JOINDER AND FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
Exhibit 99.2
JOINDER AND FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS JOINDER AND FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT, dated as of December 23,
2010 (this “Amendment”) is entered into by CINCINNATI XXXX DATA CENTERS INC., a corporation
organized under the laws of Delaware (the “New Originator”), with its principal place of
business located at 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx, 00000, the Originators listed on the
signature pages hereto, CINCINNATI XXXX FUNDING LLC, a Delaware limited liability company (the
“Company”) and CINCINNATI XXXX INC. (“CB”), an Ohio corporation, as sole member of
the Company and as Servicer
BACKGROUND:
A. The Originators, the Company and CB have entered into that certain Purchase and Sale
Agreement, dated as of March 23, 2007 (as amended, restated, supplemented or otherwise modified
through the date hereof, and as it may be further amended, restated, supplemented or otherwise
modified from time to time, the “Purchase and Sale Agreement” or the “Agreement”).
B. The New Originator desires to become an Originator pursuant to Section 4.3 of the
Purchase and Sale Agreement.
C. The parties hereto desire to join the New Originator to the Purchase and Sale Agreement and
to otherwise amend the Purchase and Sale Agreement as set forth herein.
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
SECTION 1. Definitions. Capitalized terms used in this Amendment and not otherwise
defined herein shall have the meanings assigned thereto in the Purchase and Sale Agreement or in
the Receivables Purchase Agreement (as defined in the Purchase and Sale Agreement).
SECTION 2 Joinder. This Amendment constitutes a Joinder Agreement as defined in the
Purchase and Sale Agreement, and in furtherance thereof, the parties hereto hereby agrees as
follows:
2.1 Transaction Documents. The New Originator hereby agrees that it shall be bound by
all of the terms, conditions and provisions of, and shall be deemed to be a party to (as if it were
an original signatory to), the Purchase and Sale Agreement and each of the other relevant
Transaction Documents. From and after the later of the date hereof and the date that the New
Originator has complied with all of the requirements of Section 4.3 of the Purchase and
Sale Agreement, the New Originator shall be an Originator for all purposes of the Purchase and Sale
Agreement and all other Transaction Documents and shall have all the rights and obligations of an
Originator thereunder. The New Originator hereby acknowledges that it has received copies of the
Purchase and Sale Agreement and the other Transaction Documents.
2.2 Representations and Warranties. The New Originator hereby makes all of the
representations and warranties of an Originator set forth in the Purchase and Sale Agreement (as
amended hereby and to the extent applicable) as of the date hereof (unless such
representations or warranties relate to an earlier date, in which case as of such earlier date), as
if such representations and warranties were fully set forth herein. The New Originator hereby
represents and warrants that its location (as defined in the applicable UCC) is Delaware, and the
office where the New Originator keeps all of its Records and Related Security is as set forth on
Schedule III to this Amendment.
2.3 Notice. Each of the parties hereto, and the Administrator and the Purchaser Agent
by their signatures hereto, acknowledges and agrees that the thirty day prior written notice
requirement with respect to the New Originator set forth in Section 4.3 of the Purchase and
Sale Agreement has been satisfied or waived.
2.4 Merger. Each of the parties hereto, and the Administrator and the Purchaser Agent
by their signatures hereto, acknowledges and agrees that the thirty day prior written notice
requirement with respect to any mergers involving Transferors disclosed to the Administrator in
connection with this Amendment and occurring on or prior to December 31, 2010 set forth in
Section 6.3(e) of the Purchase and Sale Agreement is hereby waived.
| SECTION 3. Amendments. The Agreement is hereby amended as follows: |
3.1 With respect to the New Originator, any reference in the Agreement to the “Cut-off Date”
shall be deemed to be a reference to “March 19, 2009”.
3.2 With respect to the New Originator, any reference to the “Closing Date” or the “date
hereof” shall be deemed to be a reference to “December 31, 2010”.
3.3 For purposes of Section 10.2 of the Purchase and Sale Agreement, the address for
notice for the New Originator shall be as follows:
| Address: | 000 Xxxx Xxxxxx Xxxxxx Xxxxxxxxxx, XX 00000 |
Attention: Xxxxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
3.5 Schedule I to the Purchase and Sale Agreement is hereby amended and restated in
its entirety as Schedule I attached hereto.
3.6 Schedule II to the Purchase and Sale Agreement is hereby amended and restated in
its entirety as Schedule II attached hereto.
