this Agreement, any other Transaction Document, or any other instrument of security, if any, and the exercise of any of the aforesaid rights and the completion of any foreclosure proceedings shall not constitute a discharge of such Borrower’s obligations hereunder; it being the purpose and intent of each Borrower that its obligations under this Section 1.25 shall be absolute, independent and unconditional under any and all circumstances.  Neither any Borrower’s obligations under this Section 1.25 nor any remedy for the enforcement thereof shall be impaired, modified, changed or released in any manner whatsoever by an impairment, modification, change, release, increase or limitation of the liability of the other Borrowers, of any Servicer or of any Originator or by reason of the bankruptcy or insolvency of the other Borrowers, of any Servicer or of any Originator.  Each Borrower waives any and all notice of the creation, renewal, extension or accrual of any of the obligations of the other Borrowers and notice of or proof of reliance by any Secured Party on the guarantees set forth in this Section 1.25 or acceptance thereof.  The obligations, and any part of them, shall conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended or waived, in reliance upon the guarantees set forth in this Section 1.25.  All dealings between any Borrower (or any of its Affiliates, including the initial Servicers and the Originators), on the one hand, and the Secured Parties, on the other hand, likewise shall be conclusively presumed to have been had or consummated in reliance upon the guarantees set forth in this Section 1.25.  Each Borrower hereby subordinates to the obligations of the other Borrowers all debts, liabilities and other obligations, whether direct, indirect, primary, secondary, several, joint and several or otherwise, and irrespective of whether such debts, liabilities and obligations be evidenced by note, contract, open account, book entry or otherwise, owing to such Borrower by the other Borrowers, any Servicer, any Originator or any of their respective Affiliates.

(d)Modifications.  Each Borrower agrees that (i) all or any part of the other Borrowers’ Pool Assets now or hereafter held for the obligations, if any, may be exchanged, compromised or surrendered from time to time; (ii) none of the Secured Parties shall have any obligation to protect, perfect, secure or insure any such security interests, liens or encumbrances now or hereafter held, if any, for the Obligations; (iii) the time or place of payment of the other Borrowers’ Obligations may be changed or extended, in whole or in part, to a time certain or otherwise, and may be renewed or accelerated, in whole or in part; (iv) the other Borrowers and any other party liable for payment of the other Borrowers’ obligations may be granted indulgences generally; (v) any of the other Borrowers’ rights, duties, obligations or liabilities under any of the Transaction Documents may be modified, amended or waived; (vi) any party (including any co-guarantor) liable for the payment of all or any part of the obligations may be granted indulgences or be released; and (vii) any deposit balance for the credit of the other Borrowers or any other party liable for the payment of the obligations or liable upon any security therefor may be released, in whole or in part, at, before or after the stated, extended or accelerated maturity of the Obligations, all without notice to or further assent by such Borrower.

(e)Waiver of Rights.  Each Borrower hereby expressly waives diligence, presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the Secured Parties (or any of them) exhaust any right to take any action against any Borrower, any Originator, any Servicer or any other Person (including the filing of claims in the event of receivership or bankruptcy of any Borrower, Servicer, any Originator or any other entity) or with respect to any collateral or collateral security at any time securing any of the obligations, and hereby consents to

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any and all extensions of time of the due performance of any or all of the obligations.  Each Borrower agrees that it shall not exercise or assert any right which it may acquire by way of contribution, reimbursement or subrogation under this Agreement unless and until the occurrence of the Final Payout Date.  Each Borrower also hereby expressly waives all other defenses it may have as a guarantor or a surety generally or otherwise based upon suretyship, impairment of collateral or otherwise in connection with the obligations whether in equity or at law other than the occurrence of the Final Payout Date.  Each Borrower agrees that its obligations hereunder shall be irrevocable and unconditional.

(f)Reinstatement.  Notwithstanding anything contained in this Agreement or the other Transaction Documents, the obligations of each Borrower under this Section 1.25 shall be automatically reinstated if and to the extent that for any reason any payment by or on behalf of any Person in respect of the other Borrowers’ obligations is rescinded or must be otherwise restored by any holder of any of the other Borrowers’ obligations, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, and each Borrower agrees that it will indemnify each Secured Party on demand for all reasonable costs and expenses (including, without limitation, reasonable fees of counsel) incurred by such Person in connection with such rescission or restoration, including any such costs and expenses incurred in defending against any claim alleging that such payment constituted a preference, fraudulent transfer or similar payment under any bankruptcy, insolvency or similar law.

(g)Remedies.  Each Borrower acknowledges and agrees that its obligations under this Section 1.25 are secured in accordance with the terms of this Agreement (including, without limitation, the terms of Sections 1.2(c)).

(h)Subrogation.  Each Borrower agrees that, until the Final Payout Date, it will not exercise, and hereby waives, any right of reimbursement, subrogation, contribution, offset or other claims against the other Borrowers arising by contract or operation of law in connection with any payment made or required to be made by such Borrower under this Section 1.25.  After the Final Payout Date, each Borrower shall be entitled to exercise against the other Borrowers all such rights of reimbursement, subrogation, contribution, and offset, and all such other claims, to the fullest extent permitted by law.

(i)Maximum Guaranty Amount.  Notwithstanding any other provision of this Agreement to the contrary, in the event that any action is brought seeking to invalidate any Borrower’s obligations under this Agreement under any fraudulent conveyance or fraudulent transfer theory, such Borrower shall be liable under this Agreement only for an amount equal to the maximum amount of liability that could have been incurred under applicable law by such Borrower under any guaranty of the other Borrowers’ obligations (or any portion thereof) at the time of the execution and delivery of this Agreement (or, if such date is determined not to be the appropriate date for determining the enforceability of such Borrower’s obligations hereunder for fraudulent conveyance or transfer purposes, on the date determined to be so appropriate) without rendering such a hypothetical guaranty voidable under applicable law relating to fraudulent conveyance or fraudulent transfer (the “Maximum Guaranty Amount”), and not for any greater amount, as if such Borrower’s obligations under this Agreement had instead been the Maximum Guaranty Amount.

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Section 1.26Successor CDOR, Euro-Rate or LMIR IndexBenchmark Replacement Setting.

(a)Benchmark Replacement. Notwithstanding anything to the contrary herein or in any other Transaction Document, if the Administrator determines that a Benchmark Transition Event or an Early Opt-in Event has occurred with respect to CDOR, the Euro-Rate or LMIR, the Administrator and the Borrowers may amend this Agreement to replace CDOR, the Euro-Rate or LMIR with a Benchmark Replacement for U.S. Dollars or Canadian Dollars, as applicable; and any such amendment will become effective atElection, as applicable, and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (x) if a Benchmark Replacement is determined in accordance with clause (1) or (2) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of such Benchmark setting and subsequent Benchmark settings without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document and (y) if a Benchmark Replacement is determined in accordance with clause (3) of the definition of “Benchmark Replacement” for such Benchmark Replacement Date, such Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Transaction Document in respect of any Benchmark setting at or after 5:00 p.m. New York City time on the fifth (5th) Business Day after the Administrator hasdate notice of such Benchmark Replacement is provided such proposedto the Lenders without any amendment to all Group Agents,, or further action or consent of any other party to, this Agreement or any other Transaction Document so long as the Administrator has not received, by such time, written notice of objection to such amendmentBenchmark Replacement from Group Agents comprising the Majority Group Agents. Until the Benchmark Replacement with respect to CDOR, the Euro-Rate or LMIR, as applicable, is effective, each advance, conversion and renewal of a Loan will continue to bear interest with reference to CDOR, the Euro-Rate or LMIR, as applicable; provided, however, that during a Benchmark Unavailability Period (i) any pending selection of, conversion to or renewal of a Loan bearing interest by reference to CDOR, the Euro-Rate or LMIR that has not yet gone into effect shall be deemed to be a selection of, conversion to or renewal of the Base Rate with respect to such Loan, and such Loan shall bear interest by reference to the Base Rate, and (ii) all outstanding Loans bearing interest by reference to CDOR, the Euro-Rate or LMIR shall automatically be (A) if in U.S. Dollars, converted to the Base Rate at the expiration of the existing Interest Period (or sooner, if Administrator cannot continue to lawfully maintain such affected Loan under the Euro-Rate or LMIR) and (B) if in Canadian Dollars, converted to a Loan in U.S. Dollars under the Base Rate in the U.S. Dollar Equivalent amount of such Loan at the expiration of the existing Interest Period (or sooner, if Administrator cannot continue to lawfully maintain such affected Loan under CDOR).

(b)Benchmark Replacement Conforming Changes. In connection with the implementation of a Benchmark Replacement, the Administrator will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Transaction Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Transaction Document.

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(c)Notices; Standards for Decisions and Determinations. The Administrator will promptly notify the Borrowers and the Group Agents of (i) theLenders of (i) any occurrence of a Benchmark Transition Event , a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date, (ii) the implementation of any Benchmark Replacement, (iiiii) the effectiveness of any Benchmark Replacement Conforming Changes, (iv) the removal or reinstatement of any tenor of a Benchmark pursuant to Section 1.26(d) and (iiiv) the commencement or conclusion of any Benchmark Unavailability Period. Any determination, decision or election that may be made by the Administrator or the Group Agents, if applicable, any Lender (or group of Lenders) pursuant to this Section 1.26, including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party heretoto this Agreement or any other Transaction Document, except, in each case, as expressly required pursuant to this Section 1.26.

(d)Notwithstanding anything to the contrary herein or in any other Transaction Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR, LMIR or Euro-Rate) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrator in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrator may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrator may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor.

(e)Upon the Borrowers’ receipt of notice of the commencement of a Benchmark Unavailability Period, the Borrowers may revoke any request for a Loan bearing interest based on LMIR or Euro-Rate, conversion to or continuation of Loans bearing interest based on LMIR or Euro-Rate to be made, converted or continued during any Benchmark Unavailability Period and, failing that, the Borrowers will be deemed to have converted any such request into a request for a Loan of or conversion to Loans bearing interest under the Base Rate. During any Benchmark Unavailability Period or at any time that a tenor for the then-current Benchmark is not an Available Tenor, the component of the Base Rate based upon the then-current Benchmark or such tenor for such Benchmark, as applicable, will not be used in any determination of the Base Rate.

(f)Notwithstanding anything to the contrary herein or in any other Transaction Document and subject to the proviso below in this paragraph, if a Term SOFR Transition Event and its related Benchmark Replacement Date have occurred prior to the Reference Time in respect of any setting of the then-current Benchmark, then (i) the applicable Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder or under any Transaction Document in respect of such Benchmark setting (the “Secondary Term SOFR Conversion Date”)

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and subsequent Benchmark settings, without any amendment to, or further action or consent of any other party to, this Agreement or any other Transaction Document; and (ii) Loans outstanding on the Secondary Term SOFR Conversion Date bearing interest based on the then-current Benchmark shall be deemed to have been converted to Loans bearing interest at the Benchmark Replacement with a tenor approximately the same length as the interest payment period of the then-current Benchmark; provided that, this Section 1.26(f) shall not be effective unless the Administrator has delivered to the Lenders and the Borrowers a Term SOFR Notice.

(g)This Section 1.26 provides a mechanism for determining an alternative rate of interest in the event that the London interbank offered rate is no longer available or in certain other circumstances.  The Administrator does not warrant or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of Euro-Rate, LMIR or with respect to any alternative or successor rate thereto, or replacement rate therefor.

(h)(d) Certain Defined Terms. As used in this Section 1.26:

Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, (x) if the then current Benchmark is a term rate or is based on a term rate, any tenor for such Benchmark that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date and not including, for the avoidance of doubt, any tenor for such Benchmark that is then-removed from the definition of “Interest Period” pursuant to Section 1.26(d), or (y) if the then current Benchmark is not a term rate nor based on a term rate, any payment period for interest calculated with reference to such Benchmark pursuant to this Agreement as of such date.  For the avoidance of doubt, the Available Tenor for LMIR is one month.

“Benchmark” means, initially, LMIR or Euro-Rate; provided that if a Benchmark Transition Event, a Term SOFR Transition Event or an Early Opt-in Election, as applicable, and its related Benchmark Replacement Date have occurred with respect to LMIR or Euro-Rate or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to Section 1.26(a).

“Benchmark Replacement” means, for any Available Tenor, the first alternative set forth in the order below that can be determined by the Administrator for the applicable Benchmark Replacement Date:

 

(1)

the sum of: (a) Term SOFR and (b) the related Benchmark Replacement Adjustment;

 

(2)

the sum of: (a) Daily Simple SOFR and (b) the related Benchmark Replacement Adjustment;

 

Benchmark Replacement means, with respect to any Loan,(3)

the sum of: (a) the alternate benchmark rate that has been selected by the Administrator and the Borrowers for Loans in U.S. Dollars or Canadian Dollars, asas the replacement for the then-current Benchmark for the applicable,

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Corresponding Tenor giving due consideration to (i) any selection or recommendation of a replacement benchmark rate or the mechanism for determining such a rate by the Relevant Governmental Body with respect to Loans in U.S. Dollars or Canadian Dollars, as applicable or (ii) any evolving or then-prevailing market convention for determining a benchmark rate of interest as a replacement to CDOR, the Euro-Rate or LMIR, as applicable, for (A) with respect to Loans in U.S. Dollars,for the then-current Benchmark for U.S. dollar-denominated syndicated credit facilities or (B) with respect to Loans in Canadian Dollars, U.S. credit facilities providing for loans in such Canadian Dollars and (b) theat such time and (b) the related Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

provided that, in the case of clause (1), such Unadjusted Benchmark Replacement is displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrator in its reasonable discretion; provided, further, that, with respect to a Term SOFR Transition Event, on the applicable Benchmark Replacement Date, the “Benchmark Replacement” shall revert to and shall be determined as set forth in clause (1) of this definition. If the Benchmark Replacement as determined pursuant to clause (1), (2) or (3) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Transaction Documents.

“Benchmark Replacement Adjustment” means, with respect to any replacement of the then-current Benchmark with an Unadjusted Benchmark Replacement for any applicable Available Tenor for any setting of such Unadjusted Benchmark Replacement:

 

(1)

for purposes of clauses (1) and (2) of the definition of “Benchmark Replacement,” the first alternative set forth in the order below that can be determined by the Administrator:

 

(a)

the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Available Tenor that has been selected or recommended by the Relevant Governmental Body for the replacement of such Benchmark with the applicable Unadjusted Benchmark Replacement for the applicable Corresponding Tenor;

 

(b)

the spread adjustment (which may be a positive or negative value or zero) as of the Reference Time such Benchmark Replacement is first set for such Available Tenor that would apply to the fallback rate for a derivative transaction referencing the ISDA Definitions to be effective upon an index cessation event with respect to such Benchmark for the applicable Corresponding Tenor; and

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(2)

for purposes of clause (3) of the definition of “Benchmark Replacement Adjustment means, with respect to any replacement of CDOR, the Euro-Rate or LMIR, as applicable, with an alternate benchmark rate for each applicable Interest Period for Loans in U.S. Dollars or Canadian Dollars, as applicable,,” the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Administrator and the Borrowers (a)for the applicable Corresponding Tenor giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark with the applicable Unadjusted Benchmark Replacement for Loans in U.S. Dollars or Canadian Dollars, as applicable (excluding such spread adjustment) by the Relevant Governmental Body with respect to Loans in U.S. Dollars or Canadian Dollars, ason the applicable, Benchmark Replacement Date or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for suchthe replacement of the Euro-Rate for (A) with respect to Loans in U.S. Dollars,such Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar-denominated syndicated credit facilities or (B) with respect to Loans in Canadian Dollars, U.S. credit facilities providing for loans in such Canadian Dollars and (b) which may also reflect adjustments to account for (i) the effects of the transition from the CDOR, the Euro-Rate or LMIR, as applicable, to the applicable Benchmark Replacement for Loans in U.S. Dollars or Canadian Dollars, as applicable and (ii) yield- or risk-based differences between the CDOR, the Euro-Rate or LMIR, as applicable, and the applicable Benchmark Replacement for Loans in U.S. Dollars or Canadian Dollars, as applicable.;

provided that, (x) in the case of clause (1) above, such adjustment is displayed on a screen or other information service that publishes such Benchmark Replacement Adjustment from time to time as selected by the Administrator in its reasonable discretion and (y) if the then-current Benchmark is a term rate, more than one tenor of such Benchmark is available as of the applicable Benchmark Replacement Date and the applicable Unadjusted Benchmark Replacement will not be a term rate, the Available Tenor of such Benchmark for purposes of this definition of “Benchmark Replacement Adjustment” shall be deemed to be the Available Tenor that has approximately the same length (disregarding business day adjustments) as the payment period for interest calculated with reference to such Unadjusted Benchmark Replacement.

Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement for Loans in U.S. Dollars or Canadian Dollars, as applicable, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of determining rates and making payments of interest and other, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or

38

 

operational matters) that the Administrator decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement for such Loans in U.S. Dollars or Canadian Dollars, as applicable, and to permit the administration thereof by the Administrator in a manner substantially consistent with market practice in the United States (or, if the Administrator decides that adoption of any portion of such market practice is not administratively feasible or if the Administrator determines that no market practice for the administration of thesuch Benchmark Replacement exists, in such other manner of administration as the Administrator decides is reasonably necessary in connection with the administration of this Agreement and the other Transaction Documents).

