Exhibit 4.9


FIFTH
AMENDMENT TO

LOAN AND SECURITY AGREEMENT


          This
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”), is
dated as of November 1, 2008, by and between WELLS FARGO FOOTHILL, LLC, a
Delaware limited liability company and assignee of Wells Fargo Foothill, Inc.,
a California corporation (“Lender”), and VELOCITY INVESTMENTS, L.L.C., a
New Jersey limited liability company (“Borrower”).


WITNESSETH:


          WHEREAS,
Borrower and Lender’s predecessor-in-interest entered into that certain Loan
and Security Agreement, dated as of January 27, 2005, as amended by that
certain First Amendment to Loan and Security Agreement, dated as of February
27, 2006, that certain Second Amendment to Loan and Security Agreement, dated
as of December 8, 2006, that certain Third Amendment to Loan and Security
Agreement, dated as of February 23, 2007, and that certain Fourth Amendment to
Loan and Security Agreement, dated as of February 29, 2008 (as amended,
restated, supplemented or otherwise modified through the date hereof, the “Loan
Agreement”); 


          WHEREAS,
Borrower has requested that the Lender modify the Loan Sub-Account Amortization
Schedule (as defined in the Loan Agreement), as more fully set forth herein;
and


          WHEREAS,
Lender is willing to modify the Loan Sub-Account Amortization Schedule (as
defined in the Loan Agreement), subject to the terms hereof;


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


          SECTION
1. Defined Terms. Unless otherwise defined herein, all capitalized terms
used herein have the meanings assigned to such terms in the Loan Agreement, as
amended hereby.  


          SECTION
2. Amendments. Upon the Fifth Amendment Effective Date (as hereinafter
defined), the Loan Agreement shall be amended as follows:  


          (a)      The
following definitions in Section 1.1 of the Loan Agreement are hereby
deleted in their entirety and replaced with the following:  



                    “‘Applicable
Margin’ means four percent (4.0%) per annum.  


	
 

	
 


	
   

	
          “‘Base
Rate’ means the greatest of (a)
the rate of interest announced, from time to time, within Wells Fargo at its
principal office in San Francisco as its “prime rate,” with the understanding
that the “prime rate” is one of Wells Fargo’s base rates (not necessarily the
lowest of such rates) and serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto and is
evidenced by the recording thereof after its announcement in such internal
publications as Wells Fargo may designate, (b) the Federal Funds Rate, as in
effect from time to time, plus one-half of one percent (0.50%), (c) the LIBOR
Rate, and (d) four percent (4%) per annum. Wells Fargo’s “prime rate” is a
reference rate and does not necessarily represent the lowest or best rate
charged to customers. Wells Fargo may make commercial loans or other loans at
rates of interest at, above or below Wells Fargo’s “prime rate.” Each change
in Wells Fargo’s prime rate shall be effective from and including the date
such change is publicly announced as being effective.  










	
 

	
 


	
   

	
          “‘Business
Day’ means any day that is not a Saturday, Sunday, or other day on which
banks are authorized or required to close in the state of California or the
state of New Jersey, except that, if a determination of a Business Day shall
relate to a LIBOR Rate Loan, the term “Business Day” also shall exclude any
day on which banks are closed for dealings in Dollar deposits in the London
interbank market.  


	
   

	
   


	
   

	
          “‘Loan
Sub-Account Amortization Schedule’ means, for each Loan Sub-Account, the
maximum principal amount of the Advance for the associated Portfolio Pool
that may be outstanding on the last day of each three-month period following
the month in which such Advance was made, determined as follows:  








	
 

	
 

	
 


	
Number of three-month periods 

following the month in which the 

Advance is made  

	
   

	
Allowable % of Initial 

Purchase Advance to be 

outstanding  


	


	
   

	



	
1  

	
   

	
95%  


	
2  

	
   

	
90%  


	
3  

	
   

	
85%  


	
4  

	
   

	
80%  


	
5  

	
   

	
75%  


	
6  

	
   

	
70%  


	
7  

	
   

	
60%  


	
8  

	
   

	
50%  


	
9  

	
   

	
40%  


	
10  

	
   

	
30%  


	
11  

	
   

	
20%  


	
12  

	
   

	
10%  


	
13  

	
   

	
5%  


	
14  

	
   

	
0% 





2  






          (b)      The
following definitions are hereby added to Section 1.1 of the Loan
Agreement to be placed in a manner that maintains alphabetical order:  


	
 

	
 


	
   

	
          “‘Base
LIBOR Rate’ means, for any Interest Period, the rate per annum,
determined by Lender in accordance with its customary procedures, and
utilizing such electronic or other quotation sources as it considers
appropriate (rounded upwards, if necessary, to the next 1/100%), to be the
rate at which Dollar deposits (for delivery on the first day of such Interest
Period) in the amount of $1,000,000 are offered to major banks in the London
interbank market on or about 11:00 a.m. (New York time) two (2) Business Days
prior to the commencement of such Interest Period, for a term of three (3)
months, which determination shall be conclusive in the absence of manifest
error.  


