Exhibit 10.2


 


EXECUTION COPY


	
   

  



 


U.S.
$50,000,000


 


SECOND AMENDED
AND RESTATED REVOLVING CREDIT AGREEMENT


 


by and among


 


*****,
 as the Originator


 


*****,
 as the Servicer


 


*****,


as the LLC
Borrower


 


*****,
 as the Trust Borrower


 


CLST ASSET
TRUST II,

as the Trust II Borrower


 


*****,
 as a Guarantor


 


*****,
 as a Guarantor


 


*****,
 as a Lender and as the Administrative Agent


 


U.S. BANK
NATIONAL ASSOCIATION,
 as the Collateral Custodian


 


And


 


LYON
FINANCIAL SERVICES, INC. 

(d/b/a U.S. BANK PORTFOLIO SERVICES),

as the Backup Servicer


 


Dated as of December 10,
2008


	
   

  



Note: Redacted
portions have been marked with *****. The redacted portions are subject to a
request for confidential treatment that has been filed with the Securities and
Exchange Commission.


 

















 


TABLE OF
CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
  DEFINITION

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 1.1.

  	
  Certain Defined Terms

  	
  2

  
	
   

  	
  Section 1.2.

  	
  Other Terms

  	
  30

  
	
   

  	
  Section 1.3.

  	
  Computation of Time Periods

  	
  30

  
	
   

  	
  Section 1.4.

  	
  Interpretation

  	
  30

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE VARIABLE FUNDING NOTES

  	
  31

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 2.1.

  	
  The Variable Funding Notes

  	
  31

  
	
   

  	
  Section 2.2.

  	
  Procedures for Loans by Lenders

  	
  32

  
	
   

  	
  Section 2.3.

  	
  Restriction on Repayments

  	
  33

  
	
   

  	
  Section 2.4.

  	
  Determination of Interest

  	
  34

  
	
   

  	
  Section 2.5.

  	
  Notations on Variable Funding Notes

  	
  34

  
	
   

  	
  Section 2.6.

  	
  Principal Repayments

  	
  35

  
	
   

  	
  Section 2.7.

  	
  Settlement Procedures During the Revolving Period

  	
  35

  
	
   

  	
  Section 2.8.

  	
  Settlement Procedures During the Amortization Period

  	
  36

  
	
   

  	
  Section 2.9.

  	
  Collections and Allocations

  	
  37

  
	
   

  	
  Section 2.10.

  	
  Payments, Computations, Etc

  	
  38

  
	
   

  	
  Section 2.11.

  	
  Fees

  	
  39

  
	
   

  	
  Section 2.12.

  	
  Increased Costs; Capital Adequacy; Illegality

  	
  39

  
	
   

  	
  Section 2.13.

  	
  Taxes

  	
  40

  
	
   

  	
  Section 2.14.

  	
  Assignment of the Sale Agreement, Purchase and Sale Agreements and
  Dealer Agreements

  	
  41

  
	
   

  	
  Section 2.15.

  	
  Repurchase of Receivables

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CONDITIONS TO CLOSING AND LOANS

  	
  42

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 3.1.

  	
  Conditions to Closing and the Initial Loan

  	
  42

  
	
   

  	
  Section 3.2.

  	
  Conditions Precedent to All Loans

  	
  43

  
	
   

  	
  Section 3.3.

  	
  Permitted Investments

  	
  45

  
	
   

  	
  Section 3.4.

  	
  ***** Consent

  	
  45

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  REPRESENTATIONS AND WARRANTIES

  	
  46

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 4.1.

  	
  Representations and Warranties of the Borrowers

  	
  46

  
	
   

  	
  Section 4.2.

  	
  Representations and Warranties of the Servicer

  	
  54

  
	
   

  	
  Section 4.3.

  	
  Representations and Warranties of the Originator

  	
  56

  
	
   

  	
  Section 4.4.

  	
  Representations and Warranties of the Backup Servicer

  	
  58

  
	
   

  	
  Section 4.5.

  	
  Representations and Warranties of the Collateral Custodian

  	
  59

  
	
   

  	
  Section 4.6.

  	
  Representations and Warranties of the Principal

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  GENERAL COVENANTS

  	
  60

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.1.

  	
  Affirmative Covenants of the Borrowers

  	
  60

  
	
   

  	
  Section 5.2.

  	
  Negative Covenants of the Borrowers

  	
  63

  
	
   

  	
  Section 5.3.

  	
  Affirmative Covenants of the Servicer

  	
  65

  
	
   

  	
  Section 5.4.

  	
  Negative Covenants of the Servicer

  	
  67

  
							



 


i

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 5.5.

  	
  Affirmative Covenants of the Originator

  	
  68

  
	
   

  	
  Section 5.6.

  	
  Negative Covenants of the Originator

  	
  70

  
	
   

  	
  Section 5.7.

  	
  Affirmative Covenants of the Backup Servicer

  	
  71

  
	
   

  	
  Section 5.8.

  	
  Negative Covenants of the Backup Servicer

  	
  71

  
	
   

  	
  Section 5.9.

  	
  Affirmative Covenants of the Collateral Custodian

  	
  72

  
	
   

  	
  Section 5.10.

  	
  Negative Covenants of the Collateral Custodian

  	
  72

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  ADMINISTRATION AND SERVICING OF CONTRACTS

  	
  72

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 6.1.

  	
  Designation of the Servicer

  	
  72

  
	
   

  	
  Section 6.2.

  	
  Duties of the Servicer

  	
  73

  
	
   

  	
  Section 6.3.

  	
  Authorization of the Servicer

  	
  75

  
	
   

  	
  Section 6.4.

  	
  Collection of Payments; Accounts

  	
  75

  
	
   

  	
  Section 6.5.

  	
  Realization Upon Defaulted Receivables

  	
  77

  
	
   

  	
  Section 6.6.

  	
  Servicing Compensation

  	
  78

  
	
   

  	
  Section 6.7.

  	
  Payment of Certain Expenses by the Servicer

  	
  78

  
	
   

  	
  Section 6.8.

  	
  Reports

  	
  78

  
	
   

  	
  Section 6.9.

  	
  Annual Statement as to Compliance

  	
  79

  
	
   

  	
  Section 6.10.

  	
  Reserved

  	
  79

  
	
   

  	
  Section 6.11.

  	
  The Servicer Not to Resign

  	
  79

  
	
   

  	
  Section 6.12.

  	
  Servicer Defaults

  	
  79

  
	
   

  	
  Section 6.13.

  	
  Appointment of Successor Servicer

  	
  81

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  THE BACKUP SERVICER

  	
  84

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 7.1.

  	
  Designation of the Backup Servicer

  	
  84

  
	
   

  	
  Section 7.2.

  	
  Duties of the Backup Servicer

  	
  84

  
	
   

  	
  Section 7.3.

  	
  Merger or Consolidation

  	
  85

  
	
   

  	
  Section 7.4.

  	
  Backup Servicing Compensation

  	
  86

  
	
   

  	
  Section 7.5.

  	
  Backup Servicer Removal

  	
  86

  
	
   

  	
  Section 7.6.

  	
  Limitation on Liability

  	
  86

  
	
   

  	
  Section 7.7.

  	
  Backup Servicer Resignation

  	
  87

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  THE COLLATERAL CUSTODIAN

  	
  88

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 8.1.

  	
  Designation of Collateral Custodian

  	
  88

  
	
   

  	
  Section 8.2.

  	
  Duties of Collateral Custodian

  	
  88

  
	
   

  	
  Section 8.3.

  	
  Merger or Consolidation

  	
  90

  
	
   

  	
  Section 8.4.

  	
  Collateral Custodian Compensation

  	
  90

  
	
   

  	
  Section 8.5.

  	
  Collateral Custodian Removal

  	
  90

  
	
   

  	
  Section 8.6.

  	
  Limitation on Liability

  	
  90

  
	
   

  	
  Section 8.7.

  	
  The Collateral Custodian Not to Resign

  	
  91

  
	
   

  	
  Section 8.8.

  	
  Release of Documents

  	
  92

  
	
   

  	
  Section 8.9.

  	
  Return of Required Receivable Files and Servicing Files

  	
  92

  
	
   

  	
  Section 8.10.

  	
  Access to Certain Documentation and Information Regarding the
  Collateral; Audits

  	
  93

  
						



 


ii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IX

  	
  SECURITY INTEREST

  	
  93

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Section 9.1.

  	
  Grant of Security Interest

  	
  93

  
	
   

  	
  Section 9.2.

  	
  Release of Lien on Collateral

  	
  94

  
	
   

  	
  Section 9.3.

  	
  Further Assurances

  	
  95

  
	
   

  	
  Section 9.4.

  	
  Remedies

  	
  95

  
	
   

  	
  Section 9.5.

  	
  Waiver of Certain Laws

  	
  95

  
	
   

  	
  Section 9.6.

  	
  Power of Attorney

  	
  95

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  EVENTS OF DEFAULT

  	
  96

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 10.1.

  	
  Events of Default

  	
  96

  
	
   

  	
  Section 10.2.

  	
  Remedies

  	
  98

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  INDEMNIFICATION

  	
  99

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 11.1.

  	
  Indemnities by the Borrowers

  	
  99

  
	
   

  	
  Section 11.2.

  	
  Indemnities by the Servicer

  	
  102

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  THE ADMINISTRATIVE AGENT

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  .

  	
  Section 12.1

  	
  The Administrative Agent

  	
  103

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  MISCELLANEOUS

  	
  105

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 13.1.

  	
  Amendments and Waivers

  	
  105

  
	
   

  	
  Section 13.2.

  	
  Notices, Etc

  	
  106

  
	
   

  	
  Section 13.3.

  	
  Ratable Payments

  	
  106

  
	
   

  	
  Section 13.4.

  	
  No Waiver; Remedies

  	
  106

  
	
   

  	
  Section 13.5.

  	
  Binding Effect; Benefit of Agreement

  	
  106

  
	
   

  	
  Section 13.6.

  	
  Term of this Agreement

  	
  106

  
	
   

  	
  Section 13.7.

  	
  Governing Law; Consent to Jurisdiction; Waiver of Objection to Venue

  	
  107

  
	
   

  	
  Section 13.8.

  	
  Waiver of Jury Trial

  	
  107

  
	
   

  	
  Section 13.9.

  	
  Costs, Expenses and Taxes

  	
  107

  
	
   

  	
  Section 13.10.

  	
  No Proceedings

  	
  108

  
	
   

  	
  Section 13.11.

  	
  Recourse Against Certain Parties

  	
  108

  
	
   

  	
  Section 13.12.

  	
  Protection of Right, Title and Interest in the Collateral; Further
  Action Evidencing Loans

  	
  109

  
	
   

  	
  Section 13.13.

  	
  Confidentiality

  	
  110

  
	
   

  	
  Section 13.14.

  	
  Execution in Counterparts; Severability; Integration

  	
  112

  
	
   

  	
  Section 13.15.

  	
  Waiver of Setoff

  	
  112

  
	
   

  	
  Section 13.16.

  	
  Assignments by the Lenders

  	
  112

  
	
   

  	
  Section 13.17.

  	
  Heading and Exhibits

  	
  112

  
	
   

  	
  Section 13.18.

  	
  Right of First Refusal

  	
  113

  
	
   

  	
  Section 13.19.

  	
  Concerning Joint and Several Liability of the Borrowers

  	
  113

  
	
   

  	
  Section 13.20.

  	
  Amendment and Restatement

  	
  115

  
								



 


iii

















 


TABLE OF
CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  GUARANTY

  	
  115

  
	
   

  	
   

  	
   

  
	
   

  	
  Section 14.1.

  	
  Guaranty of Trigger Events

  	
  115

  
	
   

  	
  Section 14.2.

  	
  Limited Guaranty of Payment

  	
  116

  
	
   

  	
  Section 14.3.

  	
  Guarantor Payments

  	
  117

  
	
   

  	
  Section 14.4.

  	
  Obligations Unconditional

  	
  117

  
	
   

  	
  Section 14.5.

  	
  Modifications

  	
  118

  
	
   

  	
  Section 14.6.

  	
  Waiver of Rights

  	
  118

  
	
   

  	
  Section 14.7.

  	
  Reinstatement

  	
  119

  
	
   

  	
  Section 14.8.

  	
  Remedies

  	
  119

  
	
   

  	
  Section 14.9.

  	
  Subrogation

  	
  119

  
							



 


iv
















 


EXHIBITS


 


	
  EXHIBIT A-1

  	
   

  	
  Form of Borrowing Notice

  
	
  EXHIBIT A-2

  	
   

  	
  Form of Notice of Reduction of Loans
  Outstanding

  
	
  EXHIBIT A-3

  	
   

  	
  Form of Borrowing Base Certificate

  
	
  EXHIBIT B-1

  	
   

  	
  Form of A-1 Variable Funding Note

  
	
  EXHIBIT B-2

  	
   

  	
  Form of A-2 Variable Funding Note

  
	
  EXHIBIT C

  	
   

  	
  Form of Servicing Report

  
	
  EXHIBIT D-1

  	
   

  	
  Form of Officer’s Certificate as to
  Solvency (LLC Borrower)

  
	
  EXHIBIT D-2

  	
   

  	
  Form of Officer’s Certificate as to
  Solvency (Trust Borrower)

  
	
  EXHIBIT D-3

  	
   

  	
  Form of Officer’s Certificate as to
  Solvency (Trust II Borrower)

  
	
  EXHIBIT D-4

  	
   

  	
  Form of Officer’s Certificate as to
  Solvency (Servicer)

  
	
  EXHIBIT D-5

  	
   

  	
  Form of Officer’s Certificate as to
  Solvency (Originator)

  
	
  EXHIBIT E-1

  	
   

  	
  Form of Officer’s Closing Certificate
  (LLC Borrower)

  
	
  EXHIBIT E-2

  	
   

  	
  Form of Officer’s Closing Certificate
  (Trust Borrower)

  
	
  EXHIBIT E-3

  	
   

  	
  Form of Officer’s Closing Certificate
  (Trust II Borrower)

  
	
  EXHIBIT E-4

  	
   

  	
  Form of Officer’s Closing Certificate
  (Servicer)

  
	
  EXHIBIT E-5

  	
   

  	
  Form of Officer’s Closing Certificate
  (Originator)

  
	
  EXHIBIT F-1

  	
   

  	
  Form of Power of Attorney (LLC
  Borrower)

  
	
  EXHIBIT F-2

  	
   

  	
  Form of Power of Attorney (Trust
  Borrower)

  
	
  EXHIBIT F-3

  	
   

  	
  Form of Power of Attorney (Trust II
  Borrower)

  
	
  EXHIBIT F-4

  	
   

  	
  Form of Power of Attorney (Servicer)

  
	
  EXHIBIT G

  	
   

  	
  Form of Release of Required Receivable
  File

  
	
  EXHIBIT H

  	
   

  	
  Form of Servicer’s Certificate

  
	
  EXHIBIT I

  	
   

  	
  Form of Joinder Supplement

  
	
  EXHIBIT J

  	
   

  	
  Form of Backup Servicer Monthly
  Certification

  
	
  EXHIBIT K

  	
   

  	
  Form of Collateral Receipt

  
	
   

  	
   

  	
   

  
	
  SCHEDULES

  
	
   

  	
   

  	
   

  
	
  SCHEDULE I

  	
   

  	
  Condition Precedent Documents

  
	
  SCHEDULE II

  	
   

  	
  Credit and Collection Policy

  
	
  SCHEDULE III

  	
   

  	
  Location of Required Receivable Files

  
	
  SCHEDULE IV

  	
   

  	
  Receivable List

  
	
  SCHEDULE V

  	
   

  	
  SIC Codes

  
	
  SCHEDULE VI

  	
   

  	
  Approved Lockbox Accounts

  
	
  SCHEDULE VII

  	
   

  	
  Approved Sellers and Purchase and Sale
  Agreements

  
	
  SCHEDULE VIII

  	
   

  	
  Approved Asset/Product Classes

  
	
  SCHEDULE IX

  	
   

  	
  Approved Sub-Servicers

  
	
  SCHEDULE X

  	
   

  	
  Concentration Account

  
	
   

  	
   

  	
   

  
	
  ANNEXES

  
	
   

  	
   

  	
   

  
	
  ANNEX A

  	
   

  	
  Addresses for Notices

  
	
  ANNEX B

  	
   

  	
  Lender Commitments and Percentages

  



 


v





















 


SECOND AMENDED AND RESTATED REVOLVING CREDIT
AGREEMENT


 


THIS SECOND AMENDED AND RESTATED REVOLVING CREDIT AGREEMENT (as amended, modified, waived,
supplemented, restated or replaced from time to time, this “Agreement”)
is made as of this December 10, 2008, by and among:


 


(1)           *****,  a Delaware limited partnership, as the originator (together
with its successors and assigns in such capacity, the “Originator”);


 


(2)           *****, a
Delaware limited liability company, as a borrower (together with its successors
and assigns in such capacity, the “LLC Borrower”);


 


(3)           *****, a
Delaware statutory trust, as a borrower (together with its successors and
assigns in such capacity, the “Trust Borrower”;


 


(4)           CLST ASSET TRUST II,
a Delaware statutory trust, as a borrower (together with its successors and
assigns in such capacity, the “Trust II Borrower”, and together with the
LLC Borrower and the Trust Borrower, the “Borrowers” and each a “Borrower”
in its individual capacity);


 


(5)           *****, a
Delaware limited partnership, as a guarantor (together with its successors and
assigns in such capacity, a “Guarantor”);


 


(6)           *****, a
natural person, as a guarantor (together with his successors and assigns in
such capacity, a “Guarantor”, and together with *****,
the “Guarantors”);


 


(7)           ***** (“*****”),
a Delaware corporation, as a lender (together with its successors and assigns
in such capacity, a “Lender”, and together with such other lenders from
time to time party hereto, the “Lenders”) and as the administrative
agent (together with its successors and assigns in such capacity, the “Administrative
Agent”);


 


(8)           *****,  a Nevada limited liability company, as the servicer
(together with its successors and assigns in such capacity, the “Servicer”);


 


(9)           LYON FINANCIAL SERVICES,
INC. (d/b/a U.S. Bank Portfolio Services), a Minnesota corporation,
as the backup servicer (together with its successors and assigns in such
capacity, the “Backup Servicer”); and


 


(10)         U.S. BANK NATIONAL
ASSOCIATION, a national banking association, not in its individual
capacity but as the collateral custodian (together with its successors and
assigns in such capacity, the “Collateral Custodian”);


 


RECITALS


 


WHEREAS, the Originator, the LLC Borrower, the
Trust Borrower, the Guarantors, the Lenders, the Administrative Agent, the
Servicer, the Backup Servicer and the Collateral Custodian entered into that
certain Amended and Restated Revolving Credit Agreement, dated as of August 15,
2008 (the “Amended Agreement”), which they now wish to amend and restate
in 


 





















 


its
entirety hereby to add the Trust II Borrower, as a Borrower, and to make
further additional clarifications and amendments to the Amended Agreement as
provided herein;


 


WHEREAS, the Originator, the LLC Borrower, the
Guarantors, the Lenders, the Administrative Agent, the Servicer, Spinnaker
Consumer Receivables Trust, the Backup Servicer and the Collateral Custodian
entered into that certain Revolving Credit Agreement, dated as of September 28,
2007 (the “Original Agreement”), which was amended and restated in its
entirety by the Amended Agreement;


 


WHEREAS, the LLC Borrower has acquired and
will from time to time acquire Receivables from the Originator, the Trust
Borrower will from time to time acquire Receivables sourced by the Sourcer (as
defined herein), and the Trust II Borrower will from time to time acquire
Receivables from the Trust Borrower and the LLC Borrower, each pursuant to
their separate Sale Agreements;


 


WHEREAS, the Borrowers have requested the
Lenders, and the Lenders have agreed, subject to the terms and conditions
contained in this Agreement, to extend financing to the Borrowers on the terms
and conditions set forth in this Agreement to be secured by the Collateral (as
defined below).


 


NOW, THEREFORE, based upon the foregoing
Recitals, the mutual premises and agreements contained herein, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:


 


ARTICLE I



DEFINITION


 


Section 1.1.                                          Certain
Defined Terms.


 


Certain
capitalized terms used throughout this Agreement are defined in this Section 1.1.  As used in this Agreement and its schedules,
exhibits and other attachments, unless the context requires a different
meaning, the following terms shall have the following meanings:


 


“1940 Act”:  The Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder.


 


“A-1
Variable Funding Note” or “A-1 VFN”: 
Defined in Section 2.1.


 


“A-2
Variable Funding Note” or “A-2 VFN”: 
Defined in Section 2.1.


 


“Account”:  The Collection Account and any sub-accounts
thereof deemed appropriate or necessary by the Administrative Agent for
convenience in administering such accounts.


 


“Accrual
Period”:  With respect to the Loans, (a) with
respect to the first Payment Date, the period from and including the Closing
Date to and including the last day of the calendar month preceding the first
Payment Date and (b) with respect to any subsequent Payment Date, 


 


2





















 


the preceding calendar month; provided that
on the date of any repayment of the Loans, the Accrual Period shall extend to
the date of repayment.


 


“Additional
Amount”:  Defined in Section 2.11(a).


 


“Administrative
Agent”:  Defined in the Preamble.


 


“Affiliate”:  With respect to a Person, means any other
Person that, directly or indirectly, controls, is controlled by or is under
common control with such Person.  For
purposes of this definition, “control,” when used with respect to any specified
Person means the possession, directly or indirectly, of the power to vote 25%
or more of the voting securities of such Person or to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by contract or otherwise; provided that
none of the Originator, Servicer, LLC Borrower, Trust Borrower or any Affiliate
thereof shall be considered an Affiliate of the Trust II Borrower.


 


“Aggregate
Outstanding Receivable Balance”:  On
any date of determination, the sum of the Outstanding Receivable Balances of
all Eligible Receivables on such date.


 


“Aggregate
Unpaids”:  At any time, an amount
equal to the sum of the unpaid Loans Outstanding, Interest and all other
amounts owed by the Borrowers to the Servicer, the Backup Servicer, the
Collateral Custodian and the Secured Parties hereunder or by the Borrowers
under any fee letter delivered in connection with the transactions contemplated
by this Agreement, in each case, whether due or accrued.


 


“Amortization
Period”:  The period beginning on the
day on which the Termination Date is declared or automatically occurs and
ending on the Collection Date.


 


“Applicable
Law”:  For any Person or property of
such Person, all then-existing (as of any date of determination) laws, rules,
regulations (including income tax regulations), statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of and interpretations
by any Governmental Authority which are applicable to such Person or property
(including, without limitation, predatory lending laws, usury laws, the Federal
Truth in Lending Act, and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System), and applicable judgments, decrees,
injunctions, writs, awards or orders of any court, arbitrator or other
administrative, judicial, or quasi-judicial tribunal or agency of competent
jurisdiction.


 


“Approved
Asset/Product Class”:  An asset or
product class identified on Schedule VIII hereto as such Schedule VIII may be
updated from time to time at the request of the initial Servicer with the prior
written approval of the Administrative Agent (which approval shall not be
unreasonably withheld and may be evidenced by an email confirmation).


 


“Approved
Fund”:  Any Person (other than a
natural person) that is (or will be) engaged in making, purchasing, holding or
otherwise investing in commercial loans and similar extensions of credit in the
ordinary course of its business, that is managed by: (a) a Lender or (b) an
Affiliate of a Lender.


 


3





















 


“Approved
Purchase and Sale Agreement”:  A
Purchase and Sale Agreement identified on Schedule VII hereto as such Schedule
VII may be updated from time to time at the request of the initial Servicer
with the prior written approval of the Administrative Agent (which approval
shall not be unreasonably withheld and may be evidenced by an email
confirmation).


 


“Approved
Seller”:  A Seller identified on
Schedule VII thereto as such Schedule VII may be updated from time to time at
the request of the initial Servicer with the prior written approval of the
Administrative Agent (which approval shall not be unreasonably withheld and may
be evidenced by an email confirmation).


 


“Available
Funds”:  With respect to any Payment
Date, all amounts on deposit in the Collection Account (including, without
limitation, any Collections and Guarantor Payments).


 


“Backup
Servicer”:  Defined in the Preamble.


 


“Backup
Servicer Fee Letter”:  The Backup
Servicer Fee Letter, dated as of the Closing Date, by and between the Servicer
and the Backup Servicer.


 


“Backup
Servicer Monthly Certification”: 
Defined in Section 7.2(b)(iii).


 


“Backup
Servicer Termination Notice”: 
Defined in Section 7.5.


 


“Backup
Servicing Fee”:  The fee set forth as
such in the Backup Servicer Fee Letter.


 


“Backup
Servicing Fee Rate”:  0.08% or such
other rate consented to in writing by the LLC Borrower, the Backup Servicer and
the Administrative Agent.


 


“Bailee”:  Defined in Section 8.2(b)(i).


 


“Bankruptcy
Code”:  The United States bankruptcy
code, as set forth in Title 11 of the United States Code, as amended from time
to time.


 


“Benefit
Plan”:  Any “employee benefit plan”
as defined in Section 3(3) of ERISA in respect of which the Borrower
or any ERISA Affiliate of the Borrower is, or at any time during the preceding
six years was, an “employer” as defined in Section 3(5) of ERISA.


 


“Borrower”:  Defined in the Preamble.


 


“Borrowers”:  Defined in the Preamble.


 


“Borrowing
Base”:  As of any Measurement Date,
an amount equal to the sum of (A) the Maximum Advance, plus (B) the
amount on deposit on such date in the Collection Account, less all accrued but
unpaid interest and fees owed to the Lenders plus all other Carrying Costs.


 


“Borrowing
Base Certificate”:  Each certificate,
in the form of Exhibit A, required to be delivered by the Borrowers
on each Measurement Date, as applicable.


 


“Borrowing
Base Deficiency”:  The amount (if
any) by which the Loans Outstanding exceed the Borrowing Base.


 


4





















 


“Borrowing
Notice”:  Each notice required to be
delivered by the Borrowers in respect of each requested Loan, substantially in
the form of Exhibit A-1.


 


“Business
Day”:  Any day (other than a Saturday
or a Sunday) on which banks are not required or authorized to be closed in New
York, New York or the State of Minnesota.


 


“Carrying
Costs”:  As of any Measurement Date,
for the most recently ended Collection Period, the sum of (i) Interest, (ii) the
Servicing Fee, (iii) the Sub-Servicer Fee, (iv) the Backup Servicing
Fee and (v) the Collateral Custodian Fee.


 


“Certificated
Security”:  The meaning specified in Section 8-102(a)(4) of
the UCC.


 


“Change of
Control”:  Any of the following:


 


(a)           the failure of *****,
to own, directly or indirectly, 100% of the equity interests in the LLC
Borrower free and clear of any Lien (other than Permitted Liens);


 


(b)           the failure of the LLC Borrower, to
own, directly or indirectly, 100% of the equity interests in the Trust Borrower
free and clear of any Lien (other than Permitted Liens);


 


(c)           the failure of the CLST Asset II,
LLC, to own, directly or indirectly, 100% of the equity interests in the Trust
II Borrower free and clear of any Lien (other than Permitted Liens); or


 


(d)           any change in the management of the
LLC Borrower, the initial Servicer or the Originator (including by resignation,
termination, disability or death) the result of which is that (i) ***** or (ii) each of *****,
***** and ***** is
no longer under the employ of ***** or fails
to provide active and material participation in the activities of ***** (including, but not limited to, general management,
underwriting and the credit approval process and credit monitoring activities),
for a period of three consecutive calendar months, and in such event, a
reputable, experienced individual, reasonably satisfactory to the
Administrative Agent, has not been appointed to fulfill the duties of the
departing executive within 60 days after the end of such three-month period.


 


“Change of
Tax Law”:  Any change in application
or public announcement of an official position under or any change in or
amendment to the laws (or any regulations or rulings promulgated thereunder) of
any jurisdiction, or any political subdivision or taxing authority of any of
the foregoing, affecting taxation, or any change in the official application,
enforcement or interpretation of such laws, regulations or rulings (including a
holding by a court of competent jurisdiction), or any other action taken by a taxing
authority or court of competent jurisdiction in the relevant jurisdiction.


 


“Class A
Default Ratio”:  As of any date of
determination, the percentage equivalent of a fraction, (i) the numerator
of which is equal to the product of (a) the Outstanding Receivable Balance
of all Class A Receivables that became Defaulted Receivables during the
prior Collection Period (less the aggregate amounts deposited into the
Collection Account during such Collection Period constituting proceeds from
recourse to Sellers with respect to Class A Receivables constituting
Defaulted Receivables and the Outstanding Receivable Balance of all 


 


5





















 


Receivables acquired by the Borrowers from Sellers in substitution for Class A
Receivables constituting Defaulted Receivables) and (b) 12, and (ii) the
denominator of which is the Outstanding Receivable Balance of all Class A
Receivables which were Eligible Receivables as of the first day of such
Collection Period.


 


“Class A
Delinquency Ratio”:  As of any date
of determination, the percentage equivalent of a fraction, (i) the
numerator of which is equal to the sum of the Outstanding Receivable Balance of
the Class A Receivables that became Delinquent Receivables during the
prior Collection Period, and (ii) the denominator of which is equal to the
Outstanding Receivable Balance of the Class A Receivables which are
Eligible Receivables at such time.


 


“Class A
Maximum Advance”:  On any Measurement
Date, an amount equal to the lesser of (A) if such Measurement Date is a
Funding Date, the product of  (i) 85%
and (ii) the aggregate Purchase Price of the Class A Receivables
purchased or acquired by the Borrowers on such Funding Date or (B) the
product of (i) 80% and (ii) the aggregate Outstanding Receivable
Balance of the pledged Class A Receivables constituting Eligible
Receivables as of such Measurement Date.


 


“Class A
Receivable”:  An Eligible Receivable
the Obligor of which has a Credit Score of greater than or equal to 650 at the
time of origination of such Receivable.


 


“Class B
Default Ratio”:  As of any date of
determination, the percentage equivalent of a fraction, (i) the numerator
of which is equal to the product of (a) the Outstanding Receivable Balance
of all Class B Receivables that became Defaulted Receivables during the
prior Collection Period (less the aggregate amounts deposited into the
Collection Account during such Collection Period constituting proceeds from
recourse to Sellers with respect to Class B Receivables constituting
Defaulted Receivables and the Outstanding Receivable Balance of all Receivables
acquired by the Borrowers from Sellers in substitution for Class B
Receivables constituting Defaulted Receivables) and (b) 12, and (ii) the
denominator of which is the Outstanding Receivable Balance of all Class B
Receivables which were Eligible Receivables as of the first day of such
Collection Period.


 


“Class B
Delinquency Ratio”:  As of any date
of determination, the percentage equivalent of a fraction, (i) the
numerator of which is equal to the sum of the Outstanding Receivable Balance of
the Class B Receivables that became Delinquent Receivables during the
prior Collection Period, and (ii) the denominator of which is equal to the
Outstanding Receivable Balance of the Class B Receivables which were
Eligible Receivables at such time.


 


“Class B
Maximum Advance”: On any Measurement Date, an amount equal to the lesser of
(A) if such Measurement Date is a Funding Date, the product of  (i) 75% and (ii) the aggregate
Purchase Price of the Class B Receivables purchased or acquired by the
Borrowers on such Funding Date or (B) the product of (i) 50% and (ii) the
aggregate Outstanding Receivable Balance of the pledged Class B
Receivables constituting Eligible Receivables as of such Measurement Date.


 


“Class B
Receivable”:  An Eligible Receivable
the Obligor of which has a Credit Score of less than 650 at the time of
origination of such Receivable.


 


6





















 


“Clearing
Agency”:  An organization registered as
a “clearing agency” pursuant to Section 17A of the Exchange Act.


 


“Clearing
Corporation”:  The meaning specified
in Section 8-102(a)(5) of the UCC.


 


“Closing
Date”:  September 28, 2007.


 


“Code”:  The Internal Revenue Code of 1986, as amended
from time to time.


 


“Collateral”:  All right, title, and interest (whether now
owned or hereafter acquired or arising, and wherever located) of the Borrowers
in all accounts, cash and currency, chattel paper, tangible chattel paper,
electronic chattel paper, copyrights, copyright licenses, equipment, fixtures,
contract rights, general intangibles, instruments, certificates of deposit,
certificated securities, uncertificated securities, financial assets,
securities entitlements, commercial tort claims, deposit accounts, inventory,
investment property, letter-of-credit rights, software, supporting obligations,
accessions, and other property of the Borrowers, including the following (in
each case excluding any Retained Interest and Excluded Amounts):


 


(i)            the Receivables (regardless of
whether any such Receivable has been identified on any Receivables List and
regardless of whether any Required Receivable File with respect thereto have
been delivered to the Collateral Custodian), and all monies due or to become
due in payment under such Receivables, including, but not limited to, all
Collections;


 


(ii)           all Related Security with respect to
the Receivables referred to in clause (i); and


 


(iii)          all income and Proceeds of the
foregoing;


 


it being understood that “Collateral” does not include
any Related Security to the extent that the grant of a security interest
therein would constitute a violation of any law, regulation, permit, order or
decree of any Governmental Authority or a violation of any restriction in favor
of a third party (such as software licenses), unless and until all required
consents shall have been obtained.


 


“Collateral
Custodian”:  Defined in the Preamble.


 


“Collateral
Custodian Fee”:  The fee set forth as
such in the Collateral Custodian Fee Letter.


 


“Collateral
Custodian Fee Letter”:  The
Collateral Custodian Fee Letter, dated as of the Closing Date, by and among the
LLC Borrower, the Servicer, the Administrative Agent and the Collateral
Custodian.


 


“Collateral
Custodian Termination Notice”: 
Defined in Section 8.5.


 


“Collateral
Receipt”:  Defined in Section 8.2(b).


 


“Collection
Account”:  Defined in Section 6.4(h).


 


7





















 


“Collection
Date”:  The date on or following the
Termination Date on which the Aggregate Unpaids have been reduced to zero and
paid in full.


 


“Collection
Period”:  With respect to the first
Payment Date, the period from and including the Closing Date to and including
the last day of the calendar month immediately preceding the calendar month in
which the first Payment Date occurs; and thereafter, the calendar month
immediately preceding the then current Payment Date.


 


“Collections”:  (a) All cash collections and other cash
proceeds of any Receivable, including, without limitation or duplication, any (i) Interest
Collections, (ii) Principal Collections, (iii) amendment fees, late
fees, prepayment fees or waiver fees payable in accordance with the Underlying
Instruments of such Receivable, (iv) Recoveries or (v) other amounts
received in respect thereof (but excluding any Excluded Amounts), (b) any
cash proceeds or other funds received by the Borrowers or the Servicer with
respect to any Related Security (including from any guarantors), (c) all
payments from a Seller pursuant to any of its indemnity and repurchase
obligations under the related Purchase and Sale Agreement or from any Dealer in
connection with its buyback or indemnity obligations under a Dealer Agreement, (d) interest
earnings on Permitted Investments or otherwise in any Account, and (e) all
payments received under the Guaranties.


 


“Commitment”:  With respect to each Lender, the commitment
of such Lender to make Loans in accordance herewith in an amount not to exceed
the dollar amount set forth opposite such Lender’s name on Annex B
hereto or the amount set forth as such Lender’s “Commitment” on Schedule I to
the Joinder Supplement relating to such Lender, as applicable, as such
Commitment may be adjusted in connection with any assignment under Section 13.16.


 


“Concentration
Account”:  That separate account
maintained by the Sourcer at a Concentration Account Bank, subject to the
Concentration Account Agreement, for the purpose of receiving Collections, with
respect to Receivables acquired by the Trust Borrower pursuant to the Sourcing
and Servicing Agreement (including those Receivables sold by the Trust Borrower
to the Trust II Borrower pursuant to the Purchase Agreement), from the
applicable Lockbox Accounts, the details of which are set forth on Schedule
X.  For the avoidance of doubt, all
Collections from Receivables acquired by the LLC Borrower pursuant to its Sale
Agreement (including those Receivables sold by the LLC Borrower to the Trust II
Borrower pursuant to the Purchase Agreement) shall be transferred directly from
the applicable Lockbox Accounts to the Collection Account.


 


“Concentration
Account Bank”:  The financial
institution listed as Concentration Account Bank on Schedule X.


 


“Concentration
Account Agreement”:  That certain
Intercreditor and Concentration Account Administration Agreement, dated as of
the Closing Date, among the Sourcer, the Collateral Custodian and such other
parties thereto, which pertains to the Concentration Account maintained by the
Sourcer.


 


“Continued
Errors”:  Defined in Section 6.13(g).


 


8





















 


“Contractual
Obligation”:  With respect to any
Person, any material provision of any securities issued by such Person or of
any material indenture, mortgage, deed of trust, contract, undertaking,
agreement, instrument or other document to which such Person is a party or by
which it or any of its property is bound or to which either is subject.


 


“Credit and
Collection Policy”:  With respect to
the initial Servicer, the written credit policies and procedures manual of ***** set forth on Schedule II, as such credit and
collection policy may be amended or supplemented from time to time in
accordance with Section 5.3(f), or, with respect to the Backup
Servicer or any Successor Servicer, the customary collection policies and procedures
of such successor Servicer; provided, that
if the Administrative Agent has approved the credit and collection policy of
the applicable Seller in connection with its approval of such Seller as an “Approved
Seller” hereunder or has approved the collection policy of any subservicer
hereunder, the “Credit and Collection Policy” shall be the credit and
collection policy of such Seller with respect to the Receivables originated by
such Seller or the collection policy of such subservicer with respect to the
Receivables subserviced by such subservicer.


 


“Credit
Score”: With respect to an Obligor, its applicable FICO Score or other
credit score provided by a major credit bureau.


 


“Dealer”:  A dealer, contractor, vendor or merchant that
conveyed goods or services to an Obligor and which originated or created a
Receivable on behalf of the Seller and which may have agreed to repurchase any
Defaulted Receivables or ineligible Receivables from the Seller pursuant to a
Dealer Agreement.