Benchmark Replacement Date” means the earlierearliest to occur of the following events with respect to CDOR, the Euro-Rate or LMIR, as applicablethe then-current Benchmark:

 

(1)

in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark (or the published component used in the calculation thereof) permanently or indefinitely ceases to provide CDOR, the Euro-Rate or LMIR, as applicable, orall Available Tenors of such Benchmark (or such component thereof);

 

(2)

in the case of clause (3) of the definition of “Benchmark Transition Event,” the date determined by the Administrator, which date shall promptly follow the date of the public statement or publication of information referenced therein.;

 

(3)

in the case of a Term SOFR Transition Event, the date that is set forth in the Term SOFR Notice provided to the Lenders and the Borrowers pursuant to Section 1.26, which date shall be at least 30 days from the date of the Term SOFR Notice; or

 

(4)

in the case of an Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrator has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Group Agents comprising the Majority Group Agents.

For the avoidance of doubt, (i) if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination and (ii) the “Benchmark Replacement Date” will be deemed to have occurred in the case of clause (1) or (2) above with respect to any Benchmark upon the occurrence of the applicable event or events set forth therein with

39

 

respect to all then-current Available Tenors of such Benchmark (or the published component used in the calculation thereof).

Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the CDOR, the Euro-Rate or LMIR, as applicablethen-current Benchmark:

 

(1)

a public statement or publication of information by or on behalf of the administrator of CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark (or the published component used in the calculation thereof) announcing that such administrator has ceased or will cease to provide CDOR, the Euro-Rate or LMIR, as applicable,all Available Tenors of such Benchmark (or such component thereof), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide CDOR, the Euro-Rate or LMIR, as applicableany Available Tenor of such Benchmark (or such component thereof);

 

(2)

a public statement or publication of information by a Governmental Authority having jurisdiction over the Administrator, the regulatory supervisor for the administrator of CDOR, the Euro-Rate or LMIR, as applicable, the U.S.such Benchmark (or the published component used in the calculation thereof), the Federal Reserve SystemBoard, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for the CDOR, the Euro-Rate or LMIR, as applicablesuch Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the CDOR, the Euro-Rate or LMIR, as applicablesuch Benchmark (or such component), which states that the administrator of CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark (or such component) has ceased or will cease to provide CDOR, the Euro-Rate or LMIR, as applicable,all Available Tenors of such Benchmark (or such component thereof) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide CDOR, the Euro-Rate or LMIR, as applicableany Available Tenor of such Benchmark (or such component thereof); or

 

(3)

a public statement or publication of information by the regulatory supervisor for the administrator of CDOR, the Euro-Rate or LMIR, as applicable,such Benchmark (or the published component used in the calculation thereof) or a Governmental Authority having jurisdiction over the Administrator announcing that CDOR, the Euro-Rate or LMIR, as applicable, isall Available Tenors of such Benchmark (or such component thereof) are no longer representative.

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For the avoidance of doubt, a “Benchmark Transition Event” will be deemed to have occurred with respect to any Benchmark if a public statement or publication of information set forth above has occurred with respect to each then-current Available Tenor of such Benchmark (or the published component used in the calculation thereof).

Benchmark Unavailability Period” means, with respect to Loans in U.S. Dollars or Canadian Dollars, as applicable, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to CDOR, the Euro-Rate or LMIR, as applicable, and solely to the extent that CDOR, the Euro-Rate or LMIR, as applicable, has not been replaced with a Benchmark Replacement, the period (if any) (x) beginning at the time that sucha Benchmark Replacement Date for Loans in U.S. Dollars or Canadian Dollars, as applicable,pursuant to clause (1) or (2) of that definition has occurred if, at such time, no Benchmark Replacement for Loans in U.S. Dollars or Canadian Dollars, as applicable, has replaced CDOR, the Euro-Rate or LMIR, as applicable,the then-current Benchmark for all purposes hereunder and under any Transaction Document in accordance with Section 1.26(d) and (y) ending at the time that a Benchmark Replacement for such Loans in U.S. Dollars or Canadian Dollars, as applicable, has replaced CDOR, the Euro-Rate or LMIR, as applicable,the then-current Benchmark for all purposes hereunder pursuant toand under any Transaction Document in accordance with Section 1.26(d).

“Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor.

“Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrator in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for business loans; provided, that if the Administrator decides that any such convention is not administratively feasible for the Administrator, then the Administrator may establish another convention in its reasonable discretion.

“Early Opt-in Election” means, if the then-current Benchmark is LMIR or Euro-Rate, the occurrence of:

Early Opt-in Event means a determination by the Administrator that (a) with respect to Loans in U.S. Dollars, U.S. dollar-denominated credit facilities being executed at such time, or that include language similar to that contained in this Section 1.26, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Euro-Rate or LMIR or (b) with respect to Loans in Canadian Dollars, U.S. credit facilities providing for loans in Canadian Dollars being executed at such time, or that include language similar to that contained in this Section 1.26, are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace CDOR.

 

(1)

a notification by the Administrator to (or the request by the Borrowers to the Administrator to notify) each of the other parties hereto that at least five

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currently outstanding U.S. dollar-denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a term SOFR or any other rate based upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review); and

 

(2)

the joint election by the Administrator and the Borrowers to trigger a fallback from LMIR or Euro-Rate and the provision by the Administrator of written notice of such election to the Lenders.

“Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to LMIR or Euro-Rate or, if no floor is specified, zero (0.00).

“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, or any successor definitional booklet for interest rate derivatives published from time to time by the International Swaps and Derivatives Association, Inc. or such successor thereto.

“Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is LMIR or Euro-Rate, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not LMIR or Euro-Rate, the time determined by the Administrator in its reasonable discretion.

Relevant Governmental Body” means (a) the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York, or any successor thereto and (b) with respect to Loans in Canadian Dollars, in addition to the Persons named in clause (a) of this definition, the comparable Governmental Authority or other applicable Person for loans in such Canadian Dollars as determined by the Administrator in its sole discretion..

“Secondary Term SOFR Conversion Date” has the meaning set forth in Section 1.26(f).

“SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day.

“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate).

“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the

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secured overnight financing rate identified as such by the SOFR Administrator from time to time.

“Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.

“Term SOFR Notice” means a notification by the Administrator to the Lenders and the Borrowers of the occurrence of a Term SOFR Transition Event.

“Term SOFR Transition Event” means the determination by the Administrator that (a) Term SOFR has been recommended for use by the Relevant Governmental Body, and is determinable for each Available Tenor, (b) the administration of Term SOFR is administratively feasible for the Administrator and (c) a Benchmark Transition Event has previously occurred resulting in a Benchmark Replacement in accordance with Section 1.26 that is not Term SOFR.

“Unadjusted Benchmark Replacement” means the applicable Benchmark Replacement excluding the related Benchmark Replacement Adjustment.

ARTICLE II

REPRESENTATIONS AND WARRANTIES; COVENANTS; EVENTS OF DEFAULT

Section 2.1Representations and Warranties; Covenants.  Each Borrower and each Servicer hereby makes the representations and warranties, and hereby agrees to perform and observe the covenants, applicable to it set forth in Exhibits III and IV, respectively.

Section 2.2Events of Default.  If any of the Events of Default set forth in Exhibit V shall occur, the Administrator may (with the consent of the Majority Group Agents) or shall (at the direction of the Majority Group Agents), by notice to each Borrower, declare the Facility Termination Date to have occurred, declare all the Loans and other obligations to be due and payable and to accelerate the Final Maturity Date (in which case the Facility Termination Date and the Final Maturity Date shall be deemed to have occurred and all Loans and other obligations shall become immediately due and payable); provided that automatically upon the occurrence of any event (without any requirement for the passage of time or the giving of notice) described in paragraph (f) of Exhibit V, the Facility Termination Date and the Final Maturity Date shall occur and all Loans and other obligations shall become immediately due and payable.  Upon any such declaration, occurrence or deemed occurrence of the Facility Termination Date, the Administrator and each Secured Party shall have, in addition to the rights and remedies that they may have under this Agreement, all other rights and remedies provided after default under the UCC, PPSA and under other applicable law, which rights and remedies shall be cumulative.

ARTICLE III

INDEMNIFICATION

Section 3.1Indemnities by the Borrowers.  Without limiting any other rights any such Person may have hereunder or under applicable law, each Borrower hereby agrees to indemnify

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and hold harmless the Administrator, each Group Agent, each Liquidity Provider, each Program Support Provider, each Lender, each LC Participant, the LC Bank (and any of the LC Bank’s Affiliates) and their respective officers, directors, agents and employees (each an “Indemnified Party”) from and against any and all damages, losses, claims, liabilities, penalties, costs and expenses (including reasonable and documented attorneys’ fees and court costs) (all of the foregoing collectively, the “Indemnified Amounts”) at any time imposed on or incurred by any Indemnified Party to the extent arising out of or otherwise relating to any Transaction Document or the issuance of any Letter of Credit, the transactions contemplated thereby or the funding or maintenance of the Loan, or any action taken or omitted by any of the Indemnified Parties (including any action taken by the Administrator as attorney in fact for such Borrower or any Originator hereunder or under any other Transaction Document), whether arising by reason of the acts to be performed by such Borrower hereunder or otherwise, excluding only Indemnified Amounts to the extent (a) a final judgment of a court of competent jurisdiction holds such Indemnified Amounts resulted from gross negligence or willful misconduct of the Indemnified Party seeking indemnification, (b) due to the credit risk or financial inability to pay of the Obligor and for which reimbursement would constitute recourse to any Originator, CB, any Borrower or any Servicer for uncollectible Receivables, (c) such Indemnified Amounts constitute Taxes other than any Taxes that represent losses, claims, damages, etc.  arising from any non-Tax claim, (d) the same have been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction 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 any Borrower or any Servicer or limit the recourse of any Indemnified Party to such Borrower or such Servicer for any amounts otherwise specifically provided to be paid by such Borrower or such Servicer hereunder.  Without limiting the foregoing indemnification, but subject to the limitations set forth in clauses (a), (b), (c), (d) and (e) of the previous sentence, each Borrower shall indemnify each Indemnified Party for Indemnified Amounts (including losses in respect of uncollectible Receivables, regardless, for purposes of these specific matters, of whether reimbursement therefor would constitute recourse to such Borrower or its Servicer) to the extent relating to or resulting from:

(i)any representation or warranty made by any Borrower (or any employee or agent of such Borrower) under or in connection with this Agreement, any Information Package or any other information or report delivered by or on behalf of such Borrower pursuant hereto, which shall have been false or incorrect in any respect when made or deemed made;

(ii)the failure by any Borrower to comply with any applicable law, rule or regulation related to any Receivable, or the nonconformity of any Receivable with any such applicable law, rule or regulation;

(iii)the failure of any Borrower to vest and maintain vested in the Administrator, for the benefit of the Lenders, a perfected security interest in the Pool Assets free and clear of any Adverse Claim;

(iv)any commingling of funds to which the Administrator, any Group Agent or any Lender is entitled hereunder with any other funds of any Borrower or their Affiliates, including any commingling with any Monetized Receivable Collections;

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(v)any failure of a Lock Box Bank to comply with the terms of the applicable Lock Box Agreement;

(vi)any dispute, claim, offset or defense (other than discharge in bankruptcy of the Obligor) of the Obligor 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 Obligor to pay undisputed indebtedness;

(vii)any failure of any Borrower to perform its duties or obligations in accordance with the provisions of this Agreement or any other Transaction Document to which it is a party;

(viii)any action taken by the Administrator as attorney in fact for any Borrower or any Originator pursuant to this Agreement or any other Transaction Document;

(ix)any environmental liability claim, products liability claim or personal injury or property damage suit or other similar or related claim or action of whatever sort, arising out of or in connection with any Receivable or any other suit, claim or action of whatever sort relating to any of the Transaction Documents; or

(x)any issuance of any Letter of Credit.

Section 3.2Indemnities by the Servicers.

(a)Without limiting any other rights that any Indemnified Party may have hereunder or under applicable law, each Servicer hereby agrees to indemnify and hold harmless each Indemnified Party from and against any and all Indemnified Amounts to the extent arising out of or resulting from (whether directly or indirectly): (a) the failure of any information contained in any single Information Package when taken as a whole, as of the date such Information Package is delivered pursuant to Sections 1(a)(ii) and 2(a)(iv) of Exhibit IV to be true and correct, or the failure of any other information provided to such Indemnified Party by, or on behalf of, such Servicer to be true and correct, (b) the failure of any representation, warranty or statement made or deemed made by each Servicer (or any of its officers) under or in connection with this Agreement or any other Transaction Document to which it is a party, to have been true and correct as of the date made or deemed made, (c) the failure by each Servicer to comply with any applicable law, rule or regulation with respect to any Pool Receivable or the related Contract, (d) any dispute, claim, offset or defense of the Obligor to the payment of any Receivable in, or purporting to be in, the Receivables Pool resulting from or related to the collection activities with respect to such Receivable and not arising from the financial inability of the Obligor to pay, (e) the commingling of Collections with Monetized Receivable Collections or (f) any failure of any Servicer to perform its duties or obligations in accordance with the provisions hereof or any other Transaction Document to which it is a party; excluding only such amounts to the extent (a) a final judgment of a court of competent jurisdiction holds that such amounts resulted from gross negligence or willful misconduct of the Indemnified Party seeking indemnification, (b) due to the credit risk of the Obligor and for which reimbursement would constitute recourse to any Originator, CB, any

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Borrower or any Servicer for uncollectible Receivables, (c) such amounts constitute Taxes other than any Taxes that represent losses, claims, damages, etc.  arising from any non-Tax claim, (d) the same have been fully and finally paid in cash to such Indemnified Party pursuant to any other provision of this Agreement or any other Transaction 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 any Borrower or any Servicer or limit the recourse of any Indemnified Party to such Borrower or such Servicer for any amounts otherwise specifically provided to be paid by such Borrower or such Servicer hereunder.

(b)CB, as Performance Guarantor, hereby acknowledges that each of the Transaction Documents has been made available to and has been reviewed by Performance Guarantor.  Performance Guarantor hereby unconditionally reaffirms its obligations under the Performance Guaranty and acknowledges and agrees that such obligations continue in full force and effect (including, without limitation, with respect to the Guaranteed Obligations) and the Performance Guaranty is hereby ratified and confirmed.  Performance Guarantor hereby represents and warrants that each of the representations and warranties made by it in the Performance Guaranty are true and correct as of the day hereof and after the effect of this Agreement (unless stated to relate solely to an earlier date, in which case such representations or warranties were true and correct as of such earlier date).

ARTICLE IV

ADMINISTRATION AND COLLECTIONS

Section 4.1Appointment of the Servicers.

(a)The servicing, administering and collection of the Pool Receivables shall be conducted by each Person so designated from time to time as the Servicer in accordance with this Section 4.1.  Until the Administrator gives notice to any Servicer (in accordance with this Section 4.1) of the designation of a new servicer: (i) CB is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer with respect to all Pool Receivables that were originated by a U.S. Originator and (ii) OnX Enterprise Solutions Ltd. is hereby designated as, and hereby agrees to perform the duties and obligations of, the Servicer with respect to all Pool Receivables that were originated (x) by it and sold to the Canadian Borrower on a fully-serviced basis and (y) by any other Canadian Originator, in each case in accordance with the terms hereof.  Upon the occurrence of a Servicer Default, the Administrator may (with the consent of the Majority Group Agents) or shall (at the direction of the Majority Group Agents) designate as Servicer any Person (including itself) to succeed any Servicer or any successor Servicer, on the condition in each case that any such Person so designated shall agree to perform the duties and obligations of a Servicer pursuant to the terms hereof; provided that any successor Servicer with respect to Canadian Originator Receivables shall not be a non-resident of Canada for purposes of the Canadian Tax Act.

(b)Upon the designation of any successor Servicer as set forth in paragraph (a), each Servicer agrees that it will terminate its activities as Servicer hereunder in a manner that the Administrator reasonably determines will facilitate the transition of the performance of such activities to the new Servicer, and each Servicer shall cooperate with and assist such new Servicer.  

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In connection with such cooperation, such Servicer shall, upon request by the Administrator: (i) assemble all of the records (including all Contracts) reasonably necessary or desirable to collect the Pool Receivables and the Related Security and transfer such records to the successor Servicer, except to the extent such transfer is prohibited by applicable law, (ii) except to the extent prohibited by applicable law, licenses or other agreement, transfer or license to the successor Servicer the use of all licenses, hardware or software necessary or desirable to collect the Pool Receivables and the Related Security, and make the same available to the Administrator or its designee (for the benefit of the Lenders), at a place selected by the Administrator, and (iii) segregate all cash, checks and other instruments received by it from time to time constituting Collections in a manner reasonably acceptable to the Administrator and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrator or its designee.

