FIFTH AMENDMENT TO
RECEIVABLES PURCHASE AGREEMENT
THIS FIFTH
AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this “
Amendment ”), dated as of July 1, 2009, is
entered into among CINCINNATI BELL FUNDING LLC (the “
Seller ”), CINCINNATI BELL INC. (the “
Servicer ”), the Purchasers and Purchaser Agents
parties hereto and PNC BANK, NATIONAL ASSOCIATION (“
PNC ”), as Administrator for each Purchaser Group (the
“ Administrator ”).
1. The
parties hereto are parties to the Receivables Purchase Agreement,
dated as of March 23, 2007 (as amended, amended and restated,
supplemented or otherwise modified through the date hereof, the
“ Agreement ”); and
2. The
parties hereto desire to amend the Agreement as hereinafter set
forth.
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. As used herein, “ New Originator
” means eVolve Business Solutions LLC, an Ohio limited
liability company, and its successors and permitted assigns and
“ PSA Amendment ” means that certain Joinder and
Second Amendment to the Purchase and Sale Agreement, dated as of
the date hereof, by and among the New Originator, the existing
Originators, the Seller and CB and consented to by the
Administrator and the Purchaser Agent.
SECTION 2.
Amendments to the Agreement .
2.1 The last
sentence of Section 4.3 of the Agreement is hereby
amended and restated in its entirety as follows:
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 Purchaser Group, any Indemnified Party or Affected Person or
any other Person hereunder, and the Administrator shall distribute
or cause to be distributed such funds in accordance with
Section 4.2(b) and Article I (in each case
as if such funds were held by the 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 the Seller (or the Servicer on its
behalf) within three (3) Business Days of the
Administrator’s receipt of a written request by the Seller
(or
the Servicer on
its behalf), together with a Non-Receivable Cash Deposit Report
which identifies the amount of such Non-Receivable Cash
Deposit.
2.2 Clause
(b) of the definition of “Eligible Receivable” set
forth in Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
(b) that is
denominated and payable 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 the
Servicer, the Seller, 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),
2.3 The definition
of “Legacy Originator” set forth in
Exhibit I to the Agreement is hereby amended and
restated in its entirety as follows:
“ Legacy
Originator ” means any of eVolve, CBAD, CBCP, CBET, CBT
and CBW.
2.4
Exhibit I to the Agreement is hereby amended by
inserting, in the appropriate alphabetical order, the following new
definitions:
“
eVolve ” means eVolve Business Solutions LLC, an Ohio
limited liability company, and its successors and permitted
assigns.
“
Non-Receivable Cash Deposit ” means a cash payment for
goods or services purchased at a retail location of an Originator,
the purchase of which does not give rise to a Receivable but the
cash payment of which is commingled with an On-Site Cash
Payment.
“
Non-Receivable Cash Deposit Report ” means a report,
in form and substance satisfactory to the Administrator and each
Purchaser Agent, which shall be delivered (a) upon request by the
Administrator and (b) in connection with each request made by
the Seller or the Servicer to the Administrator to transfer any
Non-Receivable Cash Deposits out of a Lock-Box Account of which the
Administrator has taken exclusive control.
“ On-Site
Cash Payment ” means a payment of a Receivable made in
cash by an Obligor at a retail location, payment center or
distributor of an Originator.
“ On-Site
Payment ” means a payment of a Receivable made in cash or
by check or credit card by an Obligor at a retail location, payment
center or distributor of an Originator.
“
Payment-on-Delivery Transaction ” means a payment of a
Receivable made by check or money order by an Obligor at a
warehouse location or distributor of an
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Originator upon
the delivery to such Obligor of the goods or services giving rise
to such Receivable.
2.5
Section 1(f) of Exhibit IV to the Agreement
is hereby amended and restated in its entirety as
follows:
(f) Payments on
Receivables, Accounts . The Seller will, and will cause each
Originator to, instruct all Persons who are Obligors to deliver
payments on the Pool Receivables (other than Specified Receivables)
to a Lock-Box Account, except in the case of any
Payment-on-Delivery Transactions and provided , that, the
Seller may permit Obligors to make On-Site Payments notwithstanding
such instructions. If any such payments or other Collections are
received by the Seller or an Originator, including without
limitation, any Collections received in connection with any
Payment-on-Delivery Transactions and On-Site Payments, it shall
hold such payments in trust for the benefit of the Administrator
and the Purchasers and promptly (but in any event within three
Business Days after receipt) remit such funds into a Lock-Box
Account (except in the case of Specified Receivables). The Seller
will not permit the funds other than Collections on Pool
Receivables and other Pool Assets to be deposited into any Lock-Box
Account. If such funds are nevertheless deposited into any Lock-Box
Account, the Seller will promptly identify such funds for
segregation. The Seller will not, and will not permit the Servicer,
any Originator or other Person to, commingle Collections or other
funds to which the Administrator, any Purchaser Agent or any
Purchaser is entitled with any other funds. The Seller shall only
add, and shall only permit an Originator to add, a Lock-Box Bank
(or the related lock-box or post office box), or Lock-Box Account
to those listed on Schedule II to this Agreement, if the
Administrator has received notice of such addition, a copy of any
new Lock-Box Agreement and an executed and acknowledged copy of a
Lock-Box Agreement in form and substance reasonably acceptable to
the Administrator from any such new Lock-Box Bank. The Seller shall
only terminate a Lock-Box Bank or close a Lock-Box Account (or the
related lock-box or post office box), upon 30 days’
advance notice to the Administrator. Notwithstanding the foregoing,
for administrative convenience, the Seller (or the Servicer on its
behalf) shall deposit Non-Receivable Cash Deposits to a Lock-Box
Account provided that the Seller (or the Servicer on its
behalf) shall promptly (but in any event within one Business Day
after such deposit) identify such Non-Receivable Cash Deposits and
transfer such Non-Receivable Cash Deposits to an account other than
a Lock-Box Account.
2.6
Section 2(f) of Exhibit IV to the Agreement
is hereby amended and restated in its entirety as
follows:
(f) Payments on
Receivables, Accounts . The Servicer will instruct all Persons
who are Obligors to deliver payments on the Pool Receivables (other
than Specified Receivables) to a Lock-Box Account, except in the
case of any Payment-on-Delivery Transactions and provided ,
that, the Servicer may permit Obligors to make On-Site Payments
notwithstanding such instructions. If any
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such payments
or other Collections are received by the Servicer, including
without limitation, any Collections received in connection with any
Payment-on-Delivery Transactions and On-Site Payments, it shall
hold such payments in trust for the benefit of the Administrator
and the Purchasers and promptly (but in any event within three
Business Days after receipt) remit such funds into a Lock-Box
Account (except in the case of Specified Receivables). The Servicer
will not permit the funds other than Collections on Pool
Receivables and other Pool Assets to be deposited into any Lock-Box
Account. If such funds are nevertheless deposited into any Lock-Box
Account, the Servicer will promptly identify such funds
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