 


“Dealer
Agreement”:  The contractual
agreement between a Dealer and the Seller pursuant to which the applicable
Dealer originates or creates Receivables on behalf of the Seller.


 


“Default
Rate”:  A per annum
interest rate equal to the sum of the applicable LIBOR Rate and 6.50%.


 


“Defaulted
Receivable”:  A Receivable as to
which any of the following has occurred: 
(i) all or any portion of a contractual payment due under such
Receivable is 91 or more days past due, (ii) the payment terms
related to such Receivable have been restructured or modified (without the
consent of the Administrative Agent, in its sole discretion) in any way due to
credit reasons or for the purpose of preventing such Receivable from becoming a
Defaulted Receivable after its acquisition by a Borrower, (iii) a charge-off
has been taken with respect to such Receivable as a result of a bankruptcy
proceeding or otherwise, (iv) the related Obligor is subject to an
Insolvency Event (without giving effect to any cure period specified in the
definition thereof), (v) the related Obligor is not Solvent, as reasonably
determined by the Servicer in accordance with the Credit and Collection Policy,
the Servicing Standard or otherwise or (vi) the Servicer has determined
(or should have determined) in accordance with the Credit and Collection
Policy, the Servicing Standard or otherwise that such Receivable is not
collectible.


 


“Deficiency”:  Has the meaning set forth in Section 8.2(b).


 


“Delinquent
Receivable”: Means a Receivable with respect to which all or any portion of
a required payment thereunder is delinquent more than 30 days from the payment
due date, but in no event more than 90 days after the payment due date.


 


9




















 


“Dollars”:  Means, and the conventional “$”
signifies, the lawful currency of the United States.


 


“Effective
Date”: December 10, 2008.


 


“Eligible
Obligor”:  On any Measurement Date,
any Obligor that:


 


(a)           is
a natural person;


 


(b)           is not an employee, principal,
director or equity holder of the applicable Seller, any Borrower, the
Originator, the Servicer or the Sub-Servicer; and


 


(c)           as of the date on which such
Receivable becomes part of the Collateral, such Obligor has not experienced a
material adverse change in its condition, financial or otherwise, such as to
affect the collectibility of the Receivable or related collateral, as
determined by the Servicer.


 


“Eligible
Receivable”:  On any Measurement
Date, each Receivable that satisfies each of the following eligibility
requirements (unless otherwise approved by the Administrative Agent in its sole
discretion):


 


(a)           at the time of its initial inclusion
in the “Collateral” hereunder, such Receivable is not a Delinquent Receivable; provided that a Borrower may acquire a Delinquent Receivable
at the sole discretion of the Administrative Agent if such Receivable is
acquired at a discount acceptable to the Administrative Agent;


 


(b)           such Receivable, together with the
Underlying Instruments related thereto, (i) is in full force and effect
and constitutes the 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 Insolvency Laws and by principles of equity
(whether considered in a suit at law or in equity), (ii) is not subject to
any litigation, material dispute or offset and (iii) contains provisions
substantially to the effect that the Obligor’s payment obligations thereunder
are absolute and unconditional without any right of rescission, setoff,
counterclaim or defense for any reason (except as required by Applicable Law)
against the applicable originator or any assignee thereof;


 


(c)           such Receivable is denominated and
payable only in Dollars (and not in another currency or in kind) in the United
States and does not permit the currency or country in which such Receivable is
payable to be changed;


 


(d)           such Receivable is not a Defaulted
Receivable or a Receivable which would be written off in accordance with the
Credit and Collection Policy;


 


(e)           all products and services associated
with such Receivable have been sold, delivered, rendered and completed and no
further action or event needs to occur in order for such Receivable to be the
enforceable obligation of the related Obligor; and, if appropriate, such
delivery and completion is evidenced by completion certificates or delivery
confirmations from the related Obligor;


 


10

















 


(f)            the vendor of the products or the
service provider of the services associated with such Receivables has been paid
in full;


 


(g)           the applicable Borrower is the sole
owner of such Receivable and no participation interests have been granted to
any Person with respect to such Receivable;


 


(h)           such Receivable was originated in
compliance with all Applicable Laws and the related Underlying Instruments
comply with all Applicable Laws;


 


(i)            such Receivable is eligible under
its Underlying Instruments (giving effect to the provisions of Sections 9-406
and 9-408 of the UCC) to be acquired by the Originator as contemplated by the
applicable Purchase and Sale Agreement (if such Receivable is acquired by the
Originator prior to transfer to a Borrower) and to be acquired by the
applicable Borrower as contemplated by its Sale Agreement and to have a
security interest therein granted to the Administrative Agent, as agent for the
Secured Parties, and such Receivable does not contain any restrictions that
would prohibit the further assignment or transfer of such Receivable by the
applicable Borrower;


 


(j)            such Receivable does not contain a
confidentiality provision that restricts or purports to restrict the ability of
any Secured Party to exercise its rights under this Agreement, including,
without limitation, its rights to review the related Servicing File and
Underlying Instruments;


 


(k)           such Receivable provides for periodic
payments of interest and/or principal no less frequently than monthly and is
either (A) fully amortizing over its term or (B) a revolving charge
contract (excluding any Retained Interest for such Receivable);


 


(l)            all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority or any other Person required to be obtained, effected or given in
connection with the making, acquisition, transfer or performance of such
Receivable have, to the applicable Borrower’s and Originator’s knowledge been
duly obtained, effected or given and are in full force and effect;


 


(m)          such Receivable has not had any of its
terms, conditions or provisions amended, modified or waived in any manner
inconsistent with the Credit and Collection Policy and has not been
restructured at any time for credit reasons;


 


(n)           such Receivable has not been selected
for conveyance to the applicable Borrower in any manner adverse to the
applicable Borrower or the Secured Parties;


 


(o)           the related Obligor has been
instructed to make all payments into a Lockbox Account;


 


(p)           there are no facts, events or
occurrences existing which materially impair the validity, enforceability or
collectability of such Receivable or reduce the amount payable or delay payment
thereunder;


 


11

















 


(q)           (i) the applicable Borrower has
good and marketable title to, and is the sole owner of, such Receivable, (ii) the
applicable Borrower has granted to the Administrative Agent a valid first
priority perfected security interest, free and clear of all other Liens (other
than Permitted Liens), in such Receivable and Related Security, for the benefit
of the Secured Parties, and (iii) the Required Receivable File required to
be delivered to the Collateral Custodian, with respect to such Receivable, has
been delivered to the Collateral Custodian;


 


(r)            the Obligor with respect to such
Receivable is an Eligible Obligor;


 


(s)           all information, representations and
warranties provided in writing by the applicable Borrower, the Originator and
the Servicer with respect to such Receivable are true, correct and complete in
all material respects;


 


(t)            the acquisition of such Receivable
will not cause the applicable Borrower or the pool of Collateral to be required
to register as an investment company under the 1940 Act;


 


(u)           such Receivable does not constitute
Margin Stock;


 


(v)           such Receivable is not subject to
U.S. withholding tax and is not subject to any foreign withholding tax unless
the Obligor thereon is required under the terms of the related Underlying
Instrument to make “gross-up” payments that cover the full amount of such
withholding tax on an after-tax basis in the event of a Change of Tax Law; and


 


(w)          the Receivable (i) relates to an
Approved Asset/Product Class and is included in a pool of Receivables
being acquired from an Approved Seller pursuant to an Approved Purchase and
Sale Agreement or (ii) was acquired by either the Trust Borrower or the
Trust II Borrower in accordance with the terms of its Sale Agreement.


 


“Eligible
Repurchase Obligations”:  Repurchase
obligations with respect to any security that is a direct obligation of, or
fully guaranteed by, the United States or any agency or instrumentality thereof
the obligations of which are backed by the full faith and credit of the United
States, in either case entered into with a depository institution or trust
company (acting as principal).


 


“Entitlement
Holder”:  The meaning specified in Section 8-102(a)(7) of
the UCC.


 


“Environmental
Laws”:  Any and all federal, state
and local laws, statutes, ordinances, rules, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities,
relating to the protection of the environment, including, but not limited to,
requirements pertaining to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.  Environmental Laws include, without
limitation, the Comprehensive Environmental Response, Compensation, and Liability
Act (42 U.S.C. § 9601 et seq. (“CERCLA”)), the Hazardous Material
Transportation Act (49 U.S.C. § 331 et seq.), the Resource Conservation
and Recovery Act (42 U.S.C. § 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. § 1251 et seq.), the Clean Air Act (42 U.S.C. §
7401 et seq.), the Toxic Substances Control Act (15 U.S.C. § 2601 et
seq.), the Safe Drinking Water Act (42 U.S.C. § 300, et seq.), the
Environmental Protection Agency’s regulations relating to


 


12

















 


underground storage tanks (40 C.F.R. Parts 280 and 281), and the
Occupational Safety and Health Act (29 U.S.C. § 651 et seq.), and the rules and
regulations thereunder, each as amended or supplemented from time to time.


 


“ERISA”:  The United States Employee Retirement Income
Security Act of 1974, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.


 


“ERISA
Affiliate”:  With respect to any
Borrower, (a) any corporation that is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of the
Code) as such Borrower, (b) a trade or business (whether or not
incorporated) under common control (within the meaning of Section 414(c) of
the Code) with such Borrower, or (c) a member of the same affiliated service
group (within the meaning of Section 414(m) of the Code) as such
Borrower, any corporation described in clause (a) above or any
trade or business described in clause (b) above.


 


“Errors”:  Defined in Section 6.13(g).


 


“Event of
Default”:  Defined in Section 10.1.


 


“Excepted
Persons”:  Defined in Section 13.13(a).


 


“Excess
Concentration Amount”:  As of any
Measurement Date, for purposes of determining the Maximum Advance, the sum of
the following; provided that any such excess
amounts shall be calculated in such order and attributed to the particular
Outstanding Receivable Balances necessary to ensure that (i) there is no
duplication of amounts disallowed due to separate concentration limits and (ii) the
minimum aggregate amount which could be disallowed while still complying with
the concentration limits is so determined; provided
further that the Eligible Receivables acquired by the Trust Borrower
pursuant to the Sourcing and Servicing Agreement (or the Trust II Borrower
pursuant to the Purchase Agreement) shall not be subject to the concentration
limits set forth below but the Outstanding Receivable Balance of each such
Eligible Receivable shall be included in the Aggregate Outstanding Receivable
Balance referenced in any concentration limit:


 


(a)           the amount by which the sum of the
Outstanding Receivable Balances of all Eligible Receivables relating to a
single Vendor exceeds 25% of the Aggregate Outstanding Receivable Balance;


 


(b)           the amount by which the sum of the
Outstanding Receivable Balances of all Eligible Receivables that are “balance
of payment” Receivables exceeds 5% of the discounted Aggregate Outstanding
Receivable Balance; provided that
for the avoidance of doubt Receivables that are “flat payment” Receivables
shall be excluded from this calculation;


 


(c)           the amount by which the sum of the
Outstanding Receivable Balances of all Eligible Receivables that are Class B
Receivables exceeds 50% of the Aggregate Outstanding Receivable Balance;


 


(d)           the amount by which the sum of the
Outstanding Receivable Balances of all Class A Receivables which with the
addition of a Class A Receivable to the Collateral would 


 


13

















 


cause the weighted
average FICO Score of the Eligible Receivables in the Collateral to be less
than 670;


 


(e)           the amount by which the sum of the
Outstanding Receivable Balances of all Class B Receivables which with the
addition of a Class B Receivable to the Collateral would cause the
weighted average FICO Score of the Eligible Receivables in the Collateral to be
less than 600;


 


(f)            the amount by which the sum of the
Outstanding Receivable Balances of all Eligible Receivables, which with the
addition of a Receivable to the Collateral would cause the weighted average
Gross Effective Yield to be less than 17% for Class A Receivables and 19%
for Class B Receivables; and


 


(g)           the amount by which the sum of the
Outstanding Receivable Balances of all Eligible Receivables the Obligors of
which are classified (i) in the largest single industry (“industry” to be
defined by the SIC Codes) shall not exceed 40% of the Aggregate Outstanding
Receivables Balance, (ii) in the second largest single industry shall not
exceed 30% of the Aggregate Outstanding Receivables Balance, and (iii) in
any other industry shall not exceed 25% of the Aggregate Outstanding
Receivables Balance.


 


“Excess
Spread”:  With respect to any
calendar month, a per annum rate equal to (I) the Gross Effective Yield of
all Eligible Receivables minus (II) the sum of (A) the Servicing Fee
Rate, (B) the weighted average Interest Rate for such calendar month, and (C) the
Backup Servicing Fee Rate.


 


“Exchange
Act”:  The United States Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.


 


“Excluded
Amounts”:  (a) Any amount
received in a Lockbox Account with respect to any Receivable, which amount is
attributable to the payment of any tax, fee or other charge imposed by any
Governmental Authority on such Receivable and (b) any amount received in a
Lockbox Account or other Account representing (i) a reimbursement of
insurance premiums, (ii) any escrows relating to taxes, insurance and
other amounts in connection with Receivables which are held in an escrow
account for the benefit of the Obligor (or its client) and the secured party
pursuant to escrow arrangements under the Underlying Instruments and (iii) amounts
related to any Receivable retransferred or substituted for upon the occurrence
of a Warranty Event or that is otherwise replaced by a Substitute Receivable,
to the extent such amount is attributable to a time after the effective date of
such retransfer, substitution, replacement or sale.


 


“Facility
Amount”: On any Measurement Date, an amount equal to (i) $50,000,000
less (ii) the outstanding principal balance of the Term Loan.


 


“FDIC”:
The Federal Deposit Insurance Corporation, and any successor thereto.


 


“FICO Score”:  The FICO® scores established by the Fair
Isaac Corporation (or any successor entity thereto).


 


14

















 


“Finance
Charges”:  With respect to any
Receivable, any interest or finance charges payable by an Obligor pursuant to
or with respect to such Receivable.


 


“Financial
Asset”:  The meaning specified in Section 8-102(a)(9) of
the UCC.


 


“*****”:
 Defined in the Preamble.


 


“Full
Prepayment Make-Whole Fee”:  An
amount equal to the product of (a) the Interest Rate on the Business Day
immediately prior to the date the Loans Outstanding are paid in full and (b) the
Facility Amount on such Business Day.


 


“Funding
Date”:  With respect to any Loan, the
Business Day the related Loan has been made.


 


“Funding
Request”:  A Borrowing Notice in the
form of Exhibit A-1 requesting a Loan and including the items
required by Section 2.2.


 


“GAAP”:  Generally accepted accounting principles as
in effect from time to time in the United States.


 


“Governmental
Authority”:  With respect to any
Person, 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 and any
court or arbitrator having jurisdiction over such Person.


 


“Gross
Effective Yield”:  With respect to
any class of Receivables, the internal rate of return of the Purchase Price and
the gross projected principal and interest payment cashflows to the Borrowers
from such Receivables.


 


“Guaranteed
Amounts”:  Defined in Article 14.1.


 


“Guaranties”:
 Collectively, the Guaranty and the
Limited Guaranty.


 


“Guarantors”:  Defined in the Preamble.


 


“Guarantor
Payments”:  Any payment made a
Guarantor pursuant to either of the Guaranties.


 


“Guaranty”:  The guaranty provided by the Guarantors to
the Secured Parties pursuant to Section 14.1.


 


“Hazardous
Materials”: All materials subject to any Environmental Law, including,
without limitation, materials listed in 49 C.F.R. § 172.010, materials defined
as hazardous pursuant to § 101(14) of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended, flammable,
explosive or radioactive materials, hazardous or toxic wastes or substances,
lead-based materials, petroleum or petroleum distillates or asbestos or
material containing asbestos, polychlorinated biphenyls, radon gas, urea
formaldehyde and any


 


15

















 


substances classified as being “in inventory”, “usable work in process”
or similar classification that would, if classified as unusable, be included in
the foregoing definition.


 


“Hedge
Breakage Costs”:  With respect to any
applicable Interest Rate Hedge Transaction, the net amount, if any, payable by
a Borrower to such Hedge Counterparty for the early termination of that
Interest Rate Hedge Transaction or any portion thereof.


 


“Hedge
Counterparty”: A hedge counterparty acceptable to the Administrative Agent
in its reasonable discretion.


 


“Hedging
Agreement”:  Each agreement between a
Borrower and a Hedge Counterparty that governs one or more Interest Rate Hedge
Transactions entered into by such Borrower and such Hedge Counterparty, which
agreement shall consist of a “Master Agreement” in a form published by the
International Swaps and Derivatives Association, Inc., together with a “Schedule”
thereto in such form as the Administrative Agent shall have approved in writing
(such approval not to be unreasonably withheld), and each “Confirmation”
thereunder confirming the specific terms of each such Interest Rate Hedge
Transaction.


 


“Highest Required
Investment Category”:  (i)  With
respect to ratings assigned by Moody’s, “Aa2” or “P-1” for one month
instruments, “Aa2” or “P-1” for three-month instruments, “Aa3” or “P-1” for
six-month instruments and “Aa2” or “P-1” for instruments with a term in excess
of six months and (ii) with respect to ratings assigned by S&P, “A-1”
for short-term instruments and “A” for long-term instruments.


 


“Increased
Costs”:  Any amounts required to be
paid by a Borrower to a Lender pursuant to Section 2.12.


 


“Indebtedness”:  With respect to any Person at any date, (a) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services (other than liabilities incurred in the ordinary
course of business and payable in accordance with customary trade practices) or
that is evidenced by a note, bond, debenture or similar instrument or other
evidence of indebtedness customary for indebtedness of that type, (b) all
obligations of such Person under leases that have been or should be, in accordance
with GAAP, recorded as capital leases, (c) all obligations of such Person
in respect of acceptances issued or created for the account of such Person and
all letters of credit for which such Person is the account party, (d) all
liabilities secured by any Lien on any property owned by such Person even
though such Person has not assumed or otherwise become liable for the payment
thereof, (e) all net obligations or liabilities of that Person in respect
of derivatives, and (f) all obligations under direct or indirect
guaranties in respect of obligations (contingent or otherwise) to purchase or
otherwise acquire, or to otherwise assure a creditor against loss in respect
of, indebtedness or obligations of others of the kind referred to in clauses
(a) through (e) above.


 


“Indemnified
Amounts”:  Defined in Section 11.1.


 


“Indemnified
Parties”:  Defined in Section 11.1.


 


“Indorsement”:  The meaning specified in Section 8-102(a)(11)
of the UCC, and “Indorsed” has a corresponding meaning.


 


16

















 


“Insolvency
Event”:  With respect to a specified
Person, (a) the filing of a decree or order (i) for relief by a court
having jurisdiction over such Person or any substantial part of its property in
an involuntary case under any applicable Insolvency Law now or hereafter in
effect, or (ii) appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for such Person or for any
substantial part of its property, or (iii) ordering the winding-up or
liquidation of such Person’s affairs, provided that such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days, (b) the
commencement by such Person of a voluntary case under any applicable Insolvency
Law now or hereafter in effect, or the consent by such Person to the entry of
an order for relief in an involuntary case under any such law, (c) the
consent by such Person to the appointment of or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official for such Person or for any substantial part of its property, or the
making by such Person of any general assignment for the benefit of creditors, (d) the
failure by such Person generally to pay its debts as such debts become due, or (e) the
taking of action by such Person in furtherance of any of the foregoing.


 


“Insolvency
Laws”:  The Bankruptcy Code and all
other applicable liquidation, conservatorship, bankruptcy, moratorium,
rearrangement, receivership, insolvency, reorganization, suspension of
payments, or similar debtor relief laws from time to time in effect affecting
the rights of creditors generally.


 


“Insolvency
Proceeding”:  Any case, action or
proceeding before any court or other Governmental Authority relating to any
Insolvency Event.


 


“Instrument”:  The meaning specified in Section 9-102(a)(47)
of the UCC.


 


“Interest”:  For each Accrual Period, the sum of the
products (for each day during such Accrual Period) of:


 


	
   

  	
   IR x P x 1 

  	
   

  
	
   

  	
  D

  	
   

  



 


where:


 


IR            =              the Interest Rate applicable on
such day;


 


P              =              the principal amount of the Loan
on such day; and


 


D             =              360;


 


provided that (i) no provision of this
Agreement shall require the payment or permit the collection of Interest in
excess of the maximum permitted by Applicable Law and (ii) Interest shall
not be considered paid by any distribution if at any time such distribution is
rescinded or must otherwise be returned for any reason.


 


“Interest
Collections”:  Any and all amounts
received with respect to the Collateral other than Principal Collections that
are deposited into the Collection Account, or received by or on behalf of a
Borrower, the Servicer or the Originator in respect of a Receivable whether in
the form of cash, checks, wire transfers, electronic transfers or any other
form of cash payment.


 


17

















 


“Interest
Rate”:  A per annum
interest rate equal to the sum of the LIBOR Rate and 4.50%.


 


“Interest
Rate Hedge Transaction”:  Each
interest rate hedge transaction between a Borrower and a Hedge Counterparty
under a Hedging Agreement, including, for the avoidance of doubt, any interest
rate swap and interest rate cap.


 


“Investment”:  With respect to any Person, any direct or
indirect loan, advance or investment by such Person in any other Person,
whether by means of share purchase, capital contribution, loan or otherwise,
excluding the acquisition of Receivables pursuant to the applicable Sale
Agreement and the LLC Borrower’s ownership of the Trust Borrower.


 


“Joinder
Supplement”:  An agreement among the
Borrowers, a Lender and the Administrative Agent in the form of Exhibit I
to this Agreement (appropriately completed) delivered in connection with a
Person becoming a Lender hereunder after the Closing Date, as contemplated by Section 13.16.


 


“Key
Employees”:  Each of *****, *****, ***** and *****.


 


“Lender”:  Defined in the Preamble.


 


“LIBOR Rate”:  For any day during any Accrual Period and the
Loans, or any applicable portion thereof, a per annum
interest rate equal to:


 


(i)            the posted rate for one-month
deposits in United States Dollars appearing on Telerate page 3750, or any
successor page thereto, as of 11:00 a.m. (London time) on the
Business Day which is the second Business Day preceding the initial borrowing
of such Loans (or portion thereof) (with respect to the initial Accrual Period
therefor) and as of the second Business Day preceding the first day of the
applicable Accrual Period (with respect to all subsequent Accrual Periods
therefor); or


 


(ii)           if no such rate appears on Telerate page 3750,
or any successor page thereto, at such time and day, then the LIBOR Rate
shall be the arithmetic mean of the offered rates for one month deposits in
United States Dollars appearing on the Reuters Screen LIBO Page as of
11:00 a.m. (London time) on the Business Day which is the second Business
Day preceding the initial borrowing of such Loans (or portion thereof) (with
respect to the initial Accrual Period therefor) and as of the second Business
Day preceding the first day of the applicable Accrual Period (with respect to
all subsequent Accrual Periods therefor).


 


“Lien”:  Any mortgage, lien, pledge, charge, right,
claim, security interest or encumbrance of any kind of or on any Person’s
assets or properties in favor of any other Person (including any UCC financing
statement or any similar instrument filed against such Person’s assets or
properties).


 


“Limited
Guaranty”:  The Limited Guaranty
provided by ***** to the Secured Parties
pursuant to Section 14.2.


 


18

















 


“Liquidation
Expenses”:  With respect to any
Receivable, the aggregate amount of all out-of-pocket expenses reasonably
incurred by the Servicer in accordance with the Servicer’s customary procedures
in connection with the repossession, refurbishing and disposition of any
Receivable or Related Security, upon or after the expiration or earlier
termination of such Receivable (including without limitation any brokerage or
legal fees), and other out-of-pocket costs related to the liquidation of any
such assets, including the attempted collection of any amount owing under such
Receivable, as documented by the Servicer upon the request of the
Administrative Agent, in writing providing a breakdown of the Liquidation
Expenses for such Receivable, along with any supporting documentation therefor.


 


“Loan”:  Any loan made by the Lenders to the Borrowers
hereunder, as applicable.


 


“Loans
Outstanding”:  On any day, the
aggregate principal amount of the Loans outstanding on such day, after giving
effect to all repayments on such day.


 


“Lockbox
Accounts”:  Each of the separate
lockbox accounts or blocked accounts maintained at the applicable Lockbox
Account Bank for the purpose of receiving Collections, the details of which are
set forth on Schedule VI, as such schedule may be amended from time to
time.


 


“Lockbox
Account Banks”:  The financial
institutions listed as Lockbox Account Banks on Schedule VI, and such
other financial institutions that may from time to time become Lockbox Account
Banks hereunder.


 


“Margin
Stock”:  “Margin Stock” as defined
under Regulation U.


 


“Material
Adverse Effect”:  With respect to any
event or circumstance, means a material adverse effect on (a) the
business, financial position, results of operations, performance or properties
of the Originator, the Servicer, the Guarantors or a Borrower, (b) the
validity or enforceability of this Agreement or any other Transaction Document
against the Originator, the Servicer, the Guarantors or a Borrower or the
validity, enforceability or collectibility of the Collateral taken as a whole
or any material portion of the Collateral, (c) the rights and remedies of
the Secured Parties with respect to matters arising under this Agreement or any
other Transaction Document, (d) the ability of a Borrower, the Originator,
the Guarantors or the Servicer to perform its obligations under this Agreement
or any other Transaction Document, or (e) the status, existence,
perfection, priority or enforceability of the Administrative Agent’s lien on a
material portion of the Collateral, taken as a whole.


 


“Maturity
Date”:  September 28, 2010, as
such date may be extended pursuant to Section 2.1(c).


 


“Maximum
Advance”:  On any Measurement Date,
an amount equal to (A) the sum of (i) the Class A Maximum
Advance and (ii) the Class B Maximum Advance minus (B) the
Excess Concentration Amount.


 


“Maximum
Committed Amount”:  As of any date of
determination, $50,000,000 (which amount shall be subject to increases pursuant
to Section 2.1(d)).


 


19
















 


“Maximum Lawful Rate”:  Defined in Section 2.4(b).


 


“Maximum Outstanding Loan
Amount”:  At any time, an amount
equal to the lesser of (i) the Facility Amount, and (ii) the
Borrowing Base.


 


“Measurement Date”:  Each of the following:  (i) each Funding Date; (ii) the
last day of each calendar month; (iii) any date on which a substitution or
a repurchase of a Receivable occurs; and (iv) the date as of which any
Servicing Report, as provided for in Section 6.9, is calculated.


 


“Moody’s”:  Moody’s Investors Service, Inc., and any
successor thereto.


 


“Multiemployer Plan”:  With respect to any Borrower, a
“multiemployer plan” as defined in Section 4001(a)(3) of ERISA that
is or was at any time during the current year or the preceding five
(5) years contributed to by such Borrower or any ERISA Affiliate thereof
on behalf of its employees.


 


“Notice of Reduction of
Loans Outstanding”:  Each notice
required to be delivered by the Borrowers in respect of any reduction of the
Loans Outstanding, substantially in the form of Exhibit A-2.


 


“Obligor”:  With respect to any Receivable, any Person or
Persons obligated to make payments pursuant to or with respect to such
Receivable, including any guarantor thereof.


 


“Officer’s Certificate”:  A certificate signed by a Responsible Officer
of the Person providing the applicable certification.


 


“Opinion of Counsel”:  A written opinion of counsel, which opinion
and counsel are acceptable to the Administrative Agent in its reasonable
discretion.


 


“Originator”:  Defined in the Preamble.


 


“Other Costs”:  Defined in Section 13.9(c).


 


“Outstanding Receivable
Balance”:  As of any Measurement
Date, with respect to any Receivable, (A) the balance of principal and
accrued and unpaid interest outstanding for such Receivable as of the date it
is acquired by a Borrower, minus (B) the sum of (i) the
principal portion of the Scheduled Payments on such Receivable received during
each Collection Period ending prior to the most recent Payment Date, and
(ii) all other Principal Collections on such Receivable, to the extent
deposited by the Servicer in the Collection Account. The Outstanding Receivable
Balance of any Prepaid Receivable which has been prepaid in full shall equal
$0.


 


“Partial Prepayment
Make-Whole Fee”:  An amount equal to
the greater of (a) $0 and (b) the product of (i) the difference
between (A) $30 million and (B)(x) the weighted average Loans
Outstanding hereunder plus (y) the weighted average of the
outstanding principal balance of the Term Loan during the eighteen (18) month
period since the Closing Date and (ii) the Interest Rate in effect on the
eighteen (18) month anniversary of the Closing Date.


 


20

















 


“Payment Date”:  Monthly on the 15th day of each calendar
month, or, if such day is not a Business Day, the next succeeding Business Day,
commencing November 15, 2007.


 


“Payment Duties”:  Defined in Section 8.2(b).


 


“Permitted Investments”:  Means negotiable instruments or securities or
other investments that (i) except in the case of demand or time deposits,
investments in money market funds and Eligible Repurchase Obligations, are
represented by instruments in bearer or registered form or ownership of which
is represented by book entries by a Clearing Agency or by a Federal Reserve Bank
in favor of depository institutions eligible to have an account with such
Clearing Agency or such Federal Reserve Bank who hold such investments on
behalf of their customers, (ii) as of any date of determination, mature by
their terms on or prior to the Business Day preceding the next Payment Date,
and (iii) evidence:


 


(a)                                direct obligations of, and obligations fully
guaranteed as to full and timely payment by, the United States (or by any
agency thereof to the extent such obligations are backed by the full faith and
credit of the United States);


 


(b)                               demand deposits, time deposits or
certificates of deposit of depository institutions or trust companies
incorporated under the laws of the United States or any state thereof and
subject to supervision and examination by federal or state banking or
depository institution authorities; provided
that at the time of a Borrower’s investment or contractual
commitment to invest therein, the commercial paper, if any, and short-term
unsecured debt obligations (other than such obligation whose rating is based on
the credit of a Person other than such institution or trust company) of such
depository institution or trust company shall have a credit rating from each
Rating Agency in the Highest Required Investment Category granted by such
Rating Agency;


 


(c)                                commercial paper, or other short term
obligations, having, at the time of a Borrower’s investment or contractual
commitment to invest therein, a rating in the Highest Required Investment
Category granted by each Rating Agency;


 


(d)                               demand deposits, time deposits or
certificates of deposit that are fully insured by the FDIC and either have a
rating on their certificates of deposit or short-term deposits from Moody’s and
S&P of “P-1” and “A-1”, respectively;


 


(e)                                notes that are payable on demand or bankers’
acceptances issued by any depository institution or trust company referred to
in clause (b) above;


 


(f)                                  investments in taxable money market funds or
other regulated investment companies having, at the time of a Borrower’s investment
or contractual commitment to invest therein, a rating of the Highest Required
Investment Category from each Rating Agency; any such fund may be managed by
the Collateral Custodian or its Affiliates;


 


(g)                               time deposits (having maturities of not more
than 90 days) by an entity the commercial paper of which has, at the time of a
Borrower’s investment or contractual commitment to invest therein, a rating of
the Highest Required Investment Category granted by each Rating Agency; or


 


21

















 


(h)                               Eligible Repurchase Obligations with a rating
acceptable to the Rating Agencies, which in the case of S&P, shall be “A-1”
and in the case of Moody’s, shall be “P-1”.


 


“Permitted Liens”:  Include (i) Liens granted pursuant to or
by the Transaction Documents, (ii) Liens for Taxes less than thirty (30)
days overdue provided an adequate reserve for such Taxes has been established
on the books of the Borrowers, as applicable, in accordance with GAAP, and
(iii) Liens arising under the Term Credit Agreement (or the other
“Transaction Documents” as defined therein).


 


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


 


“Predecessor Servicer
Work Product”:  Defined in Section 6.13(g).


 


“Prepaid Receivable”:  Any Receivable (other than a Defaulted Receivable)
that has been terminated or has been prepaid in full or in part prior to its
scheduled expiration date.


 


“Prepayment Amount”:  Defined in Section 6.4(b).


 


“Prepayment Premium”:  Means, (a) if the Borrowers repay the
Loans Outstanding pursuant to Section 2.3 after the eighteen (18)
month anniversary of the Closing Date but prior to the thirty-six (36) month
anniversary of the Closing Date, an amount equal to the product of (i) 2%,
and (ii) the Facility Amount; and (b) after the thirty-six (36) month
anniversary of the Closing Date, $0.  For
the avoidance of doubt, no Prepayment Premium shall be applicable with respect
to principal payments in the ordinary course under Sections 2.7 or 2.8.


 


“Prepayments”:  Any and all partial or full prepayments on or
with respect to a Receivable (including, with respect to any Receivable and any
Collection Period, any Scheduled Payment, Finance Charge or portion thereof
that is due in a subsequent Collection Period that the Servicer has received in
advance of its scheduled due date, and that will satisfy such Scheduled Payment
on such due date).


 


“Principal”:  ***** or
any successor(s) thereto approved in writing by the Administrative Agent.


 


“Principal Collections”:  Any and all amounts of Collections received
in respect of any principal due and payable under the Receivables, from or on
behalf of Obligors that are deposited into the Collection Account (including,
without limitation, the principal portion of any Scheduled Payment or of any
repurchase amount paid by the Originator to repurchase a Receivable pursuant
the LLC Borrower’s Sale Agreement and by the applicable Seller to repurchase a
Receivable pursuant to the applicable Purchase and Sale Agreement or, in the
case of the Trust Borrower, any amount paid by the Sourcer to repurchase a
Receivable pursuant to the Sourcing and Servicing Agreement or, in the case of
the Trust II Borrower, any amount paid by the Trust Borrower or the LLC
Borrower to repurchase a Receivable pursuant to the Purchase Agreement), or received
by or on behalf of a Borrower by the Servicer or the Originator in


 


22

















 


respect of a Receivable and
all Recoveries, whether in the form of cash, checks, wire transfers, electronic
transfers or any other form of cash payment.


 


“Proceeds”:  With respect to any Collateral, all property
that is receivable or received when such Collateral is collected, sold,
liquidated, foreclosed, exchanged, or otherwise disposed of, whether such
disposition is voluntary or involuntary, and includes all rights to payment
with respect to any insurance relating to such Collateral.


 


“Pro Rata Share”:  With respect to any Lender, (a) prior to
the termination of the Commitments, the percentage obtained by dividing such
Lender’s Commitment by the total Commitments of all Lenders hereunder, and
(b) on and after the date of the termination of the Commitments, the
percentage obtained by dividing the Loans funded by such Lender by the
aggregate Loans Outstanding.


 


“Proposed Facility”:  Has the meaning provided in Section 13.18.


 


“Purchase Agreement”:  That certain purchase agreement, dated as of
December 10, 2008, between the Trust I Borrower, the LLC Borrower and the
Trust II Borrower, as amended from time to time.


 


“Purchase and Sale Agreement”:  Individually, each receivables purchase
agreement among a Seller, the Originator and the other parties thereto pursuant
to which the Originator acquires Receivables.


 


“Purchase Price”:  As applicable, (i) the aggregate
purchase price paid by the Originator to the applicable Seller for Receivables
pursuant to the applicable Purchase and Sale Agreement, (ii) the initial
amount funded by the Trust Borrower with respect to Receivables pursuant to the
Sourcing and Servicing Agreement or (iii) the “Purchase Price” as defined
in the Purchase Agreement for any sale of Receivables by the Trust Borrower or
the LLC Borrower, as applicable, to the Trust II Borrower).


 


“Qualified Institution”:  A depository institution or trust company
reasonably acceptable to the Administrative Agent and the Borrowers, that is
organized under the laws of the United States of America or any one of the
States thereof or the District of Columbia (or any domestic branch of a foreign
bank), (i)(a) that has either (1) a long-term unsecured debt rating
of “A” or better by S&P and “A2” or better by Moody’s or (2) a
short-term unsecured debt rating or certificate of deposit rating of “A-1” or
better by S&P and “P-1” by Moody’s, (b) the parent corporation of
which has either (1) a long-term unsecured debt rating of “A” or better by
S&P and “A2” or better by Moody’s or (2) a short-term unsecured debt
rating or certificate of deposit rating of “A-1” or better by S&P and “P-1”
by Moody’s or (c) is otherwise acceptable to the Administrative Agent and
(ii) the deposits of which are insured by the FDIC.


 


“Rating Agency”:  Each of S&P and Moody’s.


 


“Receivables”:  Any (i) consumer loan originated or
created by a Seller (or by a Dealer on behalf of a Seller) and subsequently
sold by such Seller to the Originator pursuant to a Purchase and Sale Agreement
and sold by the Originator to the LLC Borrower pursuant to the


 


23

















 


Sale Agreement or
(ii) “Eligible Investment” (as defined in the Sourcing and Servicing
Agreement) acquired by the Trust Borrower pursuant to the Sourcing and
Servicing Agreement.


 


“Receivables List”:  The list of Receivables in the form of Schedule
IV hereto, that identifies each (i) Obligor name, (ii) original
principal balance of the Receivable, (iii) contract number or other
identifying number, (iv) the applicable Dealer name (if applicable), and
(v) whether such Receivable is a revolving contract, as such list may be
amended, supplemented or modified from time to time in accordance with this
Agreement.


 


“Records”:  All documents relating to the Receivables,
including books, records and other information executed in connection with the
origination or acquisition of the Receivables and Related Security or
maintained with respect to the Receivables and Related Security and the related
Obligors that the Borrowers, the Originator, or the Servicer have generated, in
which the applicable Borrower has acquired an interest pursuant to its Sale
Agreement or in which such Borrower or the Servicer have otherwise obtained an
interest.


 


“Recoveries”:  With respect to any Defaulted Receivable, the
proceeds from the sale or other disposition of the Receivable (including any
amounts received from a Dealer under its buyback obligations under its Dealer
Agreement), any other recoveries with respect to such Defaulted Receivable, the
Related Security and amounts representing late fees and penalties, net of
Liquidation Expenses and amounts, if any, received that are required under such
Defaulted Receivable, to be refunded to the related Obligor.