(c)Each Servicer acknowledges that, in making their decision to execute and deliver this Agreement, the Administrator and each member in each Group have relied on such Servicer’s agreement to act as Servicer hereunder.  Accordingly, each Servicer agrees that it will not voluntarily resign as Servicer unless required to do so by applicable law; provided that any Servicer may, with the prior written consent of the Administrator and the Majority Group Agents (such consent not to be unreasonably withheld), resign as Servicer if (i) a successor Servicer which is an Affiliate of such Servicer has agreed to act as Servicer on the terms and conditions hereof and (ii) such successor Servicer has agreed to execute documentation, in form and substance reasonably satisfactory to the Administrator, to effect its appointment as, and the assumption of the rights and duties of, such Servicer hereunder and under the Transaction Documents; provided, further, no such resignation will be effective until such successor Servicer has been appointed pursuant to such documentation and such successor Servicer with respect to Canadian Originator Receivables shall not be a non-resident of Canada for purposes of the Canadian Tax Act.  For the avoidance of doubt, any such appointment of a successor Servicer pursuant to this paragraph shall not terminate the appointment of any Sub-Servicer.

(d)Any Servicer may delegate its duties and obligations hereunder to any sub-servicer (each a “Sub-Servicer”); provided that in each such delegation: (i) such Sub-Servicer shall agree in writing to perform the duties and obligations of a Servicer pursuant to the terms hereof, (ii) the applicable Servicer shall remain liable for the performance of the duties and obligations so delegated, (iii) each Borrower, the Administrator and each Group shall have the right to look solely to each Servicer for performance, and (iv) the terms of any agreement with any Sub-Servicer that is an Affiliate of each Servicer shall provide that the Administrator may terminate such agreement upon the termination of such Servicer hereunder by giving notice of its desire to terminate such agreement to such Servicer (and such Servicer shall provide appropriate notice to each such Sub-Servicer); provided, however, that if any such delegation is to any Person other than any Originator or an Affiliate thereof, the Administrator and the Majority Group Agents shall have consented in writing in advance to such delegation (which consent shall not be unreasonably withheld or delayed); and provided, further, that each Servicer may delegate the following duties and obligations to a Sub-Servicer without further consent by any party: (w) data processing, including customer care and billing, (x) customer acquisition and retention and market research, (y) inbound and outbound teleservices and (z) computer system maintenance, enhancement, machine processing and production support.

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(e)At any time following the occurrence and during the continuation of an Event of Default, the Administrator may request any Servicer to, and upon such request such Servicer shall: (i) solely to the extent that such event is also a Servicer Default, assemble all of the records reasonably necessary or desirable to collect the Pool Receivables and the Related Security, and transfer or license to a successor Servicer, except to the extent prohibited by applicable law, licenses or other agreement, the use of all software necessary or desirable to collect the Pool Receivables and the Related Security, and make the same available to the Administrator or its designee (for the benefit of the Lenders), except to the extent prohibited by applicable law, licenses or other agreement, at a place selected by the Administrator, and (ii) segregate all cash, checks and other instruments received by it from time to time constituting Collections in a manner reasonably acceptable to the Administrator and, promptly upon receipt, remit all such cash, checks and instruments, duly endorsed or with duly executed instruments of transfer, to the Administrator or its designee.

(f)For the avoidance of doubt, nothing in this Agreement shall have the effect of making any Servicer liable for any obligations of any Borrower under this Agreement or the other Transaction Documents and nothing in this Agreement shall constitute the giving of a guarantee or the assumption of a similar obligation by such Servicer in respect of the performance by such Borrower of its obligations under this Agreement or the other Transaction Documents.

(g)No Servicer or any of its sub-servicers, employees, agents or other delegates shall (nor shall it have the authority to), (i) while acting in Canada, negotiate or enter into contracts or other agreements in the name of the U.S. Borrower, the Administrator or any other Secured Party, (ii) delegate to any Person acting in Canada the authority to, or permit any such Person to, negotiate or enter into contracts or other agreements in the name of the U.S. Borrower, the Administrator or any other Secured Party or (iii) establish an office or other place of business of the U.S. Borrower, the Administrator or any other Secured Party in Canada.

Section 4.2Duties of the Servicers.

(a)Each Servicer shall take or cause to be taken all such action as may be reasonably necessary or advisable to administer and collect each Pool Receivable from time to time, all in accordance in all material respects with this Agreement and all applicable laws, rules and regulations, with reasonable care and diligence, and in accordance with the Credit and Collection Policies (except in the case of Specified Receivables).  Each Servicer shall set aside for the accounts of the applicable Borrower and the Lenders the amount of Collections to which each is entitled in accordance with Article I hereof.  Each Servicer may, in accordance with the applicable Credit and Collection Policy, take such action, including extensions, amendments, modifications, waivers or restructurings of Pool Receivables and the related Contracts, as such Servicer may reasonably determine to be appropriate to maximize Collections thereof or reflect adjustments permitted under the Credit and Collection Policies; provided, however, that: (i) such action shall not change the number of days such Pool Receivable has remained unpaid from the date of the original due date related to such Pool Receivable, and (ii) such action shall not alter the status of such Pool Receivable as a Delinquent Receivable or a Defaulted Receivable under this Agreement and (iii) no Servicer shall be required to comply with Credit and Collection Policies with respect to Specified Receivables.  Each Borrower shall deliver to the applicable Servicer and such Servicer shall hold for the benefit of the applicable Borrower and the Administrator (individually and for

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the benefit of the Lenders, in accordance with their respective interests), all records and documents (including computer tapes or disks) with respect to each Pool Receivable.

(b)[Reserved].

(c)Each Servicer’s obligations hereunder shall terminate on the Final Payout Date.

After such termination, if any Servicer or an Affiliate thereof was not the Servicer on the date of such termination, each Servicer shall promptly deliver to the applicable Borrower all books, records and related materials that such Borrower previously provided to such Servicer, or that have been obtained by such Servicer, in connection with this Agreement.

Section 4.3Lock-Box Account Arrangements

.  Prior to the Closing Date, each Borrower shall have entered into Lock-Box Agreements with all of the Lock-Box Banks and delivered counterparts of each to the Administrator.  Upon the occurrence and during the continuation of an Event of Default, the Administrator may (with the consent of the Majority Group Agents) or shall (upon the direction of the Majority Group Agents) at any time thereafter give notice to each Lock-Box Bank that the Administrator is exercising its rights under the Lock-Box Agreements to do any or all of the following: (a) to have the exclusive control of the Lock-Box Accounts transferred to the Administrator (for the benefit of the Lenders) and to exercise exclusive dominion and control over the funds deposited therein and (b) to take any or all other actions permitted under the applicable Lock-Box Agreement.  The Administrator hereby agrees that it shall not give such notice or exercise such rights with respect to any such Lock-Box Account unless an Event of Default has occurred and is continuing.  Each Borrower hereby agrees that if the Administrator gives notice (after the occurrence and during the continuation of an Event of Default) to a Lock-Box Bank that the Administrator is exercising its rights under the related Lock-Box Agreement pursuant to clause (a) above, the Administrator shall have exclusive control (for the benefit of the Lenders) of the proceeds (including Collections) of all Pool Receivables and each Borrower hereby further agrees to take any other action that the Administrator or any Group Agent may reasonably request to transfer such control.  Any proceeds of Pool Receivables received by such Borrower or the applicable Servicer thereafter shall be sent immediately to, or as otherwise instructed by, the Administrator.  The parties hereto hereby acknowledge that if at any time the Administrator takes control of any Lock-Box Account, the Administrator shall not have any rights to (a) the funds therein in excess of the unpaid amounts then due and payable to the Administrator, any member of any Group, any Secured Party or any other Person hereunder, and the Administrator shall distribute or cause to be distributed such funds in accordance with Article I (in each case as if such funds were held by any Servicer thereunder) or (b) any Non-Receivable Cash Deposits therein, and the Administrator shall transfer any such Non-Receivable Cash Deposits to an account designated by each Borrower (or the applicable Servicer on its behalf) within three (3) Business Days of the Administrator’s receipt of a written request by any Borrower (or the applicable Servicer on its behalf), together with a Non-Receivable Cash Deposit Report which identifies the amount of such Non-Receivable Cash Deposits.

Section 4.4Enforcement Rights.

(a)At any time following the occurrence and during the continuation of any Event of Default set forth in clause (a)(ii) or paragraphs (f) or (i) of Exhibit V of this Agreement, the

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Administrator may direct the Obligors that payment of all amounts payable under any Pool Receivable is to be made directly to the Administrator or its designee.  The exercise of this right will be subject to any applicable regulatory restrictions.  Each Servicer agrees that, if the Administrator is unable to exercise the rights in this paragraph (a) due to any applicable regulatory restrictions, it will, subject to any applicable regulatory restrictions, follow the instructions of the Administrator in connection therewith.

(b)Each Borrower hereby authorizes the Administrator (on behalf of each Group), and irrevocably appoints the Administrator as its attorney-in-fact with full power of substitution and with full authority in the place and stead of such Borrower, which appointment is coupled with an interest, to take any and all steps in the name of such Borrower and on behalf of such Borrower reasonably necessary or desirable, in the determination of the Administrator, after the occurrence and during the continuation of an Event of Default, to collect any and all amounts or portions thereof due under any and all Pool Assets, including endorsing the name of such Borrower on checks and other instruments representing Collections and enforcing such Pool Assets.  Notwithstanding anything to the contrary contained in this subsection, none of the powers conferred upon such attorney-in-fact pursuant to the preceding sentence shall subject such attorney-in-fact to any liability if any action taken by it shall prove to be inadequate or invalid, nor shall they confer any obligations upon such attorney-in-fact in any manner whatsoever.

Section 4.5Responsibilities of the Borrowers.

(a)Anything herein to the contrary notwithstanding, each Borrower shall: (i) perform all of its obligations, if any, under the Contracts related to the Pool Receivables, and the exercise by the Administrator, any Group Agent or any Lender of their respective rights hereunder shall not relieve any Borrower from such obligations, and (ii) pay when due any taxes, including any sales taxes payable in connection with the Pool Receivables and their creation and satisfaction.  None of the Administrator, the Group Agents or the Lenders shall have any obligation or liability with respect to any Pool Asset, nor shall any of them be obligated to perform any of the obligations of any Borrower, any Servicer, CB or any Originators thereunder.

(b)Each Servicer hereby irrevocably agrees that if at any time it shall cease to be a Servicer hereunder, it shall act (if such then-current Servicer so requests) as the data processing agent of such Servicer and, in such capacity, each Servicer shall conduct the data processing functions of the administration of the Pool Receivables and the Collections thereon in substantially the same way that such Servicer conducted such data processing functions while it acted as the Servicer.

Section 4.6Servicing Fee.

(a)Subject to paragraph (b), CB shall be paid a fee equal to 1.00% per annum of the daily average aggregate Outstanding Balance of the Pool Receivables that are serviced by it (the “Servicing Fee Rate”), and OnX Enterprise Solutions Ltd. shall be paid a fee of $20,000 per calendar month (each a “Servicing Fee”), and the Servicing Fee payable to OnX Enterprise Solutions Ltd. shall be exclusive of applicable GST/HST.  Such fee and, as applicable, GST/HST shall be paid through the distributions contemplated by Section 1.4(a) and Section 1.4(b).

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(b)If CB or OnX Enterprise Solutions Ltd. ceases to be a Servicer or an Affiliate thereof, the Servicing Fee shall be the greater of: (i) the amount calculated pursuant to paragraph (a), and (ii) an alternative amount specified by the successor Servicer not to exceed 110% of the aggregate reasonable costs and expenses incurred by such successor Servicer in connection with the performance of its obligations as Servicer and is exclusive of applicable GST/HST.

ARTICLE V

THE AGENTS

Section 5.1Appointment and Authorization.

(a)Each Lender and Group Agent hereby irrevocably designates and appoints PNC Bank, National Association, as the “Administrator” hereunder and authorizes the Administrator to take such actions and to exercise such powers as are delegated to the Administrator hereby and to exercise such other powers as are reasonably incidental thereto.  The Administrator shall not have any duties other than those expressly set forth herein or any fiduciary relationship with any Lender or Group Agent, and no implied obligations or liabilities shall be read into this Agreement, or otherwise exist, against the Administrator.  The Administrator does not assume, nor shall it be deemed to have assumed, any obligation to, or relationship of trust or agency with, any Borrower or any Servicer.  Notwithstanding any provision of this Agreement or any other Transaction Document to the contrary, in no event shall the Administrator ever be required to take any action which exposes the Administrator to personal liability or which is contrary to the provision of any Transaction Document or applicable law.

(b)Each Lender hereby irrevocably designates and appoints the respective institution identified as the Group Agent for such Lender’s Group on the signature pages hereto or in the Assumption Agreement or Transfer Supplement pursuant to which such Lender becomes a party hereto, and each authorizes such Group Agent to take such action on its behalf under the provisions of this Agreement and to exercise such powers and perform such duties as are expressly delegated to such Group Agent by the terms of this Agreement, if any, together with such other powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary elsewhere in this Agreement, no Group Agent shall have any duties or responsibilities, except those expressly set forth herein, or any fiduciary relationship with any Lender or other Group Agent or the Administrator, and no implied covenants, functions, responsibilities, duties, obligations or liabilities on the part of such Group Agent shall be read into this Agreement or otherwise exist against such Group Agent.

(c)Except as otherwise specifically provided in this Agreement, the provisions of this Article V are solely for the benefit of the Group Agents, the Administrator and the Lenders, and none of the Borrowers or the Servicers shall have any rights as a third‑party beneficiary or otherwise under any of the provisions of this Article V, except that this Article V (including, for the avoidance of doubt, Sections 5.2, 5.3 and 5.4) shall not affect any obligations or liability which any Group Agent, the Administrator or any Lender may have to any Borrower or the applicable Servicer under the other provisions of this Agreement.  Furthermore, no Lender shall have any rights as a third-party beneficiary or otherwise under any of the provisions hereof in respect of a Group Agent which is not the Group Agent for such Lender.

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(d)In performing its functions and duties hereunder, the Administrator shall act solely as the agent of the Lenders and the Group Agents and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for any Borrower or any Servicer or any of their successors and assigns.  In performing its functions and duties hereunder, each Group Agent shall act solely as the agent of its respective Lender and does not assume nor shall be deemed to have assumed any obligation or relationship of trust or agency with or for any Borrower, any Servicer, any other Lender, any other Group Agent or the Administrator, or any of their respective successors and assigns.

Section 5.2Delegation of Duties.  The Administrator may execute any of its duties through agents or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties.  The Administrator shall not be responsible for the negligence or misconduct of any agents or attorneys-in-fact selected by it with reasonable care.

Section 5.3Exculpatory Provisions.  None of the Group Agents, the Administrator or any of their respective directors, officers, agents or employees shall be liable for any action taken or omitted (i) with the consent or at the direction of the Majority Group Agents (or in the case of any Group Agent, the Lenders within its Group that have a majority of the aggregate Commitment of such Group) or (ii) in the absence of such Person’s gross negligence or willful misconduct.  The Administrator shall not be responsible to any Lender, Group Agent or other Person for (i) any recitals, representations, warranties or other statements made by any Borrower, any Servicer, any Originator or any of their Affiliates, (ii) the value, validity, effectiveness, genuineness, enforceability or sufficiency of any Transaction Document, (iii) any failure of any Borrower, any Servicer, any Originator or any of their Affiliates to perform any obligation hereunder or under the other Transaction Documents to which it is a party (or under any Contract), or (iv) the satisfaction of any condition specified in Exhibit II.  The Administrator shall not have any obligation to any Lender or Group Agent to ascertain or inquire about the observance or performance of any agreement contained in any Transaction Document or to inspect the properties, books or records of any Borrower, any Servicer, any Originator or any of their respective Affiliates.

Section 5.4Reliance by Agents.

(a)Each Group Agent and the Administrator shall in all cases be entitled to rely, and shall be fully protected in relying, upon any document or other writing or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person and upon advice and statements of legal counsel (including counsel to each Borrower), independent accountants and other experts selected by the Administrator.  Each Group Agent and the Administrator shall in all cases be fully justified in failing or refusing to take any action under any Transaction Document unless it shall first receive such advice or concurrence of the Majority Group Agents (or in the case of any Group Agent, the Lenders within its Group that have a majority of the aggregate Commitment of such Group), and assurance of its indemnification, as it deems appropriate.

(b)The Administrator shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the Majority Group Agents or the Group Agents, and such request and any action taken or failure to act pursuant thereto shall be binding upon all Lenders, the Administrator and Group Agents.

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(c)The Lenders within each Group with a majority of the Commitment of such Group shall be entitled to request or direct the related Group Agent to take action, or refrain from taking action, under this Agreement on behalf of such Lenders.  Such Group Agent shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of such Majority Group Agents, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of such Group Agent’s Lenders.

(d)Unless otherwise advised in writing by a Group Agent or by any Lender on whose behalf such Group Agent is purportedly acting, each party to this Agreement may assume that (i) such Group Agent is acting for the benefit of each of the Lenders in respect of which such Group Agent is identified as being the “Group Agent” in the definition of “Group Agent” hereto, as well as for the benefit of each assignee or other transferee from any such Person, and (ii) each action taken by such Group Agent has been duly authorized and approved by all necessary action on the part of the Lenders on whose behalf it is purportedly acting.  Each Group Agent and its Lender(s) shall agree amongst themselves as to the circumstances and procedures for removal, resignation and replacement of such Group Agent.