	
   

	
   


	
   

	
          “‘Federal
Funds Rate’ means, for any period, a fluctuating interest rate per annum
equal to, for each day during such period, the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next succeeding
Business Day by the Federal Reserve Bank of New York, or, if such rate is not
so published for any day which is a Business Day, the average of the quotations
for such day on such transactions received by Lender from three Federal Funds
brokers of recognized standing selected by Lender.  


	
   

	
   


	
   

	
          “‘Interest
Period’ means, with respect to each LIBOR Rate Loan, a period commencing
on the first day of a calendar month and ending on the last day of such
calendar month.  


	
   

	
   


	
   

	
          “‘LIBOR
Rate’ shall mean, for the then current Interest Period relating thereto,
the rate per annum equal to the quotient of (a) Base LIBOR Rate, divided
by (b) 100% minus the Reserve Percentage. The LIBOR Rate shall be
adjusted on and as of the effective day of any change in the Reserve
Percentage.  


	
   

	
   


	
   

	
          “‘LIBOR
Rate Loan’ shall mean an Advance bearing interest at the LIBOR Rate plus the Applicable Margin.  


	
   

	
   


	
   

	
          “‘Reserve
Percentage’ means, on any day, the maximum percentage prescribed by the
Board of Governors of the Federal Reserve System (or any successor
Governmental Authority) for determining the reserve requirements (including
any basic, supplemental, marginal, or emergency reserves) that are in effect
on such date with respect to eurocurrency funding (currently referred to as “eurocurrency
liabilities”) of Lender, but so long as Lender is not required or directed
under applicable regulations to maintain such reserves, the Reserve
Percentage shall be zero.”  





3  






          (c)      Section
2.5(a) of the Loan Agreement is hereby deleted in its entirety and replaced
with the following:  


	
 

	
 


	
 

	
          “(a)      Interest
Rates. Except as provided in clause (b) below and Section 2.11(a) hereof, all Obligations (except for Bank Product Obligations) that have been
charged to the Loan Account pursuant to the terms hereof shall bear interest
on the Daily Balance thereof at a per annum rate equal to the LIBOR Rate plus
the Applicable Margin; provided, that following notice to Borrower in
accordance with Section 2.11(b) hereof, all Obligations that have been
charged to the Loan Account pursuant to the terms hereof shall bear interest
on the Daily Balance thereof at a per annum rate equal to the Base Rate plus
the Applicable Margin. The foregoing notwithstanding, at no time shall any
portion of the Obligations (other than Bank Product Obligations) bear
interest on the Daily Balance thereof at a per annum rate less than 5.5%. To
the extent that interest accrued hereunder at the rate set forth herein would
be less than the foregoing minimum daily rate, the interest rate chargeable
hereunder for such day automatically shall be deemed increased to such
minimum rate.”  





          (d)      The
following new Section 2.11 is hereby added to the Loan Agreement:  



                    “Section
2.11 LIBOR Rate Provisions.  


	
 

	
 

	
 

	
 


	
   

	
          (a)      Interest and
Interest Payment Dates.
Except as otherwise provided in Section 2.11(b) hereof, interest on
the Advances shall be charged at a rate of interest equal to the LIBOR Rate
plus the Applicable Margin; provided, that at any time that an Event
of Default has occurred and is continuing, Lender shall have the right to
convert the interest rate on all outstanding LIBOR Rate Loans to the Base
Rate plus the Applicable Margin.  


	
   

	
   

	
   

	
   


	
   

	
          (b)      Special
Provisions Applicable to LIBOR Rate.  


	
   

	
   

	
   

	
   


	
   

	
   

	
          (i)      The
LIBOR Rate may be adjusted by Lender on a prospective basis to take into account
any additional or increased costs to Lender of maintaining or obtaining any
eurodollar deposits or increased costs, in each case, due to changes in
Applicable Law occurring subsequent to the commencement of the then
applicable Interest Period, including changes in tax laws (except changes of
general applicability in business income tax laws) and changes in the reserve
requirements imposed by the Board of Governors of the Federal Reserve System
(or any successor), excluding the Reserve Percentage, which additional or
increased costs would increase the cost of funding loans bearing interest at
the LIBOR Rate. In any such event, Lender shall give Borrower notice of such
a determination and adjustment.  