 


“Regulation U”:  Regulation U of the Board of Governors of the
Federal Reserve System, 12 C.F.R. §221, or any successor regulation.


 


“Related Security”:  As used in (1) the LLC Borrower’s Sale
Agreement, all right, title and interest of the Originator in and to the
following clauses (a), (b), (c), (d), (f), (g), (h) and (i), and
(2) this Agreement, all right, title and interest of the Borrowers in and
to the following clauses (a) through (i):


 


(a)                                any and all Recoveries related to a
Receivable, all payments paid in respect thereof and all monies due, to become
due and paid in respect thereof and all liquidation proceeds;


 


(b)                               the Required Receivable Files and Servicing
Files related to any Receivable, any Records, and the documents, agreements,
and instruments included in the Servicing File or Records;


 


(c)                                all Liens, guaranties, indemnities,
warranties, letters of credit, accounts, bank accounts and property subject
thereto from time to time purporting to secure or support payment of any
Receivable, together with all UCC financing statements, mortgages or similar
filings signed or authorized by an Obligor relating thereto;


 


(d)                               the Accounts, the Concentration Account and
the Lockbox Accounts, to the extent amounts on deposit therein or credited
thereto relate to the Collateral, together with all cash and investments in
each of the foregoing other than amounts earned on investments therein
(excluding any Excluded Amounts that may be on deposit therein);


 


24

















 


(e)                                such Borrower’s respective Sale Agreement and
the assignment of such Sale Agreement (including, without limitation, rights of
recovery of the LLC Borrower against the Originator and any guaranty, indemnity
and repurchase obligations of the Originator thereunder and the Trust Borrower
and the Trust II Borrower against the Sourcer and any guaranty, indemnity and
repurchase obligations of the Sourcer thereunder);


 


(f)                                  with respect to the LLC Borrower, each
Purchase and Sale Agreement and the assignment of such Purchase and Sale
Agreement (including, without limitation, rights of recovery of the Originator
against the Seller and any guaranty, indemnity and repurchase obligations of
the Seller thereunder) and the Dealer Agreements and the assignment of such
Dealer Agreements (including, without limitation, rights of recovery against
the Dealers, and the buyback obligations (if any) of the applicable Dealers
thereunder);


 


(g)                               the assignment to the Administrative Agent,
as agent for the Secured Parties, of all UCC financing statements filed by
(i) the LLC Borrower against the Originator under or in connection with
its Sale Agreement, (ii) the Trust II Borrower against the LLC Borrower
and the Trust Borrower under or in connection with its Sale Agreement and
(iii) the Originator against the Sellers under or in connection with the
Purchase and Sale Agreements;


 


(h)                               all records (including computer records) with
respect to the foregoing; and


 


(i)                                   all collections, income, payments, proceeds
and other benefits of each of the foregoing.


 


“Reporting Date”:  The date that is five (5) Business Days
prior to each Payment Date.


 


“Required Lenders”:  As of any date, the Lenders holding an
aggregate of more than 66.67% of the Loans Outstanding as of such date.


 


“Required Receivable File”:  For each Receivable, (i) the original
executed contract (or a copy of the original executed contract to the extent
that such contract evidences two separate financings and the original executed
contract has previously been delivered to the Collateral Custodian with respect
to one of the financings evidenced by such contract), (ii) all principal
security documents related thereto as indicated on the Receivables List,
(iii) on a receivables program by receivables program basis, each other
category of documents identified by the Administrative Agent for such program
as indicated in writing to the Collateral Custodian, and (iv) the original
executed Purchase and Sale Agreement with respect to such Receivable, if applicable
(provided that a Purchase and
Sale Agreement need only be delivered/included one time in connection with the
initial acquisition thereunder).


 


“Required Reduction
Amount”:  As of any Measurement Date,
an amount equal to the positive difference, if any, of (a) the Loans
Outstanding on such day over (b) the Maximum Outstanding Loan Amount.


 


“Required Reports”:  Collectively, the Servicing Report, the
Servicer’s Certificate required pursuant to Section 6.8, and the
annual statements as to compliance required pursuant to Section 6.9.


 


25

















 


“Responsible Officer”:  With respect to any Person, any duly
authorized officer of such Person with direct responsibility for the
administration of this Agreement and also, with respect to a particular matter,
any other duly authorized officer of such Person to whom such matter is
referred because of such officer’s knowledge of and familiarity with the
particular subject and, for purposes of the LLC Borrower and the Trust Borrower,
the initial Servicer and the Originator, the Responsible Officers shall be the
Key Employees.


 


“Retained Interest”:  With respect to a Receivable with an unfunded
commitment that does not provide by its terms that funding thereunder is in the
applicable Borrower’s sole and absolute discretion, all of the obligations of
the lender thereunder or holder thereof to provide additional funding with
respect to such Receivable.


 


“Review Criteria”:  Defined in Section 8.2(b).


 


“Revolving Period”:  The period commencing on the Closing Date and
ending on the Termination Date.


 


“S&P”:  Standard & Poor’s, a division of The
McGraw-Hill Companies, Inc., and any successor thereto.


 


“Sale Agreement”:  With respect to the LLC Borrower, the
Purchase and Contribution Agreement, dated as of the Closing Date, with respect
to both the Trust Borrower, the Sourcing and Servicing Agreement, and, with
respect to the Trust II Borrower, the Purchase Agreement.


 


“Scheduled Payment”:  Each scheduled payment of principal and/or
interest required to be made by an Obligor on the related Receivable, as
adjusted pursuant to the terms of the related Required Receivable File, if
applicable.


 


“Secured Party”:  Each Lender and the Administrative Agent.


 


“Securities Account”:  The meaning specified in Section 8-501
of the UCC.


 


“Securities Account
Control Agreement”:  The Securities
Account Control Agreement, dated as of the Closing Date, among the LLC
Borrower, the Servicer, the Administrative Agent, and the Collateral Custodian,
as the Securities Intermediary (as amended from time to time).


 


“Securities Intermediary”:  (i) A Clearing Corporation; or
(ii) a Person, including a bank or broker, that in the ordinary course of
its business maintains Securities Accounts for others and is acting in that
capacity.


 


“Security”:  The meaning specified in
Section 9-102(a)(15) of the UCC.


 


“Security Certificate”:  The meaning specified in
Section 8-102(a)(16) of the UCC.


 


“Security Entitlement”:  The meaning specified in
Section 8-102(a)(17) of the UCC.


 


“Seller”:  Each Person party to a Purchase and Sale
Agreement (as a Seller) with the Originator, and, with respect to the Sourcing
and Servicing Agreement, the Sourcer.


 


26

















 


“Servicer”: Defined
in the Preamble.


 


“Servicer Default”:  Defined in Section 6.12.


 


“Servicer Termination
Notice”:  Defined in Section 6.12.


 


“Servicer’s Certificate”:  Defined in Section 6.8(b).


 


“Servicing Fee”:  The servicing fee payable to the Servicer or
the successor Servicer on each Payment Date in arrears in respect of each
Collection Period, which fee shall be equal to the product of (i) the
Servicing Fee Rate, (ii) the Aggregate Outstanding Receivable Balance as
of the first Business Day of the related Collection Period and (iii) the
actual number of days in such Collection Period divided by 360.


 


“Servicing Fee Rate”:  0.50% or such other rate consented to in
writing by the LLC Borrower, the Servicer and the Administrative Agent.


 


“Servicing File”:  For each Receivable, (i) copies (as
opposed to originals) of each of the documents included in the Required
Receivable File definition, (ii) to the extent applicable for the related
Receivable, the original executed (a) guaranty, (b) credit agreement,
(c) loan agreement, (d) note purchase agreement, (e) promissory
note, (f) acquisition agreement (or similar agreement), (g) security
agreement and (h) UCC financing statement(s), in each case as set forth on
the Receivables List, (iii) to the extent applicable for the related
Receivable, copies of (a) the phone verification form confirming that
goods financed were received by the Obligor, (b) the Obligor’s credit
report, (c) the related credit application and (d) any and all other
items required by the credit and underwriting guidelines of the applicable
Seller, and (iv) to the extent applicable for the related Receivable, a
copy of the applicable Dealer Agreement (if any) with respect to such
Receivable.


 


“Servicing Report”:  Defined in Section 6.8(a).


 


“Servicing Standard”:  With respect to any Receivables, to service
and administer such Receivables on behalf of the Secured Parties in accordance
with the Underlying Instruments and all customary and usual servicing practices
(a) which are consistent with the higher of:  (i) the customary and usual servicing
practices that a prudent loan lender would use in servicing loans like the
Receivables for its own account, and (ii) the same care, skill, prudence
and diligence with which the Servicer services and administers loans for its
own account or for the account of others; (b) with a view to maximize the
value of the Receivables; and (c) without regard to:  (i) any relationship that the Servicer
or any Affiliate of the Servicer may have with any Obligor or any Affiliate of
any Obligor, (ii) the Servicer’s obligations to incur servicing and
administrative expenses with respect to a Receivable, (iii) the Servicer’s
right to receive compensation for its services hereunder or with respect to any
particular transaction, (iv) the ownership by the applicable Borrower of
any Receivables, (v) the ownership, servicing or management for others by
the Servicer of any other loans or property by the Servicer or (vi) any
relationship that the Servicer or any Affiliate of the Servicer may have with
any holder of other loans of the Obligor with respect to such Receivables; provided that, with respect to any
successor Servicer, the “Servicing Standard” shall be the higher of the same
care, skill and


 


27

















 


diligence with which such
successor Servicer services and administers loans for its own account or for
the account of others.


 


“SIC Codes”:  In connection with any Receivable, the
“standard industrial classification code” assigned to the industry in which
such Receivable is utilized, as set forth in Schedule V. The initial
Servicer shall determine the industrial classification code unless the
Administrative Agent in its sole discretion disagrees with such determination,
in which case the decision of the Administrative Agent as to such industrial
classification code shall be conclusive and binding on the parties hereto
absent manifest error.


 


“Solvent”:  As to any Person at any time, having a state
of affairs such that all of the following conditions are met:  (a) the fair value of the property of
such Person is greater than the amount of such Person’s liabilities (including
disputed, contingent and unliquidated liabilities) as such value is established
and liabilities evaluated for purposes of Section 101(32) of the Bankruptcy
Code; (b) the present fair saleable value of the property of such Person
in an orderly liquidation of such Person is not less than the amount that will
be required to pay the probable liability of such Person on its debts and other
liabilities as they become absolute and matured; (c) such Person is able
to realize upon its property and pay its debts and other liabilities (including
disputed, contingent and unliquidated liabilities) as they mature in the normal
course of business; (d) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person’s ability
to pay as such debts and liabilities mature; and (e) such Person is not
engaged in a business or a transaction, and does not propose to engage in a
business or a transaction, for which such Person’s property assets would
constitute unreasonably small capital.


 


“Sourcer”:  *****, a Delaware limited liability company.


 


“Sourcing and Servicing
Agreement”:  That certain sourcing
and servicing agreement, dated as of the Effective Date, between the Sourcer
and the Trust Borrower (as amended from time to time).


 


“Structuring Fee”:  Defined in Section 2.11(b).


 


“Sub-Servicer”:  Each Person retained by the Servicer as a
sub-servicer of a pool of Receivables from time to time; provided that such sub-servicer must be
selected from the list of sub-servicers approved by the Administrative Agent on
the attached Schedule IX (as such schedule may be amended from time to
time) or otherwise approved in writing by the Administrative Agent in its sole
discretion.


 


“Sub-Servicer Fee”:  A monthly fee payable by the Servicer out of
the Servicing Fee as set forth in the related Sub-Servicing Agreement.


 


“Sub-Servicer Fee Letter”:  With respect to each Sub-Servicer and its
related Sub-Servicing Agreement, the sub-servicer fee letter by and among the
LLC Borrower, the Servicer and the applicable Sub-Servicer executed in
connection with such Sub-Servicing Agreement.


 


“Sub-Servicing Agreement”:  Each sub-servicing agreement entered into by
the Servicer in accordance with the terms of this Agreement.


 


28

















 


“Subsidiary”:  As to any Person, a corporation, partnership
or other entity of which shares of stock or other ownership interests having
ordinary voting power (other than stock or such other ownership interests
having such power only by reason of the happening of a contingency) to elect a
majority of the board of directors or other managers of such corporation,
partnership or other entity are at the time owned, or the management of which
is otherwise controlled, directly or indirectly, through one or more
intermediaries, or both, by such Person.


 


“Substitute Receivable”:  Defined in Section 2.15.


 


“Successor Servicer”:  Defined in Section 6.13(a).


 


“Tangible Net Worth”:  With respect to any Person, as of any date of
determination, the total equity of such Person as of such date (including all
subordinated debt maturing after the Maturity Date) less the goodwill and other
intangibles, if any, all determined on a consolidated basis in accordance with
GAAP.


 


“Tape”:  Defined in Section 7.2(b).


 


“Taxes”:  Any present or future taxes, levies, imposts,
duties, charges, assessments or fees of any nature (including interest,
penalties, and additions thereto) that are imposed by any Governmental
Authority.


 


“Term Credit Agreement”:  That certain Credit Agreement, dated as of
July 20, 2007, among *****,
as originator and guarantor, *****,
as servicer, *****, as borrower, *****, as administrative agent, and the
other parties thereto.


 


“Termination Date”:  The earliest of (a) the Business Day
designated by the Borrowers (collectively) to the Administrative Agent as the
Termination Date at any time following two Business Days’ prior written notice
thereof to the Administrative Agent, (b) the Maturity Date, and
(c) the date of the declaration of the Termination Date or the date of the
automatic occurrence of the Termination Date pursuant to Section 10.2(a) as
a result of an Event of Default.


 


“Term Loan”:  The “Loan” as defined under the Term Credit
Agreement.


 


“Transaction”:  Defined in Section 3.2.


 


“Transaction Documents”:  This Agreement, the Sale Agreements, the
Securities Account Control Agreement, the Concentration Account Agreement, the
Variable Funding Notes, any Joinder Supplement, each Purchase and Sale
Agreement, each Sub-Servicing Agreement, the Backup Servicer Fee Letter, the
Collateral Custodian Fee Letter, each Sub-Servicer Fee Letter and any
additional document the execution of which is necessary or incidental to
carrying out the terms of the foregoing documents.


 


“Transition Expenses”:  The reasonable costs (including reasonable
attorneys’ fees) of the Backup Servicer incurred in connection with
transferring the servicing obligations under this Agreement and amending this
Agreement to reflect such transfer.


 


29
















 


“Trigger
Event”:  Defined in Section 14.1.


 


“Trust
Borrower”: Defined in the Preamble.


 


“Trust
II Borrower”: Defined in the Preamble.


 


“UCC”:  The Uniform Commercial Code as from time to
time in effect in the applicable jurisdiction or jurisdictions.


 


“Uncertificated
Security”:  The meaning specified in
Section 8-102(a)(l8) of the UCC.


 


“Underlying
Instruments”:  With respect to any
Receivable, each agreement that governs the terms of or secures the obligations
represented by such Receivable or of which the holders of such Receivable are
the beneficiaries.


 


“United
States”:  The United States of
America.


 


“Unmatured
Event of Default”:  Any event that,
solely with the giving of notice or the lapse of time, or both, would become an
Event of Default.


 


“Unused
Fee”:  Defined in Section 2.11(a).


 


“Variable
Funding Notes” or “VFNs”: 
Defined in Section 2.1.


 


“Warranty
Event”:  As to any Receivable, the
discovery that as of the Closing Date there existed a material breach of any
representation or warranty relating to such Receivable and the failure of the
applicable Borrower to cure such breach, or cause the same to be cured, within
30 days after the earlier to occur of receipt of notice thereof by a
Responsible Officer of such Borrower or actual knowledge thereof by a
Responsible Officer of such Borrower; it being understood that Warranty Events
are not intended to have the effect of credit recourse for uncollectible
Receivables or for future diminution in value of the Collateral.


 


Section 1.2.                                          Other Terms.


 


All
accounting terms used but not specifically defined herein shall be construed in
accordance with GAAP. All terms used in Article 9 of the UCC in the State
of New York, and used but not specifically defined herein, are used herein as
defined in such Article 9.


 


Section 1.3.                                          Computation of Time Periods.


 


Unless
otherwise stated in this Agreement, in the computation of a period of time from
a specified date to a later specified date, the word “from” means “from and
including” and the words “to” and “until” each mean “to but excluding.”


 


Section 1.4.                                          Interpretation.


 


In
each Transaction Document, unless a contrary intention appears:


 


(a)                                  the singular number includes the plural
number and vice versa;


 


30

















 


(b)                                 reference to any Person includes such
Person’s successors and assigns but, if applicable, only if such successors and
assigns are permitted by the Transaction Documents;


 


(c)                                  reference to any gender includes each other
gender;


 


(d)                                 reference to day or days without further
qualification means calendar days;


 


(e)                                  reference to any time means New York City
time;


 


(f)                                    reference to any agreement (including any
Transaction Document), document or instrument means such agreement, document or
instrument as amended, modified, waived, supplemented, restated or replaced and
in effect from time to time in accordance with the terms thereof and, if
applicable, the terms of the other Transaction Documents, and reference to any
promissory note includes any promissory note that is an extension or renewal
thereof or a substitute or replacement therefor; and


 


(g)                                 reference to any Applicable Law means such
Applicable Law as amended, modified, codified, replaced or reenacted, in whole
or in part, and in effect from time to time, including rules and
regulations promulgated thereunder and reference to any Section or other
provision of any Applicable Law means that provision of such Applicable Law
from time to time in effect and constituting the substantive amendment,
modification, codification, replacement or reenactment of such Section or
other provision.


 


ARTICLE II


 


THE VARIABLE FUNDING NOTES


 


Section 2.1.                                        The Variable Funding Notes.


 


(a)                                  On the terms and conditions hereinafter set
forth, the Borrowers shall deliver on the Effective Date to the Administrative
Agent, on behalf of the Lenders, two duly executed variable funding notes in
substantially the form of Exhibit B-1 (the “A-1 Variable Funding
Note” or “A-1 VFN”) and Exhibit B-2 (the “A-2
Variable Funding Note” or “A-2 VFN”, and, together with the A-1
Variable Funding Note, the “Variable Funding Notes” or “VFNs”),
dated as of the date of this Agreement, and otherwise duly completed. The face
amount and maximum principal balance of the A-1 Variable Funding Note shall be
$25,000,000 and the face amount and maximum principal balance of the A-2
Variable Funding Note shall equal the difference between the amount of the
aggregate Commitments and the maximum principal balance of the A-1 Variable
Funding Note (which amount shall be $25,000,000  on the Closing Date). 
Each Lender’s Commitment shall be allocated ratably to the A-1 Variable
Funding Note and the A-2 Variable Funding Note in accordance with its Pro Rata
Share.


 


(b)                                 During the Revolving Period, a Borrower may,
at its option, request the Lenders to make Loans of funds under the VFNs
pursuant to a Funding Request delivered to the Administrative Agent. Following
the receipt of a Funding Request, the Administrative Agent shall promptly
notify the Lenders of receipt thereof, and subject to the terms and conditions
hereinafter set forth, the Lenders shall fund such Loan. Notwithstanding
anything to the contrary herein, no Lender shall be obligated to provide a
Borrower with funds in connection with a Loan


 


31

















 


that
would exceed the Lender’s unused Commitment then in effect. Notwithstanding
anything to the contrary contained herein, (i)  Loans shall be made solely
under the A-1 Variable Funding Note, up to the maximum principal balance
thereof, before any Loans shall be made under the A-2 Variable Funding
Note, and (ii) in the event of any reduction in the outstanding principal
balance of the A-1 Variable Funding Note after such time as such balance
has reached the maximum principal balance of the A-1 Variable
Funding Note, Loans thereafter shall again be made solely under the
A-1 Variable Funding Note, up to the maximum principal balance thereof,
before any Loans shall be made under the A-2 Variable Funding Note.


 


(c)                                  The Borrowers may, within 60 days but not
less than 30 days prior to the Maturity Date, by written notice to the
Administrative Agent, make a request for each Lender to extend the Maturity
Date for an additional period of 364 days. The Administrative Agent shall
promptly notify each Lender of receipt of such notice. The Administrative Agent
and each Lender shall make a determination, in their sole discretion, within 15
days of the date of the applicable Borrower’s request for such extension, as to
whether or not it will agree to the applicable extension requested. The failure
of the Administrative Agent and each Lender to provide timely notice of its
decision to the Borrowers shall be deemed to constitute a refusal by the
Administrative Agent and each Lender to extend the applicable date. Each
Borrower confirms that the Administrative Agent and each Lender, in their sole
and absolute discretion, without regard to the value or performance of the
Collateral or any other factor, may elect not to extend the Maturity Date. The
Borrowers shall give prompt notice to the Backup Servicer and the Collateral
Custodian as to whether or not the Maturity Date has been extended. In the
event that the Administrative Agent rejects (or is deemed to reject) a request
by the Borrowers under this Section 2.1(c), then the Administrative
Agent acknowledges that the right of first refusal set forth in Section 13.18
shall not apply with respect to any facilities proposed to close on or after
the Facility Termination Date.


 


(d)                                 The Borrowers may, with the written consent
of the Administrative Agent and the applicable Lender, add additional Persons
as Lenders or cause an existing Lender to increase its Commitment in connection
with a corresponding increase in the Facility Amount. Each additional Lender
shall become a party hereto by executing and delivering to the Administrative
Agent and the Borrowers a Joinder Supplement.


 


Section 2.2.                                          Procedures for Loans by
Lenders.


 


(a)                                  No later than (I) two (2) Business
Days prior to each proposed Funding Date with respect to Receivables being
acquired from Sellers of Receivables included in the Collateral on a prior
Funding Date and (II) five (5) Business Days prior to each proposed
Funding Date with respect to Receivables being acquired from Sellers of
Receivables not previously included in the Collateral, the Borrowers shall
deliver (or cause to be delivered):


 


(i)                                     to the Administrative Agent, the Backup
Servicer and the Collateral Custodian, written notice of such proposed Funding
Date (including a duly completed Borrowing Base Certificate updated to the date
such Loan is requested and giving pro forma effect to the Loan requested and
the use of the proceeds thereof);


 


32

















 


(ii)                                  to the Administrative Agent, a wire
disbursement and authorization form, to the extent not previously delivered;
and


 


(iii)                               to the Administrative Agent and the
Collateral Custodian, a duly completed Funding Request which shall
(a) specify the desired amount of such Loan, which amount must be at least
equal to $250,000, (b) specify the proposed Funding Date of such Loan,
(c) specify the Receivables to be financed on such Funding Date, including
the appropriate file number and Outstanding Receivable Balance for each such
Receivable, and (d) include a representation that all conditions precedent
for a Loan described in Article III hereof have been met.


 


(b)                                 Each Funding Request shall be irrevocable and
the Borrowers shall be limited to two (2) Loans per week (in total); provided that the Lenders in their sole
discretion may allow for additional Loans to be made in excess of the above
limitation; provided further that
each such additional Loan, if approved, shall be subject to a $2,500
administration fee.


 


(c)                                  On the proposed Funding Date, subject to the
limitations set forth in Section 2.1(b) and upon satisfaction
of the applicable conditions set forth in Article III, each Lender
shall make available to the applicable Borrower in same day funds, at such bank
or other location reasonably designated by the applicable Borrower in the
Funding Request given pursuant to this Section 2.2, an amount equal
to such Lender’s Pro Rata Share of the least of (i) the amount requested
by the Borrowers for such Loan, (ii) the aggregate unused Commitments then
in effect, and (iii) an amount equal to the Maximum Outstanding Loan
Amount on such Funding Date.


 


(d)                                 On each Funding Date, the obligation of each
Lender to remit its Pro Rata Share of any such Loan shall be several from that
of each other Lender and the failure of any Lender to so make such amount
available to the Borrowers shall not relieve any other Lender of its obligation
hereunder.


 


Section 2.3.                                          Restriction on Repayments.


 


No
Borrower shall be permitted to repay the Loans Outstanding applicable to it
prior to the eighteen (18) month anniversary of the Closing Date. Thereafter,
the Borrowers shall be entitled, at their option, to repay in whole or in part
the Loans Outstanding; provided
that (i) the Borrowers shall give ten (10) Business Days’ prior
written notice of such repayment substantially in the form of Exhibit A-2
to the Administrative Agent and (ii) the Borrowers shall pay the related
Prepayment Premium in connection therewith. Notwithstanding the foregoing,
(A) if the Borrowers repay the Loans Outstanding in full prior to the
eighteen (18) month anniversary of the Closing Date, the Borrowers shall pay
the Full Prepayment Make-Whole Fee to the Administrative Agent, for the benefit
of the Lenders and (B) if the Borrowers repay the Loans Outstanding in
part prior to the eighteen (18) month anniversary of the Closing Date, the
Borrowers shall pay the Partial Prepayment Make-Whole Fee to the Administrative
Agent, for the benefit of the Lenders on the first Business Day following the
eighteen (18) month anniversary of the Closing Date. In connection with any
such reduction of Loans Outstanding, the Borrowers shall deliver to the
Administrative Agent (i) instructions to reduce such Loans Outstanding and
(ii) funds sufficient to repay such Loans Outstanding and all accrued interest


 


33

















 


with respect thereto. The
Administrative Agent shall promptly notify the Lenders of receipt of such
instructions and shall apply amounts received from the Borrowers pursuant to
this Section 2.3 to the payment of Loans Outstanding. Any Notice of
Reduction of Loans Outstanding relating to any repayment pursuant to this Section 2.3
shall be irrevocable. Reductions of Loans Outstanding shall be applied ratably
to the A-1 VFN and A-2 VFN based on the respective outstanding principal
balances thereof. For the avoidance of doubt, the application of Collections
received in the ordinary course shall not constitute a “repayment” or
“prepayment” by the Borrowers for purposes of this Section 2.3.


 


Section 2.4.                                          Determination of Interest.


 


(a)                                  The Administrative Agent shall determine, in
accordance with the terms of this Agreement, the Interest Rate and the Interest
(including unpaid Interest related thereto, if any, due and payable on a prior
Payment Date) to be paid by the Borrowers with respect to the Loans on each
Payment Date for the related Accrual Period and shall advise the Servicer and
each Lender thereof not later than 2:00 p.m. on the third Business Day
following the end of each Collection Period. The Borrowers shall pay all
Interest due for each applicable Accrual Period pursuant to Section 2.7
or 2.8, as applicable.


 


(b)                                 Anything in this Agreement or the other
Transaction Documents to the contrary notwithstanding, if at any time the rate
of interest payable by any Person under this Agreement and the Transaction
Documents exceeds the highest rate of interest permissible under Applicable Law
(the “Maximum Lawful Rate”), then, so long as the Maximum Lawful Rate
would be exceeded, the rate of interest under this Agreement and the
Transaction Documents shall be equal to the Maximum Lawful Rate. If at any time
thereafter the rate of interest payable under this Agreement and the
Transaction Documents is less than the Maximum Lawful Rate, such Person shall
continue to pay interest under this Agreement and the Transaction Documents at
the Maximum Lawful Rate until such time as the total interest received from
such Person is equal to the total interest that would have been received had
Applicable Law not limited the interest rate payable under this Agreement and
the Transaction Documents. In no event shall the total interest received by a
Lender under this Agreement and the Transaction Documents exceed the amount
that such Lender could lawfully have received, had the interest due under this
Agreement and the Transaction Documents been calculated since the Closing Date
at the Maximum Lawful Rate.


 


Section 2.5.                                          Notations on Variable
Funding Notes.


 


The
Administrative Agent is hereby authorized to enter on a schedule attached to
the VFNs a notation (which may be computer generated) or to otherwise record in
its internal books and records or computer system with respect to each Loan
under the applicable VFN made by each Lender of (a) the date and principal
amount thereof and (b) each payment and repayment of principal thereof. Any
such recordation shall, absent manifest error, constitute prima facie evidence
of the Loans Outstanding under such VFN. The failure of the Administrative
Agent to make any such notation on the schedule attached to a VFN shall not
limit or otherwise affect the obligation of the Borrowers to repay the Loan in
accordance with the terms set forth herein.


 


34

















 


Section 2.6.                                          Principal Repayments.


 


(a)                                  Unless sooner prepaid pursuant to Section 2.3,
Section 2.7, Section 2.8 or Section 10.2,
the Loans Outstanding shall be repaid in full on the Termination Date (with
such payments to be applied ratably to the A-1 VFN and the A-2 VFN based on the
respective outstanding principal balances thereof).


 


(b)                                 If at any time the Loans Outstanding exceed
the Maximum Outstanding Loan Amount (including as a result of an Eligible
Receivable becoming a Defaulted Receivable), the Borrowers shall within five
(5) Business Days of the actual knowledge of such shortfall by a
Responsible Officer cure such shortfall by (i) depositing into the
Collection Account amounts sufficient to reduce the Loans Outstanding (with
such payments to be applied ratably to the A-1 VFN and the A-2 VFN based on the
respective outstanding principal balances thereof) or (ii) adding
additional Eligible Receivables to the Collateral.


 


Section 2.7.                                          Settlement Procedures During
the Revolving Period.


 


On
each Payment Date during the Revolving Period, the Servicer shall direct the
Collateral Custodian to pay pursuant to the Servicing Report (and the
Collateral Custodian shall make payment from the Collection Account to the
extent of Available Funds in reliance on the information set forth in such
Servicing Report) to the following Persons, the following amounts in the
following order of priority:


 


(1)                                  to each Hedge Counterparty, pro rata, based on the respective amounts
owed under all Interest Rate Hedge Transactions related thereto, including any
unpaid Hedge Breakage Costs with respect thereto;


 


(2)                                  (A) first, to each Sub-Servicer, in an
amount equal to the lesser of (I) any accrued and unpaid Sub-Servicer Fees
and (II) an amount equal to the Servicing Fees accrued with respect to the
Receivables subserviced by the applicable Sub-Servicer and (B) second, to
the Servicer, in an amount equal to any accrued and unpaid Servicing Fees (less
any Sub-Servicer Fees distributed under clause (A)) and any reimburseable
expenses of any successor Servicer; provided
that for so long as ***** is the
Servicer it shall not be entitled to any Servicing Fees pursuant to this clause
(2);


 


(3)                                  pro  rata
in accordance with the amounts due under this clause and to the extent not paid
by the Originator, to the Backup Servicer and the Collateral Custodian, pro rata, in an amount equal to
(i) any accrued and unpaid Backup Servicing Fees, Collateral Custodian
Fees and Transition Expenses, and (ii) incurred but unreimbursed
reasonable third-party, out-of-pocket expenses relating to their respective duties
as Backup Servicer or Collateral Custodian hereunder, in respect of which the
Backup Servicer or the Collateral Custodian, as applicable, has provided prior
written notice setting forth such expenses in reasonable detail to the Servicer
and the Administrative Agent, for the payment thereof, provided that amounts payable pursuant to
this sub-clause (ii) shall not exceed $5,000 for any Payment Date;


 


(4)                                  to the Administrative Agent, on behalf of the
Lenders, in an amount equal to any accrued and unpaid Interest, Unused Fees and
any other fees or expenses due and payable to the Lenders hereunder;


 


35

















 


(5)                                  to the Administrative Agent, for the account
of each applicable Lender in reduction of the Loans Outstanding, an amount
equal to the Required Reduction Amount, if any;


 


(6)                                  to *****,
for so long as it is the Servicer, in an amount equal to any accrued and unpaid
Servicing Fees (less any Sub-Servicer Fees paid pursuant to clause
(2)(A) above);


 


(7)                                  pro rata in accordance with the amounts due under
this clause, to the Administrative Agent, any applicable Lender, the Backup
Servicer, the Collateral Custodian, any successor Servicer, the Indemnified
Parties or the Secured Parties, all other amounts, including any expenses,
Increased Costs, Taxes or Indemnified Amounts, but other than the principal and
interest of the Loans Outstanding, then due under this Agreement; and


 


(8)                                  to the extent that, after giving effect to
such release, the Maximum Outstanding Loan Amount would exceed $0, any
remaining amounts shall be distributed to the Borrowers as directed by the
Servicer.


 


Section 2.8.                                          Settlement Procedures During
the Amortization Period.


 


On
each Payment Date during the Amortization Period, the Servicer shall direct the
Collateral Custodian to pay pursuant to the Servicing Report (and the
Collateral Custodian shall make payment from the Collection Account to the
extent of Available Funds in reliance on the information set forth in such
Servicing Report) to the following Persons, the following amounts in the
following order of priority:


 


(1)                                  to each Hedge Counterparty, pro rata, based on the respective amounts
owed under all Interest Rate Hedge Transactions related thereto, including any
unpaid Hedge Breakage Costs with respect thereto;


 


(2)                                  (A) first, to each Sub-Servicer, in an
amount equal to the lesser of (I) any accrued and unpaid Sub-Servicer Fees
and (II) an amount equal to the Servicing Fees accrued with respect to the
Receivables subserviced by the applicable Sub-Servicer and (B) second, to
the Servicer, in an amount equal to any accrued and unpaid Servicing Fees (less
any Sub-Servicer Fees distributed under clause (A)) and any reimburseable
expenses of any successor Servicer; provided
that for so long as ***** is the
Servicer it shall not be entitled to any Servicing Fees pursuant to this clause
(2);


 


(3)                                  pro  rata
in accordance with the amounts due under this clause and to the extent not paid
by the Originator, to the Backup Servicer and the Collateral Custodian, pro rata, in an amount equal to
(i) any accrued and unpaid Backup Servicing Fees, Collateral Custodian
Fees and Transition Expenses, and (ii) incurred but unreimbursed
reasonable third-party, out-of-pocket expenses relating to their respective
duties as Backup Servicer or Collateral Custodian hereunder, in respect of
which the Backup Servicer or the Collateral Custodian, as applicable, has
provided prior written notice setting forth such expenses in reasonable detail
to the Servicer and the Administrative Agent, for the payment thereof; provided that amounts payable pursuant to
this sub-clause (ii) shall not exceed $5,000 for any Payment Date;


 


36

















 


(4)                                  to the Administrative Agent, on behalf of the
Lenders, in an amount equal to any accrued and unpaid Interest, Unused Fee and
any other fees or expenses due and payable to the Lenders hereunder;


 


(5)                                  to the Administrative Agent, for the account
of each applicable Lender, an amount necessary to reduce the Loans Outstanding
and other Aggregate Unpaids payable to the Lender hereunder to zero;


 


(6)                                  to *****,
for so long as it is the Servicer, in an amount equal to any accrued and unpaid
Servicing Fees (less any Sub-Servicer Fees period pursuant to
clause(2)(A) above);


 


(7)                                  pro rata in accordance with the amounts due under
this clause, to the Backup Servicer, the Collateral Custodian, any successor
Servicer, the Indemnified Parties or the Secured Parties, all other amounts,
including any Increased Costs, Taxes or Indemnified Amounts; and


 


(8)                                  any remaining amounts shall be distributed to
the Borrowers as directed by the Servicer.


 


Section 2.9.                                          Collections and Allocations.


 


(a)                                  Collections. The Servicer shall (or shall cause the applicable Sub-Servicer to do
so on its behalf) direct each Obligor on the Receivables to make payments only
to one of the Lockbox Accounts listed on Schedule VI, as such Schedule VI
may be amended from time to time. The LLC Borrower, the Servicer and the Trust
II Borrower shall wire transfer, or cause to be wire transferred, all
Collections received in the Lockbox Accounts related to Receivables acquired by
the LLC Borrower pursuant to its Sale Agreement (or, in the case of the Trust
II Borrower, the Receivables acquired by it from the LLC Borrower pursuant to
the Purchase Agreement) or received directly by it to the Collection Account by
the close of business on the Business Day following receipt. The Trust Borrower
and the Trust II Borrower shall wire transfer, or cause to be wire transferred,
to the Concentration Account by the close of business on each Business Day, all
Collections received in the Lockbox Accounts related to Receivables acquired by
either of the Trust Borrower and the Trust II Borrower pursuant to the Sourcing
and Servicing Agreement or the Purchase Agreement, as applicable, or received
directly by either of them. Pursuant to the Concentration Account Agreement,
both the Trust Borrower and the Trust II Borrower shall cause the applicable
Collections to be transferred from the Concentration Account to the Collection
Account within one (1) Business Day of deposit therein. The Servicer shall
further include a statement as to the amount of Collections on deposit in the
Collection Account on each Reporting Date in the Servicing Report delivered
pursuant to Section 6.8(a).


 


(b)                                 Excluded Amounts. With the prior written consent of the
Administrative Agent, the Servicer may withdraw from the Collection Account
(not more than once per week) any deposits thereto constituting Excluded
Amounts if the Servicer has, prior to such withdrawal and consent, delivered to
the Administrative Agent a report (a copy of which (together with the written
consent of the Administrative Agent) will be provided by the Servicer to the
Backup


 


37

















 


Servicer
and Collateral Custodian) setting forth the calculation of such Excluded
Amounts in form and substance reasonably satisfactory to the Administrative
Agent.


 


(c)                                  Initial Deposits. On the Funding Date with respect to any
Loan, the Servicer will direct (which direction may take the form of standing
instructions) the Collateral Custodian in writing to deposit into the
Collection Account all Collections received in respect of such Receivable after
the applicable cutoff date established in connection with the acquisition
thereof (if other than the Funding Date) and delivered to the Collateral
Custodian.


 


(d)                                 Investment of Funds. Prior to the occurrence and continuance of
an Event of Default, to the extent there are uninvested amounts deposited in
the Collection Account, all such amounts shall be invested in Permitted
Investments selected by the initial Servicer in written instructions delivered
to the Collateral Custodian (which may be in the form of standing
instructions); during the continuance of an Event of Default, to the extent
there are uninvested amounts in the Collection Account, all such amounts may be
invested in Permitted Investments selected by the Administrative Agent. All
earnings (net of losses and investment expenses) thereon shall be retained or
deposited into the Collection Account and shall be applied on each Payment Date
pursuant to the provisions of Section 2.7 or Section 2.8,
as applicable. All investments shall be subject to availability. Absent receipt
of instructions as contemplated herein, the Collateral Custodian shall have no
obligation to invest any funds. Each Permitted Investment may be purchased by
or through the Collateral Custodian or its Affiliates. The Collateral Custodian
shall have no responsibility for the performance of any Permitted Investment.