Section 5.5Notice of Events of Default.  Neither any Group Agent nor the Administrator shall be deemed to have knowledge or notice of the occurrence of any Event of Default or Unmatured Event of Default unless such Administrator has received notice from any Lender, Group Agent, any Servicer or any Borrower stating that an Event of Default or an Unmatured Event of Default has occurred hereunder and describing such Event of Default or Unmatured Event of Default.  In the event that the Administrator receives such a notice, it shall promptly give notice thereof to each Group Agent whereupon each such Group Agent shall promptly give notice thereof to its related Lenders.  In the event that a Group Agent receives such a notice (other than from the Administrator), it shall promptly give notice thereof to the Administrator.  The Administrator shall take such action concerning an Event of Default or an Unmatured Event of Default as may be directed by the Majority Group Agents (unless such action otherwise requires the consent of all Lenders), but until the Administrator receives such directions, the Administrator may (but shall not be obligated to) take such action, or refrain from taking such action, as the Administrator deems advisable and in the best interests of the Lenders and the Group Agents.

Section 5.6Non-Reliance on Administrator, Group Agents and Other Lenders.  Each Lender and Group Agent expressly acknowledges that none of the Administrator, the Group Agents nor any of their respective officers, directors, employees, agents, attorneys-in-fact or Affiliates has made any representations or warranties to it and that no act by the Administrator, or any Group Agent hereafter taken, including any review of the affairs of any Borrower, CB, any Servicer or any Originator, shall be deemed to constitute any representation or warranty by the Administrator or such Group Agent, as applicable.  Each Lender represents and warrants to the Administrator and the Group Agents that, independently and without reliance upon the Administrator, the LC Bank, Group Agents or any other Lender and based on such documents and information as it has deemed appropriate, it has made and will continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of any Borrower, CB, any Servicer or any Originator, and the Receivables and its own decision to enter into this Agreement and to take, or omit, action under any Transaction Document.  Except for items specifically required to be delivered hereunder, the

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Administrator shall not have any duty or responsibility to provide any Group Agent with any information concerning any Borrower, CB, any Servicer or any Originators or any of their Affiliates that comes into the possession of the Administrator or any of its officers, directors, employees, agents, attorneys-in-fact or Affiliates.

Section 5.7Administrators and Affiliates.  Each of the Lenders, the Group Agents and the Administrator and any of their respective Affiliates may extend credit to, accept deposits from and generally engage in any kind of banking, trust, debt, entity or other business with any Borrower, CB, any Servicer or any Originator or any of their Affiliates.  With respect to any funding of the Eligible Receivables pursuant to this Agreement, each of the Group Agents and the Administrator shall have the same rights and powers under this Agreement as any Lender and may exercise the same as though it were not such an agent, and the terms “Lender” and “Lenders” shall include, to the extent applicable, each of the Group Agents and the Administrator in their individual capacities.

Section 5.8Indemnification.  Each LC Participant and Related Committed Lender agrees to indemnify and hold harmless the Administrator (but solely in its capacity as Administrator) and its officers, directors, employees, representatives and agents and the LC Bank (to the extent not reimbursed by any Borrower, any Servicer or any Originator and without limiting the obligation of any Borrower, any Servicer, or any Originator to do so), ratably (based on respective Group Commitments) from and against any and all liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses and disbursements of any kind whatsoever (including in connection with any investigative or threatened proceeding, whether or not the Administrator, the LC Bank or such Person shall be designated a party thereto) that may at any time be imposed on, incurred by or asserted against the Administrator, the LC Bank or such Person as a result of, or related to, any of the transactions contemplated by the Transaction Documents or the execution, delivery or performance of the Transaction Documents or any other document furnished in connection therewith (but excluding any such liabilities, obligations, losses, damages, penalties, judgments, settlements, costs, expenses or disbursements resulting solely from the gross negligence or willful misconduct of the Administrator or the LC Bank or such Person as finally determined by a court of competent jurisdiction).  Without limiting the generality of the foregoing, each LC Participant agrees to reimburse the Administrator and the LC Bank, ratably according to their ratable shares (based on respective Group Commitments), promptly upon demand, for any out-of-pocket expenses (including reasonable counsel fees) incurred by the Administrator or the LC Bank in connection with the administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of its rights or responsibilities under, this Agreement.

Section 5.9Successor Administrator.  The Administrator may, upon at least five (5) days’ notice to each Borrower, each Lender and Group Agent, resign as Administrator.  Such resignation shall not become effective until a successor Administrator is appointed by the Majority Group Agents and has accepted such appointment.  Upon such acceptance of its appointment as Administrator hereunder by a successor Administrator, such successor Administrator shall succeed to and become vested with all the rights and duties of the retiring Administrator, and the retiring Administrator shall be discharged from its duties and obligations under the Transaction Documents.  After any retiring Administrator’s resignation hereunder, the provisions of

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Sections 3.1 and 3.2 and this Article V shall inure to its benefit as to any actions taken or omitted to be taken by it while it was the Administrator.

Section 5.10 Euro-Rate Notification.  Section 1.26 of this Agreement provides a mechanism for determining an alternative rate of interest in the event that one or more Relevant Interbank Market offered rates is no longer available or in certain other circumstances. The Administrator does not warrant or accept any responsibility for and shall not have any liability with respect to, the administration, submission or any other matter related to any Relevant Interbank Market offered rate or other rates in the definition of CDOR, the Euro-Rate or LMIR or with respect to any alternative or successor rate thereto, or replacement rate therefor.

Section 5.10Erroneous Payments.

(a) Each Lender hereby agrees that (i) if the Administrator notifies such Lender that the Administrator has determined in its sole discretion that any funds received by such Lender from the Administrator or any of its Affiliates were erroneously transmitted to, or otherwise erroneously or mistakenly received by, such Lender (whether or not known to such Lender (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise); individually and collectively, an “Erroneous Payment”) and demands the return of such Erroneous Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrator the amount of any such Erroneous Payment (or portion thereof) as to which such a demand was made, in same day funds (in the currency so received), together with interest thereon in respect of each day from and including the date such Erroneous Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrator in same day funds at the greater of the Overnight Bank Funding Rate and a rate determined by the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect and (ii) such Lender shall not assert any right or claim to the Erroneous Payment, and hereby waives any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrator for the return of any Erroneous Payments received, including without limitation waiver of any defense based on “discharge for value” or any similar doctrine. A notice of the Administrator to any Lender under this clause (a) shall be conclusive, absent manifest error.

(b)Without limiting immediately preceding clause (a), each Lender hereby further agrees that if it receives an Erroneous Payment from the Administrator (or any of its Affiliates) (i) that is in an amount different than (other than a de minimis difference), or on a different date from, that specified in a notice of payment sent by the Administrator (or any of its Affiliates) with respect to such Erroneous Payment (an “Erroneous Payment Notice”), or (ii) that was not preceded or accompanied by an Erroneous Payment Notice, it shall be on notice that, in each such case, an error has been made with respect to such Erroneous Payment.  Each Lender further agrees that, in each such case, or if it otherwise becomes aware an Erroneous Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrator of such occurrence and, upon demand from the Administrator, it shall promptly, but in no event later than one (1) Business Day thereafter, return to the Administrator the amount of any such Erroneous Payment (or portion thereof) that was received by such Lender to the date such amount is repaid to the Administrator in same day funds at the greater of the Overnight Bank Funding Rate and a rate

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determined by the Administrator in accordance with banking industry rules on interbank compensation from time to time in effect.  

(c)The Borrowers and Servicers hereby agree that (i) in the event an Erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Erroneous Payment (or portion thereof) for any reason, the Administrator shall be subrogated to all the rights of such Lender with respect to such amount and (ii) an Erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any obligations owed by the Borrowers, Servicer or any Affiliate thereof.

(d)Each party’s obligations under this Section 5.10 shall survive the resignation or replacement of the Administrator or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all obligations (or any portion thereof) under any Transaction Document.

ARTICLE VI

MISCELLANEOUS

Section 6.1Amendments, Etc.  No amendment or waiver of any provision of this Agreement or any other Transaction Document, or consent to any departure by any Borrower or any Servicer therefrom, shall be effective unless in a writing signed by the Administrator and the Majority Group Agents, and, in the case of any amendment, by the other parties thereto; and then such amendment, waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided, however, that no such amendment or waiver shall, without the consent of each affected Lender, (A) extend the date of any payment or deposit of Collections by any Borrower or any Servicer, (B) reduce the rate or extend the time of payment of Interest, (C) reduce any fees payable to the Administrator, any Group Agent or any Lender pursuant to the applicable Group Fee Letter, (D) change the amount of Capital of any Lender or any Related Committed Lender’s Commitment, (E) amend, modify or waive any provision of the definition of “Majority Group Agents” or this Section 6.1, (F) consent to or permit the assignment or transfer by any Borrower of any of its rights and obligations under this Agreement, (G) change the definition of “Adjusted Net Receivables Pool Balance”, “Dilution Reserve”, “Dilution Reserve (Monetized Receivables)”, “Dilution Reserve Percentage”, “Eligible Receivable”, “Event of Default”, “Loss Reserve”, “Loss Reserve Percentage”, “Monetized Receivable”, “Monetized Receivable Collections”, “Net Receivables Pool Balance”, “Ratable Share” or “Related Monetized Assets”, (H) release all or any material part of the Pool Assets from the security interest granted by any Borrower to the Administrator hereunder or under any other Transaction Document, (I) amend the priority of payments set forth in Sections 1.4(a) and 1.4(b) or (J) amend or modify any defined term (or any defined term used directly or indirectly in such defined term) used in clauses (A) through (I) above in a manner that would circumvent the intention of the restrictions set forth in such clauses.  No failure on the part of the Lenders, the Group Agents or the Administrator to exercise, and no delay in exercising any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right hereunder preclude any other or further exercise thereof or the exercise of any other right.  Notwithstanding the foregoing, the consent of the Structuring Agent shall not be required for any amendment or waiver unless such amendment or waiver

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materially and adversely affects the interests of the Structuring Agent or materially increases its obligations under this Agreement.

Section 6.2Notices, Etc.  All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including email communication) and shall be personally delivered or sent by email or by overnight mail, to the intended party at the mailing address or email address of such party set forth under its name on the signature pages hereof (or in any other document or agreement pursuant to which it is or became a party hereto), or at such other mailing address or email address as shall be designated by such party in a written notice to the other parties hereto.  All such notices and communications shall be effective (i) if delivered by overnight mail, when received, and (ii) if transmitted by email, when sent, receipt confirmed by telephone or electronic means.

Section 6.3Successors and Assigns; Participations; Assignments.

(a)Successors and Assigns.  This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.  Except as otherwise provided herein, (i) no Borrower or Servicer may assign or transfer any of its rights or delegate any of its duties hereunder or under any Transaction Document without the prior consent of the Administrator, the LC Bank and the Group Agents and (ii) the Administrator shall not assign or transfer any of its rights or delegate any of its duties hereunder or under any Transaction Document without the prior consent of such Borrower (such consent not to be unreasonably withheld or delayed); provided that such Borrower’s consent shall not be required if an Event of Default or Servicer Default has occurred and is continuing.  The Administrator, acting solely for this purpose as a non-fiduciary agent of Borrowers, shall maintain a record of any assignment by any Lender of right or obligations hereunder or under any Transaction Document and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”).  The entries in the Register shall be conclusive absent manifest error, and the Borrowers, the Administrator and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement.  The Register shall be available for inspection by the Borrowers and any Lender, at any reasonable time and from time to time upon reasonable prior notice.

(b)Participations.  Except as otherwise specifically provided herein, any Lender may sell to one or more Persons (each a “Participant”) participating interests in the interests of such Lender hereunder; provided, however, that no Lender shall grant any participation under which the Participant shall have rights to approve any amendment to or waiver of this Agreement or any other Transaction Document.  Such Lender shall remain solely responsible for performing its obligations hereunder, and each Borrower, each Group Agent and the Administrator shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations hereunder.  A Lender shall not agree with a Participant to restrict such Lender’s right to agree to any amendment hereto.  Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrowers, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Transaction Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any

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portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Transaction Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations.  The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary.  For the avoidance of doubt, the Administrator (in its capacity as Administrator) shall have no responsibility for maintaining a Participant Register.

(c)Assignments by Certain Related Committed Lenders.  Any Related Committed Lender may assign to one or more Persons (each a “Purchasing Related Committed Lender”), reasonably acceptable to each of the Administrator, the LC Bank and the related Group Agent in its sole discretion, any portion of its Commitment pursuant to a supplement hereto, substantially in the form of Annex D with any changes as have been approved by the parties thereto (each, a “Transfer Supplement”), executed by each such Purchasing Related Committed Lender, such selling Related Committed Lender, such related Group Agent and the Administrator if any Borrower shall have given its prior written consent thereto; provided that such Borrower’s consent shall not be required if an Event of Default or Servicer Default has occurred and is continuing.  Any such assignment by Related Committed Lender cannot be for an amount less than $10,000,000.  Upon (i) the execution of the Transfer Supplement, (ii) delivery of an executed copy thereof to each Borrower, such related Group Agent and the Administrator and (iii) payment by the Purchasing Related Committed Lender to the selling Related Committed Lender of the agreed purchase price, if any, such selling Related Committed Lender shall be released from its obligations hereunder to the extent of such assignment and such Purchasing Related Committed Lender shall for all purposes be a Related Committed Lender party hereto and shall have all the rights and obligations of a Related Committed Lender hereunder to the same extent as if it were an original party hereto.  The amount of the Commitment of the selling Related Committed Lender allocable to such Purchasing Related Committed Lender shall be equal to the amount of the Commitment of the selling Related Committed Lender transferred regardless of the purchase price, if any, paid therefor.  The Transfer Supplement shall be an amendment hereof only to the extent necessary to reflect the addition of such Purchasing Related Committed Lender as a “Related Committed Lender” and a “Related LC Participant” and any resulting adjustment of the selling Related Committed Lender’s Commitment and, if applicable, selling Related LC Participant’s Ratable Share of the Aggregate LC Participation Amount.

(d)Assignments to Liquidity Providers and other Program Support Providers.  Any Conduit Lender may at any time grant to one or more of its Liquidity Providers or other Program Support Providers, participating interests in its portion of the Loan.  In the event of any such grant by such Conduit Lender of a participating interest to a Liquidity Provider or other Program Support Provider, such Conduit Lender shall remain responsible for the performance of its obligations hereunder.

(e)Other Assignment by Conduit Lenders.  Each party hereto agrees and consents (i) to any Conduit Lender’s assignment, participation, grant of security interests in or other transfers of any portion of, or any of its beneficial interest in, the Loan (or portion thereof), including without

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limitation to any collateral agent in connection with its commercial paper program and (ii) to the complete assignment by any Conduit Lender of all of its rights and obligations hereunder to any other Person within such Conduit Lender’s Group, and upon such assignment such Conduit Lender shall be released from all obligations and duties, if any, hereunder; provided, however, that such Conduit Lender may not, without the prior consent of its Related Committed Lenders, make any such transfer of its rights hereunder unless the assignee (i) is principally engaged in the funding of loans similar to loan being funded hereunder, (ii) has as its Group Agent the Group Agent of the assigning Conduit Lender and (iii) issues commercial paper or other Notes with credit ratings substantially comparable to the ratings of the assigning Conduit Lender; provided, further, that such Conduit Lender may not make any assignment of its rights or obligations hereunder to any Person who is not a member of an existing Group without the prior consent of any Borrower (such consent not to be unreasonably withheld or delayed and not required if an Event of Default or Servicer Default has occurred and is continuing).  Any assigning Conduit Lender shall deliver to any assignee a Transfer Supplement with any changes as have been approved by the parties thereto, duly executed by such Conduit Lender, assigning any portion of its interest in the Loan to its assignee.  Such Conduit Lender shall promptly (i) notify each of the other parties hereto of such assignment and (ii) take all further action that the assignee reasonably requests in order to evidence the assignee’s right, title and interest in such interest in the Loan and to enable the assignee to exercise or enforce any rights of such Conduit Lender hereunder.  Upon the assignment of any portion of its interest in the Loan, the assignee shall have all of the rights hereunder with respect to such interest (except that the Interest therefor shall thereafter accrue at the rate, determined with respect to the assigning Conduit Lender unless any Borrower, the related Group Agent and the assignee shall have agreed upon a different Interest).

(f)Certain Pledges.  Without limiting the right of any Lender to sell or grant interests, security interests or participations to any Person as otherwise described in this Section 6.3, any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure its obligations as a Lender hereunder, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledge or assignee for such Lender as a party hereto.

(g)Opinions of Counsel.  If required by the Administrator or the applicable Group Agent or to maintain the ratings of the Notes of any Conduit Lender, each Transfer Supplement must be accompanied by an opinion of counsel of the assignee as to such matters as the Administrator or such Group Agent may reasonably request.