3.7 Schedule III to the Purchase and Sale Agreement is hereby amended and restated
in its entirety as Schedule III attached hereto.
3.8 Schedule IV to the Purchase and Sale Agreement is hereby amended and restated in
its entirety as Schedule IV attached hereto.
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SECTION 4. Representations and Warranties. Each of the New Originator, the
Originators, the Company and CB hereby represents and warrants as follows:
4.1 Representations and Warranties. The representation and warranties made by it in
the Purchase and Sale Agreement, as amended by this Amendment, and in the other Transaction
Documents are true and correct as of the date hereof (unless stated to relate solely to an earlier
date, in which case such representations and warranties are true and correct as of such earlier
date).
4.2 Enforceability. The execution and delivery by such Person of this Amendment, and
the performance of each of its obligations under this Amendment and the Purchase and Sale
Agreement, as amended hereby, are within each of its organizational powers and have been duly
authorized by all necessary organizational action on its part. This Amendment and the Purchase and
Sale Agreement, as amended hereby, are such Person’s valid and legally binding obligations,
enforceable in accordance with the terms thereof.
4.3 No Default. Both before and immediately after giving effect to this Amendment and
the transactions contemplated hereby, no Purchase and Sale Termination Event or Unmatured Purchase
and Sale Termination Event exists or shall exists.
SECTION 5. Effect of Amendment. All provisions of the Purchase and Sale 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 Purchase and
Sale Agreement shall be deemed to be references to the Purchase and Sale 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 Purchase and Sale Agreement other than as set forth herein.
SECTION 6. Effectiveness. This Amendment shall become effective as of the date hereof
(the “Effective Date”) subject to the condition precedent that the Administrator shall have
received on or before the Effective Date each of the following, each in form and substance
satisfactory to the Administrator: (a) evidence that each of the conditions to effectiveness set
forth in that certain Seventh Amendment to the Receivables Purchase Agreement, dated as of even
date herewith, shall have been satisfied, (b) counterparts of this Amendment duly executed by each
of the other parties hereto, (c) each document, agreement, instrument or other item listed in
Section 4.1 of the Purchase and Sale Agreement, in each case with respect to the New
Originator and (d) such other documents, agreements, instruments, and opinions as the Administrator
may request.
SECTION 7. Miscellaneous. This Amendment shall be governed by, and construed in
accordance with, the internal laws of the State of New York. 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. The various
headings of this Amendment are included for convenience only and shall
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not affect the meaning or interpretation of this Amendment, the Agreement or any provision
hereof or thereof.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date and year first
above written.
| CINCINNATI XXXX DATA CENTERS INC. | ||||
| CINCINNATI XXXX FUNDING LLC | ||||
| CINCINNATI XXXX INC., as sole member of Cincinnati Xxxx Funding LLC | ||||
| CINCINNATI XXXX INC., as Servicer | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
| ORIGINATORS: | ||||
| CINCINNATI XXXX ANY DISTANCE INC., as an Originator | ||||
| CINCINNATI XXXX TELEPHONE COMPANY LLC, as an Originator | ||||
| CINCINNATI XXXX WIRELESS, LLC, as an Originator | ||||
| CINCINNATI XXXX EXTENDED TERRITORIES LLC, as an Originator | ||||
| CINCINNATI XXXX COMPLETE PROTECTION INC., as an Originator | ||||
| CINCINNATI XXXX TECHNOLOGY SOLUTIONS INC., as an Originator | ||||
| EVOLVE BUSINESS SOLUTIONS LLC | ||||
| CINCINNATI XXXX ANY DISTANCE OF VIRGINIA LLC | ||||
| By: | /s/ Xxxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxxx X. Xxxxxx | |||
| Title: | Vice President and Treasurer | |||
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Consented to:
| PNC BANK, NATIONAL ASSOCIATION, | ||||
| as Administrator | ||||
By:
|
/s/ Xxxxxxx X. Xxxxxx | |||
Name:
|
Xxxxxxx X. Xxxxxx | |||
Title:
|
Vice President | |||
| PNC BANK, NATIONAL ASSOCIATION, | ||||
| as Purchaser Agent | ||||
By:
|
/s/ Xxxxxxx X. Xxxxx | |||
Name:
|
Xxxxxxx X. Xxxxx | |||
Title:
|
Vice President | |||
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