 


Section 2.10.                                   Payments, Computations, Etc.


 


(a)                                  Unless otherwise expressly provided herein,
all amounts to be paid or deposited by the Borrowers or the initial Servicer
hereunder shall be paid or deposited in accordance with the terms hereof no
later than 2:00 p.m. on the day when due in lawful money of the United
States in immediately available funds and any amount not received before such
time shall be deemed received on the next Business Day. The Borrowers or the
initial Servicer, as applicable, shall, to the extent permitted by law, pay to
the Administrative Agent (for the benefit of the applicable Secured Parties)
interest on all amounts not paid or deposited when due hereunder at the Default
Rate upon written notice of same, as applicable, payable on demand; provided that such interest rate shall not
at any time exceed the maximum rate permitted by Applicable Law. Such interest
shall be for the account of the applicable Secured Party. All computations of
interest and other fees hereunder shall be made on the basis of a year
consisting of 360 days for the actual number of days elapsed.


 


(b)                                 Whenever any payment hereunder shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of the payment of Interest or any fee
payable hereunder, as the case may be.


 


(c)                                  If any Loan is requested by the Borrowers
pursuant to Section 2.2 and is not effectuated as a result of a
Borrower’s actions or failure to fulfill any condition under Section 3.2,
as the case may be, on the date specified therefor, the applicable Borrower
shall indemnify


 


38

















 


the
applicable Lenders against any reasonable direct loss, cost or expense actually
incurred by such Lenders, including, without limitation, any loss, cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by the applicable Lender to fund or maintain such Loan.


 


Section 2.11.                                   Fees.


 


(a)                                  The Borrowers shall pay in accordance with Section 2.7(4) and
Section 2.8(4) an unused fee (the “Unused Fee”),
monthly in arrears, in an amount equal to (i) the Maximum Committed Amount
minus (ii) the sum of the average daily balance of each of
(w) the Loans Outstanding, and (x) the outstanding principal balance
of the Term Loan times (iii) 0.25% divided by
(iv) 12.  No Unused Fee shall accrue
during the Amortization Period.


 


Section 2.12.                                   Increased Costs; Capital
Adequacy; Illegality.


 


(a)                                  If after the Closing Date either (i) the
introduction of or any change (including, without limitation, any change by way
of imposition or increase of reserve requirements) in or in the interpretation
of any Applicable Law or (ii) the compliance by a Lender with any
guideline or request from any central bank or other Governmental Authority
(whether or not having the force of law), shall (1) subject a Lender to
any Tax (except net income, gross income or franchise and similar taxes imposed
on any Lender by a taxing jurisdiction in which any such Person is organized,
conducts business or is paying taxes (as the case may be)), duty or other
charge with respect to any interest in the Collateral, or any right or
obligation to make the Loan hereunder, or on any payment made hereunder,
(2) impose, modify or deem applicable any reserve requirement (including,
without limitation, any reserve requirement imposed by the Board of Governors
of the Federal Reserve System, but excluding any reserve requirement, if any,
included in the determination of Interest), special deposit or similar
requirement against assets of, deposits with or for the amount of, or credit
extended by, any Lender under this Agreement or any other Transaction Document
or (3) impose any other condition affecting the ownership or security
interest in the Collateral conveyed to the Lenders hereunder or any Lender’s
rights hereunder or under any other Transaction Document, the result of which
is to increase the cost to any Lender or to reduce the amount of any sum
received or receivable by a Lender under this Agreement or under any other
Transaction Document, then on the Payment Date following demand by such Lender
(or the next Payment Date, if such demand is given less than five (5) days
prior to a Payment Date) (which demand shall be accompanied by a statement
setting forth in reasonable detail the basis for such demand), the Borrowers
shall pay directly to such Lender such additional amount or amounts as will
compensate such Lender for such additional or increased cost incurred or such
reduction suffered.


 


(b)                                 If either (i) the introduction of or any
change in or in the interpretation of any law, guideline, rule, regulation,
directive or request or (ii) compliance by any Lender with any law,
guideline, rule, regulation, directive or request from any central bank or
other governmental authority or agency (whether or not having the force of
law), including, without limitation, compliance by a Lender with any request or
directive regarding capital adequacy, has or would have the effect of reducing
the rate of return on the capital of any Lender as a consequence of its
obligations hereunder or arising in connection herewith to a level below that
which any such Lender could have achieved but for such introduction, change or
compliance


 


39
















 


(taking into consideration the policies of such Lender with respect to
capital adequacy) by a material amount, then from time to time, on the Payment
Date following demand by such Lender (or the next Payment Date, if such demand
is given less than five (5) days prior to a Payment Date) (which demand
shall be accompanied by a statement setting forth in reasonable detail the
basis for such demand), the Borrowers shall pay directly to such Lender such
additional amount or amounts as will compensate such Lender for such
reduction.  For the avoidance of doubt,
if the issuance of any amendment or supplement to Interpretation No. 46 or
to Statement of Financial Accounting Standards No. 140 by the Financial
Accounting Standards Board or any other change in accounting standards or the
issuance of any other pronouncement, release or interpretation, causes or
requires the consolidation of all or a portion of the assets and liabilities of
the Originator or the Borrowers with the assets and liabilities of any Lender
or shall otherwise impose any loss, cost, expense, reduction of return on
capital or other loss or any Lender, such event shall constitute a circumstance
on which such Lender may base a claim for reimbursement under this Section 2.12.


 


(c)                                  In
determining any amount provided for in this Section 2.12, the
Lender may use any reasonable averaging and attribution methods.  Any Lender making a claim under this Section 2.12
shall submit to the Servicer a written description in reasonable detail as to
such additional or increased cost or reduction and the calculation thereof,
which written description shall be conclusive absent manifest error.


 


(d)                                 Failure
or delay on the part of any Lender to demand compensation pursuant to this Section 2.12
shall not constitute a waiver of such Lender’s right to demand or receive such
compensation.  The Borrowers shall not be
required to compensate a Lender for any loss, cost or expense under this Section unless
a claim therefor has been made within 180 days of knowledge thereof by such
Lender.


 


Section 2.13.                                   Taxes.


 


(a)                                  All
payments made by a Borrower or the initial Servicer (on behalf of the
Borrowers) under this Agreement will be made free and clear of and without
deduction or withholding for or on account of any Taxes.  If any Taxes are required to be withheld from
any amounts payable hereunder, then the amount payable to such Person will be
increased (the amount of such increase, the “Additional Amount”) such
that every net payment made under this Agreement after withholding for or on
account of any Taxes (including, without limitation, any Taxes on such
increase) is not less than the amount that would have been paid had no such
deduction or withholding been made; provided that
no Additional Amount shall be payable hereunder to any Person to the extent
such amount is payable as a result of the failure of such Person to comply with
Section 2.13(d).  The
foregoing obligation to pay Additional Amounts with respect to payments
required to be made by the Borrowers under this Agreement will not, however,
apply with respect to net income, gross income or franchise and similar taxes
imposed on the Administrative Agent or any Lender.


 


(b)                                 The
initial Servicer will indemnify (and to the extent the indemnification provided
by the initial Servicer is insufficient, the Borrowers will indemnify) each
Lender for the full amount of Taxes payable by such Persons in respect of
Additional Amounts and any liability (including interest and expenses) arising
therefrom or with respect thereto; provided that no


 


40

















 


indemnification shall be
payable hereunder to any Person to the extent such amount is payable as a
result of the failure of such Person to comply with Section 2.13(d).  All payments in respect of this
indemnification shall be made on the Payment Date following the date a written
invoice therefor setting forth in reasonable detail the basis and calculation
of such amounts is delivered to the Borrowers. 
In the event any Secured Party receives a refund of any amount paid by a
Borrower or the initial Servicer pursuant to this Section 2.13, as
long as no Event of Default has occurred and is continuing, such Secured Party
shall promptly remit such refunded amount to the applicable Borrower(s) or
the initial Servicer, as applicable.


 


(c)                                  Within
thirty (30) days after the date of any payment by the Borrowers of any Taxes,
the Borrowers will furnish to the Administrative Agent appropriate evidence of
payment thereof.


 


(d)                                 If
any Lender is not created or organized under the laws of the United States or a
political subdivision thereof, such Lender (or the Administrative Agent on the
Lender’s behalf) shall deliver to the Borrowers, with a copy to the
Administrative Agent, the Collateral Custodian and the Servicer, (i) within
fifteen (15) days after the date such Lender becomes party to the applicable
Transaction Documents, two (or such other number as may from time to time be
prescribed by Applicable Law) duly completed copies of IRS Form W-8BEN or Form W-8ECI
(or any successor forms or other certificates or statements that may be
required from time to time by the relevant United States taxing authorities or
Applicable Law), as appropriate, to permit the Borrowers to make payments
hereunder for the account of such Lender without deduction or withholding of
United States federal income or similar Taxes and (ii) upon the
obsolescence of or after the occurrence of any event requiring a change in, any
form or certificate previously delivered pursuant to this Section 2.13(d),
copies (in such numbers as may from time to time be prescribed by Applicable
Law or regulations) of such additional, amended or successor forms,
certificates or statements as may be required under Applicable Law to permit
the Borrowers to make payments hereunder for the account of such Lender without
deduction or withholding of United States federal income or similar Taxes (and,
in either case, the Borrowers shall be permitted to withhold, without penalty
or liability, amounts it deems reasonably necessary if such documentation is
not delivered hereunder). 
Notwithstanding the foregoing, any additional costs or expenses that are
due to the fact that a Lender is not created or organized in the United States
shall not be passed through to the Borrowers.


 


(e)                                  Without
prejudice to the survival of any other agreement of the Borrowers hereunder,
the agreements and obligations of the Borrowers and the Servicer contained in
this Section 2.13 shall survive the termination of this Agreement.


 


Section 2.14.                                   Assignment
of the Sale Agreement, Purchase and Sale Agreements and Dealer Agreements.


 


Each Borrower
hereby assigns to the extent of its interest therein, to the Administrative
Agent, for the ratable benefit of the Secured Parties hereunder, all of such
Borrower’s right, title and interest in and to, but none of its obligations
under, the Sale Agreements, each Purchase and Sale Agreement (including all
recourse obligations of the applicable Sellers), the Dealer Agreements
(including all buyback obligations of the applicable Dealers) and any UCC
financing statements filed under or in connection therewith with respect to the
Receivables.  In


 


41

















 


furtherance and not in limitation of the foregoing, each of the
Borrowers hereby assigns to the Administrative Agent, for the benefit of the
Secured Parties, its right to indemnification under the Sale Agreements and the
Purchase and Sale Agreements with respect to the Receivables.  The Borrowers confirm that (i) at any
time during the continuance of an Event of Default and (ii) otherwise,
upon written notice to the Borrowers and the Servicer by the Administrative
Agent, the Administrative Agent, on behalf of the Secured Parties, shall have
the sole right to enforce a Borrower’s rights and remedies under the Sale
Agreements, the Purchase and Sale Agreements (including all recourse guaranty
obligations of the Sellers) and the Dealer Agreements (including all buyback
obligations of the applicable Dealers) with respect to the Receivables for the
benefit of the Secured Parties.


 


Section 2.15.                                   Repurchase
of Receivables.


 


Within ten (10) Business
Days of the day a Receivable is (or becomes) subject to a Warranty Event, the
Borrowers shall either: (i) make a deposit to the Collection Account (for
allocation pursuant to Sections 2.7 or 2.8, as applicable) in
immediately available funds in an amount equal to the Outstanding Receivable
Balance of such Receivable on the date of such payment, and any accrued and
unpaid interest thereon, or (ii) replace such Receivable with a substitute
Receivable (a “Substitute Receivable”), provided,
that such Substitute Receivable: (a) shall be an Eligible Receivable, and (b) prior
to such Substitution, the Borrowers shall deliver the related Required Receivable
File to the Collateral Custodian and the Collateral Custodian shall have
provided a Collateral Receipt with no exceptions to the Administrative Agent.


 


ARTICLE
III


 


CONDITIONS
TO CLOSING AND LOANS


 


Section 3.1.                                          Conditions
to Closing and the Initial Loan.


 


No Lender
shall be obligated to make any Loan hereunder after the Effective Date until
the following conditions have been satisfied in the sole discretion of, or
waived in writing by, the Administrative Agent:


 


(a)                                  The
Trust II Borrower has provided evidence satisfactory to the Administrative
Agent that such entity has been duly organized, and is validly existing in good
standing, under the laws of the state of its formation, with all requisite
power and authority to own or lease its properties and conduct its business as
such business is presently conducted, and had at all relevant times and now has
all necessary power, authority and legal right to acquire, own, sell and pledge
the Receivables, as applicable;


 


(b)                                 Each
Transaction Document shall have been duly executed by, and delivered to, the
parties thereto, and the Administrative Agent shall have received such other
documents, instruments, agreements, financing statements, control agreements,
security agreements, insurance certificates and legal opinions as the
Administrative Agent shall reasonably request in connection with the
transactions contemplated by this Agreement, including, without limitation, all
those specified in the schedule of condition precedent


 


42

















 


documents attached hereto
as Schedule I, in each such case in form and substance reasonably
satisfactory to the Administrative Agent;


 


(c)                                  The
Administrative Agent shall have received (i) reasonably satisfactory
evidence that the Trust II Borrower has obtained all required consents and
approvals of all Persons, including all requisite Governmental Authorities, to
the execution, delivery and performance of this Agreement and the other
Transaction Documents to which each is a party and the consummation of the
transactions contemplated hereby or thereby or (ii) an Officer’s
Certificate from the Trust II Borrower in form and substance reasonably
satisfactory to the Administrative Agent affirming that no such consents or
approvals are required;


 


(d)                                 The
Borrowers, the Servicer and the Originator shall each be in compliance in all
material respects with all Applicable Laws and shall have delivered to the
Administrative Agent as to this and other closing matters a certification in
the form of Exhibits E-1, E-2, E-3, E-4 and E-5,
as applicable;


 


(e)                                  The
Borrowers and the initial Servicer shall have delivered to the Administrative
Agent duly executed Powers of Attorney in the form of Exhibits F-1, F-2,
F-3 and F-4, as applicable;


 


(f)                                    The
Borrowers, the Servicer and the Originator shall each have delivered to the
Administrative Agent a certificate as to Solvency in the form of Exhibits
D-1, D-2, D-3  D-4 and D-5, as applicable;


 


(g)                                 The
Administrative Agent shall have received a duly executed copy of the A-1
Variable Funding Note, in a principal amount of $25,000,000 and a duly executed
copy of the A-2 Variable Funding Note, in a principal amount of $25,000,000;
and


 


(h)                                 The
Backup Servicer has taken, and the Servicer and each applicable Sub-Servicer
have permitted, all necessary action to obtain access and the information from
the Servicer’s and Sub-Servicer’s servicing system to perform its
responsibilities hereunder.


 


Section 3.2.                                          Conditions
Precedent to All Loans.


 


Each Loan
under this Agreement (each, a “Transaction”) shall be subject to the
further conditions precedent that:


 


(a)                                  The
Borrowers shall have delivered (or caused to be delivered on their behalf) to
the Administrative Agent (with a copy to the Collateral Custodian and the
Backup Servicer) no later than (I) two (2) Business Days prior to the
related Funding Date with respect to Receivables being acquired from Sellers of
Receivables included in the Collateral on a prior Funding Date and (II) five
(5) Business Days prior to the related Funding Date with respect to
Receivables being acquired from Sellers of Receivables not previously included
in the Collateral:


 


(i)                                     a
Borrowing Notice, a Borrowing Base Certificate, a Receivables List and, if
applicable, a Servicing Report; and


 


43

















 


(ii)                                  if
applicable, a Sale Assignment substantially in the form of Exhibit A to
the Sale Agreement (with respect to the LLC Borrower only) including Schedule I
thereto and containing such additional information as may be reasonably
requested by the Administrative Agent; and


 


(b)                                 On
the date of such Transaction the following shall be true and correct (both
before and immediately after giving effect to such Transaction) and the
Borrowers and the Servicer shall have certified in the related Borrowing Notice
that all conditions precedent to the requested Transaction have been satisfied
and shall thereby be deemed to have certified that:


 


(i)                                     The
representations and warranties contained in Section 4.1 and Section 4.3
are true and correct in all material respects on and as of such day (except to
the extent such representations and warranties relate to an earlier date, in
which case they shall be true and correct in all material respects as of such
earlier date) as though made on and as of such day and shall be deemed to have
been made on such day;


 


(ii)                                 No
event has occurred, or would result from such Transaction, that constitutes (A) an
Event of Default (unless such Event of Default has been waived in writing by
the Administrative Agent) or Unmatured Event of Default (unless such Unmatured
Event of Default is no longer continuing) or (B) an “Event of Default”
(unless such event has been waived in writing pursuant to the terms of the Term
Credit Agreement) or “Unmatured Event of Default” (unless such event is no
longer continuing) under (and as defined in) the Term Credit Agreement or any
other credit facility between any Affiliate of the Originator and any Affiliate
of the Administrative Agent;


 


(iii)                              On
and as of such day, after giving effect to such Transaction, the Maximum
Outstanding Loan Amount shall be greater than or equal to $0; and


 


(iv)                             To
the knowledge of the Borrowers, no Applicable Law shall prohibit or enjoin the
Borrowers from entering into such Transaction.


 


(c)                                  The
applicable Borrower shall have delivered to the Collateral Custodian, no later
than 2:00 p.m. (I) two (2) Business Days prior to the related
Funding Date with respect to Receivables being acquired from Sellers of
Receivables included in the Collateral on a prior Funding Date and (II) five
(5) Business Days prior to the related Funding Date with respect to
Receivables being acquired from Sellers of Receivables not previously included
in the Collateral, the Required Receivable File;


 


(d)                                 The
Amortization Period shall not have commenced and no Event of Default shall have
occurred and be continuing;


 


(e)                                  On
the date of such Transaction, the Administrative Agent shall have received such
other approvals, opinions or documents as the Administrative Agent may
reasonably require; and


 


(f)                                    The
Administrative Agent shall have received from the Borrowers or the Servicer on
behalf of the Borrowers, a copy of the Purchase and Sale Agreement with respect
to the Receivables, if any, being acquired by the LLC Borrower (if not previously
delivered to the


 


44

















 


Administrative Agent),
all hedging confirmations required in connection with such Transaction, any
Sub-Servicing Agreements then in effect with respect to the Receivables being
acquired (if not previously delivered to the Administrative Agent), and copies
of the applicable Dealer Agreement (if any) for each such Receivable, in each
case in form and substance reasonably satisfactory to the Administrative Agent.


 


Section 3.3.                                          Permitted
Investments.


 


Each time that
the Borrowers (or the initial Servicer on behalf of the Borrowers) shall direct
or cause the acquisition of any Permitted Investment, the Borrowers shall (or
the initial Servicer on behalf of the Borrowers), if such Permitted Investment
has not already been transferred or credited to the Collection Account, cause
all Permitted Investments acquired by the Borrowers to be transferred to the
Collateral Custodian for credit to the appropriate Account, in each case for
the benefit of the Administrative Agent by one of the following means (and
shall take any and all other actions necessary to create in favor of the
Administrative Agent a valid, perfected, first priority security interest
(subject to Permitted Liens) in each Permitted Investment granted to the
Administrative Agent under laws and regulations (including without limitation
Articles 8 and 9 of the UCC, as applicable) in effect at the time of such
grant):


 


(i)                                     in
the case of an Instrument or a Certificated Security represented by a Security
Certificate in registered form by having it specially Indorsed to the
Administrative Agent or in blank by an effective Indorsement or registered in
the name of the Administrative Agent and by (A) delivering such Instrument
or Security Certificate to the Collateral Custodian at the address specified in
Schedule III hereto and (B) causing the Collateral Custodian to
maintain (on behalf of the Administrative Agent) continuous possession of such
Instrument or Security Certificate at the address specified in Schedule III
hereto;


 


(ii)                                 in
the case of an Uncertificated Security, by (A) causing the Administrative
Agent to become the registered owner of such Uncertificated Security and (B) cooperating
in causing such registration to remain effective and not take any action to the
contrary;


 


(iii)                              in
the case of any Security Entitlement, by causing the Administrative Agent to
become the Entitlement Holder of such Security Entitlement; or


 


(iv)                             in
the case of general intangibles (including any loan not evidenced by an
Instrument) by filing, maintaining and continuing the effectiveness of
financing statements naming each Borrower as a debtor and the Administrative
Agent as secured party and describing the Permitted Investment as the
collateral at the filing office of the Secretary of State for the State of
Delaware (in the case of Borrowers).


 


Section 3.4.                                          *****
Consent


 


(a)                                  *****, in its capacity as Administrative Agent under the
Term Credit Agreement, hereby (i) consents to the amendment of the LLC
Borrower’s limited liability company agreement in order to permit the LLC
Borrower to enter into this Agreement and the other Transaction Documents, as
applicable, and (ii) agrees that LLC Borrower’s execution and delivery of
and performance under this Agreement and the other Transaction Documents


 


45

















 


(including the LLC
Borrower’s ownership of the Trust Borrower) shall not constitute a breach or
violation of any of the representations, warranties, covenants or other
agreements set forth in the Term Credit Agreement or the other “Transaction
Documents” (as defined in the Term Credit Agreement) and the security interest
granted in the Collateral hereunder shall constitute a “Permitted Lien” (under
and as defined in the Term Credit Agreement) for purposes of all of the “Transaction
Documents” (as defined in the Term Credit Agreement).


 


(b)                                 *****, in its capacity as Administrative Agent under this
Agreement, hereby agrees that LLC Borrower’s execution and delivery of and
performance under the Term Credit Agreement and the other “Transaction
Documents” (as defined in the Term Credit Agreement) shall not constitute a
breach or violation of any of the representations, warranties, covenants or
other agreements set forth in this Agreement or the other Transaction Documents
and the security interest granted in the Collateral hereunder or thereunder
shall constitute a Permitted Lien for purposes of all of the Transaction
Documents.


 


(c)                                  *****, in its capacity as Administrative Agent under this
Agreement, hereby consents to the sale and assignment from time to time of
certain receivables and related assets by the Trust Borrower and the LLC
Borrower, as applicable, to the Trust II Borrower upon the terms and conditions
set forth in the Purchase Agreement.


 


ARTICLE
IV


 


REPRESENTATIONS
AND WARRANTIES


 


Section 4.1.                                          Representations
and Warranties of the Borrowers.


 


Each Borrower
represents and warrants as to itself and the Collateral in which it has an
interest as follows as of the Effective Date, each Funding Date, and as of each
other date provided under this Agreement or the other Transaction Documents on
which such representations and warranties are required to be (or deemed to be)
made:


 


(a)                                  Organization
and Good Standing.  It has been duly
formed, and is validly existing as a limited liability company or statutory
trust, as applicable, in good standing, under the laws of the State of
Delaware, with all requisite power and authority to own or lease its properties
and conduct its business as such business is presently conducted, and had at
all relevant times, and now has all necessary power, authority and legal right
to acquire, own, sell and pledge the Collateral.


 


(b)                                 Due
Qualification.  It is duly qualified
to do business as a limited liability company or statutory trust, as
applicable, and has obtained all necessary qualifications, licenses and
approvals, in all jurisdictions in which the conduct of its business requires
such qualifications, licenses or approvals except to the extent that failure to
do so could not reasonably be expected to have a Material Adverse Effect.


 


(c)                                  Power
and Authority; Due Authorization; Execution and Delivery.  It (i) has all necessary power,
authority and legal right to (a) execute and deliver this Agreement and
the other Transaction Documents to which it is a party, and (b) carry out
the terms of the


 


46

















 


Transaction Documents to
which it is a party, and (ii) has duly authorized, by all necessary
limited liability company or statutory trust, as applicable, action, the
execution, delivery and performance of this Agreement and the other Transaction
Documents to which it is a party and the assignment of a security interest in
the Collateral on the terms and conditions herein provided.  This Agreement and each other Transaction
Document to which it is a party have been duly executed and delivered by it.


 


(d)                                 Binding
Obligation.  This Agreement and each
other Transaction Document to which it is a party constitutes a legal, valid
and binding obligation of it enforceable against it in accordance with its
respective terms, except as such enforceability may be limited by Insolvency
Laws and by general principles of equity (whether considered in a suit at law
or in equity).


 


(e)                                  No
Violation.  The consummation of the
transactions contemplated by this Agreement and the other Transaction Documents
to which it is a party and the fulfillment of the terms hereof and thereof will
not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both)
a default under, its applicable organizational documents or any Contractual
Obligation of it, (ii) result in the creation or imposition of any Lien
(other than Permitted Liens) upon any of its properties pursuant to the terms
of any such Contractual Obligation, other than this Agreement, or (iii) violate
in any Applicable Law applicable to it, in each case except to the extent that
failure to do so could not reasonably be expected to have Material Adverse
Effect.


 


(f)                                    No
Proceedings.  There is no litigation,
proceeding or investigation pending or, to the best knowledge of it, threatened
against it, before any Governmental Authority (i) asserting the invalidity
of this Agreement or any other Transaction Document to which it is a party, (ii) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document to which it is a party or (iii) seeking
any determination or ruling that could reasonably be expected to have Material
Adverse Effect.


 


(g)                                 Consents.  All approvals, authorizations, consents,
orders, licenses or other actions of any Person or of any Governmental
Authority (if any) required to be made or obtained by it for the due execution,
delivery and performance by it of this Agreement and any other Transaction
Document to which it is a party have been obtained except to the extent that
failure to do so could not reasonably be expected to have Material Adverse
Effect.


 


(h)                                 Solvency.  It is not the subject of any Insolvency
Proceedings or Insolvency Event.  The
transactions under this Agreement and any other Transaction Document to which
it is a party do not and will not render it not Solvent.


 


(i)                                     Taxes.  It has filed or caused to be filed all tax
returns that are required to be filed by it (or has been granted appropriate
extensions) and has paid or made adequate provisions for the payment of all
Taxes and all assessments made against it or any of its property (other than (i) any
amount of Tax the validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in accordance
with GAAP have been provided on the books of it, (ii) any Tax less than
thirty (30) days overdue and (iii) any filings that the failure to so file
could not reasonably be expected to have a Material Adverse


 


47

















 


Effect), and no tax lien
has been filed and, to its knowledge, no claim is being asserted, with respect
to any such Tax or assessment.


 


(j)                                     Exchange
Act Compliance; Regulations T, U and X. 
None of the transactions contemplated herein or in the other Transaction
Documents will cause it to violate or result in a violation by it of Section 7
of the Exchange Act, or any regulations issued pursuant thereto, including,
without limitation, Regulations T, U and X of the Board of Governors of the
Federal Reserve System, 12 C.F.R., Chapter II. 
It does not own or intend to carry or purchase, and no proceeds from the
Loans will be used to carry or purchase, any “margin stock” within the meaning
of Regulation U or to extend “purpose credit” within the meaning of Regulation
U.


 


(k)                                  Security
Interest.


 


(i)                                     This
Agreement creates a valid and continuing security interest (as defined in the
applicable UCC) in the Collateral in favor of the Administrative Agent, on
behalf of the Secured Parties, which security interest is prior to all other
Liens (except for Permitted Liens);


 


(ii)                                 the
Receivables and Related Security constitute “instruments”, “general intangibles”,
“tangible chattel paper” or “accounts” (each as defined in the applicable UCC);


 


(iii)                              with
respect to Collateral that constitute “security entitlements”:


 


(1)                                  all
of such security entitlements have been credited to one of the Accounts and the
securities intermediary for each Account has agreed to treat all assets
credited to such Account as “financial assets” within the meaning of the
applicable UCC;


 


(2)                                  it
has taken all steps necessary to cause the securities intermediary to identify
in its records the Administrative Agent as the Person having a security
entitlement against the securities intermediary in each of the Accounts; and


 


(3)                                  the
Accounts are not in the name of any Person other than the LLC Borrower.  The LLC Borrower has not authorized or
allowed the securities intermediary of any Account to comply with the
entitlement order of any Person other than the Administrative Agent; provided that until the Administrative Agent delivers a
notice of exclusive control under the Securities Account Control Agreement, the
Borrowers and the Servicer may cause cash in the Accounts to be invested in
Permitted Investments.


 


(iv)                             all
Accounts constitute “securities accounts” as defined in the applicable UCC;


 


(v)                                it
owns and has good and marketable title to the Collateral (including all
Receivables added to the Collateral on the applicable Funding Date therefor)
free and clear of any Lien (other than Permitted Liens) of any Person;


 


48

















 


(vi)                             it
has received all consents and approvals required by the terms of any Receivable
to the granting of a security interest in such Receivable hereunder to the
Administrative Agent, on behalf of the Secured Parties;


 


(vii)                         all
appropriate financing statements have been filed in the proper filing office in
the appropriate jurisdictions under Applicable Law in order to perfect the
security interest granted to the Administrative Agent, on behalf of the Secured
Parties, under this Agreement in the Receivables and in the other Collateral,
to the extent that a security interest in such other Collateral may be
perfected by the filing of a financing statement;


 


(viii)                      other than
the security interest granted to the Administrative Agent, on behalf of the
Secured Parties, pursuant to this Agreement or as otherwise permitted in
accordance with the Transaction Documents, it has not pledged, assigned, sold,
granted a security interest in or otherwise conveyed any of the Collateral.  It has not authorized the filing of and is
not aware of any financing statements against itself that includes a
description of collateral covering the Collateral other than any financing
statement that has been terminated and/or fully and validly assigned to the
Administrative Agent on or prior to the date hereof.  It is not aware of the filing of any judgment
or tax lien filings against itself;


 


(ix)                              all
original executed copies of each instrument that constitute or evidence each
Receivable has been delivered to the Collateral Custodian;


 


(x)                                 it
has received, or subject to the delivery requirements contained herein will
receive, a written acknowledgment from the Collateral Custodian that the
Collateral Custodian or its bailee is holding each instrument that constitutes
or evidences each Receivable solely on behalf of and for the benefit of the
Secured Parties;


 


(xi)                              none
of the Underlying Instruments that constitute or evidence the Receivables has
any marks or notations indicating that they have been pledged, assigned or
otherwise conveyed to any Person other than the Administrative Agent, on behalf
of the Secured Parties, and other than markings related to debt paid in full
prior to the inclusion of such Receivable in the Collateral;


 


(xii)                           with respect
to Collateral that constitutes a “certificated security,” such certificated
security has been delivered to the Collateral Custodian on behalf of the
Administrative Agent and, if in registered form, has been specially Indorsed to
the Administrative Agent or in blank by an effective Indorsement or has been
registered in the name of the Administrative Agent upon original issue or
registration of transfer by it of such certificated security; and


 


(xiii)                        with
respect to Collateral that constitutes an “uncertificated security”, the
Administrative Agent is registered as the registered owner of such
uncertificated security.


 


(l)                                     Reports
Accurate.  All Servicing Reports (if
prepared by it, or to the extent that information contained therein is supplied
by it), information, exhibits, financial statements, documents, books, records
or reports furnished by it to the Administrative Agent, Servicer,


 


49
















 


Backup Servicer,
Collateral Custodian or any Secured Party pursuant to this Agreement are true,
complete and correct in all material respects.


 


(m)                               Location
of Offices.  Its location (within the
meaning of Article 9 of the UCC) is Delaware.  The office where it keeps all the Records is
at the address of it referred to in Annex A hereto (or at such other
locations as to which the notice and other requirements specified in Section 5.2(g) shall
have been satisfied).  Its Federal
Employee Identification Number is correctly set forth on Exhibit E-1.  It has not changed its name (whether by
amendment of its certificate of formation, by reorganization or otherwise) or
its jurisdiction of organization and has not changed its location for purposes
of the applicable UCC within the four (4) months preceding the Closing Date.


 


(n)                                 Tradenames.  It has no trade names, fictitious names,
assumed names or “doing business as” names or other names under which it has
done or is doing business.


 


(o)                                 Sale
Agreement.  The Sale Agreement is the
only agreement pursuant to which it acquires Receivables and Related Security.


 


(p)                                 Value
Given.  It shall have given
reasonably equivalent value to the Originator or the applicable Seller in
consideration for the transfer to it of the Receivables and Related Security as
contemplated by the applicable Sale Agreement and no such transfer shall have
been made for or on account of an antecedent debt.


 


(q)                                 Accounting.  It accounts for the transfers to it of
interests in the Receivables and Related Security under the Sale Agreement as
financings of such Receivables and Related Security for tax purposes and sales
for legal and all other purposes.


 


(r)                                    Special
Purpose Entity.  It has not and shall
not:


 


(i)                                     engage
in any business or activity other than the purchase and receipt of Receivables
and related assets, the pledge of Collateral and other transactions
contemplated by the Transaction Documents, the transactions contemplated by the
Term Credit Agreement (if applicable) and related transaction documents, and
such other activities as are incidental to the foregoing;


 


(ii)                                  acquire
or own any material assets other than (a) the Receivables and rights in
the Related Security and the “Receivables” and “Related Security” (as defined
in the Term Credit Agreement), (b) with respect to the LLC Borrower, the
equity interests of the Trust Borrower and (c) incidental property as may
be necessary for the operation of it and the performance of its obligations
under the Transaction Documents and the “Transaction Documents” (as defined in
the Term Credit Agreement);


 


(iii)                               merge
into or consolidate with any Person or dissolve, terminate or liquidate in
whole or in part, transfer or otherwise dispose of all or substantially all of
its assets or change its legal structure, without in each case first obtaining
the consent of the Administrative Agent, except as otherwise provided by the
Transaction Documents and the “Transaction Documents” (as defined in the Term
Credit Agreement);


 


50

















 


(iv)                              fail
to preserve its existence as an entity duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization or
formation, or, without the prior written consent of the Administrative Agent, make
any material amendment or modification, or terminate or fail to comply with the
material provisions of its organizational documents (which includes the special
purpose entity limitations), or fail to observe limited liability company
formalities;


 


(v)                                 own
any Subsidiary or make any Investment in any Person without the consent of the
Administrative Agent (provided that
the LLC Borrower’s ownership of the Trust Borrower is hereby consented to by
the Administrative Agent);


 


(vi)                              except
as permitted by the Transaction Documents and the “Transaction Documents” (as
defined in the Term Credit Agreement), commingle its assets or liabilities with
the assets or liabilities of any of its Affiliates or any other Person;


 


(vii)                           incur
any debt, secured or unsecured, direct or contingent (including guaranteeing
any obligation), other than indebtedness under the Term Credit Agreement (with
respect to the LLC Borrower) and the transaction documents related thereto,
indebtedness to the Secured Parties hereunder or in conjunction with a
repayment of all Aggregate Unpaids owed hereunder, except for trade payables in
the ordinary course of its business, or as otherwise permitted in accordance
with the Transaction Documents; provided that such debt is not evidenced by a
note and is paid within thirty (30) days (or longer if in the normal course
such debt is paid on terms greater than 30 days) of when due (unless otherwise
contested in good faith by appropriate proceedings) and as otherwise permitted
by the Transaction Documents;


 


(viii)                        become
insolvent or fail to pay its debts and liabilities from its assets as the same
shall become due (unless otherwise contested in good faith by appropriate
proceedings);


 


(ix)                                fail
to maintain its records, books of account and bank accounts separate and apart
from those of any other Person;


 


(x)                                   enter
into any contract or agreement with any Person, except upon terms and
conditions that are commercially reasonable and substantially similar to those
that would be available on an arms-length basis with third parties other than
such Person in its reasonable judgment;


 


(xi)                                seek
its dissolution or winding up in whole or in part;


 


(xii)                             fail
to correct any known misunderstandings regarding the separate identity of the
LLC Borrower, the Trust Borrower and the Originator (and, with respect to the
Trust II Borrower, CLST Asset II, LLC) or any other Person;


 


(xiii)                          make any
loan or advances to any third party, including any principal or Affiliate, or
hold evidence of indebtedness issued by any other Person (other than the


 


51

















 


Receivables, cash and
Permitted Investments and as otherwise permitted by the Transaction Documents
and the “Transaction Documents” (as defined in Term Credit Agreement));


 


(xiv)                         fail to
file its own separate tax return, or file a consolidated federal income tax
return with any other Person, except as may be required by the Code and
regulations;


 


(xv)                            actively
hold itself out to the public such to represent that it is not a legal entity separate
and distinct from any other Person or to suggest that it is responsible for the
debts of any third party (including any of its principals or Affiliates);


 


(xvi)                         fail to
maintain adequate capital for the reasonably foreseeable obligations of its business
and contemplated business operations;


 


(xvii)                      file or
consent to the filing of any petition, either voluntary or involuntary, to take
advantage of any applicable insolvency, bankruptcy, liquidation or
reorganization statute, or make an assignment for the benefit of creditors;


 


(xviii)                   permit any
transfer (whether in any one or more transactions) of any direct or indirect
ownership interest in itself to the extent it has the ability to control the
same, unless it delivers to the Administrative Agent an acceptable
non-consolidation opinion and the Administrative Agent consents to such
transfer;


 


(xix)                           fail to
pay the salaries of its own employees, if any, in light of its contemplated
business operations;


 


(xx)                              acquire
the securities of its Affiliates (except for the LLC Borrower’s ownership of
the Trust Borrower);


 


(xxi)                           fail to
allocate fairly and reasonably any overhead expenses that are shared with an
Affiliate, including paying for office space and services performed by any
employee of an Affiliate;


 


(xxii)                        fail to
use separate invoices bearing its own name;


 


(xxiii)                     pledge or
permit the pledge of its assets for the benefit of any other Person, other than
with respect to payment of the indebtedness to the Secured Parties hereunder
and the indebtedness to the “Secured Parties” under the Term Credit Agreement
or as otherwise permitted in accordance with the Transaction Documents;


 


(xxiv)                    with respect
to the LLC Borrower, fail at any time to have at least one independent manager
or independent director (an “Independent Manager” or “Independent
Director”) acceptable to the Administrative Agent (who is an employee of
Lord Securities Corporation or another entity acceptable to the Administrative
Agent) and who is not currently a director, officer, employee, trade creditor
shareholder, manager or member (or spouse, parent, sibling or child of the
foregoing) of (a) the Servicer, (b) any Borrower, (c) the
Originator or (d) any principal or Affiliate of the Servicer, any Borrower
or the Originator; provided that  such
Independent Manager may be an independent manager or an independent director of
another special purpose entity affiliated with any Borrower, the Servicer or
Originator; or fail to ensure


 


52

















 


that all limited
liability company action relating to the selection or replacement of the
Independent Manager or Independent Director, as applicable, are duly authorized
by the unanimous vote of the board of managers (including the Independent
Manager or Independent Director, as applicable); and


 


(xxv)                       with
respect to the LLC Borrower, fail to provide in its organizational documents
that the unanimous consent of all managers, as applicable (including the
consent of the Independent Manager or Independent Director, as applicable) is
required for the LLC Borrower to (a) dissolve or liquidate, in whole or
part, or institute proceedings to be adjudicated bankrupt or insolvent, (b) institute
or consent to the institution of bankruptcy or insolvency proceedings against
it, (c) file a petition seeking or consent to reorganization or relief
under any applicable federal or state law relating to bankruptcy or insolvency,
(d) seek or consent to the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian or any similar official for the LLC
Borrower, (e) make any assignment for the benefit of the LLC Borrower’s
creditors, and (f) take any action in furtherance of any of the foregoing;
and


 


(xxvi)                    take or
refrain from taking, as applicable, each of the activities specified in the
non-consolidation opinion of Foley & Lardner LLP, dated as of August 15,
2008 or Jackson Walker LLP , dated as of the date hereof, upon which the
conclusions expressed therein are based.