Section 6.4Costs, Expenses and Taxes.

(a)By way of clarification, and not of limitation, of Sections 1.7 or 3.1, each Borrower shall pay to the Administrator, each Group Agent and each Lender on demand all reasonable costs and out-of-pocket expenses (excluding Taxes other than Other Taxes) in connection with (i) the preparation, execution, delivery and administration (including amendments or waivers of any provision) of this Agreement or the other Transaction Documents, (ii) the perfection (and continuation) of the Administrator’s rights in the Pool Receivables, Collections and other Pool Assets, (iii) the enforcement by the Administrator, any Group Agent or any member of any Group of the obligations of each Borrower, the applicable Servicer or the Originators under the

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Transaction Documents or of any Obligor under a Receivable and (iv) the maintenance by the Administrator of the Lock-Box Accounts (and any related lock-box or post office box), including reasonable fees, costs and out-of-pocket expenses of external legal counsel for the Administrator and any member of any Group relating to any of the foregoing or to advising the Administrator, any member of any Group, any related Liquidity Provider or any other related Program Support Provider about its rights and remedies under any Transaction Document or any other document, agreement or instrument related thereto and all reasonable costs and out-of-pocket expenses (including reasonable external counsel fees and expenses) of the Administrator, each Group Agent and each Lender in connection with the enforcement or administration of the Transaction Documents or any other document, agreement or instrument related thereto.  Administrator and each member of each Group agree, however, that unless an Event of Default has occurred and is continuing all of such entities will be represented by a single law firm.  Each Borrower shall reimburse the Administrator and each Group Agent for the cost of such Person’s external auditors auditing the books, records and procedures of such Borrower or the applicable Servicer.  Each Borrower shall reimburse each Conduit Lender on demand for all reasonable costs and out of pocket expenses incurred by such Conduit Lender in connection with the Transaction Documents or the transactions contemplated thereby, including certain costs related to the Rating Agencies and reasonable fees and out of pocket expenses of external counsel of the Administrator and each member of any Group for advice relating to such Conduit Lender’s operation in connection with the transactions contemplated by the Transaction Documents.

(b)In addition, each Borrower shall pay on demand any and all stamp and Other Taxes and fees payable in connection with the execution, delivery, filing and recording of this Agreement or the other documents or agreements to be delivered hereunder, and agrees to save each Indemnified Party and Affected Person harmless from and against any liabilities with respect to or resulting from any delay in paying or omission to pay such Taxes and fees.

Section 6.5No Proceedings; Limitation on Payments.

(a)Each Borrower, CB, each Servicer, the Administrator, the LC Bank, the Group Agents, the Lenders, each assignee of the Loan or any interest therein, and each Person that enters into a commitment to fund the Loans or interests therein, hereby covenants and agrees that it will not institute against, or join any other Person in instituting against, any Conduit Lender any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding, or other proceeding under any federal or state bankruptcy or similar law, for one year and one (1) day after the latest maturing Note issued by such Conduit Lender is paid in full.  The provisions of this paragraph shall survive any termination of this Agreement.

(b)Notwithstanding any provisions contained in this Agreement to the contrary, no Conduit Lender shall or shall be obligated to, pay any amount, if any, payable by it pursuant to this Agreement or any other Transaction Document unless (i) such Conduit Lender has received funds which may be used to make such payment and which funds are not required to repay the Notes when due and (ii) after giving effect to such payment, either (x) such Conduit Lender could issue Notes to refinance all outstanding Notes (assuming such outstanding Notes matured at such time) in accordance with the program documents governing such Conduit Lender’s securitization program or (y) all Notes are paid in full.  Any amount which such Conduit Lender does not pay pursuant to the operation of the preceding sentence shall not constitute a claim (as defined in §101

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of the Bankruptcy Code) against or company obligation of such Conduit Lender for any such insufficiency unless and until such Conduit Lender satisfies the provisions of clauses (i) and (ii) above.  The provisions of this paragraph shall survive any termination of this Agreement.

Section 6.6GOVERNING LAW AND JURISDICTION.

(a)THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING FOR SUCH PURPOSE SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK) EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF A SECURITY INTEREST OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK.

(b)ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK; AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE PARTIES HERETO CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS.  EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, THAT IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.  EACH OF THE PARTIES HERETO WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH SERVICE MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.

Section 6.7Confidentiality.  Unless otherwise required by applicable law or any order in any judicial or administrative proceeding, each Borrower and each Servicer agrees to maintain the confidentiality of this Agreement and the other Transaction Documents (and all drafts thereof) in communications with third parties and otherwise; provided that this Agreement may be disclosed: (a) to third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality having terms substantially similar to this Section 6.7, (b) to each Borrower’s and each Servicer’s legal counsel and auditors if they agree to hold it confidential, (c) in connection with any litigation or other proceeding between the parties hereto with respect to the Transaction Documents and (d) to any regulatory authorities having jurisdiction over each Borrower or each Servicer.  Unless otherwise required by applicable law or any order in any judicial or administrative proceeding, each of the Administrator, the Group Agents and the Lenders agrees to maintain the confidentiality of all of the Information (as defined below); provided that such Information may be disclosed to: (i) third parties to the extent such disclosure is made pursuant to a written agreement of confidentiality having terms substantially similar to this Section 6.7, (ii) legal counsel and auditors of the Lenders, the Group Agents or the Administrator (if they agree to hold it confidential), (iii) the rating agencies or any other nationally recognized statistical rating organization rating the Notes of any Conduit Lenders (if they agree, or are otherwise required by law, to hold it confidential), (iv) any Program Support Provider or potential Program Support

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Provider (if they agree to hold it confidential), (v) any placement agency placing the Notes (if they agree to hold it confidential) and (vi) any regulatory authorities having jurisdiction over the Administrator, a Group Agent, a Lender, any Program Support Provider or any Liquidity Provider.  For purposes of this Section 6.7, “Information” means all information relating to (i) CB, each Borrower, each Servicer and the Originators, and all of their respective Affiliates or (ii) any Obligor or any Receivable, other than any such information described in clauses (i) or (ii) that is available to the Administrator, the Group Agents or the Lenders on a nonconfidential basis prior to disclosure by CB, any Borrower, any Servicer, or any Originator.  Each of the Administrator, the Group Agents and the Lenders acknowledges that (a) the Information may include material non-public information concerning CB, any Borrower, any Servicer, any Originator, or any of their respective Affiliates or any Obligor or Receivable, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information, and (c) it will handle such material non-public information in accordance with applicable law, including federal and state securities laws.

Section 6.8Execution in Counterparts.  This Agreement may be executed in any number of 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 6.9Survival of Termination.  The provisions of Sections 1.7, 1.8, 1.9, 1.10, 1.18, 1.19, 1.20, 1.25, 3.1, 3.2, 6.4, 6.5, 6.6, 6.7, 6.10 and 6.15 shall survive any termination of this Agreement.

Section 6.10WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO WAIVES THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR PARTIES, WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE.  EACH OF THE PARTIES HERETO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.  WITHOUT LIMITING THE FOREGOING, EACH OF THE PARTIES HERETO FURTHER AGREES THAT ITS RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING THAT SEEKS, IN WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR ANY PROVISION HEREOF.  THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

Section 6.11Sharing of Recoveries.  Each Lender agrees that if it receives any recovery, through set-off, judicial action or otherwise, on any amount payable or recoverable hereunder in a greater proportion than should have been received hereunder or otherwise inconsistent with the provisions hereof, then the recipient of such recovery shall purchase for cash an interest in amounts owing to the other Lenders, without representation or warranty except for the representation and warranty that such interest is being sold by each such other Lender free and clear of any Adverse Claim created or granted by such other Lender, in the amount necessary to create proportional

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participation by the Lender in such recovery.  If all or any portion of such amount is thereafter recovered from the recipient, such purchase shall be rescinded and the purchase price restored to the extent of such recovery, but without interest.

Section 6.12Right of Setoff.  Each Lender is hereby authorized (in addition to any other rights it may have) at any time after the occurrence and during the continuation of an Event of Default to setoff, appropriate and apply (without presentment, demand, protest or other notice which are hereby expressly waived) any deposits and any other indebtedness held or owing by such Lender (including by any branches or agencies of such Lender) to, or for the account of, each Borrower against amounts then due and owing by such Borrower hereunder.

Section 6.13Entire Agreement.  This Agreement and the other Transaction Documents embody the entire agreement and understanding between the parties hereto, and supersede all prior or contemporaneous agreements and understandings of such Persons, verbal or written, relating to the subject matter hereof and thereof.

Section 6.14Headings.  The captions and headings of this Agreement and any Exhibit, Schedule or Annex hereto are for convenience of reference only and shall not affect the interpretation hereof or thereof.

Section 6.15Groups’ Liabilities.  The obligations of each Group Agent and each Lender under the Transaction Documents are solely the corporate obligations of such Person.  Except with respect to any claim arising out of the willful misconduct or gross negligence of the Administrator, any Group Agent or any Lender, no claim may be made by any Borrower or any Servicer or any other Person against the Administrator, any Group Agent or any Lender or their respective Affiliates, directors, officers, employees, attorneys or agents for any special, indirect, consequential or punitive damages in respect of any claim for breach of contract or any other theory of liability arising out of or related to the transactions contemplated by this Agreement or any other Transaction Document, or any act, omission or event occurring in connection therewith; and each of the Borrowers and the Servicers hereby waives, releases, and agrees not to sue upon any claim for any such damages, whether or not accrued and whether or not known or suspected to exist in its favor.

Section 6.16USA Patriot Act.  Each of the Administrator and each of the Lenders hereby notifies each Borrower and each Servicer that pursuant to the requirements of the USA PATRIOT Act, Title III of Pub.  L.  107-56 (signed into law October 26, 2001) (the “PATRIOT Act”), the Administrator and the Lenders may be required to obtain, verify and record information that identifies such Borrowers, such Servicers and such Performance Guarantors, which information includes the name, address, tax identification number and other information regarding such Borrowers, such Servicer and such Performance Guarantors that will allow the Administrator and the Lenders to identify such Borrower, such Servicer and such Performance Guarantor in accordance with the PATRIOT Act.  This notice is given in accordance with the requirements of the PATRIOT Act.  Each of the Borrowers and the Servicers agrees to provide the Administrator and the Lenders, from time to time, with all documentation and other information required by bank regulatory authorities under “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act.

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Section 6.17Structuring Agent.  Each of the parties hereto hereby acknowledges and agrees that the Structuring Agent shall not have any right, power, obligation, liability, responsibility or duty under this Agreement, other than the Structuring Agent’s right to receive fees pursuant to Section 1.5.  Each party acknowledges that it has not relied, and will not rely, on the Structuring Agent in deciding to enter into this Agreement and to take, or omit to take, any action under any Transaction Document.

Section 6.18Currency.  Each reference in this Agreement to U.S. Dollars or to Canadian Dollars (the “relevant currency”) is of the essence.  To the fullest extent permitted by law, the obligation of the Borrowers in respect of any amount due in the relevant currency under this Agreement shall, notwithstanding any payment in any other currency (whether pursuant to a judgment or otherwise), be discharged only to the extent of the amount in the relevant currency that the Administrator or any Lender entitled to receive such payment may, in accordance with normal banking procedures, purchase with the sum paid in such other currency (after any premium and costs of exchange) on the Business Day immediately following the day on which such party receives such payment.  If the amount in the relevant currency so purchased for any reason falls short of the amount originally due in the relevant currency, the Borrowers shall pay such additional amounts, in the relevant currency, as may be necessary to compensate for the shortfall.  Any obligations of the Borrowers not discharged by such payment shall, to the fullest extent permitted by Applicable Law, be due as a separate and independent obligation and, until discharged as provided herein, shall continue in full force and effect.

Section 6.19Currency Equivalence.  If for the purposes of obtaining judgment in any court it is necessary to convert a sum due from the Borrowers on the Borrowers’ obligations in the currency expressed to be payable herein (the “specified currency”) into another currency, the parties agree that the rate of exchange used shall be that at which in accordance with normal banking procedures the Administrator could purchase the specified currency with such other currency on the Business Day preceding that on which final judgment is given.  The obligation of the Borrowers in respect of any such sum due to the Administrator or any Lender on the Borrowers’ obligations shall, notwithstanding any judgment in a currency other than the specified currency, be discharged only to the extent that on the Business Day following receipt by the Administrator or such Lender, as applicable, of any sum adjudged to be so due in such other currency, the Administrator or such Lender, as applicable, may in accordance with normal banking procedures purchase the specified currency with such other currency.  If the amount of the specified currency so purchased is less than the sum originally due to the Administrator or such Lender in the specified currency, each Borrower agrees to the extent such amount was originally due from the Borrowers, as a separate obligation and notwithstanding any such judgment, to indemnify the Administrator or such Lender, as the case may be, against such loss, and if the amount of the specified currency so purchased exceeds the amount originally due to the Administrator or such Lender in the specified currency, the Administrator or such Lender, as the case may be, agrees to remit such excess to the Borrowers.

Section 6.20Criminal Interest.  If any provision of this Agreement or any other Transaction Document would oblige the Canadian Borrower to make any payment of interest or other amount payable to any Secured Party in an amount or calculated at a rate which would be prohibited by Applicable Law or would result in a receipt by that Secured Party of “interest” at a “criminal rate” (as such terms are construed under the Criminal Code (Canada)), then,

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notwithstanding such provision, such amount or rate shall be deemed to have been adjusted with retroactive effect to the maximum amount or rate of interest, as the case may be, as would not be so prohibited by Applicable Law or so result in a receipt by that Secured Party of “interest” at a “criminal rate”, such adjustment to be effected, to the extent necessary (but only to the extent necessary), as follows: (i) first, by reducing the amount or rate of interest required to be paid to the affected Secured Party hereunder; and (ii) thereafter, by reducing any fees, commissions, costs, expenses, premiums and other amounts required to be paid to the affected Secured Party which would constitute interest for purposes of section 347 of the Criminal Code (Canada).

Section 6.21Québec Matters.  For purposes of any assets, liabilities or entities located in the Province of Québec and for all other purposes pursuant to which the interpretation or construction of this Agreement may be subject to the laws of the Province of Québec or a court or tribunal exercising jurisdiction in the Province of Québec, (a) “personal property” shall include “movable property”, (b) “real property” or “real estate” shall include “immovable property”, (c) “tangible property” shall include “corporeal property”, (d) “intangible property” shall include “incorporeal property”, (e) “security interest”, “mortgage” and “lien” shall include a “hypothec”, “right of retention”, “prior claim” , “reservation of ownership” and a resolutory clause, (f) all references to filing, perfection, priority, remedies, registering or recording under the Uniform Commercial Code or a Personal Property Security Act shall include publication under the Civil Code of Québec, (g) all references to “perfection” of or “perfected” liens or security interest shall include a reference to an “opposable” or “set up” hypothec as against third parties, (h) any “right of offset”, “right of setoff” or similar expression shall include a “right of compensation”, (i) ”goods” shall include “corporeal movable property” other than chattel paper, documents of title, instruments, money and securities, (j) an “agent” shall include a “mandatary”, (k) ”joint and several” shall include “solidary”, (l) ”gross negligence or wilful misconduct” shall be deemed to be “intentional or gross fault”, (m) “beneficial ownership” shall include “ownership on behalf of another as mandatary”, (n) ”priority” shall include “rank” or “prior claim”, as applicable (o) ”state” shall include “province”, (p) “accounts” shall include “claims”, and (q) “guarantee” and “guarantor” shall include “suretyship” and “surety”, respectively.  The parties hereto confirm that it is their wish that this Agreement and any other document executed in connection with the transactions contemplated herein be drawn up in the English language only and that all other documents contemplated thereunder or relating thereto, including notices, may also be drawn up in the English language only.  Les parties aux présentes confirment que c’est leur volonté que cette convention et les autres documents de crédit soient rédigés en langue anglaise seulement et que tous les documents, y compris tous avis, envisagés par cette convention et les autres documents peuvent être rédigés en langue anglaise seulement.

Section 6.22Québec Security.  For the purposes of the grant of security under the laws of the Province of Quebec which may now or in the future be required to be provided by any Secured Party, the Administrator is hereby irrevocably authorized and appointed by each of the other Secured Parties hereto to act as hypothecary representative (within the meaning of Article 2692 of the Civil Code of Quebec) for all present and future Secured Parties (in such capacity, the “Hypothecary Representative”) in order to hold any hypothec granted under the laws of the Province of Quebec and to exercise such rights and duties as are conferred upon the Hypothecary Representative under the relevant deed of hypothec and applicable Laws (with the power to delegate any such rights or duties).  The execution prior to the date hereof by the Administrator in its capacity as the Hypothecary Representative of any deed of hypothec or other security

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documents made pursuant to the laws of the Province of Quebec, is hereby ratified and confirmed.  Any Person who becomes a Secured Party or successor Administrator shall be deemed to have consented to and ratified the foregoing appointment of the Administrator as the Hypothecary Representative on behalf of all other Secured Parties, including such Person and any Affiliate of such Person designated above as a Secured Party.  For greater certainty, the Administrator, acting as the Hypothecary Representative, shall have the same rights, powers, immunities, indemnities and exclusions from liability as are prescribed in favor of the Administrator in this Agreement, which shall apply mutatis mutandis.  In the event of the resignation of the Administrator (which shall include its resignation as the Hypothecary Representative) and appointment of a successor Administrative AgentAdministrator, such successor Administrator shall also act as the Hypothecary Representative, as contemplated above.