4  






	
 

	
 

	
 

	
 


	
   

	
   

	
          (ii)      In
the event that any change in market conditions or any law, regulation,
treaty, or directive, or any change therein or in the interpretation of
application thereof, shall at any time after the date hereof, in the
reasonable opinion of Lender, make it unlawful or impractical for Lender to
fund or maintain LIBOR Rate Loans or to continue such funding or maintaining,
or to determine or charge interest rates based on the LIBOR Rate, (i) Lender
shall give notice of such changed circumstances to Borrower, (ii) in the case
of any LIBOR Rate Loans that are outstanding, the date specified in Lender’s
notice shall be deemed to be the last day of the Interest Period of such
LIBOR Rate Loans, and interest upon the LIBOR Rate Loans thereafter shall
accrue interest at a rate equal to the Base Rate plus the Applicable Margin,
and (iii) interest shall continue to accrue at such rate with respect to
Obligations until Lender determines that it would no longer be unlawful or
impractical to charge interest rates based on the LIBOR Rate, whereupon, following
notice from Lender to Borrower, all Obligations shall bear interest at the
LIBOR Rate plus the Applicable Margin.  


	
   

	
   

	
   

	
   


	
   

	
          (c)     No
Requirement of Matched Funding. Anything to the contrary contained herein
notwithstanding, Lender is not required actually to acquire eurodollar
deposits to fund or otherwise match fund any Obligation as to which interest
accrues based on the LIBOR Rate.”  





          SECTION
3. Representations, Warranties and Covenants of the Borrower. The
Borrower represents and warrants to Lender and agrees that:  


          (a)      the
representations and warranties contained in the Loan Agreement (as amended
hereby) and the other outstanding Loan Documents are true and correct in all
material respects at and as of the date hereof as though made on and as of the
date hereof, except (i) to the extent specifically made with regard to a
particular date and (ii) for such changes as are a result of any act or
omission specifically permitted under the Loan Agreement (or under any Loan
Document), or as otherwise specifically permitted by the Lender;  


          (b)      on
the Fifth Amendment Effective Date, after giving effect to this Amendment, no
Default or Event of Default will have occurred and be continuing;  


          (c)     the
execution, delivery and performance of this Amendment have been duly authorized
by all necessary action on the part of, and duly executed and delivered by the
Borrower, and this Amendment is a legal, valid and binding obligation of the
Borrower enforceable against Borrower in accordance with its terms, except as
the enforcement thereof may be subject to the effect of any applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws affecting
creditors’ rights generally and general principles of equity (regardless of
whether such enforcement is sought in a proceeding in equity or at law); and  


5  






          (d)     the
execution, delivery and performance of this Amendment do not conflict with or
result in a breach by Borrower of any term of any material contract, loan
agreement, indenture or other agreement or instrument to which Borrower is a
party or is subject.  


          SECTION
4. Conditions Precedent to Effectiveness of Amendment. This Amendment
shall become effective as of November 1, 2008 (the “Fifth Amendment
Effective Date”), upon satisfaction of each of the following conditions:  


          (a)     The
Borrower and Lender shall have executed and delivered to Lender this Amendment
and such other documents as Lender may reasonably request;  


          (b)      Parent
and TLOP shall reaffirm each Guaranty and Security and Pledge Agreement to
which it is a party; and  


          (c)     All
legal matters incident to the transactions contemplated hereby shall be
reasonably satisfactory to counsel for the Lender.  


          SECTION
5. Execution in Counterparts. This Amendment may be executed in
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which taken together shall constitute but one and the
same instrument.  


          SECTION
6. Costs and Expenses. The Borrower hereby affirms its obligation under
the Loan Agreement to reimburse Lender for all reasonable costs, internal
charges and out-of-pocket expenses paid or incurred by Lender in connection
with the preparation, negotiation, execution and delivery of this Amendment,
including but not limited to the attorneys’ fees and time charges of attorneys
for Lender with respect thereto.  


          SECTION
7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND
CONSTRUCTED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
CALIFORNIA, WITHOUT REGARD TO THE INTERNAL CONFLICTS OF LAWS PROVISIONS
THEREOF.  