 


(s)                                  Investment
Company Act.  It is not, and is not
controlled by, an “investment company” within the meaning of the 1940 Act or is
exempt from the provisions of the 1940 Act.


 


(t)                                    ERISA.  Neither it nor any ERISA Affiliate thereof
has any Benefit Plans or Multiemployer Plans.


 


(u)                                 Compliance
with Law.  It has complied with all
Applicable Laws to which it may be subject, and no item of Collateral
contravenes any Applicable Law (including, without limitation, all applicable
predatory and abusive lending laws, laws, rules and regulations relating
to licensing, truth in lending, fair credit billing, fair credit reporting,
equal credit opportunity, fair debt collection practices and privacy), in each
case except to the extent that failure to do so could not be reasonably
expected to have a Material Adverse Effect.


 


(v)                                 Lockbox
Accounts.  The name and address of
the Lockbox Account Banks, together with the account numbers of the Lockbox
Accounts of each Borrower at the applicable Lockbox Account Banks, is specified
in Schedule VI (as may be amended). 
The Lockbox Accounts are the only accounts to which Collections on the
Collateral are to be sent.  The Borrowers
have not granted any Person an interest in the Lockbox Accounts other than any
master collection account arrangement consented to by the Administrative Agent.


 


(w)                               Amendments.  No Receivable has been amended, modified or
waived following inclusion in the Collateral, except for amendments,
modifications or waivers, if any, to such Receivable otherwise permitted under Section 6.4(a) of
this Agreement and in accordance with the Credit and Collection Policy and the
Servicing Standard.


 


53

















 


(x)                                   USA
PATRIOT Act.  Neither it nor any
Affiliate of such Borrower is (i) a country, territory, organization,
person or entity named on an Office of Foreign Asset Control (OFAC) list; (ii) a
Person that resides or has a place of business in a country or territory named
on such lists or which is designated as a “Non-Cooperative Jurisdiction” by the
Financial Action Task Force on Money Laundering, or whose subscription funds
are transferred from or through such a jurisdiction; (iii) a “Foreign
Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank
that does not have a physical presence in any country and that is not
affiliated with a bank that has a physical presence and an acceptable level of
regulation and supervision; or (iv) a person or entity that resides in or
is organized under the laws of a jurisdiction designated by the United States
Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as
warranting special measures due to money laundering concerns.


 


(y)                                 Eligibility
of Collateral.  The Receivables List
is an accurate and complete listing of all Receivables and the information
contained therein with respect to the identity of such Receivables and the
amounts owing thereunder is true, correct and complete in all material
respects, and each such Receivable included in the Borrowing Base is an
Eligible Receivable.


 


(z)                                   No
Fraud.  Each Receivable was
originated, to the best knowledge of it, without any fraud or material
misrepresentation by the Seller, the applicable dealer or the Obligor.


 


Section 4.2.                                          Representations
and Warranties of the Servicer.


 


The initial
Servicer represents and warrants as follows as of the Effective Date and as of
each Measurement Date:


 


(a)                                  Organization
and Good Standing.  The Servicer has
been duly organized and is validly existing as a limited liability company, in
good standing under the laws of its jurisdiction of organization, with all
requisite organizational power and authority to conduct its business as such
business is presently conducted and to enter into and perform its obligations
pursuant to this Agreement.


 


(b)                                 Due
Qualification.  The Servicer is duly
qualified to do business as a limited liability company and has obtained all
necessary licenses and approvals in all jurisdictions in which the conduct of
its business requires such qualification, licenses or approvals except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(c)                                  Power
and Authority; Due Authorization; Execution and Delivery.  The Servicer (i) has all necessary
power, authority and legal right to (a) execute and deliver this Agreement
and the other Transaction Documents to which it is a party, (b) carry out
the terms of the Transaction Documents to which it is a party, and (ii) has
duly authorized, by all necessary organizational action, the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which it is a party.  This Agreement
and each other Transaction Document to which the Servicer is a party have been
duly executed and delivered by the Servicer.


 


54

















 


(d)                                 Binding
Obligation.  This Agreement and each
other Transaction Document to which the Servicer is a party constitutes a
legal, valid and binding obligation of the Servicer enforceable against the
Servicer in accordance with its respective terms, except as such enforceability
may be limited by Insolvency Laws and general principles of equity (whether
considered in a suit at law or in equity).


 


(e)                                  No
Violation.  The consummation of the
transactions contemplated by this Agreement and the other Transaction Documents
to which it is a party and the fulfillment of the terms hereof and thereof will
not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both)
a default under, the organizational documents or any Contractual Obligation of
the Servicer, or (ii) violate any Applicable Law, in each case except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(f)                                    No
Proceedings.  There is no litigation,
proceeding or investigation pending or, to the best knowledge of the Servicer,
threatened against the Servicer, before any Governmental Authority (i) asserting
the invalidity of this Agreement or any other Transaction Document to which the
Servicer is a party, (ii) seeking to prevent the consummation of any of
the transactions contemplated by this Agreement or any other Transaction
Document to which the Servicer is a party or (iii) seeking any
determination or ruling that could reasonably be expected to have a Material
Adverse Effect.


 


(g)                                 Consents.  All approvals, authorizations, consents,
orders, licenses or other actions of any Person or of any Governmental
Authority (if any) required to be made or obtained by the Servicer for the due
execution, delivery and performance by the Servicer of this Agreement and any
other Transaction Document to which the Servicer is a party have been obtained
except to the extent that failure to do so could not reasonably be expected to
have a Material Adverse Effect.


 


(h)                                 Reports
Accurate.  All Servicer Certificates,
Servicing Reports, Borrowing Base Certificates and other written or electronic
information, exhibits, financial statements, documents, books, records or
reports furnished by the Servicer to the Administrative Agent or any Lender
pursuant to with this Agreement are true, correct and complete in all material
respects.


 


(i)                                     Credit
and Collection Policy.  The Servicer
has complied in all material respects with the Credit and Collection Policy
with regard to the origination, underwriting and servicing of the Receivables.


 


(j)                                     Solvency.  The Servicer is not the subject of any
Insolvency Proceedings or Insolvency Event. 
The transactions under this Agreement and any other Transaction Document
to which the Servicer is a party do not and will not render the Servicer not
Solvent.


 


(k)                                  Taxes.  The Servicer has filed or caused to be filed
all tax returns that are required to be filed by it (or has been granted
appropriate extensions).  The Servicer has
paid or made adequate provisions for the payment of all Taxes and all
assessments made against it or any of its property (other than (i) any
amount of Tax the validity of which is currently being


 


55

















 


contested in good faith
by appropriate proceedings and with respect to which reserves in accordance
with GAAP have been provided on the books of the Servicer, (ii) any Tax
less than thirty (30) days overdue and (iii) any filings that the failure
to so file could not reasonably be expected to have a Material Adverse Effect),
and no tax lien has been filed and, to the Servicer’s knowledge, no claim is
being asserted, with respect to any such Tax or assessment.


 


(l)                                     Security
Interest.  The Servicer will
cooperate with the Administrative Agent to ensure that (i) the
Administrative Agent has a security interest (as defined in the UCC) in the
Collateral, which is enforceable in accordance with Applicable Law upon
execution and delivery of this Agreement and (ii) upon the filing of UCC-1
financing statements naming the Administrative Agent as secured party and each
Borrower as debtor, the Administrative Agent, as agent for the Secured Parties,
shall have a valid and first priority perfected security interest (subject to
any Permitted Liens) in the Receivables and that portion of the Collateral in
which a security interest may be perfected by filing.


 


(m)                               Lockbox
Accounts and Concentration Account. 
The Servicer has sent the name and address of each Lockbox Account Bank,
together with the account number of each Lockbox Account at the applicable
Lockbox Account Bank, and the account number of the Concentration Account, to
the Collateral Custodian, the Backup Servicer and Administrative Agent.  The Servicer has not granted and shall not
grant any Person an interest in the Lockbox Accounts or the Concentration
Account.


 


(n)                                 USA
PATRIOT Act.  Neither the Servicer
nor any Affiliate of the Servicer is (i) a country, territory,
organization, person or entity named on an OFAC list; (ii) a Person that
resides or has a place of business in a country or territory named on such
lists or which is designated as a “Non-Cooperative Jurisdiction” by the
Financial Action Task Force on Money Laundering, or whose subscription funds
are transferred from or through such a jurisdiction; (iii) a “Foreign
Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank
that does not have a physical presence in any country and that is not
affiliated with a bank that has a physical presence and an acceptable level of
regulation and supervision; or (iv) a person or entity that resides in or
is organized under the laws of a jurisdiction designated by the United States
Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as
warranting special measures due to money laundering concerns.


 


(o)                                 Compliance
with Law.  The Servicer has complied
with all Applicable Laws to which it may be subject, and, to the knowledge of
the Servicer, no Receivable in the Collateral contravenes any Applicable Laws,
in each case except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


Section 4.3.                                          Representations
and Warranties of the Originator.


 


The Originator
represents and warrants as follows as of the Effective Date and each
Measurement Date:


 


(a)                                  Organization
and Good Standing.  The Originator
has been duly organized and is validly existing as a limited partnership, in
good standing under the laws of its jurisdiction of organization, with all
requisite organizational power and authority to conduct its business as


 


56

















 


such business is
presently conducted and to enter into and perform its obligations pursuant to
this Agreement.


 


(b)                                 Due
Qualification.  The Originator is
duly qualified to do business as a limited partnership, and has obtained all
necessary licenses and approvals in all jurisdictions in which the conduct of
its business requires such qualification, licenses or approvals except to the
extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(c)                                  Power
and Authority; Due Authorization; Execution and Delivery.  The Originator (i) has all necessary
power, authority and legal right to (a) execute and deliver this Agreement
and the other Transaction Documents to which it is a party, (b) carry out
the terms of the Transaction Documents to which it is a party, and (ii) has
duly authorized by all necessary organizational action the execution, delivery
and performance of this Agreement and the other Transaction Documents to which
it is a party.  This Agreement and each
other Transaction Document to which the Originator is a party has been duly
executed and delivered by the Originator.


 


(d)                                 Binding
Obligation.  This Agreement and each
other Transaction Document to which the Originator is a party constitutes a
legal, valid and binding obligation of the Originator enforceable against the
Originator in accordance with its respective terms, except as such enforceability
may be limited by Insolvency Laws and general principles of equity (whether
considered in a suit at law or in equity).


 


(e)                                  No
Violation.  The consummation of the
transactions contemplated by this Agreement and the other Transaction Documents
to which it is a party and the fulfillment of the terms hereof and thereof will
not (i) conflict with, result in any breach of any of the terms and
provisions of, or constitute (with or without notice or lapse of time or both)
a default under, the organizational documents or any Contractual Obligation of
the Originator, or (ii) violate any Applicable Law, in each case except to
the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect.


 


(f)                                    No
Proceedings.  There is no litigation,
proceeding or investigation pending or, to the best knowledge of the
Originator, threatened against the Originator, before any Governmental
Authority (i) asserting the invalidity of this Agreement or any other
Transaction Document to which the Originator is a party, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document to which the Originator is a party
or (iii) seeking any determination or ruling that could reasonably be
expected to have a Material Adverse Effect.


 


(g)                                 Consents.  All approvals, authorizations, consents,
orders, licenses or other actions of any Person or of any Governmental
Authority (if any) required to be made or to be obtained by the Originator for
the due execution, delivery and performance by the Originator of this Agreement
and any other Transaction Document to which the Originator is a party have been
obtained except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


57

















 


(h)                                 Taxes.  The Originator has filed or caused to be
filed all tax returns that are required to be filed by it, or has been granted
appropriate extensions.  The Originator
has paid or made adequate provisions for the payment of all Taxes and all
assessments made against it or any of its property (other than (i) any
amount of Tax the validity of which is currently being contested in good faith
by appropriate proceedings and with respect to which reserves in accordance
with GAAP have been provided on the books of the Originator, (ii) any Tax
less than thirty (30) days overdue and (iii) any filings that the failure
to so file could not reasonably be expected to have a Material Adverse Effect),
and no tax lien has been filed and, to the Originator’s knowledge, no claim is
being asserted, with respect to any such Tax or assessment.


 


(i)                                     USA
PATRIOT Act.  Neither the Originator
nor any Affiliate of the Originator is (i) a country, territory,
organization, person or entity named on an OFAC list; (ii) a Person that
resides or has a place of business in a country or territory named on such
lists or which is designated as a “Non-Cooperative Jurisdiction” by the
Financial Action Task Force on Money Laundering, or whose subscription funds
are transferred from or through such a jurisdiction; (iii) a “Foreign
Shell Bank” within the meaning of the USA PATRIOT Act, i.e., a foreign bank
that does not have a physical presence in any country and that is not
affiliated with a bank that has a physical presence and an acceptable level of
regulation and supervision; or (iv) a person or entity that resides in or
is organized under the laws of a jurisdiction designated by the United States
Secretary of the Treasury under Sections 311 or 312 of the USA PATRIOT Act as
warranting special measures due to money laundering concerns.


 


(j)                                     Compliance
with Law.  The Originator has
complied with all Applicable Laws to which it may be subject, and, to the
knowledge of the Originator, no Receivable in the Collateral contravenes any
Applicable Laws, in each case except to the extent that failure to do so could
not reasonably be expected to have a Material Adverse Effect.


 


Section 4.4.                                          Representations
and Warranties of the Backup Servicer.


 


The Backup
Servicer in its individual capacity and as Backup Servicer represents and
warrants as follows:


 


(a)                                  Organization;
Power and Authority.  It is a duly
organized and validly existing corporation in good standing under the laws of
the State of Minnesota.  It has full
power, authority and legal right to execute, deliver and perform its
obligations as Backup Servicer under this Agreement.


 


(b)                                 Due
Authorization.  The execution and
delivery of this Agreement and the consummation of the transactions provided
for herein have been duly authorized by all necessary action on its part,
either in its individual capacity or as Backup Servicer, as the case may be.


 


(c)                                  No
Conflict.  The execution and delivery
of this Agreement, the performance of the transactions contemplated hereby and
the fulfillment of the terms hereof will not conflict with, result in any
breach of its organizational documents or any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both)
a default under any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Backup Servicer is a party or by which it or any
of its property is bound.


 


58

















 


(d)                                 No
Violation.  The execution and
delivery of this Agreement, the performance of the transactions contemplated
hereby and the fulfillment of the terms hereof will not conflict with or
violate, in any material respect, any Applicable Law.


 


(e)                                  Consents.  All approvals, authorizations, consents,
orders or other actions of any Person or Governmental Authority applicable to
the Backup Servicer, required in connection with the execution and delivery of
this Agreement, the performance by the Backup Servicer of the transactions
contemplated hereby and the fulfillment by the Backup Servicer of the terms
hereof have been obtained.


 


(f)                                    Validity,
Etc.  This Agreement constitutes the
legal, valid and binding obligation of the Backup Servicer, enforceable against
the Backup Servicer in accordance with its terms, except as such enforceability
may be limited by applicable Insolvency Laws or general principles of equity
(whether considered in a suit at law or in equity).


 


Section 4.5.                                          Representations
and Warranties of the Collateral Custodian.


 


The Collateral
Custodian in its individual capacity and as Collateral Custodian represents and
warrants as follows:


 


(a)                                  Organization;
Power and Authority.  It is a duly
organized and validly existing national banking association in good standing
under the laws of the United States.  It
has full power, authority and legal right to execute, deliver and perform its
obligations as Collateral Custodian under this Agreement.


 


(b)                                 Due
Authorization.  The execution and
delivery of this Agreement and the consummation of the transactions provided
for herein have been duly authorized by all necessary action on its part,
either in its individual capacity or as Collateral Custodian, as the case may
be.


 


(c)                                  No
Conflict.  The execution and delivery
of this Agreement, the performance of the transactions contemplated hereby and
the fulfillment of the terms hereof will not conflict with, result in any
breach of its organizational documents or any of the material terms and
provisions of, or constitute (with or without notice or lapse of time or both)
a default under any indenture, contract, agreement, mortgage, deed of trust, or
other instrument to which the Collateral Custodian is a party or by which it or
any of its property is bound.


 


(d)                                 No
Violation.  The execution and
delivery of this Agreement, the performance of the Transactions contemplated
hereby and the fulfillment of the terms hereof will not conflict with or
violate, in any material respect, any Applicable Law.


 


(e)                                  Consents.  All approvals, authorizations, consents,
orders or other actions of any Person or Governmental Authority applicable to
the Collateral Custodian, required in connection with the execution and
delivery of this Agreement, the performance by the Collateral Custodian of the
transactions contemplated hereby and the fulfillment by the Collateral
Custodian of the terms hereof have been obtained.


 


(f)                                    Validity,
Etc.  The Agreement constitutes the
legal, valid and binding obligation of the Collateral Custodian, enforceable
against the Collateral Custodian in


 


59
















 


accordance with its
terms, except as such enforceability may be limited by applicable Insolvency
Laws and general principles of equity (whether considered in a suit at law or
in equity).


 


Section 4.6.                                          Representations
and Warranties of the Principal.


 


The Principal
in its individual capacity and as a Guarantor represents and warrants as
follows:


 


(a)           Power and Authority.  The Principal is over eighteen (18) years of
age and is a resident and citizen of the state of Nevada.  The Principal has never gone by any name
other than *****.


 


(b)           No Conflict.  The execution and delivery of this Agreement,
the performance of the transactions contemplated hereby and the fulfillment of
the terms hereof by the Principal will not conflict with, or result in any
breach of any of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under any indenture,
contract, agreement, mortgage, deed of trust, or other instrument to which the
Principal is a party or by which it or any of its property is bound, in each
case except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect.


 


(c)           No Violation.  The execution and delivery of this Agreement,
the performance of the transactions contemplated hereby and the fulfillment of
the terms hereof by the Principal will not conflict with or violate, in any
material respect, any Applicable Law.


 


(d)           Consents.  All approvals, authorizations, consents,
orders or other actions of any Person or Governmental Authority applicable to
the Principal, required in connection with the execution and delivery of this
Agreement, the performance by the Principal of the transactions contemplated
hereby and the fulfillment by the Principal of the terms hereof have been
obtained.


 


(e)           Validity, Etc.  This Agreement constitutes the legal, valid
and binding obligation of the Principal, enforceable against the Principal in
accordance with its terms, except as such enforceability may be limited by
applicable Insolvency Laws or general principles of equity (whether considered
in a suit at law or in equity).


 


ARTICLE V




GENERAL COVENANTS


 


Section 5.1.                                          Affirmative
Covenants of the Borrowers.


 


From the date
hereof until the Collection Date, each Borrower hereby covenants and agrees as
to itself and the Collateral in which it has an interest as follows:


 


(a)           Compliance with Laws.  It will comply in all material respects with
all Applicable Laws, including those with respect to the Collateral or any part
thereof, except if the failure to comply could not reasonably be expected to
have a Material Adverse Effect.


 


60

















 


(b)           Preservation of Company Existence.  It will preserve and maintain its limited
liability company or statutory trust, as applicable, existence, rights,
franchises and privileges in the jurisdiction of its formation, and qualify and
remain qualified in good standing as a limited liability company or statutory
trust, as applicable, in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification has
had, or could reasonably be expected to have, a Material Adverse Effect.


 


(c)           Performance and Compliance with
Collateral.  It will, at its expense,
timely and fully perform and comply (or enforce its contractual rights against
the Originator or Sourcer to cause the Originator or Sourcer to perform and
comply pursuant to the applicable Sale Agreement or enforce its contractual
rights against the applicable Seller to cause such Seller to perform and comply
pursuant to the applicable Purchase and Sale Agreement) in all material
respects with all provisions, covenants and other promises required to be
observed by it under the Collateral and all other agreements related to such
Collateral.


 


(d)           Keeping of Records and Books of
Account.  It will maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing the Collateral in the
event of the destruction of the originals thereof) and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection of all or any portion of the Collateral.


 


(e)           Protection of Interest in
Collateral.  With respect to the
Receivables and Related Security, it will (i) acquire such Receivables and
Related Security pursuant to and in accordance with the terms of its Sale
Agreement, (ii) take all action necessary to perfect, protect and more
fully evidence such Borrower’s ownership of such Receivables and Related
Security free and clear of any Lien other than Permitted Liens, including,
without limitation, (a) with respect to the Receivables and that portion
of the Collateral in which a security interest may be perfected by filing,
maintaining effective financing statements against the Originator in all
necessary or appropriate filing offices (including any amendments thereto or
assignments thereof) and filing continuation statements, amendments or
assignments with respect thereto in such filing offices (including any
amendments thereto or assignments thereof) and (b) executing or causing to
be executed such other instruments or notices as may be reasonably necessary or
appropriate, (iii) subject to Section 13.9, permit the
Administrative Agent or its respective agents or representatives to visit its
offices during normal office hours and upon reasonable notice examine and make
copies of all documents, books, records and other information concerning the
Collateral and discuss matters related thereto with any of its officers having
knowledge of such matters (it shall pay the costs and expenses for all such
visits), and (iv) take all additional action that the Administrative Agent
may reasonably request to perfect, protect and more fully evidence the
respective interests of the parties to this Agreement in the Collateral.


 


(f)            Deposit of Collections.  It shall direct each Obligor to make all
payments directly into the applicable Lockbox Account and (i) the LLC
Borrower shall promptly (but in no event later than one (1) Business Day
after receipt) deposit all Collections received by it into the Collection
Account and (ii) each of the Trust Borrower and Trust II Borrower shall
promptly (but in no event later than one (1) Business Day after receipt)
deposit all Collections received by it into the Concentration Account.


 


61

















 


(g)           Special Purpose Entity.  It shall take all necessary action required
to maintain compliance with the Special Purpose Entity requirements set forth
in Section 4.1(r).


 


(h)           Taxes.  It will file all appropriate tax returns and
pay any and all required Taxes (other than the amount of any Taxes the validity
of which is currently being contested in good faith by appropriate proceedings
and with respect to which reserves in accordance with GAAP have been provided
on its books).


 


(i)            Use of Proceeds.  It will use the proceeds of the Loans only to
acquire Collateral and pay transaction expenses related hereto or other
expenses of itself.


 


(j)            Obligor Notification Forms.  It shall furnish the Administrative Agent
with an appropriate power of attorney to send (at the Administrative Agent’s
discretion after the occurrence of an Event of Default) Obligor notification
forms to give notice to the Obligors of the Secured Parties’ interest in the
Collateral and the obligation to make payments as directed by the
Administrative Agent.


 


(k)           Notices.  It will furnish to the Administrative Agent:


 


(i)            Income Tax Liability.  Within ten (10) Business Days after the
receipt by a Responsible Officer of revenue agent reports or other written
proposals, determinations or assessments of the Internal Revenue Service or any
other taxing authority which propose, determine or otherwise set forth positive
adjustments to the Tax liability of any affiliated group (within the meaning of
Section 1504(a)(l) of the Code) of which it is a member which equal
or exceed $100,000 in the aggregate, telephonic or facsimile notice (confirmed
in writing within five (5) Business Days thereafter) specifying the nature
of the items giving rise to such adjustments and the amounts thereof;


 


(ii)           Auditors’ Management Letters.  Promptly after the receipt thereof, any
auditors’ management letters that are received by it;


 


(iii)          Representations and Warranties.  Forthwith upon its Responsible Officer
receiving knowledge of the same, it shall notify the Administrative Agent if
any representation or warranty set forth in Article IV was
incorrect in any material respect at the time it was given or deemed to have
been given and at the same time deliver to the Administrative Agent a written
notice setting forth in reasonable detail the nature of such facts and
circumstances;


 


(iv)          Proceedings.  As soon as possible and in any event within
five (5) Business Days after its Responsible Officer receives notice or
obtains knowledge thereof, notice of any settlement of, judgment (including a
judgment with respect to the liability phase of a bifurcated trial) in or
commencement of any labor controversy, litigation, action, suit or proceeding
before any court or governmental department, commission, board, bureau, agency
or instrumentality, domestic or foreign, which could reasonably be expected to
have a Material Adverse Effect; provided that notwithstanding the foregoing,
any settlement, judgment, labor controversy, litigation, action, suit or
proceeding affecting the Collateral, the Transaction Documents, the Secured
Parties’ interest in the Collateral or in an amount in excess of $250,000 shall
be required to be reported;


 


62

















 


(v)           Notice of Material Events.  Promptly upon its Responsible Officer
becoming aware thereof, notice of any other event or circumstances that, in its
reasonable judgment, could reasonably be expected to have a Material Adverse
Effect;


 


(vi)          Events of Default.  Prompt (and in any event within one Business
Day) written notice of the occurrence of each Event of Default and each
Unmatured Event of Default of which its Responsible Officer has knowledge or
has received notice.  In addition, no
later than three (3) Business Days following its Responsible Officer’s
knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, it will provide to the Administrative Agent a written
statement of a Responsible Officer of such Borrower setting forth the details
of such event and the action that such Borrower proposes to take with respect
thereto; and


 


(vii)         Accounting Changes.  As soon as possible and in any event within
ten (10) Business Days after the effective date thereof, notice of any
material change in its accounting policies.


 


(l)            Compliance With Transaction
Documents.  It will comply in all
respects with the terms of this Agreement and the other Transaction Documents
to which it is a party.


 


(m)          Hedging.  If for any calendar month the Excess Spread
is less that 6.00%, it shall be required to enter into Hedge Transactions, in
form and substance (and with counterparties) acceptable to the Administrative
Agent in its reasonable discretion, within 10 Business Days of the end of such
calendar month.


 


(n)           Other.  It will furnish to the Administrative Agent
promptly, from time to time, such other information, documents, records or
reports respecting the Collateral or the condition or operations, financial or
otherwise, of it or the Originator as the Administrative Agent may from time to
time reasonably request in order to protect the interests of the Secured
Parties under or as contemplated by this Agreement.


 


Section 5.2.                                          Negative
Covenants of the Borrowers.


 


From the date
hereof until the Collection Date, each Borrower hereby covenants and agrees as
to itself and the Collateral in which it has an interest as follows:


 


(a)           Other Business.  It will not (i) engage in any business
other than the transactions contemplated by the Transaction Documents and the “Transaction
Documents” (as defined in the Term Credit Agreement), (ii) incur any
Indebtedness, other than pursuant to or permitted by this Agreement or under
the other Transaction Documents and the “Transaction Documents” (as defined in
the Term Credit Agreement), or (iii) form any Subsidiary or make any
Investment in any other Person (other than Permitted Investments, “Permitted
Investments” (as defined in the Term Credit Agreement) and the LLC Borrower’s
ownership of the Trust Borrower).


 


(b)           Collateral Not to be Evidenced by
Instruments.  It will take no action
to cause any Receivable that is not, as of the Closing Date, evidenced by an
Instrument, to be so evidenced except in connection with the enforcement or
collection of such Receivable.


 


63

















 


(c)           Security Interests.  Except as permitted by the Transaction
Documents and the “Transaction Documents” (as defined in the Term Credit
Agreement), it will not sell, pledge, assign or transfer, or grant, create,
incur, assume or suffer to exist any Lien (except for Permitted Liens) on, any
Collateral, whether now existing or hereafter transferred hereunder, or any interest
therein, to any other Person.  It will
promptly notify the Administrative Agent of the existence of any Lien (other
than Permitted Liens) on any Collateral and it shall defend the right, title
and interest of the Administrative Agent, as agent for the Secured Parties in,
to and under the Collateral against all claims of third parties.


 


(d)           Mergers, Acquisitions, Sales, etc.  It will not be a party to any merger or
consolidation, or purchase or otherwise acquire all or substantially all of the
assets, any stock of any class of, or any partnership or joint venture interest
in, any other Person, or sell, transfer, convey or lease any of its assets, or
sell or assign with or without recourse any Collateral or any interest therein
(in each case other than as expressly permitted pursuant to this Agreement, its
Sale Agreement, the Term Credit Agreement or the “Transaction Documents” (as
defined in the Term Credit Agreement) or in the ordinary course of business).


 


(e)           Deposits to Collection Account.  It will not deposit or otherwise credit, or
cause or permit to be so deposited or credited, to the Collection Account cash
or cash proceeds other than Collections in respect of the Collateral.


 


(f)            Restricted Payments.  It shall not declare or pay any dividends or distributions
(i) except as permitted under its organizational documents, and (ii) at
any time when an Event of Default or Unmatured Event of Default has occurred
and is continuing or would result therefrom.


 


(g)           Change of Name or Location of
Servicing Files.  It shall not (x) change
its name, move the location of its principal place of business and chief
executive office, change the offices where it keeps the records from the
location referred to on Annex A hereto, or change the jurisdiction of
its organization, or (y) move, or consent to the Collateral Custodian or
Servicer moving, the Required Receivable Files or the Servicing Files from the
location thereof on the Closing Date, unless in each case it has given at least
ten (10) days’ written notice to the Administrative Agent and has taken
all actions required under the UCC of each relevant jurisdiction in order to
continue the first priority perfected security interest (subject to Permitted
Liens) of the Administrative Agent, as agent for the Secured Parties, in the
Collateral.


 


(h)           Accounting of Purchases.  Other than for tax and consolidated
accounting purposes, it will not account for or treat (whether in financial
statements or otherwise) the transactions contemplated by its Sale Agreement in
any manner other than as a sale of the Receivables and Related Security to it.


 


(i)            ERISA Matters.  It will not establish or permit any ERISA
Affiliate to establish any Benefit Plan or Multiemployer Plan.


 


(j)            Organizational Documents; Sale
Agreement.  It will not amend,
modify, waive or terminate any provision of its Sale Agreement without the
prior written consent of the Administrative Agent (such consent not to be
unreasonably withheld).  In addition, it
will not


 


64

















 


amend any material
portion of its organizational documents without the prior written consent of
the Administrative Agent (such consent not to be unreasonably withheld).


 


(k)           Changes in Payment Instructions to
Obligors.  It will not add or
terminate any bank as a Lockbox Account Bank or any Lockbox Account listed in Schedule
VI or make any change, or permit the Servicer to make any change, in its
instructions to Obligors regarding payments to be made with respect to the
Collateral to the applicable Lockbox Account, unless the Administrative Agent
has consented to such addition, termination or change and it has notified the
Collateral Custodian.


 


(l)            Extension or Amendment of
Collateral.  It will not, except as
otherwise permitted in Section 6.4(a), extend, amend or otherwise
modify, or permit the any other Person to extend, amend or otherwise modify,
the material terms of any Receivable (including the Related Security).


 


Section 5.3.                                          Affirmative
Covenants of the Servicer.


 


From the date
hereof until the Collection Date the Servicer covenants and agrees as follows:


 


(a)           Compliance with Law.  The Servicer will comply in all material
respects with all Applicable Laws, including those with respect to the
Collateral or any part thereof, except if the failure to comply could not
reasonably be expected to have a Material Adverse Effect.


 


(b)           Preservation of Company Existence.  The Servicer will preserve and maintain its
organizational existence, rights, franchises and privileges in the jurisdiction
of its formation, and qualify and remain qualified in good standing as a
limited liability company (or other applicable entity in the case of a
successor Servicer), in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification has
had, or could reasonably be expected to have, a Material Adverse Effect.


 


(c)           Obligations and Compliance with
Collateral.  The Servicer will duly
fulfill and comply with all obligations on the part of each Borrower to be
fulfilled or complied with under or in connection with the Collateral and will
do nothing to impair the rights of the Administrative Agent, as agent for the
Secured Parties, in, to and under the Collateral except as otherwise permitted
in the Transaction Documents.


 


(d)           Keeping of Records and Books of
Account.


 


(i)            The Servicer will maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Collateral in the event
of the destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection and the identification of the Collateral.


 


(ii)           Subject to Section 13.9,
the Servicer shall permit the Administrative Agent, the Backup Servicer, each
Lender or their respective agents or


 


65

















 


representatives, to visit
the offices of the Servicer during normal office hours and upon reasonable
notice and examine and make copies of all documents, books, records and other
information concerning the Collateral and discuss matters related thereto with
any of the officers or executive employees of the Servicer having knowledge of
such matters; the Servicer shall pay the costs and expenses for all such
visits; provided, however,
that any successor Servicer shall not be required to pay any such costs and
expenses, shall be given five Business Days notice of any such visit and shall
be subject to only two visits per calendar year.


 


(iii)          The initial Servicer will on or prior
to each Funding Date, mark its master data processing records and other books
and records relating to the Collateral with a legend, acceptable to the
Administrative Agent, describing (A) the sale of the Collateral to a
Borrower pursuant to its Sale Agreement and (B) the grant of a security
interest by the Borrowers to the Administrative Agent as agent for the Secured
Parties hereunder.


 


(e)           [Reserved].


 


(f)            Credit and Collection Policy.  The Servicer will (i) comply in all
material respects with the Credit and Collection Policy in regard to the
Collateral, and (ii) furnish to the Administrative Agent, prior to its
effective date, written notice of any proposed changes in the Credit and
Collection Policy.  The Servicer will not
agree to or otherwise permit to occur any material change in the Credit and
Collection Policy or the credit and collection policy of any Sub-Servicer
without the prior written consent of the Administrative Agent; provided that no consent shall be required from the
Administrative Agent in connection with any change mandated by Applicable Law
or a Governmental Authority as evidenced by an Opinion of Counsel to that
effect delivered to the Administrative Agent.


 


(g)           Events of Default.  The Servicer will provide the Administrative
Agent with prompt (and in any event within one Business Day) written notice of
the occurrence of each Event of Default and each Unmatured Event of Default of
which a Responsible Officer of the Servicer has knowledge or has received
notice.  In addition, no later than three
(3) Business Days following a Responsible Officer of the Servicer’s
knowledge or notice of the occurrence of any Event of Default or Unmatured
Event of Default, the Servicer will provide to the Administrative Agent a
written statement of the chief financial officer or chief accounting officer of
the Servicer setting forth the details of such event and the action that the
Servicer proposes to take with respect thereto.


 


(h)           Taxes.  The Servicer will file all appropriate tax
returns and pay any and all required Taxes (other than the amount of any Taxes
the validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in accordance with GAAP have
been provided on the books of the Servicer).


 


(i)            Other.  The Servicer will promptly furnish to the
Administrative Agent such other information, documents, records or reports
respecting the Collateral or the condition or operations, financial or otherwise,
of each Borrower or the Servicer as the Administrative Agent may from time to
time reasonably request in order to protect the interests of the Administrative
Agent and the Secured Parties under or as contemplated by this Agreement.


 


66

















 


(j)            Proceedings.  As soon as possible and in any event within
five (5) Business Days after a Responsible Officer of the Servicer
receives notice or obtains knowledge thereof, the Servicer will furnish to the
Administrative Agent notice of any settlement of, judgment (including a
material judgment with respect to the liability phase of a bifurcated trial) in
or commencement of any labor controversy, litigation, action, suit or
proceeding before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, in each case, relating
to the Servicer, which could reasonably be expected to have a Material Adverse
Effect.


 


(k)           Deposit of Collections.  The Servicer shall direct each Obligor to
make payments directly to the applicable Lockbox Account and shall promptly
(but in no event later than one (1) Business Day after receipt) deposit
into the Collection Account any and all Collections received directly by it or
by each Borrower (in the case of the initial Servicer, in which case the
initial Servicer will be acting on each Borrower’s behalf).


 


(l)            Change of Control.  Upon the occurrence of a Change of Control of
the Servicer, the initial Servicer shall provide the Administrative Agent, the
Backup Servicer and each Lender with written notice of such Change of Control
within two (2) Business Days after the occurrence of the same.


 


(m)          Special Purpose Entity Requirements.  The initial Servicer shall take such actions
as are necessary to cause each Borrower to be in compliance with the Special
Purpose Entity requirements set forth in Section 4.1(r).


 


(n)           Servicing System Changes.  As soon as possible and in any event within
five (5) Business Days after the effective date thereof, the Servicer will
provide the Backup Servicer notice of any material changes to its servicing
systems.


 


(o)           Notices.  The Servicer will furnish to the
Administrative Agent and the Backup Servicer prior written notice of any
changes to its name or location of its principal place of business or chief
executive office.