Section 6.23Intent of the Parties.  The Borrowers have structured the Transaction Documents with the intention that the Loans and the obligations of the Borrowers hereunder will be treated under United States federal, and applicable state, local and foreign tax law as debt (the “Intended Tax Treatment”).  The parties agree to file no tax return, or take any action, inconsistent with the Intended Tax Treatment unless required by law.  Each assignee and each participant acquiring an interest in Loans hereunder, by its acceptance of such assignment or participation, agrees to comply with the immediately preceding sentence.

Section 6.24Post Closing Covenants.  

(a)Notwithstanding the requirements set forth in Sections 1(f), 3(b) and 3(c) of Exhibit III of this Agreement and Sections 1(f) and 2(f) of Exhibit IV of this Agreement, the Servicers shall (i) on or prior to the thirtieth (30th) day after the Closing Date (or such later day as agreed to in writing by the Administrator) either: (A) transfer the control or ownership of each deposit account listed on Schedule II for which the Lock-Box Bank is Wells Fargo Bank, N.A. that constitutes a Canadian Lock-Box Account to the Canadian Borrower in the case of any such account constituting a Canadian Lock-Box Account or (B) direct the Obligors to cease remitting payments to such accounts and begin remitting payments to another Lock-Box Account, (ii) on or prior to the thirtieth (30th) day after the Closing Date (or such later day as agreed to in writing by the Administrator) either: (A) transfer the control or ownership of each deposit account listed on Schedule II for which the Lock-Box Bank is Wells Fargo Bank, N.A. that constitutes a U.S. Lock-Box Account to the U.S. Borrower in the case of any such account constituting a U.S. Lock-Box Account or (B) direct the Obligors to cease remitting payments to such accounts and begin remitting payments to another Lock-Box Account and (iii) on or prior to the thirtieth (30th) day after the Closing Date (or such later day as agreed to in writing by the Administrator), either: (A) deliver to the Administrator duly executed Lock-Box Agreements entered into with Wells Fargo Bank, N.A. as Lock-Box Bank, relating to each deposit account listed on Schedule II for which the Lock-Box Bank is Wells Fargo Bank, N.A., in a form reasonably satisfactory to the Administrator or (B) direct the Obligors to cease remitting payments to any deposit account listed on Schedule II for which the Lock-Box Bank is Wells Fargo Bank, N.A. and begin remitting payments to another Lock-Box Account.  Upon any failure by the Servicers to timely comply with this clause (a), any Receivable then existing or thereafter arising the Obligor of which is directed to make a payment to any deposit account listed on Schedule II for which the Lock-Box Bank is Wells Fargo Bank, N.A. shall cease to constitute an Eligible Receivable.

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(b)The Servicers shall on or prior to the forty-fifth (45th) day after the Closing Date (or such later day as agreed to in writing by the Administrator), deliver to the Administrator estoppel letters in form and substance reasonably satisfactory to the Administrator relating to each PPSA filing attached hereto on Annex M (the “Subject PPSA Filings”). Upon any failure by the Servicers to timely comply with this clause (b), any Canadian Originator Receivable then existing or thereafter arising shall cease to constitute an Eligible Receivable.

(c)The Servicers shall on or prior to the tenth (10th) Business Day after the Closing Date (or such later day as agreed to in writing by the Administrator), deliver to the Administrator an opinion from legal counsel to the Canadian Borrower in form and substance reasonably satisfactory to the Administrator, confirming registration at the Register of Personal and Movable Real Rights of (i) the Québec Assignment Agreement (as defined in the Canadian Sale Agreement) and (ii) the deed of hypothec granted by the Canadian Borrower in favour of the Administrator, as hypothecary representative for the present and future Secured Parties, on the date hereof. Upon any failure by the Servicers to timely comply with this clause (c), any Canadian Originator Receivable then existing or thereafter arising (i) in respect of which the related Obligor is domiciled, residing or living in the Province of Quebec, (ii) in respect of which the related Obligor is required to remit any payment owing under such Canadian Originator Receivable to an address located in the Province of Quebec or (iii) is governed by the laws of Quebec, shall cease to constitute an Eligible Receivable.

(d)The Servicers shall on or prior to the tenth (10th) Business Day after the Closing Date (or such later day as agreed to in writing by the Administrator), deliver to the Administrator a tax identification number for the Canadian Borrower.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

 

 

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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 BELL FUNDING LLC,
as U.S. Borrower

By:
Name: Joshua T.  Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

Address:
221 East Fourth Street
Cincinnati, Ohio 45202

 

Attention: Joshua T. Duckworth
Telephone: 513-397-2292
Email: [email protected]

 

 

CINCINNATI BELL INC., as U.S. Servicer and, solely with respect to Section 3.2(b), as Performance Guarantor

By:
Name: Joshua T.  Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

Address:
221 East Fourth Street
Cincinnati, Ohio 45202

 

Attention: Joshua T.  Duckworth
Telephone: 513-397-2292
Email: [email protected]

S-1Receivables Financing Agreement

(Cincinnati Bell)

 

CINCINNATI BELL FUNDING CANADA LTD., as Canadian Borrower

By:
Name: Joshua T. Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

Address:
221 East Fourth Street
Cincinnati, Ohio 45202

 

Attention: Joshua T. Duckworth
Telephone: 513-397-2292
Email: [email protected]

 

 

OnX Enterprise Solutions Ltd., as Canadian Servicer

By:
Name: Joshua T. Duckworth
Title: Vice President of Treasury,
Corporate Finance and Investor Relations

 

Address:
221 East Fourth Street
Cincinnati, Ohio 45202

 

Attention: Joshua T. Duckworth
Telephone: 513-397-2292
Email: [email protected]

 

S-2Receivables Financing Agreement

(Cincinnati Bell)

 

 

 

THE GROUPS:

PNC BANK, NATIONAL ASSOCIATION, as a Related Committed Lender and Group Agent for the PNC Group

By:
Name:
Title:

 

Address:

PNC Bank, National Association
The Towers at PNC Plaza
300 5th AveFifth Avenue
Pittsburgh, PA 15222

Attention: Robyn ReeherBrian Stanley
Telephone: (412) 768-3090412.768.2001
Facsimile: (412)762-9184

Email:  [email protected]

 

 

PNC BANK CANADA BRANCH, as a Lender

By:
Name:
Title:

 

Address:

PNC Bank Canada Branch

 

130 King Street West, Suite 2140

Attention: Martin Peichl
Telephone: 416-361-6944
Email:  [email protected]

S-3Receivables Financing Agreement

(Cincinnati Bell)

 

 

REGIONS BANK,
as a Related Committed Lender

By:
Name:
Title:

 

Address:

Regions Business Capital
1180 West Peachtree St. NW
Suite 1000
Atlanta, Georgia 30309

 

Attention:

Kathy Myers

Telephone: (404) 221-4572

Facsimile: (404) 221-4361

Email: [email protected]

 

REGIONS BANK,
as an LC Participant

By:
Name:
Title:

 

 

Address:

Regions Business Capital
1180 West Peachtree St. NW
Suite 1000
Atlanta, Georgia 30309

 

 

Attention:

Kathy Myers

Telephone: (404) 221-4572

Facsimile: (404) 221-4361

Email: [email protected]

 

REGIONS BANK,
as a Group Agent

By:
Name:
Title:

 

 

Address:

Regions Business Capital
1180 West Peachtree St. NW
Suite 1000
Atlanta, Georgia 30309

 

 

Attention:

Kathy Myers

Telephone: (404) 221-4572

Facsimile: (404) 221-4361

Email: [email protected]

S-4Receivables Financing Agreement

(Cincinnati Bell)

 

 

PNC BANK, NATIONAL ASSOCIATION,
as Administrator and LC Bank

By:
Name:
Title:

 

Address:

PNC Bank, National Association
The Towers at PNC Plaza
300 5th Ave.Fifth Avenue
Pittsburgh, PA 15222

Attention:Robyn Reeher Brian Stanley
Telephone: 412.768.2001
Email:  [email protected]

Telephone: (412) 768-3090

Facsimile: (412) 762-9184

 

PNC BANK, NATIONAL ASSOCIATION,
as the LC Bank and as an LC Participant

By:
Name:
Title:

 

 

Address:

PNC Bank, National Association
The Towers at PNC Plaza
300 5th Ave.Fifth Avenue
Pittsburgh, PA 15222

 

Attention:Robyn Reeher Brian Stanley
Telephone: 412.768.2001
Email:  [email protected]

Telephone: (412) 768-3090

Facsimile: (412) 762-9184

 

PNC CAPITAL MARKETS LLC,
as Structuring Agent

By:
Name:
Title:

 

S-5Receivables Financing Agreement

(Cincinnati Bell)

 

 

EXHIBIT I
DEFINITIONS

As used in this Agreement (including its Exhibits, Schedules and Annexes), the following terms shall have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined).  Unless otherwise indicated, all Section, Annex, Exhibit and Schedule references in this Exhibit are to Sections of and Annexes, Exhibits and Schedules to this Agreement.

Adjusted Net Receivables Pool Balance” means, at any time of determination, the excess, if any, of (i) the Net Receivables Pool Balance, over (ii) the CAD-USD Volatility Reserve.

Administrator” has the meaning set forth in the preamble to this Agreement.

Adverse Claim” means a lien, security interest, hypothec, hypothecation, deemed trust or other charge or encumbrance, or any other type of preferential arrangement; it being understood that any thereof in favor of the Administrator (for the benefit of the Lenders) shall not constitute an Adverse Claim.

Affected Person” has the meaning set forth in Section 1.7 of this Agreement.

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), except that, in the case of each Conduit Lender, Affiliate shall mean the holder of its capital stock or membership interest, as the case may be.  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.

Aggregate Adjusted LC Participation Amount” means, at any time, the greater of (i) the Aggregate LC Participation Amount less the U.S. Dollar Equivalent of all cash collateral held in the LC Collateral Accounts at such time and (ii) zero ($0).

Aggregate Capital” means, at any time, the U.S. Dollar Equivalent of the aggregate outstanding Capital of all Lenders at such time.

Aggregate LC Participation Amount” means, at any time of determination, the aggregate U.S. Dollar Equivalent of all LC Participation Amounts at such time.

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

Alternate Rate” for any Interest Period for any Capital (or portion thereof) funded by any Lender other than through the issuance of Notes, means an interest rate per annum equal to: (a) with respect to U.S. Dollar Capital, (i) with respect to any LMIR Lender, the daily average LMIR for such Interest Period, (ii) with respect to any Lender other any LMIR Lender, the Euro-Rate for such Interest Period, only to the extent that the Euro-Rate is available or (iii) the Base Rate for such Interest Period, only to the extent that LMIR or the Euro-Rate, as applicable, is unavailable

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pursuant to Section 1.22 (provided, however, that the “Alternate Rate” for any day while an Event of Default exists shall be an interest rate equal to the greater of (i) 3.0% per annum above the applicable Base Rate in effect on such day and (ii) the “Alternate Rate” as calculated in clause (i) or (ii) above, as applicable) and (b) with respect to Canadian Dollar Capital, (i) the daily average CDOR for such Interest Period or (ii) the Base Rate for such Interest Period, only to the extent that CDOR is unavailable pursuant to Section 1.22 (provided, however, that the “Alternate Rate” for any day while an Event of Default exists shall be an interest rate equal to the greater of (i) 3.0% per annum above the applicable Base Rate in effect on such day and (ii) CDOR on such day).

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, (a) 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 (b) 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.

Assumption Agreement” means an agreement substantially in the form set forth in Annex C to this Agreement.

Attorney Costs” means and includes all reasonable fees and disbursements of any law firm or other external counsel.

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

Base Rate” means, for any day, a fluctuating interest rate per annum as shall be in effect from time to time, which rate shall be at all times equal to

(a)with respect to U.S. Dollar Loans, U.S. Dollar Capital or U.S. Dollar-denominated obligations, the higher of:

(i)the rate of interest in effect for such day as publicly announced from time to time by the Administrator as its “reference rate”.  Such “reference rate” is set by the Administrator based upon various factors, including the Administrator’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate; and

(ii)0.50% per annum above the latest Federal FundsOvernight Bank Funding Rate; or

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(b)with respect to Canadian Dollar Loans, Canadian Dollar Capital or Canadian Dollar-denominated obligations, the greater of:

(i)the rate of interest in effect for such day as publicly announced from time to time by the Administrator or its Affiliate as its “reference rate” or “prime rate”, as applicable, for determining interest rates on Canadian Dollar denominated loans.  Such “reference rate” or “prime rate” is set by the Administrator or its Affiliate based upon various factors, including such Person’s costs and desired return, general economic conditions, and other factors, and is used as a reference point for pricing some loans, which may be priced at, above or below such announced rate; and

(ii)1.00% per annum above CDOR.

Beneficial Ownership Rule” means 31 C.F.R. § 1010.230.

Beneficial Ownership Certification” means, for any Borrower, a certification of such Borrower as to its beneficial owner(s) complying with the Beneficial Ownership Rule.

Borrower” has the meaning set forth in the preamble to this Agreement.

Borrowing Notice” has the meaning set forth in Section 1.2(a) to this Agreement.

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, (b) if this definition of “Business Day” is utilized in connection with the Euro-Rate or LMIR, dealings are carried out in the London interbank market and (c) if this definition of “Business Day” is utilized in connection with CDOR or the Base Rate with respect to Canadian Dollar Loans, any day on which commercial banks are authorized or required to close in Toronto, Ontario, Canada.

CAD-USD VaR Percentage” means 4.0%, or such other percentage designated as such by the Administrator upon five (5) days’ written notice to the Borrowers.

CAD-USD Volatility Reserve” means, at any time, an amount equal to the excess, if any, of (a) an amount equal to the quotient of (i) the Foreign Currency Shortfall Amount, divided by (ii) 100% minus the CAD-USD VaR Percentage then in effect, over (b) Foreign Currency Shortfall Amount.

Canadian Borrower’s Share” has the meaning set forth in Section 1.2(a) of this Agreement.

Canadian Collections Release” has the meaning set forth in Section 1.4(b) of this Agreement.

Canadian Dollar Capital” means Capital initially funded by the Lenders in Canadian Dollars.

Canadian Dollar Capital Sublimit” means, at any time, the excess, if any, of (a) CAD30,000,000, over (b) the Canadian Dollar LC Participation Amount on such day.

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Canadian Dollar LC Participation Amount” means at any time of determination, the aggregate LC Participation Amount with respect to Letters of Credit denominated in Canadian Dollars.

Canadian Dollar LC Sublimit” means, at any time, the excess, if any, of (a) CAD30,000,000, over (b) the aggregate amount of Canadian Dollar Capital on such day.

Canadian Dollar Loan” means any Loan denominated in Canadian Dollars.

Canadian Dollar”, “C$” or “CAD” means the lawful currency of Canada.

Canadian Dollar Support Amount” means, at any time of determination, the product of (a) the Imputed Advance Rate, times (b) the aggregate Outstanding Balance of Canadian Dollar-denominated Eligible Receivables.

Canadian Lock-Box Account” has the meaning set forth in Section 1.4(b) of this Agreement.

Canadian Originator Receivable” means each Receivable originated by a Canadian Originator.

Canadian Originator” means each Person that is a party to the Canadian Sale Agreement as an “Originator” thereunder.

Canadian Sale Agreement” means the Canadian Purchase and Sale Agreement, dated as of the Closing Date, by and among the Canadian Borrower, the Canadian Originators and OnX Enterprise Solutions Ltd. as a Servicer, as such agreement may be amended, amended and restated, supplemented or otherwise modified from time to time.

Canadian Tax Act” means the Income Tax Act (Canada) as amended.

Capital” means, with respect to any Lender, the aggregate amounts (a) paid to, or on behalf of, any Borrower in connection with all Loans made by such Lender pursuant to Section 1.2(b) of the Agreement, (b) paid by such Lender (as an LC Participant) to the LC Bank in respect of a Participation Advance made by such Lender to LC Bank pursuant to Section 1.14 of the Agreement and (c) with respect to the Lender that is the LC Bank, paid by the LC Bank with respect to all drawings under the Letter of Credit to the extent such drawings have not been reimbursed by any Borrower or funded by Participation Advances, as reduced from time to time by Collections distributed and applied on account of such Capital pursuant to Section 1.4(a) or Section 1.4(b) of the Agreement; provided that if such Capital shall have been reduced by any distribution and thereafter all or a portion of such distribution is rescinded or must otherwise be returned for any reason, such Capital shall be increased by the amount of such rescinded or returned distribution as though it had not been made.

CB” has the meaning set forth in the preamble to this Agreement.

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

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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 U.S. Originator of which is CBTS and for which the underlying goods and services are hardware and related services procured by the Obligor 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 Obligor for such goods and services.