          SECTION
8. Effect of Amendment; Reaffirmation of Loan Documents. The parties
hereto agree and acknowledge that (i) nothing contained in this Amendment in
any manner or respect limits or terminates any of the provisions of the Loan
Agreement or the other outstanding Loan Documents other than as expressly set
forth herein and (ii) the Loan Agreement (as amended hereby) and each of the
other outstanding Loan Documents remain and continue in full force and effect
and are hereby ratified and reaffirmed in all respects. Upon the effectiveness
of this Amendment, each reference in the Loan Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of similar import shall mean and be a reference to
the Loan Agreement as amended hereby.  


          SECTION
9. Headings. Section headings in this Amendment are included herein for
convenience of any reference only and shall not constitute a part of this
Amendment for any other purposes.  


6  






          SECTION
10. Release. BORROWER HEREBY
ACKNOWLEDGES THAT AS OF THE DATE HEREOF IT HAS NO DEFENSE, COUNTERCLAIM,
OFFSET, CROSS-COMPLAINT, CLAIM OR DEMAND OF ANY KIND OR NATURE WHATSOEVER THAT
CAN BE ASSERTED TO REDUCE OR ELIMINATE ALL OR ANY PART OF ITS LIABILITY TO
REPAY THE OBLIGATIONS OR TO SEEK AFFIRMATIVE RELIEF OR DAMAGES OF ANY KIND OR
NATURE FROM LENDER, ITS AFFILIATES, PARTICIPANTS OR ANY OF THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES OR ATTORNEYS. BORROWER HEREBY
VOLUNTARILY AND KNOWINGLY RELEASES AND FOREVER DISCHARGES LENDER, ITS
AFFILIATES AND PARTICIPANTS, AND THEIR RESPECTIVE PREDECESSORS, OFFICERS,
DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS, FROM ALL POSSIBLE CLAIMS,
DEMANDS, ACTIONS, CAUSES OF ACTION, DAMAGES, COSTS, EXPENSES, AND LIABILITIES
WHATSOEVER, KNOWN OR UNKNOWN, ANTICIPATED OR UNANTICIPATED, SUSPECTED OR
UNSUSPECTED, FIXED, CONTINGENT, OR CONDITIONAL, AT LAW OR IN EQUITY,
ORIGINATING IN WHOLE OR IN PART ON OR BEFORE THE DATE THIS AMENDMENT IS
EXECUTED, WHICH BORROWER MAY NOW OR HEREAFTER HAVE AGAINST LENDER AND ITS
PREDECESSORS, OFFICERS, AGENTS, DIRECTORS, EMPLOYEES, SUCCESSORS AND ASSIGNS,
IF ANY, AND IRRESPECTIVE OF WHETHER ANY SUCH CLAIMS ARISE OUT OF CONTRACT,
TORT, VIOLATION OF LAW OR REGULATIONS, OR OTHERWISE, AND ARISING FROM THE
LIABILITIES, THE EXERCISE OF ANY RIGHTS AND REMEDIES UNDER THE LOAN AGREEMENT
OR OTHER LOAN DOCUMENTS, AND NEGOTIATION FOR AND EXECUTION OF THIS AMENDMENT.
BORROWER HEREBY COVENANTS AND AGREES NEVER TO INSTITUTE ANY ACTION OR SUIT AT
LAW OR IN EQUITY, NOR INSTITUTE, PROSECUTE, OR IN ANY WAY AID IN THE
INSTITUTION OR PROSECUTION OF ANY CLAIM, ACTION OR CAUSE OF ACTION, RIGHTS TO
RECOVER DEBTS OR DEMANDS OF ANY NATURE AGAINST LENDER, ITS AFFILIATES AND
PARTICIPANTS, OR THEIR RESPECTIVE SUCCESSORS, ATTORNEYS, OFFICERS, AGENTS,
DIRECTORS, EMPLOYEES, AND PERSONAL AND LEGAL REPRESENTATIVES ARISING ON OR
BEFORE THE DATE HEREOF OUT OF OR RELATED TO LENDER’S ACTIONS, OMISSIONS,
STATEMENTS, REQUESTS OR DEMANDS IN ADMINISTERING, ENFORCING, MONITORING,
COLLECTING OR ATTEMPTING TO COLLECT THE OBLIGATIONS OF BORROWER TO LENDER,
WHICH OBLIGATIONS WERE EVIDENCED BY THE LOAN AGREEMENT AND OTHER LOAN DOCUMENTS.  