 


Section 5.4.                                          Negative
Covenants of the Servicer.


 


From the date
hereof until the Collection Date, the Servicer hereby covenants and agrees:


 


(a)           Deposits to Collection Account.  The Servicer will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to the Collection
Account cash or cash proceeds other than Collections in respect of the
Collateral.


 


(b)           Mergers, Acquisition, Sales, etc.  The Servicer will not consolidate with or
merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless the Servicer is the
surviving entity and unless:


 


(i)            the Servicer has delivered to the
Administrative Agent an Officer’s Certificate stating that any such
consolidation, merger, conveyance or transfer and any supplemental agreement
executed in connection therewith comply with this Section 5.4 and
that all conditions precedent herein provided for relating to such transaction
have been complied with


 


67

















 


and, in the case of a
supplemental agreement, the delivery of an Opinion of Counsel stating that such
supplemental agreement is legal, valid and binding with respect to the Servicer
and such other matters as the Administrative Agent may reasonably request;


 


(ii)           the Servicer shall have delivered
notice of such consolidation, merger, conveyance or transfer to the
Administrative Agent and obtained the consent of the Administrative Agent (such
consent not to be unreasonably withheld); and


 


(iii)          after giving effect thereto, no
Unmatured Event of Default or Event of Default shall have occurred.


 


(c)           Change of Location of Servicing
Files.  The Servicer shall not (x) change
the offices where it keeps records concerning the Collateral from the location
referred to on Annex A hereto, or (y) move, or consent to the
Collateral Custodian moving, the Required Receivable Files or Servicing Files
from the location thereof on the Closing Date, unless the Servicer has given at
least ten (10) days’ written notice to the Administrative Agent.


 


(d)           Change in Payment Instructions to
Obligors.  The Servicer will not add
or  terminate any bank as a Lockbox
Account Bank or any Lockbox Account listed in Schedule VI or make any
change in its instructions to Obligors regarding payments to be made to the
applicable Lockbox Account, unless the Administrative Agent has consented to
such addition, termination or change and the Collateral Custodian has been
notified.


 


(e)           Extension or Amendment of
Receivables.  The Servicer will not,
except as otherwise permitted in Section 6.4(a), extend, amend or
otherwise modify the terms of any Receivable (including the Related Security).


 


Section 5.5.                                          Affirmative
Covenants of the Originator.


 


From the date
hereof until the Collection Date, the Originator hereby covenants and agrees as
follows:


 


(a)           Compliance with Law.  The Originator will comply with all
Applicable Laws, including those with respect to the Collateral or any part thereof,
except if the failure to comply could not reasonably be expected to have a
Material Adverse Effect.


 


(b)           Preservation of Company Existence.  The Originator will preserve and maintain its
organizational existence, rights, franchises and privileges in the jurisdiction
of its formation, and qualify and remain qualified in good standing as a
limited partnership, in each jurisdiction where the failure to preserve and
maintain such existence, rights, franchises, privileges and qualification has
had, or could reasonably be expected to have, a Material Adverse Effect.


 


(c)           Obligations and Compliance with
Collateral.  The Originator will do
nothing to impair the rights of the Administrative Agent, as agent for the
Secured Parties, in, to and under the Collateral.


 


68

















 


(d)           Keeping of Records and Books of
Account.


 


(i)            The Originator will maintain and
implement administrative and operating procedures (including, without
limitation, an ability to recreate records evidencing Collateral in the event
of the destruction of the originals thereof), and keep and maintain all
documents, books, records and other information reasonably necessary or
advisable for the collection and the identification of the Collateral.


 


(ii)           Subject to Section 13.9,
the Originator shall permit the Administrative Agent, the Backup Servicer, each
Lender or their respective agents or representatives, to visit the offices of
the Originator during normal office hours and upon reasonable notice and examine
and make copies of all documents, books, records and other information
concerning the Collateral and discuss matters related thereto with any of the
officers or executive employees of the Originator having knowledge of such
matters; the Originator shall pay the costs and expenses for all such visits.


 


(iii)          The Originator will on or prior to
each Funding Date, mark its master data processing records and other books and
records relating to the Collateral with a legend, acceptable to the
Administrative Agent, describing (A) the sale of the Collateral to the LLC
Borrower pursuant to its Sale Agreement and (B) the grant of a security
interest by the LLC Borrower to the Administrative Agent as agent for the
Secured Parties hereunder.


 


(e)           Events of Default.  The Originator will provide the
Administrative Agent with prompt (and in any event within one Business Day)
written notice of the occurrence of each Event of Default and each Unmatured
Event of Default of which a Responsible Officer of the Originator has knowledge
or has received notice.


 


(f)            Taxes.  The Originator will file all appropriate tax
returns and pay any and all required Taxes (other than the amount of any Taxes
the validity of which is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in accordance with GAAP have
been provided on the books of the Originator).


 


(g)           Other.  The Originator will promptly furnish to the
Administrative Agent such other information, documents, records or reports
respecting the Collateral or the condition or operations, financial or
otherwise, of the LLC Borrower or the Originator as the Administrative Agent
may from time to time reasonably request in order to protect the interests of
the Administrative Agent and the Secured Parties under or as contemplated by
this Agreement.


 


(h)           Proceedings.  As soon as possible and in any event within
five (5) Business Days after a Responsible Officer of the Originator
receives notice or obtains knowledge thereof, the Originator will furnish to
the Administrative Agent notice of any settlement of, judgment (including a
material judgment with respect to the liability phase of a bifurcated trial) in
or commencement of any labor controversy, litigation, action, suit or
proceeding before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, in each case, relating
to the Originator, which could reasonably be expected to have a Material
Adverse Effect.


 


69
















 


(i)            Deposit of Collections.  The Originator shall promptly (but in no
event later than one (1) Business Day after receipt) deposit into the
Collection Account any and all Collections received directly by it.


 


(j)            Change of Control.  Upon the occurrence of a Change of Control of
the Originator, the Originator shall provide the Administrative Agent and each
Lender with notice of such Change of Control within two (2) Business Days
after the occurrence of the same.


 


(k)           Special Purpose Entity
Requirements.  The Originator shall
take such actions as are necessary to cause the Borrowers to be in compliance
with the Special Purpose Entity requirements set forth in Section 4.1(r).


 


(l)            Notices.  The Originator will furnish to the
Administrative Agent and the Backup Servicer prior written notice of any
changes to its name or location of its principal place of business or chief
executive office.


 


(m)          E&O Insurance.  The Originator shall at all times maintain an
errors and omissions insurance policy, in form and substance reasonably
acceptable to Administrative Agent, of the type customarily in force with
respect to entities engaged in similar financings, with at all times a
principal face amount of no less than $1,000,000 under which the Administrative
Agent, on behalf of the Secured Parties, will be named both beneficiary and
loss payee.  The Originator shall, no
less than annually, provide the Administrative Agent with written evidence of
policy renewal and payment of premiums.


 


(n)           Fidelity Bond.  The Originator shall at all times maintain a
fidelity bond, in form and substance reasonably acceptable to Administrative
Agent, of the type customarily in force with respect to entities engaged in
similar financings, with at all times a principal face amount of no less than
$1,000,000 under which the Administrative Agent, on behalf of the Secured
Parties, will be named both beneficiary and loss payee.  The Originator shall, no less than annually,
provide the Administrative Agent with written evidence of policy renewal and payment
of premiums.


 


Section 5.6.                                          Negative
Covenants of the Originator.


 


From the date
hereof until the Collection Date, the Originator hereby covenants and agrees as
follows:


 


(a)           Deposits to Collection Account.  The Originator will not deposit or otherwise
credit, or cause or permit to be so deposited or credited, to the Collection
Account cash or cash proceeds other than Collections in respect of the
Collateral.


 


(b)           Mergers, Acquisition, Sales, etc.  The Originator will not consolidate with or
merge into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless the Originator is the
surviving entity and unless:


 


(i)            the Originator has delivered to the
Administrative Agent an Officer’s Certificate stating that any such
consolidation, merger, conveyance or transfer and any supplemental agreement
executed in connection therewith comply with this Section 5.6 and
that


 


70

















 


all conditions precedent
herein provided for relating to such transaction have been complied with and,
in the case of a supplemental agreement, the delivery of an Opinion of Counsel
stating that such supplemental agreement is legal, valid and binding with
respect to the Originator and such other matters as the Administrative Agent
may reasonably request;


 


(ii)           the Originator shall have delivered
notice of such consolidation, merger, conveyance or transfer to the
Administrative Agent and obtained the consent of the Administrative Agent (such
consent not to be unreasonably withheld); and


 


(iii)          after giving effect thereto, no
Unmatured Event of Default or Event of Default shall have occurred.


 


(c)           Change of Location of Servicing
Files.  The Originator shall not (x) change
the offices where it keeps records concerning the Collateral from the location
referred to on Annex A hereto, or (y) move, or consent to the
Collateral Custodian moving, the Required Receivable Files or Servicing Files
from the location thereof on the Closing Date, unless the Originator has given
at least ten (10) days’ written notice to the Administrative Agent.


 


(d)           Change in Payment Instructions to
Obligors.  The Originator will not
add or  terminate any bank as a Lockbox
Account Bank or any Lockbox Account listed in Schedule VI or make any
change in the instructions to Obligors regarding payments to be made to the
applicable Lockbox Account, unless the Administrative Agent has consented to
such addition and the Collateral Custodian has been notified.


 


(e)           Extension or Amendment of
Receivables.  The Originator will
not, except as otherwise permitted in Section 6.4(a), extend, amend
or otherwise modify the terms of any Receivable (including the Related
Security).


 


Section 5.7.                                          Affirmative
Covenants of the Backup Servicer.


 


From the date
hereof until the Collection Date, the Backup Servicer hereby covenants and
agrees as follows:


 


(a)           Compliance with Law.  The Backup Servicer will comply with all
Applicable Law.


 


(b)           Preservation of Existence.  The Backup Servicer will preserve and
maintain its existence, rights, franchises and privileges in the jurisdiction
of its formation, and qualify and remain qualified in good standing in each
jurisdiction where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification has had, or could reasonably be
expected to have, a Material Adverse Effect.


 


Section 5.8.                                          Negative
Covenants of the Backup Servicer.


 


From the date
hereof until the Collection Date, the Backup Servicer will not make any changes
to the Backup Servicing Fee set forth in the Backup Servicer Fee Letter without
the prior written approval of the Administrative Agent.


 


71

















 


Section 5.9.                                          Affirmative
Covenants of the Collateral Custodian.


 


From the date
hereof until the Collection Date, the Collateral Custodian hereby covenants and
agrees as follows:


 


(a)           Compliance with Law.  The Collateral Custodian will comply in all
material respects with all Applicable Law.


 


(b)           Preservation of Existence.  The Collateral Custodian will preserve and
maintain its existence, rights, franchises and privileges in the jurisdiction
of its formation and qualify and remain qualified in good standing in each
jurisdiction where failure to preserve and maintain such existence, rights,
franchises, privileges and qualification has had, or could reasonably be
expected to have, a Material Adverse Effect.


 


(c)           Location of Required Receivable
Files.  Subject to Section 8.8,
the Required Receivable Files shall remain at all times in the possession of
the Collateral Custodian at the address set forth on Annex A to this
Agreement unless notice of a different address is given in accordance with the
terms hereof or unless the Administrative Agent agrees to allow certain
Required Receivable Files to be released to the Servicer on a temporary basis
in accordance with the terms hereof, except as such Required Receivable Files
may otherwise be released pursuant to this Agreement.


 


Section 5.10.                                   Negative
Covenants of the Collateral Custodian.


 


From the date
hereof until the Collection Date, the Collateral Custodian hereby covenants and
agrees as follows:


 


(a)           Required Receivable Files.  The Collateral Custodian will not dispose of
any Required Receivable File documents in any manner that is inconsistent with
the performance of its obligations as the Collateral Custodian pursuant to this
Agreement and will not dispose of any Collateral except as contemplated by this
Agreement.


 


(b)           No Changes to Collateral Custodian
Fee.  The Collateral Custodian will
not make any changes to the Collateral Custodian Fee set forth in the
Collateral Custodian Fee Letter without the prior written approval of the
Administrative Agent.


 


ARTICLE VI


 


ADMINISTRATION AND SERVICING OF
CONTRACTS


 


Section 6.1.                                          Designation
of the Servicer.


 


(a)           Initial Servicer.  The servicing, administering and collection
of the Collateral shall be conducted by the Person designated as the Servicer
hereunder from time to time in accordance with this Section 6.1.  Until the Administrative Agent gives to ***** a Servicer Termination Notice, ***** is
hereby appointed as, and hereby accepts such appointment and agrees to perform
the duties and responsibilities of, the Servicer pursuant to the terms hereof.


 


72

















 


(b)           Successor Servicer.  Upon the Servicer’s receipt of a Servicer
Termination Notice from the Administrative Agent pursuant to Section 6.12,
the Servicer agrees that it will terminate its activities as Servicer hereunder
in a manner that will facilitate the transition of the performance of such
activities to a successor Servicer, as reasonably determined by the
Administrative Agent, and the successor Servicer shall assume each and all of
the Servicer’s obligations to service and administer the Collateral, on the
terms and subject to the conditions herein set forth, and the Servicer shall
use its best efforts to assist the successor Servicer in assuming such
obligations.


 


(c)           Subcontracts.  The Servicer may, with the prior written
consent of the Administrative Agent and with notice to the Backup Servicer,
subcontract with any other Person for servicing, administering or collecting
the Collateral; provided that (i) the Servicer shall
remain liable for the performance of the duties and obligations of the Servicer
pursuant to the terms hereof without regard to any subcontracting arrangement, (ii) any
sub-servicing agreement with a Sub-Servicer will permit the Administrative
Agent on-site inspection rights at such Sub-Servicer’s offices twice per calendar
year prior to a Servicer Default or an Event of Default and unlimited
inspection rights at such Sub-Servicer’s office after a Servicer Default or an
Event of Default, (iii) any such sub-servicing agreement shall be
terminable by notice from the Administrative Agent upon the occurrence of a
Servicer Default, and (iv) any such sub-servicing agreement will include
provisions that (A) the Administrative Agent on behalf of the Secured
Parties is a third party beneficiary thereof, and (B) no amendments thereto
will be permitted without the consent of the Administrative Agent.  The Administrative Agent hereby consents to
the delegation by the Servicer of the servicing of the Receivables of the Trust
Borrower (including those Receivables sold by the Trust Borrower to the Trust
II Borrower pursuant to the Purchase Agreement) to ***** under the Sourcing and
Servicing Agreement and the Servicer hereby does so delegate.


 


(d)           Servicing Programs.  In the event that the initial Servicer or any
Sub-Servicer uses any software program in servicing the Collateral that it
licenses from a third party, the initial Servicer or such Sub-Servicer, as
applicable, shall use commercially reasonable efforts to obtain, either before
the applicable Funding Date for the related Receivables or as soon as possible
thereafter, whatever licenses or approvals are necessary to allow the
Administrative Agent and the Backup Servicer to use such program and to allow
the initial Servicer or the Sub-Servicer, as applicable, to assign such licenses
to the Backup Servicer or to any other Successor Servicer appointed as provided
in this Agreement.


 


Section 6.2.                                          Duties
of the Servicer.


 


(a)           Appointment.  Each Borrower hereby appoints the Servicer as
its agent, as from time to time designated pursuant to Section 6.1,
to service the Collateral and enforce its rights in, to and under such
Collateral.  The Servicer hereby accepts
such appointment and agrees to perform the duties and obligations with respect
thereto as set forth herein.  The
Servicer and each Borrower hereby acknowledges that the Administrative Agent
and the other Secured Parties are third party beneficiaries of the obligations
undertaken by the Servicer hereunder.


 


(b)           Duties.  The Servicer (or the Sub-Servicer on its
behalf) shall take or cause to be taken all such actions as may be reasonably
necessary or advisable to collect on the


 


73

















 


Collateral from time to
time, all in accordance with Applicable Law, the Credit and Collection Policy
and the Servicing Standard.  Without
limiting the foregoing, the duties of the Servicer  shall include the following:


 


(i)            preparing and submitting claims to,
and acting as post-billing liaison with, Obligors on each Receivable;


 


(ii)           maintaining all reasonably necessary
servicing records with respect to the Collateral and providing such reports,
information and servicing records to the Administrative Agent and Collateral
Custodian in respect of the servicing of the Collateral (including information
relating to its performance under this Agreement) as may be required hereunder
or as the Administrative Agent and the Collateral Custodian may reasonably
request;


 


(iii)          maintaining and implementing
administrative and operating procedures (including, without limitation, an
ability to recreate servicing records evidencing the Collateral in the event of
the destruction of the originals thereof) and keeping and maintaining all
documents, books, records and other information reasonably necessary or
advisable for the collection of the Collateral;


 


(iv)          identifying each Receivable clearly
and unambiguously in its servicing records to reflect that such Receivable is
owned by the applicable Borrower and that such Borrower is granting a security
interest therein to the Administrative Agent for the benefit of the Secured
Parties pursuant to this Agreement;


 


(v)           notifying the Administrative Agent of
any material action, suit, proceeding, dispute, offset, deduction, defense or
counterclaim (1) that is, or to the Servicer’s knowledge threatened to be,
asserted by an Obligor with respect to any Receivable (or portion thereof) of
which it has knowledge or has received notice; and (2) that could
reasonably be expected to have a Material Adverse Effect;


 


(vi)          providing written notice to the
Administrative Agent, prior to the effective date thereof, of any material
proposed changes in the Credit and Collection Policy;


 


(vii)         maintaining the first priority
perfected security interest (subject to Permitted Liens) of the Administrative
Agent, as agent for the Secured Parties, in the Collateral;


 


(viii)        maintaining the Servicing Files with
respect to Receivables; and


 


(ix)           directing the Collateral Custodian to
make payments pursuant to the terms of the Servicing Report in accordance with Section 2.7
and Section 2.8, as applicable.


 


(c)           Notwithstanding anything to the
contrary contained herein, the exercise by the Secured Parties of their rights
hereunder shall not release the Servicer, the Originator or the Borrowers from
any of their duties or responsibilities with respect to the Collateral.  The Secured Parties, the Backup Servicer and
the Collateral Custodian shall not have any obligation or liability with
respect to any Collateral (except as otherwise provided herein in the case of
the Collateral Custodian and the Backup Servicer), nor shall any of them be
obligated to perform any of the obligations of the Servicer hereunder.


 


74

















 


(d)           Any payment by an Obligor in respect
of any indebtedness owed by it to the applicable Borrower shall, except as
otherwise specified by such Obligor or otherwise required by contract or law
and unless otherwise instructed by the Administrative Agent, be applied as a
collection of a payment by such Obligor (starting with the oldest such
outstanding payment due) to the extent of any amounts then due and payable
thereunder before being applied to any other receivable or other obligation of
such Obligor.


 


Section 6.3.           Authorization of the Servicer.


 


(a)           Each of the Borrowers and the
Administrative Agent hereby authorizes the Servicer (including any successor
thereto) to take any and all reasonable steps in its name and on its behalf
necessary or desirable in the determination of the Servicer and not
inconsistent with the sale of the Collateral from a Seller to the Originator
pursuant to a Purchase and Sale Agreement and from the Originator to the LLC
Borrower under its Sale Agreement and, thereafter, the pledge by the Borrowers
to the Administrative Agent, on behalf of the Secured Parties, hereunder, to
collect all amounts due under any and all Collateral, including, without
limitation, endorsing any of their names on checks and other instruments
representing Collections, executing and delivering any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Collateral and, after the
delinquency of any Collateral and to the extent permitted under and in
compliance with Applicable Law, to commence proceedings with respect to
enforcing payment thereof.  The
Originator, the Borrowers and the Administrative Agent, on behalf of the
Secured Parties, shall furnish the Servicer (and any successors thereto) with
any powers of attorney and other documents necessary or appropriate to enable
the Servicer to carry out its servicing and administrative duties hereunder,
and shall cooperate with the Servicer to the fullest extent in order to ensure
the collectibility of the Collateral.  In
no event shall the Servicer be entitled to make any Secured Party, the
Collateral Custodian or the Administrative Agent a party to any litigation
without such party’s express prior written consent, or to make a Borrower a
party to any litigation (other than any routine foreclosure or similar
collection procedure) without the Administrative Agent’s consent.


 


(b)           After the declaration of the
Termination Date, at the direction of the Administrative Agent, the Servicer
shall take such action as the Administrative Agent may reasonably deem
necessary or advisable to enforce collection of the Collateral; provided that the Administrative Agent may, at any time that an Event of
Default has occurred and is continuing, notify any Obligor with respect to any
Collateral of the assignment of such Collateral to the Administrative Agent, on
behalf of the Secured Parties, and direct that payments of all amounts due or
to become due be made directly to the Administrative Agent or any servicer,
collection agent or account designated by the Administrative Agent and, upon
such notification and at the expense of the Borrowers, the Administrative Agent
may enforce collection of any such Collateral, and adjust, settle or compromise
the amount or payment thereof.


 


Section 6.4.                                          Collection
of Payments; Accounts.


 


(a)           Collection Efforts, Modification
of Collateral.  The Servicer will use
commercially reasonable efforts to collect, or cause to be collected, all
payments called for under the terms and provisions of the Receivables included
in the Collateral as and when the same


 


75

















 


become due in accordance
with the Credit and Collection Policy and the Servicing Standard.  The Servicer may not waive, modify or
otherwise vary any provision of an item of Collateral in a manner that would
impair the collectibility of the Collateral or in any manner contrary to the
Credit and Collection Policy and the Servicing Standard.


 


(b)           Prepaid Receivable.  The Servicer may not consent to a Receivable
becoming a Prepaid Receivable, in whole or in part, unless (x) the
applicable Borrower provides a Substitute Receivable in accordance with Section 2.15
or (y) such prepayment (plus any concurrent deposits made by the Servicer)
(i) will not result in the Collection Account receiving an amount less
than the sum of (a) the outstanding principal balance thereof (or portion
thereof to be prepaid) on the date of such payment, and (b) any accrued
and unpaid interest thereon (such sum, the “Prepayment Amount”) or (ii) is
in compliance with the Underlying Instruments for the applicable Receivable and
such prepayment is consented to by the Servicer in accordance with the
Servicing Standard.


 


(c)           Acceleration.  If required by the Credit and Collection
Policy or if consistent with the Servicing Standard and the related Underlying
Instruments, the Servicer shall accelerate the maturity of all or any Scheduled
Payments and other amounts due under any Receivable promptly after such
Receivable becomes a Defaulted Receivable.


 


(d)           Taxes and other Amounts.  The Servicer will use commercially reasonable
efforts in accordance with the Servicing Standard to collect all payments with
respect to amounts due for Taxes, assessments and insurance premiums relating
to each Receivable to the extent required to be paid to a Borrower for such
application under the Underlying Instrument and remit such amounts to the
appropriate Governmental Authority or insurer as required by the Underlying
Instruments.


 


(e)           Payments to Lockbox Account.  On or before the Closing Date, the Servicer
shall have instructed all Obligors to make all payments in respect of the
Collateral directly to the applicable Lockbox Account.


 


(f)            Accounts.  Each of the parties hereto hereby agrees that
(i) each Account shall be deemed to be a Securities Account and (ii) except
as otherwise expressly provided herein, the Administrative Agent shall be
exclusively entitled to exercise the rights that comprise each Financial Asset
held in each Account.  Each of the
parties hereto hereby agrees to cause the Collateral Custodian or any other
Securities Intermediary that holds any money or other property for Borrowers in
an Account to agree with the parties hereto that (A) the cash and other
property (subject to Section 6.4(g) below with respect to any
property other than investment property, as defined in Section 9-102(a)(49)
of the UCC) is to be treated as a Financial Asset under Article 8 of the
UCC and (B) the “securities intermediary’s jurisdiction” (within the
meaning of Section 8-110 of the UCC) for that purpose shall be the State
of New York.  In no event may any
Financial Asset held in any Account be registered in the name of, payable to
the order of, or specially Indorsed to, a Borrower, unless such Financial Asset
has also been Indorsed in blank or to the Collateral Custodian or other
Securities Intermediary that holds such Financial Asset in such Account.


 


76

















 


(g)           Underlying Instruments.  Notwithstanding any term hereof (or any term
of the UCC that might otherwise be construed to be applicable to a “securities
intermediary” as defined in the UCC) to the contrary, none of the Collateral
Custodian nor any Securities Intermediary shall be under any duty or obligation
in connection with the acquisition by a Borrower of or the grant by a Borrower
to the Administrative Agent of a security interest in any Receivable to examine
or evaluate the sufficiency of the documents or instruments delivered to it by
or on behalf of a Borrower under the related Underlying Instruments, or
otherwise to examine the Underlying Instruments, in order to determine or
compel compliance with any applicable requirements of or restrictions on
transfer (including without limitation any necessary consents).  The Collateral Custodian shall hold any
Instrument delivered to it evidencing any Receivable hereunder as custodial
agent for the Administrative Agent in accordance with the terms of this
Agreement.


 


(h)           Establishment of the Collection
Account.  The Servicer shall cause to
be established, on or before the Closing Date, with the Collateral Custodian,
and maintained in the name of the LLC Borrower, subject to the Lien of the
Administrative Agent, a segregated corporate trust account entitled “Collection
Account for *****” (the “Collection Account”),
over which the Administrative Agent as agent for the Secured Parties, shall
have control and from which none of the Originator, the Servicer, the
Sub-Servicer nor the Borrowers shall have any right of withdrawal.


 


(i)            Adjustments.  If (i) the Servicer makes a deposit into
the Collection Account in respect of a Collection of a Receivable and such
Collection was received by the Servicer in the form of a check that is not
honored for any reason or (ii) the Servicer makes a mistake with respect
to the amount of any Collection and deposits an amount that is less than or
more than the actual amount of such Collection, the Servicer shall
appropriately adjust the amount subsequently deposited into the Collection
Account to reflect such dishonored check or mistake.  Any Scheduled Payment in respect of which a
dishonored check is received shall be deemed not to have been paid.


 


Section 6.5.                                          Realization
Upon Defaulted Receivables.


 


The Servicer
will use commercially reasonable efforts consistent with Applicable Law to
secure the repurchase of any Defaulted Receivable from the applicable Dealer to
the extent permitted by and in accordance with the applicable Dealer
Agreement.  In the event that the
Servicer cannot secure such repurchase for any reason, the Servicer will use
commercially reasonable efforts consistent with Applicable Law to recover on
the Defaulted Receivables from the applicable Seller in accordance with its
guaranty obligation (if any) pursuant to the applicable Purchase and Sale Agreement.  In the event that the Servicer cannot secure
such repurchase or recovery for any reason, the Servicer will use commercially
reasonable efforts in accordance with the Credit and Collection Policy and
consistent with the Servicing Standard and Applicable Law in realizing upon
such Defaulted Receivable and Related Security, and employ practices and
procedures including commercially reasonable efforts to enforce all obligations
of Obligors.  Without limiting the generality
of the foregoing, unless the Administrative Agent has specifically given
instruction to the contrary, the Servicer may (i) foreclose upon any
property securing the Defaulted Receivable and cause the sale of any such
property, (ii) turn the Defaulted Receivable over to a collection agency
for collection, or (iii) sell the Defaulted Receivable for its fair market


 


77

















 


value (as determined by the Servicer in good faith) to an independent
third-party purchaser.  The Servicer will
remit to the Collection Account the Recoveries received in connection with the
sale or disposition of a Defaulted Receivable.


 


Section 6.6.                                          Servicing
Compensation.


 


As
compensation for its servicing activities hereunder and reimbursement for its
expenses, the Servicer shall be entitled to receive the Servicing Fee to the
extent of funds available therefor pursuant to the provisions of Sections
2.7 and 2.8, as applicable.


 


Section 6.7.                                          Payment
of Certain Expenses by the Servicer.


 


The Servicer
will be required to pay all expenses incurred by it in connection with its
activities under this Agreement, including fees and disbursements of its
independent accountants, Taxes imposed on the Servicer, expenses incurred by
the Servicer in connection with payments pursuant to this Agreement, and all
other fees and expenses not expressly stated under this Agreement for the
account of the Borrowers, but excluding Liquidation Expenses incurred as a
result of activities contemplated by Section 6.5.  The initial Servicer will be required to pay
all reasonable fees and expenses owing to any bank or trust company in
connection with the maintenance of the Accounts and each Lockbox Account.  The initial Servicer shall be required to pay
such expenses for its own account and shall not be entitled to any payment
therefor other than the Servicing Fee. 
Notwithstanding the foregoing, if the Backup Servicer is appointed
successor Servicer hereunder, it shall be entitled to reimbursement from the
Borrowers for all reasonable out-of-pocket expenses incurred by it in
connection with its servicing activities hereunder.


 


Section 6.8.                                          Reports.


 


(a)           Servicing Report.  On each Reporting Date, the Servicer will
provide to the Borrowers, the Administrative Agent, the Backup Servicer and the
Collateral Custodian, a monthly statement (a “Servicing Report”)
including (i) a calculation of the Borrowing Base as of the most recent
date of determination, with respect to the related calendar month, (ii) an
updated Receivables List, (iii) an identification of each Receivable owned
by the related Borrower, (iv) the Loans Outstanding attributable to each
Borrower, and (v) such other pool portfolio data and information as
reasonably requested by Administrative Agent from time to time, signed by a
Responsible Officer of the Servicer and the Borrowers and substantially in the
form of Exhibit C.


 


(b)           Servicer’s Certificate.  Together with each Servicing Report, the
Servicer shall submit to the Administrative Agent (with a copy to the Backup
Servicer and the Collateral Custodian) a certificate substantially in the form
of Exhibit H (a “Servicer’s Certificate”), signed by a
Responsible Officer of the Servicer, which shall include a certification by
such Responsible Officer that, to its knowledge, no Event of Default or
Unmatured Event of Default has occurred.


 


(c)           Financial Statements.  (i) For so long
as the Servicer is ***** or an
Affiliate thereof, the Servicer will submit to the Administrative Agent and the
Backup Servicer, (A) within thirty (30) days after the end of each of its
fiscal months and quarters (excluding the fiscal quarter ending on the date
specified in subclause (B) below), commencing September 30,
2008, consolidated unaudited financial statements of *****
and consolidated unaudited financial


 


78

















 


statements of ***** (which shall include either consolidating financial
statements showing the separate financial performance of the LLC Borrower and
the Trust Borrower or discrete financial information specific to each such Borrower)
for the most recent fiscal month or quarter, as applicable, and (B) within
one hundred twenty (120) days after the end of each fiscal year, commencing
with the fiscal year ended December 31, 2008, consolidated unaudited
financial statements of *****and
consolidated audited financial statements of *****
(which shall include either consolidating financial statements showing the
separate financial performance of the LLC Borrower and the Trust Borrower or
discrete financial information specific to each such Borrower), audited by a
firm of nationally recognized independent public accountants.  Except as otherwise set forth herein, the
Backup Servicer shall have no duty to review any of the information set forth
in such financial statements.


 


Section 6.9.                                          Annual
Statement as to Compliance.


 


The Servicer
will provide to the Administrative Agent and the Backup Servicer, within ninety
(90) days following the end of each fiscal year of the Servicer, commencing
with the fiscal year ending on December 31, 2008, a fiscal report signed
by a Responsible Officer of the Servicer certifying that (a) a review of
the activities of the Servicer, and the Servicer’s performance pursuant to this
Agreement, for the fiscal period ending on the last day of such fiscal year has
been made under such Person’s supervision and (b) the Servicer has
performed or has caused to be performed in all material respects all of its
obligations under this Agreement throughout such year and no Servicer Default
has occurred.


 


Section 6.10.                                   Reserved.


 


Section 6.11.                                   The
Servicer Not to Resign.


 


The Servicer
shall not resign from the obligations and duties hereby imposed on it except
upon the Servicer’s determination that the performance of its duties hereunder
is or has become illegal under Applicable Law. 
Any such determination permitting the resignation of the Servicer shall
be evidenced by an Opinion of Counsel to such effect addressed and delivered to
the Administrative Agent.  No such
resignation shall become effective until a successor servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 6.2.


 


Section 6.12.                                   Servicer
Defaults.


 


If any one of
the following events (a “Servicer Default”) shall occur:


 


(a)           any failure by the Servicer to make
any payment, transfer or deposit or, if applicable, to give instructions or
notices to any third party to make any payment, transfer, or deposit
(including, without limitation, with respect to the remittance of Collections)
as required by this Agreement or the other Transaction Documents which
continues unremedied for a period of two (2) Business Days;


 


(b)           any failure on the part of the
Servicer duly to observe or perform in any material respect any other covenants
or agreements of the Servicer set forth in this Agreement or the other
Transaction Documents to which the Servicer is a party and the same continues


 


79
















 


unremedied for a period of five (5) Business Days (if such failure
can be remedied) after the earlier to occur of (i) the date on which
written notice of such failure requiring the same to be remedied shall have
been given to a Responsible Officer of the Servicer by the Administrative Agent
or any Lender or (ii) the date on which a Responsible Officer of the
Servicer acquires actual knowledge thereof;


 


(c)                                  (I) the
failure of the initial Servicer to make any payment when due with respect to
any of its debt or other obligations (which payment default relates to debt
facilities or other obligations in excess of $250,000 in the aggregate) or (II) the
occurrence of any event or condition that would cause or permit acceleration of
such debt or other obligations in excess of $250,000 in the aggregate, unless (1) such
event or condition has been waived and (2) any such debt or other
obligations shall have not been declared to be due and payable or required to
be prepaid (other than by scheduled payment) prior to maturity, in the case of
each of clauses (I) and (II) (i) subject to the initial Servicer’s
right to contest in good faith any claim which could lead to acceleration and (ii) after
all applicable cure and grace periods have expired; or


 


(d)                                 an
Insolvency Event with respect to the Servicer;


 


(e)                                  an
Event of Default (which has not been waived in writing by the Administrative
Agent) or a default by any Sub-Servicer under the applicable Sub-Servicing
Agreement which shall be continuing;


 


(f)                                    the
Servicer fails in any material respect to comply with the Credit and Collection
Policy and the Servicing Standard regarding the servicing of the Collateral and
the same continues unremedied for a period of ten (10) Business Days (if
such failure can be remedied) after the earlier to occur of (i) the date
on which written notice of such failure requiring the same to be remedied shall
have been given to a Responsible Officer of the Servicer by the Administrative
Agent or any Lender or (ii) the date on which a Responsible Officer of the
Servicer acquires actual knowledge thereof;


 


(g)                                 ***** ceases to be the Servicer (other than as provided for
under the terms of this Agreement);


 


(h)                                 the
occurrence or existence of any event which causes a Material Adverse Effect
with respect to the Servicer;


 


(i)                                     any
failure by the Servicer to deliver any required Servicing Report or other
Required Reports hereunder and the same continues unremedied for a period of
one Business Day after the earlier to occur of (i) the date on which
written notice of such failure shall have been given to a Responsible Officer
of the Servicer by the Administrative Agent or Collateral Custodian, or (ii) the
date on which a Responsible Officer of the Servicer has actual knowledge
thereof; or


 


(j)                                     any
representation, warranty or certification made by the Servicer in any
Transaction Document or in any certificate delivered pursuant to any
Transaction Document shall prove to have been incorrect when made and continues
to be unremedied for a period of thirty (30) Business Days after the earlier to
occur of (i) the date on which written notice of such incorrectness
requiring the same to be remedied shall have been given to the a Responsible


 


80

















 


Officer of Servicer by
the Administrative Agent or any Lender or (ii) the date on which a
Responsible Officer of the Servicer acquires knowledge thereof;


 


then
notwithstanding anything herein to the contrary, the Administrative Agent, by
written notice to the Servicer (with a copy to the Collateral Custodian and
Backup Servicer) (a “Servicer Termination Notice”), may terminate all of
the rights and obligations of the Servicer as Servicer under this Agreement
(other than fees or expenses owed to the Servicer which have accrued or been
incurred prior to the delivery of the Servicer Termination Notice) and appoint
the Backup Servicer to perform its duties pursuant to the terms of this
Agreement.


 


Section 6.13.                                   Appointment
of Successor Servicer.


 


(a)                                  On
and after the receipt by the Servicer and the Backup Servicer of a Servicer
Termination Notice pursuant to Section 6.12, the Servicer shall
continue to perform all servicing functions under this Agreement until the date
specified in the Servicer Termination Notice or as otherwise specified by the
Administrative Agent in writing or, if no such date is specified in such
Servicer Termination Notice or otherwise specified by the Administrative Agent,
until a date mutually agreed upon by the Servicer and the Administrative Agent
and shall be entitled to receive, to the extent of funds available therefor
pursuant to Section 2.6, the Servicing Fee therefor until such
date; provided that any fees or expenses owed
to the Servicer attributable to the period prior to such date shall accrue and
remain payable.  The Administrative Agent
may at any time following delivery of a Servicer Termination Notice in written
notice to the Backup Servicer, in its sole discretion (provided
the Administrative Agent will not appoint a direct competitor of the Originator
or an Affiliate thereof as Backup Servicer without the Servicer’s prior written
consent), appoint the Backup Servicer as the Servicer hereunder, and the Backup
Servicer shall on such date assume all obligations of the Servicer hereunder
with respect to servicing of the Collateral, and all authority and power of the
Servicer under this Agreement shall pass to and be vested in the Backup
Servicer.  As compensation therefor, the
Backup Servicer shall thereafter be entitled to the Servicing Fee together with
the one-time successor servicer fee specified in the Backup Servicing Fee
Letter, any other rights to reimbursement to which the Servicer is entitled as
specified herein, plus Transition Expenses. 
In the event that the Administrative Agent does not so appoint the
Backup Servicer (which it may or may not do in its discretion), there is no
Backup Servicer or the Backup Servicer is unable to assume such obligations on
such date, the Administrative Agent shall as promptly as possible appoint a
successor servicer (the “Successor Servicer”), and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Administrative Agent and each Lender.  In the event that a Successor Servicer has
not accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Administrative Agent may petition a court of competent
jurisdiction to appoint any established financial institution, having a net
worth of not less than United States $50,000,000 and whose regular business
includes the servicing of loans, as the Successor Servicer hereunder.