CDOR” means for any day during any Interest Period, the interest rate per annum determined by the Administrator (which determination shall be conclusive absent manifest error) as the annual rate of interest equal to the average discount rate (rounded upwards, if necessary, to the nearest 0.00001%) of one-month Canadian dollar bankers’ acceptances as displayed on the “Bloomberg Screen CDOR Page” at approximately 10:00 a.m.  (Toronto, Ontario time) on such day (or, if such day is not a Business Day, on the preceding Business Day); provided, however, that if such rate does not appear on the Bloomberg Screen CDOR Page on such day as contemplated, then the CDOR Rate on such day shall be calculated as the average of the rates for such period applicable to Canadian dollar bankers’ acceptances quoted by the banks listed on Schedule I of the Bank Act (Canada) as at approximately 10:00 a.m.  (Toronto, Ontario time) on such day (or, if such day is not a Business Day, on the preceding Business Day).

“Change in Control” means that:

(a)Change in Control” means that (a) CB ceases to own, directly or indirectly, (i) 100% of the voting equity interests of the U.S. Borrower free and clear of all Adverse Claims, (ii) a majority of the voting equity interests of any Originator or (iii) or 100% of the voting equity interests of OnX Enterprise Solutions Ltd., or

(b)(b) OnX Enterprise Solutions Ltd. ceases to own, directly or indirectly, 100% of the voting equity interests of the Canadian Borrower free and clear of all Adverse Claims.

Notwithstanding the above, the acquisition by MIP V (FCC) AIV, L.P. and any other affiliate or managed funds and Ares Special Situations Fund IV, L.P., ASOF Holdings I, L.P. and any other affiliates or managed funds of CB (such acquisition, the “MIRA Acquisition”) will not be deemed a “Change in Control.”

Change in Law” means the occurrence, after the Closing Date, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case

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pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted, promulgated or issued.

Closing Date” means May 10, 2018.

Code” means the Internal Revenue Code of 1986, as amended.

Collections” means, with respect to any Pool Receivable: (a) all funds that are received by any Originator, CB, any Borrower or any Servicer in payment of any amounts owed in respect of such Receivable (including purchase price, finance charges, interest and all other charges, and, in the case of any Pool Receivables purchased by the Canadian Borrower from a Canadian Originator, any amounts received on account of GST/HST and PST), 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 Obligor or any other Person directly or indirectly liable for the payment of such Pool Receivable and available to be applied thereon), (b) all Deemed Collections and (c) all other proceeds of such Pool Receivable; it being understood and agreed that, Monetized Receivable Collections do not constitute Collections.

Commitment” means, with respect to any Related Committed Lender, LC Participant or LC Bank, as applicable, the maximum aggregate amount which such Lender is obligated to pay hereunder on account of all Funded Loans and all drawings under all Letters of Credit, on a combined basis, as set forth on Schedule III or in the Assumption Agreement or other agreement pursuant to which it became a Lender, as such amount may be modified in connection with any subsequent assignment pursuant to Section 6.3(c) or in connection with a change in the Facility Limit pursuant to Section 1.1(c) of the Agreement.  For the avoidance of doubt, in no event shall the sum of the aggregate Commitments of all Lenders in a Group exceed such Group’s Group Commitment.

Commitment Percentage” means, for each Related Committed Lender or Related LC Participant in a Group, the Commitment of such Related Committed Lender or Related LC Participant, as the case may be, divided by the total of all Commitments of all Related Committed Lenders or Related LC Participants, as the case may be, in such Group.

Company Note” has the meaning set forth in Section 3.1 of the applicable Sale Agreement.

Concentration Percentage” means (a) except as provided in clause (b) below, (i) for any Group A Obligor, 12%, (ii) for any Group B Obligor, 10%, (iii) for any Group C Obligor, 8% and (iv) for any Group D Obligor, 4% and (b) for each Special Obligor, the percentage specified in the chart set forth on Annex H for such Special Obligor at such time.

Conduit Lender” means each commercial paper conduit that is a party to this Agreement, as a Lender, or that becomes a party to this Agreement, as a lender pursuant to an Assumption Agreement or Transfer Supplement.

Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

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Contract” means, with respect to any Receivable, any and all contracts, instruments, agreements, leases, invoices, notes or other writings pursuant to which such Receivable arises or that evidence such Receivable or under which an Obligor becomes or is obligated to make payment in respect of such Receivable.

Coverage Percentage” means, at any time, a fraction (expressed as a percentage) and computed as follows:

Aggregate Capital + Aggregate Adjusted LC Participation Amount + Total Reserves
Adjusted Net Receivables Pool Balance

The Coverage Percentage shall be determined from time to time pursuant to Section 1.3 of this Agreement.

Covered Entity” means (a) each Borrower, each 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.

CP Rate” means, for any Conduit Lender and for any Interest Period for any Portion of Capital with respect to such Conduit Lender (a) with respect to any U.S. Dollar Capital, (i) the per annum rate equivalent to the weighted average cost (as determined by the applicable Group Agent and which shall include commissions of placement agents and dealers, incremental carrying costs incurred with respect to Notes of such Person maturing on dates other than those on which corresponding funds are received by such Conduit Lender, other borrowings by such Conduit Lender (other than under any Program Support Agreement) and any other costs associated with the issuance of Notes) of or related to the issuance of Notes that are allocated, in whole or in part, by the applicable Group Agent to fund or maintain such Portion of Capital (and which may be also allocated in part to the funding of other assets of such Conduit Lender); provided, however, that if any component of such rate is a discount rate, in calculating the “CP Rate” for such Portion of Capital for such Interest Period, the applicable Group Agent shall for such component use the rate resulting from converting such discount rate to an interest-bearing equivalent rate per annum; provided, further, that notwithstanding anything in this Agreement or the other Transaction Documents to the contrary, each Borrower agrees that any amounts payable to the Lenders in respect of Interest for any Interest Period with respect to any Portion of Capital funded by such Lender at the CP Rate shall include an amount equal to the portion of the face amount of the outstanding Notes issued to fund or maintain such Portion of Capital that corresponds to the portion of the proceeds of such Notes that was used to pay the interest component of maturing Notes issued to fund or maintain such Portion of Capital, to the extent that such Lender had not received payments of interest in respect of such interest component prior to the maturity date of such maturing Notes (for purposes of the foregoing, the “interest component” of Notes equals the excess of the face amount thereof over the net proceeds received by such Lender from the issuance of Notes, except that if such Notes are issued on an interest-bearing basis its “interest component” will equal the amount of interest accruing on such Notes through maturity) or (ii) any other rate

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designated as the “CP Rate” for such Conduit Lender in an Assumption Agreement or Transfer Supplement pursuant to which such Person becomes a party as a Conduit Lender to this Agreement, or any other writing or agreement provided by such Conduit Lender to each Borrower, each Servicer and the applicable Group Agent from time to time and, in each case, consented to as to the applicable “CP Rate” by each Borrower (such consent not to be unreasonably withheld or delayed) and (b) with respect to any Canadian Dollar Capital, CDOR.  The “CP Rate” for any day while an Event of Default exists shall be an interest rate equal to the greater of (x) 3% per annum above the Base Rate in effect on such day and (y) LMIR or CDOR, as applicable, on such day.

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

Credit Party” means each Lender, the LC Bank and the Administrator.

Days’ Sales Outstanding” means, for any calendar month, an amount computed as of the last day of such calendar month equal to: (a) the average of the Outstanding Balance of all Managed Receivables as of the last day of each of the three most recent calendar months ended on the last day of such calendar month divided by (b)(i) the aggregate credit sales made by the Originators during the three calendar months ended on the last day of such calendar month divided by (ii) 90.

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 Collections” has the meaning set forth in Section 1.4(e)(ii) of this Agreement.

Default Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%) computed as of the last day of each calendar month by dividing: (a) the aggregate Outstanding Balance of all Managed Receivables that became Defaulted Receivables during such calendar month (other than Receivables that became Defaulted Receivables as a result of an Event of Bankruptcy with respect to the Obligor thereof during such month), by (b) the sum of (w) the aggregate initial Outstanding Balance of all Group A Receivables originated by the Originators during the calendar month that is five (5) calendar months before such calendar month, plus (x) the aggregate initial Outstanding Balance of all Group B Receivables originated by the Originators during the calendar month that is seven (7) calendar months before such calendar month, plus (y) the sum for each Designated Obligor of the aggregate initial Outstanding Balance of all

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Receivables, the Obligor of which is a Designated Obligor, originated by the Originators during the Designated Terms applicable to such Designated Obligor for purposes of this defined term.

Defaulted Receivable” means a Receivable:

(a)as to which any payment, or part thereof, remains unpaid for more than (i) with respect to a Group A Receivable, one hundred and fifty (150) days from the original invoice date of such Receivable, (ii) with respect to a Group B Receivable, two hundred eleven (211) days and (iii) with respect to a Receivable, the Obligor of which is a Designated Obligor, the Designated Terms applicable to such Designated Obligor for purposes of this defined term, or

(b)without duplication (i) as to which an Event of Bankruptcy shall have occurred with respect to the Obligor thereof or any other Person obligated thereon or owning any Related Security with respect thereto or (ii) that has been written off each Borrower’s books as uncollectible.

Delinquency Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100 of 1%, with 5/1000th of 1% rounded upward) computed as of the last day of each calendar month by dividing: (a) the aggregate Outstanding Balance of all Managed Receivables that were Delinquent Receivables on such day by (b) the aggregate Outstanding Balance of all Managed Receivables on such day.

Delinquent Receivable” means a Receivable as to which any payment, or part thereof, remains unpaid for more than (a) solely with respect to a Receivable, the Obligor of which is a Designated Obligor, the Designated Terms applicable to such Designated Obligor for purposes of this defined term, (b) with respect to any Receivable (other than a Receivable, the Obligor of which is a Designated Obligor) that has a stated maturity which is less than ninety-one (91) days after the original invoice date of such Receivable, one hundred and twenty (120) days from the original invoice date of such Receivable and (c) with respect to any Receivable (other than a Receivable, the Obligor of which is a Designated Obligor) that has a stated maturity which is ninety-one (91) or more days after the original invoice date of such Receivable, one hundred and fifty (150) days from the original invoice date of such Receivable.

Designated Obligor” means each Obligor designated as a Designated Obligor from time to time on Annex I, as such Annex I is supplemented from time to time in writing to add or remove Designated Obligors and adjust any Designated Terms relating thereto, and, in each case, as such supplement is consented to in writing (including, without limitation, email communications) by each Borrower, each Servicer, the Administrator, the LC Bank and each Lender.  In the event that any other Obligor is or becomes an Affiliate of a Designated Obligor, the applicable Designated Terms set forth on Annex I shall apply to both such Obligor and such Designated Obligor and shall be calculated as if such Obligor and such Designated Obligor were a single Obligor.

Designated Terms” means the terms set forth on Annex I as applicable to a Designated Obligor with respect to certain defined terms set forth on Schedule I; provided that if no Designated Term is provided with respect to any defined term for such Obligor or if the conditions, if any, to any Designated Term are not satisfied, such Designated Terms shall not be applicable to such Designated Obligor for purposes of such defined term.

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Dilution Horizon” means, for any calendar month, the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%) computed as of the last day of such calendar month of: (a) the aggregate credit sales made by all the Originators during the two most recent calendar months, to (b) the Net Receivables Pool Balance at the last day of such calendar month. Within thirty (30) days of the completion and the receipt by the Administrator of the results of any annual audit or field exam of the Receivables and the servicing and origination practices of the Servicers and the Originators, the numerator of the Dilution Horizon may be adjusted by the Administrator upon not less than five (5) Business Days’ notice to the Servicer to reflect such number of Fiscal Months as the Administrator reasonably believes best reflects the business practices of the Servicers and the Originators and the actual amount of dilution and Deemed Collections that occur with respect to Pool Receivables based on the weighted average dilution lag calculation completed as part of such audit or field exam.

Dilution Ratio” means the ratio (expressed as a percentage and rounded to the nearest 1/100th of 1%, with 5/1000th of 1% rounded upward), computed as of the last day of each calendar month by dividing: (a) the aggregate amount of payments made or owed by any Borrower pursuant to Section 1.4(e)(i) of this Agreement or by the U.S. Borrower, as seller, under Section 5 of the Receivables Purchase Agreement during such calendar month by (b) the aggregate credit sales made by all the Originators during the calendar month that is one month prior to such calendar month.

Dilution Reserve” means, on any day, an amount equal to: (a) the sum of the Aggregate Capital plus the Aggregate Adjusted LC Participation Amount at the close of business of each Servicer on such day multiplied by (b) (i) the Dilution Reserve Percentage on such day, divided by (ii) 100% minus the Dilution Reserve Percentage on such day.

Dilution Reserve (Monetized Receivables)” means, on any day, an amount equal to: (a) the aggregate Outstanding Balance of Monetized Receivables at the close of business of each Servicer on such day multiplied by (b) (i) the Dilution Reserve Percentage on such day, divided by (ii) 100% minus the Dilution Reserve Percentage on such day.

Dilution Reserve Percentage” means on any date, the product of (i) the Dilution Horizon multiplied by (ii) the sum of (x) 2.25 times the average of the Dilution Ratios for the twelve (12) most recent calendar months and (y) the Dilution Spike Factor.

Dilution Spike Factor” means, for any calendar month, the product of (a) the positive difference, if any, between: (i) the highest Dilution Ratio for any calendar month during the twelve (12) most recent calendar months and (ii) the arithmetic average of the Dilution Ratios for such twelve (12) months and (b) (i) the highest Dilution Ratio for any calendar month during the twelve (12) most recent calendar months, divided by (ii) the arithmetic average of the Dilution Ratios for such twelve months.

Drawing Date” has the meaning set forth in Section 1.14(a) of the Agreement.

DSO Trigger” has the meaning set forth on Annex J, as such Annex J is supplemented from time to time in writing and as such supplement is consented to in writing (including, without

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limitation, email communications) by each Borrower, each Servicer, the Administrator, the LC Bank and each Lender.

Eligible Canadian Governmental Entity” means any Governmental Entity in Canada that is not an Ineligible Canadian Governmental Entity.

Eligible Receivable” means, at any time, a Pool Receivable:

(a)the Obligor of which (i) is organized under the laws of the United States (or a subdivision thereof) or the laws of Canada or any province or territory of Canada, (ii) is not subject to any action of the type described in paragraph (f) of Exhibit V to this Agreement, (iii) is not an Affiliate (other than an officer, director or other natural Person) of CB, Servicers or any Affiliate (other than an officer, director or other natural Person) of CB, as applicable, (iv) is not a Sanctioned Person or not a resident of a Sanctioned Country and (v) is not an Ineligible Canadian Governmental Entity,

(b)that is denominated and payable (x) if a U.S. Originator Receivable, only in U.S. Dollars in the United States, and (except in the case of a Pool Receivable generated in connection with any Payment-on-Delivery Transaction) the Obligor with respect to which has been instructed in writing by any Servicer, each Borrower, the applicable Originator or the applicable Sub-Servicer, if any, in accordance with Sections 1(f) and 2(f) of Exhibit IV to remit Collections in respect thereof to a Lock-Box Account in the United States of America (provided that such Obligor may make an On-Site Payment notwithstanding such instruction) or (y) if a Canadian Originator Receivable, only in Canadian Dollars or U.S. Dollars to a Canadian Originator at a Lock-Box Account,

(c)that does not have a stated maturity which is more than one-hundred-twenty (120) days after the original invoice date of such Receivable; provided that in the case of Pool Receivables the Obligor of which is a Designated Obligor, (i) an Eligible Receivable means a Pool Receivable that does not have a stated maturity which is more than the Designated Terms applicable to such Designated Obligor for purposes of this defined term and (ii) such Pool Receivable meets each of the other criteria set forth in this definition,

(d)that arises under a duly authorized Contract for the sale and delivery of goods and services in the ordinary course of any Originator’s business,

(e)that arises under a duly authorized Contract that is in full force and effect and that is a legal, valid and binding obligation of the related Obligor, enforceable against such Obligor 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,

(f)that conforms in all material respects with all applicable laws, rulings and regulations in effect,

(g)that is not the subject of any asserted dispute, offset, hold back, defense, Adverse Claim (other than Permitted Adverse Claims) or other claim, but any such Pool Receivable shall

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be ineligible only to the extent of such dispute, offset, hold back, defense, Adverse Claim (other than Permitted Adverse Claims) or other claim,

(h)that satisfies in all material respects all applicable requirements of the applicable Credit and Collection Policy,

(i)that has not been modified, waived or restructured since its creation, except as permitted pursuant to Section 4.2 of this Agreement,

(j)in which any Borrower owns good and marketable title, free and clear of any Adverse Claims other than Permitted Adverse Claims, and that is freely assignable by such Borrower (including without any consent of the related Obligor),

(k)for which the Administrator (for the benefit of each Lender) shall have a valid and enforceable first priority perfected security interest therein and in the Related Security and Collections with respect thereto, in each case free and clear of any Adverse Claim other than Permitted Adverse Claims,

(l)that constitutes an “account”, “general intangible” or “tangible chattel paper”, each as defined in the UCC, or, in the case of a Pool Receivable purchased by or contributed to the Canadian Borrower pursuant to the Canadian Sale Agreement, an “account”, “intangible” or “chattel paper” within the meaning of the PPSA,

(m)that is not a Defaulted Receivable or a Delinquent Receivable,

(n)(i) for which none of the Originator thereof, any Borrower and any Servicer has established any offset arrangements with the related Obligor and (ii) for which payments thereunder are free and clear of any withholding Taxes,

(o)for which Defaulted Receivables of the related Obligor do not exceed 50% of the Outstanding Balance of all such Obligor’s Receivables,

(p)that represents amounts that are either (i) earned and payable by the Obligor that are not subject to the performance of additional services by the Originator thereof or (ii) so long as (A) CBT’s senior unsecured debt rating is “B” or better from Standard & Poor’s and “B2” or better from Moody’s and (B) the Federal Communications Commission has not released a CBT Public Notice, a receivable billed to the Obligor for a service to be provided during the immediate subsequent billing period; provided, however, that a Receivable that is an FOB Receivable and that otherwise satisfies all the other criteria set forth in this definition shall not be deemed to be ineligible due to this clause (p) if such Receivable’s failure to satisfy the requirement set forth in this clause (p) arises solely due to such Receivable’s status as an FOB Receivable,

(q)(i) that is not a Specified Receivable[reserved] and (ii) either (A) the invoice with respect thereto has been sent to the Obligor thereof or (B) that is an Eligible Unbilled Receivable,

(r)that is not a CBTS Lease Receivable for which an invoice or bill with respect thereto has not been sent to the Obligor thereof by the applicable Servicer or the related Originator[reserved], and

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(s)that neither currently is a Monetized Receivable nor previously was a Monetized Receivable.