7  






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


	
 

	
 

	
 


	
   

	
VELOCITY INVESTMENTS, L.L.C., 

a New Jersey limited liability company  


	
   

	
   

	
   


	
   

	
By:  

	
/s/ W
Peter Ragan Jr.  


	
   

	
   

	



	
   

	
Name:  

	
W
Peter Ragan Jr.  


	
   

	
Title:  

	
   


	
   

	
   

	



	
   

	
   

	
   


	
   

	
WELLS FARGO FOOTHILL, LLC, a
Delaware 

limited liability company, as Lender  


	
   

	
   

	
   


	
   

	
By:  

	
/s/
Aharon Tarnavsky  


	
   

	
   

	



	
   

	
Name:  

	
Aharon
Tarnavsky  


	
   

	
Title:  

	
Vice
President  










Reaffirmation
of Guaranties and Pledge Agreement  


          Each
of Velocity Asset Management, Inc., a Delaware corporation (“Parent”),
and TLOP Acquisition Company, LLC, a New Jersey limited liability company (“TLOP”
and, together with Parent, the “Guarantors”) hereby (i) consents and
agrees to the terms and provisions of the foregoing Amendment and each of the
transactions contemplated thereby, and confirms and agrees that all references
in the Loan Documents to the “Loan Agreement” shall mean the Loan Agreement as
amended by the foregoing Amendment, (ii) agrees that the General
Continuing Guaranty, dated as of January 27, 2005, executed by such Guarantor
for the benefit of Lender (each, a “Guaranty”), remains in full force
and effect and continues to be the legal, valid and binding obligation of such
Guarantor enforceable against such Guarantor in accordance with its terms, and
acknowledges the increase in the obligations guaranteed, (iii) agrees that
the Security and Pledge Agreement, dated as of January 27, 2005, executed by
such Guarantor for the benefit of Lender (each, a “Pledge Agreement”),
remains in full force and effect and continues to be the legal, valid and
binding obligation of such Guarantor enforceable against such Guarantor in
accordance with its terms and acknowledges the increase in the obligations
secured.  


          Furthermore,
each Guarantor hereby agrees and acknowledges that (a) the Guaranty
executed by such Guarantor is not subject to any claims, defenses or offsets,
(b) nothing contained in the Amendment shall adversely affect any right or
remedy of Lender under the Guaranty executed by such Guarantor or any agreement
executed by such Guarantor in connection therewith, (c) the execution and
delivery of the Amendment or any agreement entered into by Lender in connection
therewith shall in no way reduce, impair or discharge any obligations of such
Guarantor pursuant to the Guaranty executed by such Guarantor and shall not
constitute a waiver by Lender of any of Lender’s rights against such Guarantor
under the Guaranty executed by such Guarantor, (d) the Pledge Agreement
executed by such Guarantor is not subject to any claims, defenses or offsets,
(e) nothing contained in the Amendment shall adversely affect any right or
remedy of Lender under the Pledge Agreement executed by such Guarantor or any
agreement executed by such Guarantor in connection therewith, (f) the
execution and delivery of the Amendment or any agreement entered into by Lender
in connection therewith shall in no way reduce, impair or discharge any obligations
of such Guarantor pursuant to the Pledge Agreement executed by such Guarantor
and shall not constitute a waiver by Lender of any of Lender’s rights against
such Guarantor under the Pledge Agreement executed by such Guarantor, (g) the
consent of such Guarantor is not required to the effectiveness of the Amendment
and (h) no consent by such Guarantor is required for the effectiveness of
any future amendment, modification, forbearance or other action with respect to
the Loan Agreement or any present or future Loan Document (other than the
Guaranty or Pledge Agreement executed by such Guarantor).  


	
 

	
 

	
 


	
   

	
VELOCITY
ASSET MANAGEMENT, INC. 

a Delaware corporation  


	
   

	
   

	
   


	
   

	
By:  

	
/s/
James J. Mastriani  


	
   

	
   

	



	
   

	
Name:  

	
James
J. Mastriani  


	
   

	
Title:  

	
CFO  










	
 

	
 

	
 

	
 


	
   

	
TLOP
ACQUISITION COMPANY, L.L.C., 

a New Jersey limited liability company  


	
   

	
   

	
   


	
   

	
By:  

	
Velocity
Asset Management, Inc. its sole member  


	
   

	
   

	
   


	
   

	
   

	
By:  

	
/s/
Peter Ragan Sr.  


	
   

	
   

	
   

	



	
   

	
   

	
Name:  

	
Peter
Ragan Sr.  


	
   

	
   

	
Title:  

	
Vice
President  




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