 


(b)                                 The
Backup Servicer as a successor Servicer undertakes to perform only such duties
and obligations as are specifically set forth in this Agreement, it being
expressly understood by all parties hereto that there are no implied duties or
obligations of any successor Servicer hereunder.


 


81

















 


(c)                                  The
Servicer agrees to cooperate and use commercially reasonable efforts in
effecting the transition of the responsibilities and rights of servicing of the
Receivables, including, without limitation, the transfer to the Backup Servicer
as successor Servicer for the administration by it of all cash amounts that
shall at the time be held by Servicer for deposit, or have been deposited by
the Servicer, or thereafter received with respect to the Receivables and the
delivery to the Backup Servicer as successor Servicer in an orderly and timely
fashion of all files and records with respect to the Receivables and a computer
tape in readable form containing all information necessary to enable the Backup
Servicer as successor Servicer to service the Receivables.  In addition, the Servicer agrees to cooperate
and use commercially reasonable efforts in providing at the Servicer’s expense
to the Backup Servicer, as a successor Servicer, with a list of key servicing
personnel and contact information, reasonable access (including at the premises
of the Servicer) to the Servicer’s employees, and any and all of the books,
records (in electronic or other form) or other information reasonably requested
by it to enable the Backup Servicer, as a successor Servicer, to assume the
servicing functions hereunder.


 


(d)                                 The
Backup Servicer as a successor Servicer is authorized and empowered to execute
and deliver, on behalf of the Servicer as attorney-in-fact or otherwise, any
and all documents and other instruments, and to do so or accomplish all other
acts or things necessary or appropriate to effect the purposes of such notice
of termination or to perform the duties of the Servicer.  The Servicer will provide the Backup
Servicer, as a successor Servicer, with a power of attorney stating such (at
such time as the Backup Servicer becomes a successor Servicer).


 


(e)                                  Upon
its appointment, the Backup Servicer (subject to Section 6.13(a))
or the Successor Servicer, as applicable, shall be the successor in all
respects to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall be deemed to
refer to the Backup Servicer or the Successor Servicer, as applicable; provided that the Backup Servicer or Successor Servicer, as applicable,
shall have (i) no liability with respect to any action performed by the
terminated Servicer prior to the date that the Backup Servicer or Successor
Servicer, as applicable, becomes the successor to the Servicer or any claim of
a third party based on any alleged action or inaction of the terminated
Servicer, (ii) no obligation to perform any repurchase or advancing
obligations, if any, of the Servicer unless it elects to in its sole discretion,
(iii) no obligation to pay any taxes required to be paid by the Servicer (provided that the Backup Servicer or Successor Servicer, as
applicable, shall pay any income taxes for which it is liable), (iv) no
obligation to pay any of the fees and expenses of any other party to the
transactions contemplated hereby, (v) no liability or obligation with
respect to any indemnification obligations of any prior Servicer, (vi) no
obligation to make payments with respect to any losses on investments made by
or at the direction of the Servicer, (vii) no obligation to take any legal
action which the Backup Servicer in its reasonable opinion believes subjects it
to any liability in connection with such legal action unless it shall have been
assured to its reasonable satisfaction that it will be indemnified for such
liabilities, and (viii) no liability with respect to any action performed,
or breaches or defaults caused by any prior Servicer prior to its appointment,
or any claim of a third party based on any alleged action of any prior
Servicer.  The indemnification
obligations of the Backup Servicer or the Successor Servicer, as applicable,
upon becoming a successor Servicer, are expressly limited to those arising on
account of its failure to act in good faith and with reasonable care under the
circumstances.  In addition,


 


82

















 


the Backup Servicer or
Successor Servicer, as applicable, shall have no liability relating to the
representations and warranties of the initial Servicer contained in Article IV.  In no event shall the Backup Servicer or the
Successor Servicer be liable for any indirect, special or consequential damages
(including lost profits) whether or not it has been advised of the likelihood
of such damages.


 


(f)                                    Upon
the Backup Servicer receiving notice that it is required to serve as the
Servicer hereunder pursuant to the foregoing provisions of this Section 6.13,
the Backup Servicer will promptly begin the transition to its role as
Servicer.  In the event the Backup
Servicer declines to continue to act as Servicer hereunder, the Backup Servicer
shall solicit, by public announcement, bids from banks, specialty finance
companies, asset managers and servicing institutions meeting the qualifications
set forth in Section 6.13(a). 
Such public announcement shall specify that the Successor Servicer shall
be entitled to the full amount of the Servicing Fee as servicing
compensation.  Within thirty (30) days
after any such public announcement, the Backup Servicer shall negotiate and
effect the sale, transfer and assignment of the servicing rights and
responsibilities hereunder to a qualified party acceptable to the
Administrative Agent submitting a qualifying bid.  The Backup Servicer shall deduct from any sum
received by the Backup Servicer from the successor to the Servicer in respect
of such sale, transfer and assignment, all costs and expenses of any public
announcement, of conducting such sale and of any sale, transfer and assignment
of the servicing rights and responsibilities hereunder.  After such deductions, the remainder of such
sum shall be paid by the Backup Servicer to the Servicer at the time of such
sale, transfer and assignment to the Servicer’s successor.  If no bid from a qualified potential
Successor Servicer is received or if no sale, transfer and assignment of the
servicing rights and responsibilities hereunder shall have been concluded
within thirty (30) days after such public announcement, the Backup Servicer
may, in its discretion, appoint, or petition a court of competent jurisdiction
to appoint, any established servicing institution as the successor to the
Servicer hereunder in the assumption of all or any part of the
responsibilities, duties or liabilities of the Servicer hereunder. As
compensation, any Successor Servicer (including, without limitation, the
Administrative Agent) so appointed shall be entitled to receive the Servicing
Fee, including, without limitation, transition expenses.  The Backup Servicer and such successor shall
take such action, consistent with this Agreement, as shall be necessary to
effectuate any such succession.  No
appointment of a successor to the Servicer hereunder shall be effective until
written notice of such proposed appointment shall have been provided by the
Backup Servicer to the Administrative Agent and the Administrative Agent shall
have consented thereto.  The Backup
Servicer shall not resign as Servicer until a Successor Servicer has been
appointed and accepted such appointment. 
Notwithstanding anything to the contrary contained herein, in no event
shall the Backup Servicer or Successor Servicer be liable for any Servicing Fee
or for any differential in the amount of the Servicing Fee paid hereunder and
the amount necessary to induce any Successor Servicer under this Agreement and
the transactions set forth or provided for by this Agreement.


 


(g)                                 Notwithstanding
anything contained in this Agreement to the contrary, any successor Servicer is
authorized to accept and rely on all of the accounting, records (including
computer records) and work of the prior Servicer relating to the Receivables
(collectively, the “Predecessor Servicer Work Product”) without any
audit or other examination thereof, and such successor Servicer shall have no
duty, responsibility, obligation or liability for the acts and omissions of the
prior Servicer.  If any error,
inaccuracy, omission or incorrect or non-standard


 


83

















 


practice or procedure
(collectively, “Errors”) exists in any Predecessor Servicer Work Product
and such Errors make it materially more difficult to service or should cause or
materially contribute to the successor Servicer making or continuing any Errors
(collectively, “Continued Errors”), such successor Servicer shall have
no duty, responsibility, obligation or liability for such Continued Errors; provided that such successor Servicer agrees to use
commercially reasonable efforts to prevent further Continued Errors.  In the event that the successor Servicer
becomes aware of Errors or Continued Errors, it shall, with the prior consent
of the Administrative Agent, use commercially reasonable efforts to reconstruct
and reconcile such data as is commercially reasonable to correct such Errors
and Continued Errors and to prevent future Continued Errors.  Such successor Servicer shall be entitled to
recover its costs thereby expended in accordance with Sections 2.7
and 2.8, as applicable.


 


ARTICLE
VII


 


THE
BACKUP SERVICER


 


Section 7.1.                                          Designation
of the Backup Servicer.


 


(a)                                  Initial
Backup Servicer.  The backup
servicing role with respect to the Collateral shall be conducted by the Person
designated as Backup Servicer hereunder from time to time in accordance with
this Section 7.1.  Until the
Administrative Agent shall give to Lyon Financial Services, Inc. (d/b/a
U.S. Bank Portfolio Services) a Backup Servicer Termination Notice, Lyon
Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services) is hereby
designated as, and hereby agrees to perform the duties and obligations of, a
Backup Servicer pursuant to the terms hereof.


 


(b)                                 Successor
Backup Servicer.  Upon the Backup
Servicer’s receipt of Backup Servicer Termination Notice from the
Administrative Agent of the designation of a replacement Backup Servicer
pursuant to the provisions of Section 7.5, the Backup Servicer
agrees that it will terminate its activities as Backup Servicer hereunder.


 


Section 7.2.                                          Duties
of the Backup Servicer.


 


(a)                                  Appointment.  Each Borrower and the Administrative Agent,
as agent for the Secured Parties, each hereby appoints Lyon Financial Services, Inc.
(d/b/a U.S. Bank Portfolio Services) to act as Backup Servicer, for the benefit
of the Secured Parties, as from time to time designated pursuant to Section 7.1.  The Backup Servicer hereby accepts such
appointment and agrees to perform the duties and obligations with respect
thereto set forth herein.


 


(b)                                 Duties.  From the Closing Date and until its removal
pursuant to Section 7.5, the Backup Servicer shall perform, on
behalf of the Administrative Agent and the Secured Parties, the following
duties and obligations:


 


(i)                                     On
or before the Closing Date, the Servicer shall deliver and Backup Servicer
shall accept from the Servicer delivery of the information required to be set
forth in the Servicing Reports (if any) in hard copy and in Excel® or a comparable format.


 


84

















 


(ii)                                  Not
later than 12:00 noon on each Reporting Date, the Servicer shall deliver to the
Backup Servicer the loan tape, which shall include but not be limited to the
following information:  (x) for each
Receivable, the name and number of the related Obligor, the collection status,
the loan status, the date of each Scheduled Payment and the Outstanding
Receivable Balance, (y) the Borrowing Base and (z) the outstanding
principal balance of all Receivables included on such loan tape (the “Tape”).  The Backup Servicer shall accept delivery of
the Tape.


 


(iii)                               Prior
to each Payment Date, the Backup Servicer shall review the related Servicing
Report to ensure that it is complete on its face and that the following items
in such Servicing Report have been accurately calculated, if applicable, and
reported:  (A) the Borrowing Base, (B) the
Backup Servicing Fee, (C) the Receivables that are 30 or more days past
due and 90 or more days past due and (D) the Aggregate Outstanding
Receivable Balance.  The Backup Servicer
shall provide the Administrative Agent and the Servicer with a monthly
certification substantially in the form attached hereto as Exhibit J
(the “Backup Servicer Monthly Certification”) confirming the accurate
calculation of such items in the Servicing Report and that the Servicing Report
is complete on its face.  In the event of
any discrepancy with the Servicing Report based on such review, the Backup Servicer
shall notify the Administrative Agent and the Servicer of such discrepancy not
later than the Business Day preceding such Payment Date.


 


(iv)                              If
the Servicer disagrees with the report provided under paragraph (iii) above
by the Backup Servicer or if the Servicer has not reconciled any material
discrepancy, the Backup Servicer agrees to confer with the Servicer to resolve
such disagreement on or prior to the next succeeding date of determination and
shall settle such discrepancy with the Servicer if possible, and notify the
Administrative Agent of the resolution thereof. 
The Servicer hereby agrees to cooperate at its own expense with the
Backup Servicer in reconciling any discrepancies herein.  If within twenty (20) days after the delivery
of the report provided under paragraph (iii) above by the Backup
Servicer, such discrepancy is not resolved, the Backup Servicer shall promptly
notify the Administrative Agent of the continued existence of such
discrepancy.  Following receipt of such
notice by the Administrative Agent, the Servicer shall deliver to the
Administrative Agent and the Backup Servicer no later than the next Payment
Date a certificate describing the nature and amount of such material
discrepancies and the actions the Servicer proposes to take with respect
thereto.


 


(c)                                  Reliance
on Tape.  With respect to the duties
described in Section 7.2(b), except as expressly set forth herein,
the Backup Servicer is entitled to rely conclusively, and shall be fully
protected in so relying, on the contents of each Tape provided by the Servicer,
including, but not limited to, the completeness and accuracy thereof.


 


Section 7.3.                                          Merger
or Consolidation.


 


Any Person (i) into
which the Backup Servicer may be merged or consolidated, (ii) that may
result from any merger or consolidation to which the Backup Servicer shall be a
party, or (iii) that may succeed to the properties and assets of the
Backup Servicer substantially as a whole, which Person in any of the foregoing
cases executes an agreement of assumption to perform every obligation of the
Backup Servicer hereunder, shall be the successor to the Backup Servicer under
this Agreement without further act on the part of any of the parties to this


 


85

















 


Agreement, provided (A) such Person is organized under the laws of
the United States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), and (B)(a) has
either (1) a long-term unsecured debt rating of “A” or better by S&P
and “A2” or better by Moody’s or (2) a short-term unsecured debt rating or
certificate of deposit rating of “A-1” or better by S&P or “P-1” by Moody’s,
(b) has a parent corporation which has either (1) a long-term
unsecured debt rating of “A” or better by S&P and “A2” or better by Moody’s
or (2) a short-term unsecured debt rating or certificate of deposit rating
of “A-1” or better by S&P and “P-1” by Moody’s or (c) is otherwise
acceptable to the Administrative Agent and, except following the occurrence of
an Event of Default or a Servicer Default (unless, in each case, waived in
writing by the Administrative Agent), each Borrower (such consent not to be
unreasonably withheld).


 


Section 7.4.                                          Backup
Servicing Compensation.


 


As compensation for its backup servicing activities hereunder, the
Backup Servicer shall be entitled to receive the Backup Servicing Fee and other
amounts payable in accordance with the Backup Servicer Fee Letter to the extent
of funds available therefor pursuant to Section 2.7 and 2.8,
as applicable.  The Backup Servicer’s
entitlement to receive the Backup Servicing Fee shall cease (excluding any
unpaid outstanding amounts as of that date) on the earliest to occur of:  (i) it becoming a successor Servicer, (ii) its
removal as Backup Servicer pursuant to Section 7.5, or (iii) the
termination of this Agreement.  In each
such case, the Backup Servicer shall be entitled to its Backup Servicer Fee
earned and reimbursable expenses incurred through the date of such event.  Upon becoming a successor Servicer pursuant
to Section 6.13, the Backup Servicer shall be entitled to the
Servicing Fee, Transition Expenses and reimbursement rights to which a
successor Servicer is entitled hereunder.


 


Section 7.5.                                          Backup
Servicer Removal.


 


The Backup
Servicer may be removed, with or without cause, by the Administrative Agent by
notice given in writing to the Backup Servicer (the “Backup Servicer
Termination Notice”); provided that
if the Backup Servicer is removed prior to the first anniversary of the Closing
Date it shall receive the early removal fee specified in the Backup Servicer
Fee Letter.  In the event of any such
removal, a replacement Backup Servicer may be appointed by the Administrative
Agent, and except following the occurrence of an Event of Default or a Servicer
Default (unless, in each case, waived in writing by the Administrative Agent),
with the consent of each Borrower (such consent not to be unreasonably
withheld).


 


Section 7.6.                                          Limitation
on Liability.


 


(a)                                  The
Backup Servicer undertakes to perform only such duties and obligations as are
specifically set forth in this Agreement, it being expressly understood by all
parties hereto that there are no implied duties or obligations of the Backup
Servicer hereunder.  Without limiting the
generality of the foregoing, the Backup Servicer, except as expressly set forth
herein, shall have no obligation to supervise, verify, monitor or administer
the performance of the Servicer.  The
Backup Servicer may act through its agents, nominees, attorneys and custodians
in performing any of its duties and obligations under this Agreement, it being
understood by the parties hereto that the Backup Servicer will be responsible
for any bad faith or


 


86

















 


willful misconduct or
gross negligence on the part of such agents, attorneys or custodians.  Neither the Backup Servicer nor any of its
officers, directors, employees or agents shall be liable, directly or
indirectly, for any damages or expenses arising out of the services performed
under this Agreement other than damages or expenses that result from the gross
negligence, bad faith or willful misconduct of it or them or the failure to
perform materially in accordance with this Agreement.  In no event shall the Backup Servicer be
required to expend or risk its own funds or otherwise incur any financial
liability in the performance of its duties hereunder or in the exercise of any
of its rights and powers hereunder if, in its sole judgment, it shall believe
that repayment of such funds or adequate indemnity against such risk or
liability is not assured to it.


 


(b)                                 The
Backup Servicer shall not be liable for any obligation of the Servicer
contained in this Agreement or for any errors of the Servicer contained in any computer
tape, certificate or other data or document delivered to the Backup Servicer
hereunder or on which the Backup Servicer must rely in order to perform its
obligations hereunder, and the Secured Parties, the Administrative Agent and
the Collateral Custodian each agree to look only to the Servicer to perform
such obligations.  Except as expressly
set forth herein, the Backup Servicer shall have no responsibility and shall
not be in default hereunder or incur any liability for any failure, error,
malfunction or any delay in carrying out any of its duties under this Agreement
if such failure or delay results from the Backup Servicer acting in accordance
with information prepared or provided by a Person other than the Backup
Servicer or the failure of any such other Person to prepare or provide such
information.  The Backup Servicer shall
have no responsibility, shall not be in default and shall incur no liability
for (i) any act or failure to act of any third party, including the
Servicer, (ii) any inaccuracy or omission in a notice or communication
received by the Backup Servicer from any third party, (iii) the invalidity
or unenforceability of any Collateral under Applicable Law, (iv) the
breach or inaccuracy of any representation or warranty made with respect to any
Collateral, or (v) the acts or omissions of any successor Backup Servicer.


 


(c)                                  Notwithstanding
anything to the contrary herein, the Backup Servicer shall not be liable for
any delays in performance for causes beyond its control, including, but not
limited to, acts of war or terrorism, powerline failures, fire, flood,
epidemic, acts of the Borrowers, the Servicer or the Administrative Agent or
restriction by civil or military authority in their sovereign or contractual
capacities.  In the event of any such
delay, performance shall be extended for so long as such period of delay.


 


Section 7.7.                                          Backup
Servicer Resignation.


 


The Backup
Servicer may resign as Backup Servicer under this Agreement upon not less than
ninety (90) days notice to the Borrowers and the Administrative Agent.  In the event of such resignation, the Backup
Servicer shall return to the Servicer any and all documents, materials, work
products and all copies made thereof, which were obtained by the Backup
Servicer from the Servicer (other than such copies that the Backup Servicer is
required to retain by law, rule or regulation) within three (3) Business
Days of its resignation.


 


87

















 


ARTICLE
VIII


 


THE
COLLATERAL CUSTODIAN


 


Section 8.1.                                          Designation
of Collateral Custodian.


 


(a)                                  Initial
Collateral Custodian.  The role of
collateral custodian with respect to the Required Receivable File shall be
conducted by the Person designated as Collateral Custodian hereunder from time
to time in accordance with this Section 8.1.  Until the Administrative Agent shall give to
U.S. Bank National Association a Collateral Custodian Termination Notice, U.S.
Bank National Association is hereby appointed as, and hereby accepts such
appointment and agrees to perform the duties and obligations of, Collateral
Custodian pursuant to the terms hereof.


 


(b)                                 Successor
Collateral Custodian.  Upon the
Collateral Custodian’s receipt of a Collateral Custodian Termination Notice
from the Administrative Agent of the designation of a successor Collateral
Custodian pursuant to the provisions of Section 8.5, the Collateral
Custodian agrees that it will terminate its activities as Collateral Custodian
hereunder.


 


Section 8.2.                                          Duties
of Collateral Custodian.


 


(a)                                  Appointment.  Each Borrower and the Administrative Agent
each hereby appoints U.S. Bank National Association to act as Collateral
Custodian, for the benefit of the Administrative Agent, as agent for the
Secured Parties.  The Collateral
Custodian hereby accepts such appointment and agrees to perform the duties and
obligations with respect thereto set forth herein.


 


(b)                                 Duties.  On or before the Closing Date, and until its
removal pursuant to Section 8.5, the Collateral Custodian shall
perform, on behalf of the Administrative Agent and the Secured Parties, the
following duties and obligations:


 


(i)                                     The
Collateral Custodian shall take and retain custody of the Required Receivable
Files delivered by the Borrowers pursuant to Section 3.1 in
accordance with the terms and conditions of this Agreement, as bailee for the
purposes of the relevant UCC (a “Bailee”), all for the benefit of the
Secured Parties and subject to the Lien thereon in favor of the Administrative
Agent, as agent for the Secured Parties. Within (i) two (2) Business
Days of its receipt of any Required Receivable File with respect to Receivables
being acquired from Sellers of Receivables included in the Collateral on a
prior Funding Date and (ii) five (5) Business Days of its receipt of
any Required Receivable File with respect to Receivables being acquired from
Sellers of Receivables not previously included in the Collateral, the
Collateral Custodian shall review such Required Receivable File to confirm that
(A) the loan documents and instruments in such Required Receivable File
have been properly executed and have no missing or mutilated pages, and (B) the
related original principal balance of the Receivable (for closed end contracts
only), contract or other identifying number and Obligor name with respect to
such Receivable is referenced on the related Receivables List and is not a
duplicate Receivable (based on the contract number or other identifying number)
(such items (A) and (B) collectively, the “Review Criteria”).  In order to facilitate the foregoing review by
the Collateral Custodian, in connection


 


88

















 


with the delivery of
Required Receivable Files hereunder to the Collateral Custodian, the Servicer
shall provide to the Collateral Custodian an electronic file (in Excel® or a
comparable format) that contains the contract number, Obligor name and original
loan balance (if applicable).  At the
conclusion of such review, the Collateral Custodian shall deliver to the
Servicer, the Borrowers and the Administrative Agent a collateral receipt in
the form of Exhibit K attached hereto (a “Collateral Receipt”).  If any Collateral Receipt discloses any
deficiencies (a “Deficiency”) in any of the Required Receivable Files,
the Collateral Custodian shall promptly notify the Administrative Agent and the
Servicer of such Deficiency and provide them with an exception report
specifying the Receivables which have a Deficiency and the Review Criteria that
they fail to satisfy.  The Servicer shall
have five (5) Business Days to correct any non-compliance with any Review
Criteria.  If after the conclusion of
such time period the Servicer has still not cured any non-compliance by a
Receivable with any Review Criteria, the Collateral Custodian shall promptly
notify the Borrowers and the Administrative Agent of such determination by
providing an updated exception report to such Persons identifying, with
particularity, each Receivable and each of the applicable Review Criteria that
such Receivable fails to satisfy.  In
addition, if requested in writing by the Servicer and approved by the
Administrative Agent within ten (10) Business Days of the Collateral
Custodian’s delivery of such report, the Collateral Custodian shall return any
Receivable which fails to satisfy a Review Criteria to the Borrowers or their
applicable designee.  Other than the
foregoing, the Collateral Custodian shall not have any responsibility for
reviewing, inspecting or examining any Required Receivable File to determine
that the contents thereof are genuine, enforceable or appropriate for the
represented purpose or that they are other than what they purport to be on
their face.


 


(ii)                                  In
taking and retaining custody of the Required Receivable Files, the Collateral
Custodian shall be deemed to be acting as the Bailee of the Secured Parties; provided that the Collateral Custodian makes no representations as to
the enforceability of any Required Receivable File documents or the existence,
perfection or priority of any Lien on the Required Receivable Files or the
instruments therein; and provided further that, the Collateral Custodian’s
duties as agent shall be limited to those expressly contemplated herein.


 


(iii)                               All
Required Receivable File documents that are originals or copies shall be kept
in fire resistant facilities in accordance with the Collateral Custodian’s
customary standards for such custody, at the locations specified on Schedule
III attached hereto, or at such other office as shall be specified to the
Administrative Agent and the Servicer by the Collateral Custodian in a written
notice delivered at least forty-five (45) days prior to such change.  All Required Receivable File documents that
are originals or copies shall be identified using a barcode system and
maintained in such a manner so as to permit retrieval and access.


 


(iv)                              The
Collateral Custodian shall make payments pursuant to the terms of the Servicing
Report in accordance with Section 2.7 and 2.8, as
applicable, (the “Payment Duties”).


 


(v)                                 On
the third Business Day of each month, the Collateral Custodian shall provide to
the Administrative Agent and the Servicer (in a form acceptable to the
Administrative Agent and the Collateral Custodian) an updated list of
Receivables in its possession and an updated exceptions report.


 


89
















 


(vi)                              In
performing its duties, the Collateral Custodian shall use the same degree of
care and attention as it employs with respect to similar collateral that it
holds as collateral custodian for others.


 


Section 8.3.                                          Merger
or Consolidation.


 


Any Person (i) into
which the Collateral Custodian may be merged or consolidated, (ii) that
may result from any merger or consolidation to which the Collateral Custodian
shall be a party, or (iii) that may succeed to the properties and assets
of the Collateral Custodian substantially as a whole, which Person in any of
the foregoing cases executes an agreement of assumption to perform every
obligation of the Collateral Custodian hereunder, shall be the successor to the
Collateral Custodian under this Agreement without further act of any of the
parties to this Agreement.


 


Section 8.4.                                          Collateral
Custodian Compensation.


 


As
compensation for its collateral custodian activities hereunder, the Collateral
Custodian shall be entitled to a Collateral Custodian Fee and other amounts
payable to it pursuant to the Collateral Custodian Fee Letter and pursuant to
the provisions of Section  2.7 and 2.8, as
applicable.  The Collateral Custodian’s
entitlement to receive the Collateral Custodian Fee and such other amounts
shall cease (excluding any outstanding amounts unpaid as of such date) on the
earlier to occur of:  (i) its
removal as Collateral Custodian pursuant to Section 8.5 or (ii) the
termination of this Agreement.


 


Section 8.5.                                          Collateral
Custodian Removal.


 


The Collateral
Custodian may be removed, with or without cause, by the Administrative Agent by
notice given in writing to the Collateral Custodian (the “Collateral
Custodian Termination Notice”); provided that notwithstanding its receipt of
a Collateral Custodian Termination Notice, the Collateral Custodian shall
continue to act in such capacity until a successor Collateral Custodian has
been appointed, has agreed to act as Collateral Custodian hereunder, and has
received all Required Receivable Files held by the previous Collateral
Custodian.


 


Section 8.6.                                          Limitation
on Liability.


 


(a)                                  The
Collateral Custodian may conclusively rely on and shall be fully protected in
acting upon, and need not verify, any certificate, instrument, opinion, notice,
letter, telegram or other document delivered to it and that in good faith it
reasonably believes to be genuine and that has been signed by the proper party
or parties.  The Collateral Custodian may
rely conclusively on and shall be fully protected in acting upon the written
instructions of any designated officer of the Administrative Agent.


 


(b)                                 The
Collateral Custodian may consult counsel satisfactory to it and the advice or
opinion of such counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in accordance with the advice or opinion of such counsel.


 


90

















 


(c)                                  The
Collateral Custodian shall not be liable for any error of judgment, or for any
act done or step taken or omitted by it, in good faith, or for any mistakes of
fact or law, or for anything that it may do or refrain from doing in connection
herewith except, notwithstanding anything to the contrary contained herein, in
the case of its willful misconduct, bad faith or grossly negligent performance
or omission of its duties and in the case of the negligent performance of its
Payment Duties and in the case of its negligent performance of its duties in
taking and retaining custody of the Required Receivable Files.


 


(d)                                 The
Collateral Custodian makes no warranty or representation and shall have no
responsibility (except as expressly set forth in this Agreement) as to the
content, enforceability, completeness, validity, sufficiency, value, genuineness,
ownership or transferability of the Collateral, and will not be required to,
and will not, make any representations as to the validity or value of any of
the Collateral.  The Collateral Custodian
shall not be obligated to take any legal action hereunder that might in its
judgment involve any expense or liability unless it has been furnished with an
indemnity reasonably satisfactory to it.


 


(e)                                  The
Collateral Custodian shall have no duties or responsibilities except such
duties and responsibilities as are specifically set forth in this Agreement and
no covenants or obligations shall be implied in this Agreement against the
Collateral Custodian.


 


(f)                                    The
Collateral Custodian shall not be required to expend or risk its own funds in
the performance of its duties hereunder.


 


(g)                                 It
is expressly agreed and acknowledged that the Collateral Custodian is not
guaranteeing performance of or assuming any liability for the obligations of
the other parties hereto or any parties to the Collateral.


 


(h)                                 Notwithstanding
anything to the contrary herein, the Collateral Custodian shall not be liable
for any delays in performance for causes beyond its control, including, but not
limited to, acts of war or terrorism, powerline failures, fire, flood,
epidemic, acts of the Borrowers, the Servicer or the Administrative Agent or
restriction by civil or military authority in their sovereign or contractual
capacities.  In the event of any such
delay, performance shall be extended for so long as such period of delay.


 


(i)                                     The
Collateral Custodian shall not be responsible for preparing or filing any
reports or returns relating to federal, state or local income taxes with
respect to this Agreement on behalf of the Borrowers, the initial Servicer or
the Secured Parties.


 


Section 8.7.                                          The
Collateral Custodian Not to Resign.


 


The Collateral
Custodian shall not resign from the obligations and duties hereby imposed on it
except upon the Collateral Custodian’s determination that (i) the
performance of its duties hereunder is or has become illegal under Applicable
Law and (ii) there is no reasonable action that the Collateral Custodian
could take to make the performance of its duties hereunder legal under
Applicable Law.  Any such determination
permitting the resignation of the Collateral Custodian shall be evidenced as to
clause (i) above by an Opinion of Counsel to such effect delivered
to the Administrative Agent.  No such
resignation shall become effective until a


 


91

















 


successor Collateral Custodian shall have assumed the responsibilities
and obligations of the Collateral Custodian hereunder.


 


Section 8.8.                                          Release
of Documents.


 


(a)                                  Release
for Servicing.  From time to time and
as appropriate for the enforcement or servicing of any of the Collateral, the
Collateral Custodian is hereby authorized, upon receipt from the Servicer of a
written request for release in the form annexed hereto as Exhibit G
and consented to by the Administrative Agent, to release to the Servicer (or
the Sub-Servicer) within two Business Days of receipt of such request, the
related Required Receivable Files set forth in such request and receipt to the
Servicer.  All documents so released to
the Servicer shall be held by the Servicer in trust for the benefit of the
Administrative Agent in accordance with the terms of this Agreement.  The Servicer shall return to the Collateral
Custodian the Required Receivable Files (i) promptly upon the request of
the Administrative Agent, or (ii) when the Servicer’s need therefor in
connection with such foreclosure or servicing no longer exists, unless the
Receivable shall be liquidated, in which case, upon receipt of an additional
request for release of documents and receipt certifying such liquidation from
the Servicer to the Collateral Custodian in the form annexed hereto as Exhibit G,
the Servicer’s request and receipt submitted pursuant to the first sentence of
this subsection shall be released by the Collateral Custodian to the Servicer.


 


(b)                                 Release
for Payment.  Upon receipt by the Collateral
Custodian of the Servicer’s request for release in the form annexed hereto as Exhibit G
(which certification shall include a statement to the effect that all amounts
received in connection with such payment or repurchase have been credited to
the Collection Account as provided in this Agreement), the Collateral Custodian
shall promptly release the related Required Receivable File to the Servicer.


 


Section 8.9.                                          Return
of Required Receivable Files and Servicing Files.


 


The Borrowers
may, with the prior written consent of the Administrative Agent, require that
the Collateral Custodian return each Required Receivable File (a) delivered
to the Collateral Custodian in error, (b) for which the applicable
Borrower has paid all required amounts pursuant to Section 2.15
with respect to the related Receivables, (c) related to any Receivable for
which a Substitute Receivable has been substituted in accordance with Section 2.15,
or (d) that is required to be redelivered to the applicable Borrower in
connection with the termination of this Agreement, in each case by submitting
to the Collateral Custodian and the Administrative Agent a written request in
the form of Exhibit G hereto (signed by both the applicable
Borrower and the Administrative Agent) specifying the Collateral to be so
returned and reciting that the conditions to such release have been met (and
specifying the Section or Sections of this Agreement being relied upon for
such release).  The Collateral Custodian
shall upon its receipt of each such request for return executed by the
applicable Borrower and the Administrative Agent promptly, but in any event
within five (5) Business Days, return the Required Receivable File so
requested to the applicable Borrower.


 


92

















 


Section 8.10.                                   Access
to Certain Documentation and Information Regarding the Collateral; Audits.


 


The Servicer,
the Originator, the Borrowers and the Collateral Custodian shall provide to the
Administrative Agent access to the Required Receivable Files and all other
documentation regarding the Collateral including in such cases where the
Administrative Agent and each Lender are required in connection with the
enforcement of the rights or interests of the Secured Parties, or by applicable
statutes or regulations, to review such documentation, such access being
afforded without charge but only (i) upon two Business Days’ prior written
request, (ii) during normal business hours and (iii) subject to the
Borrowers’, the Originator’s, the Servicer’s and Collateral Custodian’s normal
security and confidentiality procedures. 
Periodically at the discretion of the Administrative Agent, the
Administrative Agent may review the Servicer’s collection and administration of
the Collateral in order to assess compliance by the Servicer with the Credit
and Collection Policy and the Servicing Standard, as well as with this
Agreement and may conduct an audit of the Collateral and Required Receivable
Files in conjunction with such a review. 
The Borrowers, the Servicer and the Originator shall permit the
Administrative Agent, or its respective agents or representatives, to visit the
offices of each such Person during normal office hours and upon reasonable
notice to examine and make copies of all documents, books, records and other
information concerning the Collateral and discuss matters related thereto with
any of the officers of the Borrowers, the Servicer or the Originator having
knowledge of such matters, and the Borrowers shall pay the costs and expenses
for all such visits by the Administrative Agent, subject to the limitations in Section 13.9;
provided that prior to an Event of
Default or Unmatured Event of Default, such visits by the Administrative Agent
shall occur no more than four times per calendar year.  Notwithstanding the foregoing, following the
appointment of a successor Servicer to the initial Servicer, any such visits or
reviews of the Servicer shall be at the reviewer’s expense, shall require at
least five Business Days’ prior written notice and shall occur no more than
twice per calendar year.  Without
limiting the foregoing provisions of this Section 8.10, from time
to time on request of the Administrative Agent, the Collateral Custodian shall
permit certified public accountants or other independent auditors acceptable to
the Administrative Agent to conduct, at the Originator’s expense, a review of
the Required Receivable Files and all other documentation regarding the
Collateral.


 


ARTICLE
IX


 


SECURITY
INTEREST


 


Section 9.1.                                          Grant
of Security Interest.


 


This Agreement
constitutes a security agreement and the transactions effected hereby
constitute secured loans by the Lenders to the Borrowers under Applicable
Law.  For such purpose, each Borrower
hereby transfers, conveys, assigns and grants as of the date hereof to the
Administrative Agent, as agent for the Secured Parties, a lien and continuing
security interest in all of such Borrower’s right, title and interest in, to
and under (but none of the obligations under) all Collateral and all cash,
loans, securities (whether or not marketable), liquidation proceeds of
repossessed assets, accounts, insurance policies (including any life insurance
or disability insurance policies maintained by obligors) and proceeds thereon,
contract rights, amounts or funds in escrow and accounts thereto, chattel
paper, financial assets, investment property,


 


93

















 


instruments, general intangibles, payment intangibles, accounts,
deposit accounts, money, documents, agreements, investments and all other
property and assets of any type or nature in which such Borrower has an
interest, whether now existing or hereafter arising or acquired by such
Borrower, and wherever the same may be located, to secure the prompt and
complete payment and performance in full when due, whether by lapse of time,
acceleration or otherwise, of all Aggregate Unpaids of the Borrowers arising in
connection with this Agreement and each other Transaction Document, whether now
or hereafter existing, due or to become due, direct or indirect, or absolute or
contingent.  The grant of a security
interest under this Section 9.1 does not constitute and is not
intended to result in a creation or an assumption by any of the Secured Parties
of any obligation of the Borrowers or any other Person in connection with any
or all of the Collateral or under any agreement or instrument relating
thereto.  Anything herein to the contrary
notwithstanding, (a) the Borrowers shall remain liable under the
Collateral to the extent set forth therein to perform all of its duties and
obligations thereunder to the same extent as if this Agreement had not been
executed, (b) the exercise by the Administrative Agent, as agent for the
Secured Parties, of any of its rights in the Collateral shall not release the
Borrowers from any of its duties or obligations under the Collateral, and (c) no
Secured Party shall have any obligations or liability under the Collateral by
reason of this Agreement, nor shall any Secured Party be obligated to perform
any of the obligations or duties of the Borrowers thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder. The
Borrowers hereby authorize Mayer Brown LLP to file, on behalf of the
Administrative Agent, a “Record” or “Records” (as such term is defined in the
applicable UCC), including financing or continuation statements, and amendments
thereto, in all jurisdictions and with all filing offices as the Administrative
Agent may determine, in its sole discretion, are necessary or advisable to
perfect the security interests granted to the Administrative Agent in
connection herewith.  Such financing
statements may describe the collateral in the same manner as described herein
or in any security agreement or pledge agreement entered into by the parties in
connection herewith or may contain an indication or description of collateral
that describes such property in any other manner as the Administrative Agent
may determine, in its sole discretion, is necessary, advisable or prudent to ensure
the perfection of the security interests in the Collateral granted to the
Administrative Agent in connection herewith, including describing such property
as “all assets” or “all personal property.”


 


Section 9.2.                                          Release
of Lien on Collateral.