Eligible Unbilled Receivable” means, at any time, any Receivables (which may include CBTS Lease Receivables) as to which (a) the invoice or bill with respect thereto has not yet been sent to the Obligor thereof and (b) any Originator with respect thereto has accrued the related revenue on its financial statements under GAAP.

Equipment Lease Receivable” means a Receivable that arises in connection with the provision by CBTS of goods or services to an Obligor 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 and Related Rights.

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 Obligor which provision of goods and services includes such equipment or software.

Equity Investments” has the meaning set forth in Section 3(a) of Exhibit IV of this Agreement.

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 any Borrower, any Originator or CB, (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 any Borrower, any Originator or CB, or (c) a member of the same affiliated service group (within the meaning of Section 414(m) of the Internal Revenue Code) as any Borrower, any Originator, any corporation described in clause (a) or any trade or business described in clause (b).

ETA” means Part IX of the Excise Tax Act (Canada).

Euro-Rate” means with respect to any Interest Period, the greater of (a) 0.750.00% and (b) the interest rate per annum determined by dividing (the resulting quotient rounded upwards, if necessary, to the nearest 1/100th of 1% per annum) (i) the rate per annum for deposits in U.S. Dollars as reported by Bloomberg Finance L.P.  and shown on US0001M Screen as the composite offered rate for London interbank deposits for such period (or on any successor or substitute page of such service, or any successor to or substitute for such service, providing rate quotations comparable to those currently provided on such page of such service, as determined by the Administrator from time to time for purposes of providing quotations of interest rates applicable to U.S. Dollar deposits in the London interbank market) at or about 11:00 a.m.  (London time) on the Business Day which is two (2) Business Days prior to the first day of such Interest Period for an amount comparable to the Portion of Capital to be funded at the Alternate Rate determined by

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reference to the Euro-Rate during such Interest Period by (ii) a number equal to 1.00 minus the Euro-Rate Reserve Percentage.  The Euro-Rate may also be expressed by the following formula:

Composite of London interbank offered rates shown on Bloomberg Finance L.P.  Screen US0001M or appropriate successor

Euro-Rate =

1.00 – Euro-Rate Reserve Percentage

where “Euro-Rate Reserve Percentage” means, the maximum effective percentage in effect on such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor) for determining the reserve requirements (including without limitation, supplemental, marginal, and emergency reserve requirements) with respect to eurocurrency funding (currently referred to as “Eurocurrency Liabilities”).  The Euro-Rate shall be adjusted with respect to any Portion of Capital funded at the Alternate Rate determined by reference to the Euro-Rate that is outstanding on the effective date of any change in the Euro-Rate Reserve Percentage as of such effective date.  The applicable Group Agent shall give prompt notice to the applicable Borrower of the Euro-Rate as determined or adjusted in accordance herewith (which determination shall be conclusive absent manifest error).

Event of Bankruptcy” means (a) any case, action or proceeding before any court or other governmental authority relating to bankruptcy, reorganization, insolvency, liquidation, receivership, dissolution, winding-up, arrangement, adjustment, protection or relief of debtors or (b) any general assignment for the benefit of creditors of a Person or any composition, marshalling of assets for creditors of a Person, or other similar arrangement in respect of its creditors generally or any substantial portion of its creditors; in each of cases (a) and (b) undertaken under U.S. Federal, state or foreign law, including the Bankruptcy Code or any other Applicable Law relating to bankruptcy, insolvency, reorganization, incorporation law or relief of debtors, including any plan of compromise or arrangement or other similar corporate proceeding involving or affecting its creditors.

Event of Default” has the meaning specified in Exhibit V to this Agreement.

Excess Concentration” means, without duplication, the sum of the following amounts:

(i)the sum of the amounts by which the Outstanding Balance of Eligible Receivables of each Obligor then in the Receivables Pool exceeds an amount equal to: (a) the applicable Concentration Percentage for such Obligor, multiplied by (b) the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(ii)the amount by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool which were billed to an Obligor for a service to be provided during the immediate subsequent billing period exceeds 16% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

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(iii)the amount by which the aggregate Outstanding Balance of all Eligible Unbilled Receivables then in the Receivables Pool exceeds 20% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(iv)the amount by which the aggregate Outstanding Balance of Eligible Receivables (other than Receivables the Obligor of which is an Excluded Designated Obligor) that have a stated maturity which is more than sixty (60) days and less than ninety-one (91) days after the original invoice date of such Receivable then in the Receivables Pool exceeds 20% (or, upon five (5) days’ notice, such other percentage threshold as may be agreed upon in writing by the Administrator, each Purchaser Agent and each Borrower) of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(v)the amount (if any) by which the FOB Destination Accrual exceeds 1% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(vi)the amount by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool the Obligor for which is a U.S. Federal Governmental Entity exceeds 5% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(vii)the amount by which the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool the Obligor for which is an Eligible Canadian Governmental Entity exceeds 6% of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool; plus

(viii)the amount by which the aggregate Outstanding Balance of Eligible Receivables (other than Receivables the Obligor of which is an Excluded Designated Obligor) that have a stated maturity which is more than ninety (90) days after the original invoice date of such Receivable then in the Receivables Pool exceeds 2.5% (or, upon five (5) days’ notice, such other percentage threshold as may be agreed upon in writing by the Administrator, each Purchaser Agent and each Borrower) of the aggregate Outstanding Balance of all Eligible Receivables then in the Receivables Pool.

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

Excluded Designated Obligor” means an Obligor, the Designated Terms for which indicate such Obligor’s Receivables shall be excluded from clause (iv) of the definition of Excess Concentration.

Excluded Receivable” means any Receivable (as defined without giving effect to the proviso to the definition thereof) originated by (a) CBTS and billed on the SunTel Q360 billing platform acquired by CBTS through the merger of SunTel Services LLC with and into CBTS on December 31, 2017 or (b) any Originator and billed on a billing system or ledger identified by the Servicers in writing to the Administrator (any such identified billing system or ledger, a “Subject Ledger”); provided that CB will (x) provide 30 days’ prior written notice to the Administrator that

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notifies the Administrator that any billing system or ledger will be designated as a Subject Ledger and (y) from time to time, upon the reasonable request of the Administrator, provide the Administrator with a then current list of Excluded Receivables; provided, however, that the Excluded Receivables relating to Subject Ledgers shall not, at any one time, have an aggregate fair market value in excess of $25,000,000; provided further, that in the event CB determines that any or all Excluded Receivables identified on a Subject Ledger no longer need to be excluded from the sale to the Company, CB will provide written notice to the Administrator identifying such Excluded Receivables and stating that such Excluded Receivables shall no longer be classified as Excluded Receivables, in which case, upon the Administrator’s and each Group Agent’s written consent, any such Receivables shall then be sold on a date to be mutually agreed upon following the delivery of such notice.

Excluded Taxes” means any of the following Taxes imposed on or with respect to an Affected Person or required to be withheld or deducted from a payment to an Affected Person: (a) overall net income (however denominated), franchise taxes and branch profits taxes, in each case, (i) imposed on the Person receiving such payment by such Borrower hereunder by the jurisdiction under whose laws such Person is organized, the jurisdiction of such Person’s principal place of business or the jurisdiction in which such Person funds or maintains the Loan, or any political subdivision thereof, or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in such Loan or Commitment (other than pursuant to a Lender replacement under Section 1.24(b)) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 1.10, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender acquired the applicable interest in such Loan or Commitment or to such Lender immediately before it changed its lending office, (c) any Tax to the extent such Tax is attributable to any Lender’s failure to comply with Section 1.10(c) and (d) any U.S. Federal withholding Taxes imposed under FATCA.

Exiting Lender” has the meaning set forth in Section 1.23 of this Agreement.

Facility Limit” means $200,000,000215,000,000, as such amount may be reduced pursuant to Section 1.1(c) of this Agreement or otherwise in connection with any Exiting Lender.  References to the unused portion of the Facility Limit shall mean, at any time, the Facility Limit minus the sum of the then outstanding Aggregate Capital plus the Aggregate LC Participation Amount.

Facility Termination Date” means, with respect to any Lender, the earliest to occur of: (a) May 4June 30, 20232024, (b) the date determined pursuant to Section 2.2 of this Agreement, (c) the date the Facility Limit reduces to zero pursuant to Section 1.1(c) of this Agreement, (d) the date which is thirty (30) days after the date on which the Administrator and each Group Agent has received written notice from any Borrower of its election to terminate this facility pursuant to Section 1.1(c) and (e) the Scheduled Termination Date.

FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any

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agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code.

Federal Funds Rate” means, for any day, the per annum rate set forth in the weekly statistical release designated as H.15(519), or any successor publication, published by the Federal Reserve Board (including any such successor, “H.15(519)”) for such day opposite the caption “Federal Funds (Effective)”.  If on any relevant day such rate is not yet published in H.15(519), the rate for such day will be the rate set forth in the daily statistical release designated as the Composite 3:30 p.m.  Quotations for U.S. Government Securities, or any successor publication, published by the Federal Reserve Bank of New York (including any such successor, the “Composite 3:30 p.m.  Quotations”) for such day under the caption “Federal Funds Effective Rate”.  If on any relevant day the appropriate rate is not yet published in either H.15(519) or the Composite 3:30 p.m.  Quotations, the rate for such day will be the arithmetic mean as determined by the Administrator of the rates for the last transaction in overnight Federal funds arranged before 9:00 a.m.  (New York City time) on that day by each of three leading brokers of Federal funds transactions in New York City selected by the Administrator.

Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or any entity succeeding to any of its principal functions.

Fee Letter” has the meaning set forth in Section 1.5 of this Agreement.

Fees” means the fees payable by each Borrower to each member of each Group pursuant to the applicable Group Fee Letter.

Final Maturity Date” means the date that (i) is one hundred and eighty (180) days following the Scheduled Termination Date or (ii) such earlier date on which the Loans become due and payable pursuant to Exhibit V.

Final Payout Date” means the date on or after the Facility Termination Date on which (a) the Facility Limit and all Commitments have been reduced to zero ($0), (b) the Aggregate Capital has been reduced to zero ($0), (c) all Interest has been paid in full, (d) all accrued Fees have been paid in full, (v) the Aggregate Adjusted LC Participation Amount has been reduced to zero ($0) and no Letters of Credit issued hereunder remain outstanding and undrawn (unless backstopped or cash-collateralized in a manner agreed to in writing by the LC Bank and the Majority Group Agents in their sole and absolute discretion), (e) all other amounts owing by any Borrower or any Servicer to the Administrator, the Group Agents, the Lenders, the Indemnified Parties and the other Affected Persons hereunder and under the other Transaction Documents have been paid in full and (f) all other amounts owing by U.S. Borrower or U.S. Servicer to the Receivables Buyer under the Monetization Documents have been paid in full.

FOB Destination Accrual” means at any time the amount, determined as of the most recent calendar quarter ended, of reserves, accruals or liabilities set forth on the books and records of each Originator related to FOB Receivables.

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FOB Receivables” means a Receivable for which the goods giving rise to such Receivable have been shipped to, but have not yet been received by, the related Obligor, and for which the title to or risk of loss has not yet passed to such Obligor.

Foreign Currency Shortfall Amount” means, at any time, the sum of (a) an amount equal to the positive excess, if any, of (i) the U.S. Dollar Equivalent amount of the sum of the aggregate amount of Canadian Dollar Capital plus the Canadian Dollar LC Participation Amount, over (ii) the Canadian Dollar Support Amount, plus (b) an amount equal to the positive excess, if any, of (i) the U.S. Dollar Capital plus the U.S. Dollar LC Participation Amount, over (ii) the U.S. Dollar Support Amount.

Foreign Lender” means (a) with respect to the U.S. Borrower, a Lender that is not a U.S. Person and (b) with respect to the Canadian Borrower, a Lender that is resident or organized under the laws of a jurisdiction other than that in which the Canadian Borrower is resident for Tax purposes.

Funded Loan” means (a) a Loan that is made pursuant to Section 1.2(b) and (b) a Participation Advance made by an LC Participant pursuant to Section 1.14(b).

GAAP” means, (a) in the case of the U.S. Borrower or any U.S. Servicer or U.S. Originator, 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 Closing Date and (b) in the case of the Canadian Borrower or any Canadian Servicer or Canadian Originator, the generally accepted accounting principles and practices in Canada, consistently applied.  Notwithstanding the foregoing, the U.S. Borrower, the U.S. Servicer and the U.S. Originator, or the Canadian Borrower, the Canadian Servicer and Canadian Originator, shall be entitled to adopt and apply, at their sole election, changes to their respective definition of “GAAP” after the Closing Date.

General Electric Companies” means, collectively, General Electric Company and its subsidiaries.

General Electric Company” means General Electric Company, a New York Corporation.

Governmental Acts” shall have the meaning set forth in Section 1.19 of this Agreement.

Governmental Authority” means any nation or government, any state, province, territory 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.

Governmental Entity” means any nation or government, any state, province or territory or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any agency, authority, instrumentality, body or entity exercising executive, legislative,

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judicial, taxing, regulatory or administrative functions of or pertaining to government, including any court and any supra-national bodies such as the European Union or the European Central Bank.

Group” means, (i) for any Conduit Lender, such Conduit Lender, together with such Conduit Lender’s Related Committed Lenders, related Group Agent and Related LC Participants, (ii) for Regions, Regions, as a Group Agent, a Related Committed Lender and an LC Participant and (iii) for PNC, PNC, as a Group Agent, a Related Committed Lender and an LC Participant and PNC Bank Canada Branch, as a Lender.

Group A Obligor” means any Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) with a short-term rating of at least: (a) “A-1” by Standard & Poor’s, or if such Obligor does not have a short-term rating from Standard & Poor’s, a rating of “A+” or better by Standard & Poor’s on such Obligor’s, its parent’s, or its majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt securities, and (b) “P-1” by Moody’s, or if such Obligor does not have a short-term rating from Moody’s, “Al” or better by Moody’s on such Obligor’s, its parent’s or its majority owner’s (as applicable) long-term senior unsecured and uncredit-enhanced debt securities; provided that if an Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) is rated by only one of such rating agencies, then such Obligor will be a “Group A Obligor” if it (or its parent or majority owner, as applicable) satisfies either clause (a) or (b) above.  Notwithstanding the foregoing, any Obligor that is a Subsidiary of an Obligor that satisfies the definition of “Group A Obligor” shall be deemed to be a Group A Obligor and shall be aggregated with the Obligor that satisfies such definition for the purposes of determining the “Minimum Loss Reserve Percentage” and clause (i) of the definition of “Excess Concentration” for such Obligors, unless such deemed Obligor separately satisfies the definition of “Group A Obligor”, “Group B Obligor” or “Group C Obligor”, in which case such Obligor shall be separately treated as a Group A Obligor, a Group B Obligor or a Group C Obligor, as the case may be, and shall be aggregated and combined for such purposes with any of its Subsidiaries that are Obligors.

Group A Receivable” means a Receivable, the Obligor of which is not a Designated Obligor and (b) which is not a Group B Receivable.

Group Agent” means each Person acting as agent on behalf of a Group and designated as a Group Agent for such Group on the signature pages to this Agreement or any other Person who becomes a party to this Agreement as a Group Agent pursuant to an Assumption Agreement or a Transfer Supplement.

Group B Obligor” means an Obligor (or its parent or majority owner, as applicable, if such Obligor is not rated) that is not a Group A Oblig