 


On the date (i) any
Receivable expires by its terms and all amounts in respect thereof have been
paid in full by the related Obligor and deposited in the Collection Account, (ii) any
Receivable becomes a Prepaid Receivable and all amounts in respect thereof have
been paid in full by the related Obligor and deposited in the Collection
Account, (iii) on which the applicable Borrower has paid all required
amounts pursuant to Section 2.15 with respect to the related
Receivable, (iv) any Receivable is substituted for in accordance with Section 2.15,
or (v) this Agreement terminates in accordance with Section 13.6,
the Administrative Agent, as agent for the Secured Parties, shall automatically
and without further action be deemed to transfer, assign and set-over to the applicable
Borrower, without recourse, representation or warranty, all the right, title
and interest of the Administrative Agent, as agent for the Secured Parties in,
to and under such Receivable (or all Receivables in the case of clause (v)),
all related Collateral and all future monies due or to become due with respect
thereto.  The Administrative Agent, as
agent for the Secured Parties, shall, at the sole expense of such Borrower, (i) execute
such instruments of


 


94

















 


release in favor of such Borrower with respect to the portion of the
Collateral to be released from the Lien of this Agreement as applicable
Borrower may reasonably request (in recordable form if necessary), (ii) deliver
any portion of the Collateral to be released from the Lien of this Agreement in
its possession to the applicable Borrower and (iii) otherwise take such
actions, and cause or permit the Collateral Custodian to take such actions, as
are necessary and appropriate to release the Lien of the Administrative Agent
and the Secured Parties on the portion of the Collateral to be released and
deliver to the applicable Borrower such portion of the Collateral to be
released to the applicable Borrower.


 


Section 9.3.                                          Further
Assurances.


 


The provisions
of Section 13.12 shall apply to the security interest granted under
Section 9.1 as well as to the Loans hereunder.


 


Section 9.4.                                          Remedies.


 


Subject to the
provisions of Section 10.2, upon the occurrence and continuance of
an Event of Default, the Administrative Agent shall have, with respect to the
Collateral granted pursuant to Section 9.1, and in addition to all
other rights and remedies available to the Administrative Agent and the other
Secured Parties under this Agreement or other Applicable Law, all rights and
remedies of a secured party upon default under the UCC.


 


Section 9.5.                                          Waiver
of Certain Laws.


 


Each of the
Borrowers and the Servicer agree, to the full extent that it may lawfully so
agree, that neither it nor anyone claiming through or under it will set up,
claim or seek to take advantage of any appraisal, valuation, stay, extension or
redemption law now or hereafter in force in any locality where any Collateral
may be situated in order to prevent, hinder or delay the enforcement or foreclosure
of this Agreement or any Transaction Document, or the absolute sale of any of
the Collateral or any part thereof, or the final and absolute putting into
possession thereof, immediately after such sale, of the purchasers thereof, and
each of the Borrowers and the Servicer, for itself and all who may at any time
claim through or under it, hereby waives, to the full extent that it may be
lawful so to do, the benefit of all such laws, and any and all right to have
any of the properties or assets constituting the Collateral marshaled upon any
such sale, and agrees that the Administrative Agent or any court having
jurisdiction to foreclose the security interests granted in this Agreement may
sell the Collateral as an entirety or in such parcels as the Administrative
Agent or such court may determine.


 


Section 9.6.                                          Power
of Attorney.


 


Each of the
Borrowers and the initial Servicer hereby irrevocably appoints the
Administrative Agent to act upon and during the continuance of an Event of
Default as its true and lawful attorney (with full power of substitution) in
its name, place and stead and at its expense, in connection with the
enforcement of the rights and remedies provided for in this Agreement, in each
case to the extent so permitted hereunder, including without limitation the
following powers: (a) to give any necessary receipts or acquittance for
amounts collected or received hereunder, (b) to make all necessary
transfers of the Collateral in connection with any sale or other disposition
made pursuant to Section 9.4, (c) to execute and deliver for
value all


 


95

















 


necessary or appropriate bills of sale, assignments and other
instruments in connection with any such sale or other disposition and (d) to
sign any agreements, orders or other documents in connection with or pursuant
to any Transaction Document, the Borrowers and the initial Servicer (as the
case may be) hereby ratifying and confirming all that such attorney (or any
substitute) shall lawfully do hereunder and pursuant hereto.  Nevertheless, if so requested by the
Administrative Agent, the Borrowers shall ratify and confirm any such sale or
other disposition by executing and delivering to the Administrative Agent or such
purchaser all proper bills of sale, assignments, releases and other instruments
as may be designated in any such request.


 


ARTICLE
X


 


EVENTS
OF DEFAULT


 


Section 10.1.                                   Events
of Default.


 


Each of the
following events shall be an Event of Default (an “Event of Default”)
hereunder:


 


(a)                                  failure
on the part of any Borrower, the Servicer, the Originator or any Guarantor to
make any payment or deposit (including, without limitation, the payment in full
of the Loans and other Obligations on the Termination Date and any failure to
remit Collections or make any other payment or deposit required to be made by
the terms of the Transaction Documents) required by the terms of any
Transaction Document on the day such payment or deposit is required to be made
and the same continues unremedied for two (2) Business Days; or


 


(b)                                 the
failure of any Borrower, the Originator, or the Servicer (for purposes of this Section 10.1,
references to the “Servicer” shall only apply while *****
or one of its Affiliates is the Servicer) to make any payment when due with
respect to any of its debt or other obligations in excess of $150,000 in the
aggregate, whether or not such debt or other obligations shall be declared to
be due and payable or required to be prepaid (other than by scheduled payment)
prior to maturity; in each case, after all grace and cure periods thereunder
have elapsed and subject to such Person’s right to contest in good faith any
claim that could lead to acceleration; or


 


(c)                                  a
Borrowing Base Deficiency occurs and the same continues unremedied for five (5) Business
Days; or


 


(d)                                 any
representation, warranty, or certification made by any Borrower, the Servicer,
the Originator or any Guarantor in any Transaction Document or in any
certificate delivered pursuant to any Transaction Document shall prove to have been
materially incorrect when made, and which continues to be unremedied for a
period of fifteen (15) Business Days after the earlier to occur of (i) the
date on which written notice of such incorrectness requiring the same to be
remedied shall have been given to the applicable Borrower, the Servicer, the
Originator or the applicable Guarantor, as the case may be, by the
Administrative Agent or (ii) the date on which a Responsible Officer of
the applicable Borrower, the Servicer, the Originator or the applicable
Guarantor, as the case may be, acquires knowledge thereof; or


 


96

















 


(e)                                  any
failure on the part of any Borrower, the Servicer or the Originator duly to
observe or perform in any material respect any of its respective covenants or
agreements set forth in this Agreement or the other Transaction Documents,
including without limitation making a material change to the Credit and
Collection Policy or other underwriting guidelines without the prior consent of
the Administrative Agent, and the same continues unremedied for a period of
five (5) Business Days (if such failure is susceptible to cure) after the
earlier to occur of (i) the date on which written notice of such failure
requiring the same to be remedied shall have been given to such Borrower, the
Servicer or the Originator, as the case may be, by the Administrative Agent or (ii) the
date on which a Responsible Officer of such Borrower, the Servicer or the
Originator, as the case may be, acquires knowledge thereof; or


 


(f)                                    the
occurrence of an Insolvency Event relating to a Borrower, the Servicer, the
Originator or any Guarantor; or


 


(g)                                 the
occurrence of a Servicer Default; or


 


(h)                                 the
rendering of one or more final judgments, decrees or orders by a court or
arbitrator of competent jurisdiction for the payment of money in excess
individually or in the aggregate of $250,000, against a Borrower, the initial
Servicer or the Originator, and such Borrower, the initial Servicer or the
Originator, as applicable, shall not have either (i) discharged or
provided for the discharge of any such judgment, decree or order in accordance
with its terms or (ii) perfected a timely appeal of such judgment, decree
or order and caused the execution of same to be stayed during the pendency of
the appeal; or


 


(i)                                     (1)                                  any
Transaction Document, or any Lien granted thereunder, shall, in whole or in
material part, terminate, cease to be effective or cease to be the legally
valid, binding and enforceable obligation of the applicable Borrower, the
Servicer, the Originator or any Guarantor; or


 


(2)                                  any Borrower, the
Servicer, the Originator or any Guarantor shall, directly or indirectly,
contest in any manner the effectiveness, validity, binding nature or
enforceability of any Transaction Document or any lien or security interest
thereunder; or


 


(3)                                  any security interest
securing Collateral or any obligation under any Transaction Document shall, in
whole or in part, cease, after a cure period of three (3) Business Days
has elapsed, to be a first priority perfected security interest (subject to
Permitted Liens) except as otherwise expressly permitted to be released in
accordance with the applicable Transaction Document; or


 


(j)                                     the
occurrence of any event which causes a Material Adverse Effect; or


 


(k)                                  the
occurrence of a Change of Control (without the prior written consent of the
Administrative Agent); or


 


(l)                                     any
Borrower or the Originator (without the prior written consent of the
Administrative Agent) enters into any transaction or agreement to merge into or
consolidate with any Person in which such Borrower or Originator is not the
surviving entity; or


 


97

















 


(m)                               the
annual audited financial statements of a Borrower, the Servicer or the Originator
are qualified in any manner; or


 


(n)                                 the
three-month rolling average Class A Delinquency Ratio shall
exceed 15.0% or the three-month rolling average Class B Delinquency
Ratio shall exceed 30.0%; or


 


(o)                                 the
three-month rolling average Class A Default Ratio shall exceed 5.0% or the
three-month rolling average Class B Default Ratio shall exceed 12.0%; or


 


(p)                                 any
Borrower shall become required to register as an “investment company” within
the meaning of the 1940 Act or the arrangements contemplated by the Transaction
Documents shall require registration as an “investment company” within the
meaning of the 1940 Act; or


 


(q)                                 the
Internal Revenue Service shall file notice of a lien pursuant to Section 6323
of the Code with regard to any assets of a Borrower, the Servicer, the
Originator or either Guarantor and such lien shall not have been released
within ten (10) Business Days, or the Pension Benefit Guaranty Corporation
shall file notice of a lien pursuant to Section 4068 of ERISA with regard
to any of the assets of a Borrower, the Servicer, the Originator or either
Guarantor and such lien shall not have been released within ten (10) Business
Days; or


 


(r)                                    the
Excess Spread with respect to any calendar month is less than 5.00% and a
Borrower has not entered into an interest rate swap, cap or other hedging
arrangement in form and with counterparties acceptable to the Administrative
Agent in its reasonable discretion; or


 


(s)                                  as
of any date of determination, the Tangible Net Worth of the Originator shall be
less than $4,500,000; or


 


(t)                                    the
annual net income of the Originator as of the end of any fiscal year ending
after the Closing Date shall fail to be positive; or


 


(u)                                 the
occurrence of any “Default” under (and as defined in) the Term Credit
Agreement.


 


Section 10.2.                                   Remedies.


 


(a)                                  Upon
the occurrence of an Event of Default (unless otherwise waived in writing by
the Required Lenders), the Administrative Agent shall, at the request of, or
may, with the consent of, the Required Lenders, by notice to the Borrowers (with
copies to the Backup Servicer and the Collateral Custodian), declare the
Termination Date to have occurred and the Variable Funding Notes to be
immediately due and payable in full (without presentment, demand, protest or
notice of any kind all of which are hereby waived by the Borrowers); provided that in the case of any event described in Section 10.1(f),
the Variable Funding Notes shall be immediately due and payable in full
(without presentment, demand, notice of any kind, all of which are hereby expressly
waived by the Borrowers) and the Termination Date shall be deemed to have
occurred automatically upon the occurrence of any such event.


 


98

















 


(b)                                 On
and after the declaration or occurrence of the Termination Date, all
Commitments shall terminate, all Loans Outstanding and other Aggregate Unpaids
shall bear interest at the Default Rate and the Administrative Agent, for the
benefit of the Secured Parties, shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of each applicable jurisdiction and other Applicable
Laws, which rights shall be cumulative, and also may require the Borrowers, the
initial Servicer and the Originator to, and the Borrowers, the initial Servicer
and the Originator hereby agree that they will at the initial Servicer’s
expense and upon request of the Administrative Agent forthwith, (i) assemble
all or any part of the Collateral as directed by the Administrative Agent and
make the same available to the Administrative Agent at a place to be designated
by the Administrative Agent and (ii) without notice, except as specified
below, sell the Collateral or any part thereof in one (1) or more tranches
at a public or private sale, at any of the Administrative Agent’s offices or
elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable.  In the event that the Administrative Agent
elects to sell the Collateral or any part thereof, bids will be accepted for a
period of no less than thirty (30) days and the Collateral shall be sold to the
highest bidder, provided that the Administrative
Agent, in its sole discretion, shall have received adequate assurances of such
bidder’s ability to pay the purchase price. 
The Borrowers agree that, to the extent notice of sale shall be required
by law, at least thirty (30) days’ notice to the Borrowers of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. 
The Administrative Agent shall not be obligated to make any sale of the
Collateral regardless of notice of sale having been given.  The Administrative Agent may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. 
All cash Proceeds received by the Administrative Agent in respect of any
sale of, collection from, or other realization upon, all or any part of the
Collateral shall be deposited into the Collection Account and to be applied
pursuant to the settlement procedures set forth in Section 2.10.


 


ARTICLE
XI


 


INDEMNIFICATION


 


Section 11.1.                                   Indemnities
by the Borrowers.


 


(a)                                  Without
limiting any other rights that any such Person may have hereunder or under
Applicable Law, the Borrowers hereby jointly and severally agree to indemnify
the Backup Servicer, the Collateral Custodian, any successor Servicer, the
Secured Parties and each of their respective assigns and officers, directors,
employees and agents (collectively, the “Indemnified Parties”),
forthwith on demand, from and against any and all damages (exclusive of
consequential damages), losses, claims, liabilities and related costs and
expenses, including reasonable attorneys’ fees and disbursements (all of the
foregoing being collectively referred to as the “Indemnified Amounts”)
awarded against or incurred by such Indemnified Party arising out of or as a
result of this Agreement or the other Transaction Documents or the Collateral
or in respect of any Receivable included in the Collateral, excluding, however,
Indemnified Amounts to the extent resulting from gross negligence, bad faith or
willful misconduct on the part of such Indemnified Party and excluding disputes
among


 


99
















 


the Indemnified Parties.  Without
limiting the foregoing, the Borrowers shall indemnify each Indemnified Party
for Indemnified Amounts relating to or resulting from:


 


(i)                                     any
representation or warranty made or deemed made by any Borrower, the Servicer,
the Originator, any Guarantor or any of their respective officers under or in
connection with this Agreement or any other Transaction Document, which shall
have been false or incorrect when made or deemed made or delivered;


 


(ii)                                  the
failure by any Borrower, the Servicer, the Originator or any Guarantor to
comply with any term, provision or covenant contained in this Agreement, any of
the other Transaction Documents or any agreement executed in connection
therewith, or with any Applicable Law, including with respect to any Collateral
or the nonconformity of any Collateral with any such Applicable Law;


 


(iii)                              the
failure to vest and maintain vested in the Administrative Agent, as agent for
the Secured Parties, a perfected security interest in the Collateral, free and
clear of any Lien (other than Permitted Liens) whether existing at the time of
any Loan or at any time thereafter (including, without limitation, as the
result of the failure to file, or any delay in filing, financing statements,
continuation statements or other similar instruments or documents under the UCC
of any applicable jurisdiction or other Applicable Law with respect to any
Collateral);


 


(iv)                              the
failure to maintain, as of the close of business on each Business Day prior to
the Termination Date, an amount of Loans Outstanding that is less than or equal
to the Maximum Outstanding Loan Amount on such Business Day;


 


(v)                                 any
dispute, claim, offset or defense (other than the discharge in bankruptcy of
any Obligor) of any Obligor to the payment with respect to any Collateral
(including, without limitation, a defense based on the Collateral not being a
legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim related to such Collateral;


 


(vi)                              any
failure of any Borrower, the Servicer or the Originator to perform its
respective duties under the Transaction Documents with respect to any
Collateral;


 


(vii)                           the
failure of any Lockbox Account Bank or Concentration Account Bank to remit any
amounts held in a Lockbox Account or the Concentration Account pursuant to the
instructions of the Servicer or the Administrative Agent (to the extent such
Person is entitled to give such instructions in accordance with the terms
hereof) whether by reason of the exercise of set-off rights or otherwise;


 


(viii)                        any
inability to obtain any judgment in, or utilize the court or other adjudication
system of, any state in which an Obligor may be located as a result of the
failure of any Borrower, the Servicer or the Originator to qualify to do
business or file any notice or business activity report or any similar report;


 


(ix)                               any
action taken by any Borrower, the Servicer or the Originator in the enforcement
or collection of any Collateral;


 


100

















 


(x)                                   any
claim, suit or action of any kind arising out of or in connection with any
Environmental Laws, including any vicarious liability;


 


(xi)                                the
failure by any Borrower, the Servicer or the Originator to pay when due any
Taxes for which such Person is liable, including without limitation, sales,
excise or personal property taxes payable in connection with the Collateral;


 


(xii)                            any
repayment by a Secured Party of any amount previously distributed in reduction
of Loans Outstanding or payment of Interest or any other amount due hereunder
or under any other Transaction Document, in each case which amount such Secured
Party believes in good faith is required to be repaid;


 


(xiii)                         the
commingling of Collections by any Borrower, the Originator or the Servicer on
the Collateral at any time with other funds;


 


(xiv)                         any
investigation, litigation or proceeding related to this Agreement or the use of
proceeds of Loans or the security interest in the Collateral (other than as
related to the acts of the Administrative Agent, the Secured Parties, the
Backup Servicer or the Collateral Custodian);


 


(xv)                            any
failure by any Borrower to give reasonably equivalent value to the Originator
or the Seller, as applicable, in consideration for the transfer to such
Borrower of any item of Collateral or any attempt by any Person to void or
otherwise avoid any such transfer under any statutory provision or common law
or equitable action, including, without limitation, any provision of the
Bankruptcy Code; or


 


(xvi)                         the use
of the proceeds of any Loan in a manner other than as provided in this
Agreement and the applicable Sale Agreement.


 


(b)                                 Any
amounts subject to the indemnification provisions of this Section 11.1
shall be paid by the Borrowers to the Indemnified Party on the Payment Date
following such Person’s written demand therefor to the Borrowers setting forth
the basis for such Indemnified Amounts in reasonable detail.


 


(c)                                  If
for any reason the indemnification provided above in this Section 11.1
is unavailable to the Indemnified Party or is insufficient to hold an
Indemnified Party harmless, then the Borrowers shall contribute to the amount
paid or payable by such Indemnified Party as a result of such loss, claim,
damage or liability in such proportion as is appropriate to reflect not only
the relative benefits received by such Indemnified Party on the one hand and
the Borrowers on the other hand but also the relative fault of such Indemnified
Party as well as any other relevant equitable considerations.


 


(d)                                 The
obligations of the Borrowers under this Section 11.1 shall survive
the resignation or removal of the Administrative Agent, the Servicer, the
Backup Servicer, Successor Servicer or the Collateral Custodian and the
termination of this Agreement.


 


(e)                                  Notwithstanding
the above provisions of this Section 11.1, nothing in this Section shall
be construed to require the Borrowers to provide any indemnification under this



 


101

















 


Agreement or the other
Transaction Documents for any damages, losses, claims, liabilities and related
costs and expenses, including reasonable attorneys’ fees and disbursements
arising out of or in connection with credit losses with respect to any of the
Receivables or any Related Security or the diminution in market value of the
Collateral.


 


(f)                                    If
any Indemnified Party receives any Indemnified Amount from the Borrowers and is
subsequently reimbursed for such amounts by another party, such Indemnified
Party hereby agrees to promptly reimburse the Borrowers for such reimbursed
amounts.


 


Section 11.2.                         Indemnities
by the Servicer.


 


(a)                                  Without
limiting any other rights that any such Person may have hereunder or under
Applicable Law, the Servicer hereby agrees to indemnify each Indemnified Party,
forthwith on demand, from and against any and all Indemnified Amounts awarded
against or incurred by any such Indemnified Party by reason of any acts or
omissions of the Servicer (other than with respect to disputes among
Indemnified Parties), including, but not limited to (i) any representation
or warranty made by the Servicer under or in connection with any Transaction
Document, any Servicing Report, Servicer’s Certificate or any other information
or report delivered by or on behalf of the Servicer pursuant hereto, which
shall have been false, incorrect or misleading in any respect when made or
deemed made, (ii) the failure by the Servicer to comply with any
Applicable Law, (iii) the failure of the Servicer to comply with its
covenants under this Agreement or the other Transaction Documents, or (iv) any
litigation, proceedings or investigation against the Servicer (other than as
related to acts of bad faith, breach of contract, negligence or willful
misconduct of the Administrative Agent, the Secured Parties or the Collateral
Custodian).


 


(b)                                 Any
amounts subject to the indemnification provisions of this Section 11.2
shall be paid by the Servicer to the Indemnified Party within five (5) Business
Days following such Person’s written demand (setting forth the basis for such
Indemnified Amounts in reasonable detail) therefor to the Servicer.


 


(c)                                  The
obligations of the Servicer under this Section 11.2 shall survive
the resignation or removal of the Administrative Agent, the Backup Servicer or
Successor Servicer or the Collateral Custodian and the termination of this
Agreement.


 


(d)                                 Any
indemnification payable by the Servicer pursuant to this Section 11.2
shall not be payable from the Collateral.


 


(e)                                  Notwithstanding
the above provisions of this Section 11.2, nothing in this Section shall
be construed to require the Servicer to provide any indemnification under this
Agreement or the other Transaction Documents for any damages, losses, claims,
liabilities and related costs and expenses, including reasonable attorneys’
fees and disbursements arising out of or in connection with credit losses with
respect to any of the Receivables or any Related Security or the diminution in
market value of the Collateral.


 


(f)                                    If
any Indemnified Party receives any Indemnified Amount from the Servicer and is
subsequently reimbursed for such amounts by another party, such Indemnified
Party hereby agrees to promptly reimburse the Servicer for such reimbursed
amounts.


 


102

















 


ARTICLE
XII


 


THE
ADMINISTRATIVE AGENT


 


Section 12.1.                         The
Administrative Agent.


 


(a)                                  Appointment.  Each Secured Party hereby appoints and
authorizes the Administrative Agent as its agent and bailee for purposes of
perfection pursuant to the applicable UCC and hereby further authorizes the
Administrative Agent to appoint additional agents and bailees to act on its
behalf and for the benefit of each Secured Party.  Each Secured Party further authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement and the other Transaction Documents as are
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto.  In furtherance, and without limiting the
generality, of the foregoing, each Secured Party hereby appoints the
Administrative Agent as its agent to execute and deliver all further
instruments and documents, and take all further action that the Administrative
Agent may deem necessary or appropriate or that a Secured Party may reasonably
request in order to perfect, protect or more fully evidence the security
interests granted by the Borrowers hereunder, or to enable any of them to
exercise or enforce any of their respective rights hereunder, including,
without limitation, the execution by the Administrative Agent as secured
party/assignee of such financing or continuation statements, or amendments
thereto or assignments thereof, relative to all or any of the Collateral now
existing or hereafter arising, and such other instruments or notices, as may be
necessary or appropriate for the purposes stated hereinabove.  The Lenders may direct the Administrative
Agent to take any such incidental action hereunder.  With respect to other actions which are
incidental to the actions specifically delegated to the Administrative Agent
hereunder, the Administrative Agent shall not be required to take any such
incidental action hereunder, but shall be required to act or to refrain from
acting (and shall be fully protected in acting or refraining from acting) upon
the direction of the Required Lenders; provided that the Administrative Agent shall
not be required to take any action hereunder if the taking of such action, in
the reasonable determination of the Administrative Agent, shall be in violation
of any Applicable Law or contrary to any provision of this Agreement or shall
expose the Administrative Agent to liability hereunder or otherwise.  In the event the Administrative Agent
requests the consent of a Lender pursuant to the foregoing provisions and the
Administrative Agent does not receive a consent (either positive or negative)
from such Person within ten Business Days of such Person’s receipt of such
request, then such Lender shall be deemed to have declined to consent to the
relevant action.


 


(b)                                 Standard
of Care.  The Administrative Agent
shall exercise such rights and powers vested in it by this Agreement and the
other Transaction Documents, and use the same degree of care and skill in its exercise
as a prudent person would exercise or use under the circumstances in the
conduct of such person’s own affairs.


 


(c)                                  Administrative
Agent’s Reliance, Etc.  Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to any Lender for any action taken or omitted to be taken by it
or them as Administrative Agent under or in connection with this Agreement or
any of the other Transaction Documents, except for its or their own gross
negligence or willful misconduct. Without limiting the foregoing, the
Administrative Agent:  


 


103

















 


(i) may consult with
legal counsel (including counsel for the Borrowers, the Servicer or the
Originator), independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts; (ii) makes no warranty or representation and shall not be responsible
to any Lender for any statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to any
Lender to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement or any of the other
Transaction Documents on the part of the Borrowers, the Originator or the
Servicer or to inspect the property (including the books and records) of the
Borrowers, the Originator or the Servicer; (iv) shall not be responsible
to any Lender for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any of the other
Transaction Documents or any other instrument or document furnished pursuant
hereto or thereto; and (v) shall incur no liability to any Lender under or
in respect of this Agreement or any of the other Transaction Documents by
acting upon any notice (including notice by telephone), consent, certificate or
other instrument or writing (which may be by facsimile) believed by it to be
genuine and signed or sent by the proper party or parties.


 


(d)                                 Credit
Decision with Respect to the Administrative Agent.  Each Secured Party acknowledges that it has,
independently and without reliance upon the Administrative Agent, or any of the
Administrative Agent’s Affiliates, and based upon such documents and
information as it has deemed appropriate, made its own evaluation and decision
to enter into this Agreement and the other Transaction Documents to which it is
a party.  Each Secured Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, or any of the Administrative Agent’s Affiliates, and
based on such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Agreement and the other Transaction Documents to which it is a party.


 


(e)                                  Indemnification
of the Administrative Agent.  Each
Lender agrees to indemnify the Administrative Agent (to the extent not
reimbursed by the Borrowers, the initial Servicer or the Originator), ratably
in accordance with its Pro Rata Share from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses
or disbursements of any kind or nature whatsoever which may be imposed on,
incurred by, or asserted against the Administrative Agent in any way relating
to or arising out of this Agreement or any of the other Transaction Documents,
or any action taken or omitted by the Administrative Agent hereunder or
thereunder; provided that, the Lenders shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent’s gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender agrees to reimburse the Administrative
Agent, ratably in accordance with its Pro Rata Share, promptly upon demand for
any out-of-pocket expenses (including counsel fees) incurred by the
Administrative Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement and the other Transaction Documents, to the extent that such
expenses are incurred in the interests of or otherwise in respect of the
Lenders hereunder and/or thereunder and to the extent that the Administrative
Agent is not reimbursed for such expenses by the Borrowers, the Servicer or the
Originator.


 


104

















 


(f)                                    Successor
Administrative Agent.  The
Administrative Agent may resign at any time, effective upon the appointment and
acceptance of a successor Administrative Agent as provided below, by giving at
least five (5) days’ written notice thereof to each Lender and the
Borrowers and may be removed at any time with cause by the Lenders acting
jointly.  Upon any such resignation or
removal, the Lenders acting jointly shall appoint a successor Administrative
Agent reasonably acceptable to the Borrowers. 
Each Lender agrees that it shall not unreasonably withhold or delay its
approval of the appointment of a successor Administrative Agent.  If no such successor Administrative Agent
shall have been so appointed, and shall have accepted such appointment, within
30 days after the retiring Administrative Agent’s giving of notice of
resignation or the removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Secured Parties, appoint a
successor Administrative Agent which successor Administrative Agent shall be
either (i) a commercial bank or other financial institution organized
under the laws of the United States or of any state thereof and have a combined
capital and surplus of at least $50,000,000 or (ii) an Affiliate of such a
bank or financial institution.  Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent, such successor Administrative Agent shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under this Agreement.  After any retiring Administrative Agent’s
resignation or removal hereunder as Administrative Agent, the provisions of
this Article XII shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent
under this Agreement.


 


(g)                                 Payments
by the Administrative Agent.  Unless
specifically allocated to a specific Lender pursuant to the terms of this
Agreement, all amounts received by the Administrative Agent on behalf of the
Lenders shall be paid by the Administrative Agent to the Lenders in accordance
with their related Pro Rata Shares, on the Business Day received by the
Administrative Agent, unless such amounts are received after 12:00 noon on such
Business Day, in which case the Administrative Agent shall use its reasonable
efforts to pay such amounts to each Lender on such Business Day, but, in any
event, shall pay such amounts to such Lenders not later than the following
Business Day.


 


ARTICLE
XIII



MISCELLANEOUS


 


Section 13.1.                         Amendments
and Waivers.


 


Except as
provided in this Section 13.1, no amendment, waiver or other
modification of any provision of this Agreement shall be effective without the
written agreement of the Borrowers, the Servicer, the Originator, the
Administrative Agent and the Required Lenders; provided
that, (i) any amendment of the Agreement that is solely for the purpose of
adding a Lender may be effected with the written consent of the Administrative
Agent and the Borrowers; and (ii) no such amendment, waiver or
modification adversely affecting the rights or obligations of the Backup
Servicer (in such role or as successor Servicer), the Collateral Custodian or
any Guarantor shall be effective without the written agreement of such
Person.  The Borrowers shall deliver
promptly to the Backup Servicer, the Collateral Custodian and each Guarantor a
copy of 


 


105

















 


any amendment, waiver or other modification of this Agreement not
executed by  such Person in accordance
with this Section.


 


Section 13.2.                         Notices,
Etc.


 


All notices,
reports and other communications provided for hereunder shall, unless otherwise
stated herein, be in writing (including communication by facsimile copy or
electronic mail) and mailed, e-mailed, faxed, transmitted or delivered, as to
each party hereto, at its address (or specified addresses) set forth on Annex
A to this Agreement 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 upon receipt, or in the case of (a) notice by e-mail, when
verbal or electronic communication of receipt is obtained, or (b) notice
by facsimile copy, when verbal communication of receipt is obtained.


 


Section 13.3.                         Ratable
Payments.


 


If any Secured
Party, whether by setoff or otherwise, has payment made to it with respect to
any portion of the Aggregate Unpaids owing to such Secured Party (other than
payments received pursuant to Article XI) in a greater proportion
than that received by any other Secured Party, such Secured Party agrees,
promptly upon demand, to purchase for cash without recourse or warranty a
portion of the Aggregate Unpaids held by the other Secured Parties so that
after such purchase each Secured Party will hold its ratable proportion of the
Aggregate Unpaids; provided, that if all or any portion of such
excess amount is thereafter recovered from such Secured Party, such purchase
shall be rescinded and the purchase price restored to the extent of such
recovery, but without interest.


 


Section 13.4.                         No
Waiver; Remedies.


 


No failure on
the part of the Administrative Agent, the Lenders, the Collateral Custodian,
the Backup Servicer or a Secured Party to exercise, and no delay in exercising,
any right or remedy hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right or remedy hereunder preclude any other
or further exercise thereof or the exercise of any other right.  The rights and remedies herein provided are
cumulative and not exclusive of any rights and remedies provided by law.


 


Section 13.5.                         Binding
Effect; Benefit of Agreement.


 


This Agreement
shall be binding upon and inure to the benefit of the parties hereto, the
Secured Parties and their respective successors and permitted assigns.


 


Section 13.6.                         Term
of this Agreement.


 


This
Agreement, including, without limitation, the Borrowers’, the Servicer’s, the
Originator’s and the Principal’s representations, warranties and covenants set
forth herein, create and constitute the continuing obligation of the parties
hereto in accordance with its terms, and shall remain in full force and effect
until the Collection Date; provided that the rights and remedies with
respect to any breach of any representation and warranty made or deemed made by
the Borrowers, the Servicer, the Originator or the Principal, the
indemnification and payment 


 


106

















 


provisions of Article XI and the provisions of Section 13.9,
Section 13.10, Section 13.11 and Section 13.13
shall be continuing and shall survive any termination of this Agreement.


 


Section 13.7.                         Governing
Law; Consent to Jurisdiction; Waiver of Objection to Venue.


 


THIS AGREEMENT
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PROVISIONS THEREOF
(OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK).  EACH OF THE PARTIES
HERETO HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT
LOCATED WITHIN THE STATE OF NEW YORK. 
EACH OF THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM
NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER
IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL
OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.


 


Section 13.8.                         Waiver
of Jury Trial.


 


TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES ANY RIGHT
TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN
CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF
THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.  INSTEAD, ANY SUCH DISPUTE
RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.


 


Section 13.9.                         Costs,
Expenses and Taxes.


 


(a)                                  In
addition to the rights of indemnification granted to the Indemnified Parties
under Article XI hereof, the Borrowers (or if the Borrowers fail to
do so, the Originator) agree to pay on demand all reasonable costs and expenses
of the Administrative Agent, the Lenders, the Backup Servicer, the Successor
Servicer, the Collateral Custodian and the Secured Parties incurred in
connection with the preparation, execution, delivery, third party
administration (such term to include, subject to the proviso below, periodic
auditing), renewal, amendment or modification of, or any waiver or consent
issued in connection with, this Agreement and the other documents to be
delivered hereunder or in connection herewith, including, without limitation,
reasonable expenses for travel and lodging, background checks, auditor fees and
the reasonable fees and out-of-pocket expenses of counsel for such Persons with
respect thereto and with respect to advising such Persons as to their
respective rights and remedies under this Agreement and the other documents to
be delivered hereunder or in connection herewith, and all costs and expenses,
if any (including reasonable counsel fees and out-of-pocket expenses), incurred
in connection with the enforcement of this Agreement and the other documents to
be delivered hereunder or in connection herewith; provided that,
prior to an 


 


107

















 


Event of Default or
Unmatured Event of Default, any expenses in connection with periodic audits
shall be limited to $25,000 per calendar year.


 


(b)                                 The
Borrowers covenant to pay (or if the Borrowers fail to do so, the Originator
shall pay) on demand any and all stamp, sales, excise and other taxes and fees
payable or determined to be payable to any Governmental Authority in connection
with the execution, delivery, filing and recording of this Agreement and the
other documents to be delivered hereunder.


 


(c)                                  The
Borrowers, the Originator and the initial Servicer, as applicable, severally,
covenant to pay on demand all other reasonable costs, expenses incurred by the
Administrative Agent which are the responsibility of the Borrowers, the
Originator or the initial Servicer, as the case may be, hereunder (“Other
Costs”), including, without limitation, all costs and expenses incurred in
connection with periodic audits of the Borrowers’, the Originator’s or the
initial Servicer’s, as the case may be, books and records.


 


Section 13.10.                  No
Proceedings.


 


Each of the
parties hereto (other than the Administrative Agent) hereby agrees that it will
not institute against, or join any other Person in instituting against, a
Borrower any Insolvency Proceeding so long as there shall not have elapsed one
year and one day (or such longer preference period as shall then be in effect)
since the Collection Date.


 


Section 13.11.                  Recourse
Against Certain Parties.


 


(a)                                  No
recourse under or with respect to any obligation, covenant or agreement of any
party hereto as contained in this Agreement or any other agreement, instrument
or document entered into by it pursuant hereto or in connection herewith shall
be had against any incorporator, affiliate, stockholder, officer, employee or
director of any party hereto, by the enforcement of any assessment or by any
legal or equitable proceeding, by virtue of any statute or otherwise; it
being  expressly  agreed  and  understood that
the agreements of each party hereto contained in this Agreement and all of the
other agreements, instruments and documents entered into by it pursuant hereto
or in connection herewith are, in each case, solely the corporate obligations
of such party hereto (other than with respect to Mr. *****,
in the capacity of Guarantor), and that no personal liability whatsoever shall
attach to or be incurred by any incorporator, stockholder, affiliate, officer,
employee or director of such party (other than with respect to Mr. *****, in the capacity of Guarantor) under or by reason of
any of the obligations, covenants or agreements of such party hereto contained
in this Agreement or in any other such instruments, documents or agreements, or
that are implied therefrom, and that any and all personal liability of each
incorporator, stockholder, affiliate, officer, employee of such party, or any
of them, for breaches by any party hereto of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a
condition of and in consideration for the execution of this Agreement (other
than with respect to Mr. *****, in the capacity
of Guarantor).  Notwithstanding the
foregoing, the Administrative Agent and the Lenders shall not be deemed to have
waived any legal rights which they may have and, to the extent of such rights,
shall have recourse against any incorporator, affiliate, stockholder, officer,
employee or director any 


 


108

















 


Borrower, the initial
Servicer or the Originator, to the extent of any loss, cost or expense incurred
in whole or in part from any such Person’s (A) willful misconduct; (B) fraud;
(C) theft or misappropriation of funds; (D) criminal acts; (E) intentional
interference with the Administrative Agent’s Lien in the Collateral or rights
with respect thereto (except pursuant to a court order or otherwise as required
by applicable law); (F) disposition of any Eligible Receivables or other
Collateral in violation of the terms of this Agreement (except pursuant to a
court order or otherwise as required by applicable law); (G) filing,
initiating or consenting to the filing of an involuntary petition under any
chapter of the Bankruptcy Code with respect to any Borrower; (H) violation
of the separateness covenants of any Borrower set forth herein and/or such
Borrower’s organizational documents resulting in the consolidation of such
Borrower’s assets with the assets of any other Person; or (I) voluntarily
seeking, causing or taking any action to effect a dissolution or liquidation of
such Borrower.


 


(b)                                 Notwithstanding
any contrary provision set forth herein, no claim may be made by any party
hereto against any other party hereto or their respective Affiliates,
directors, officers, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect to 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 act, omission or event
occurring in connection therewith; and each of the parties hereto 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.


 


(c)                                  No
obligation or liability to any Obligor under any of the Receivables is intended
to be assumed by the Secured Parties under or as a result of this Agreement and
the transactions contemplated hereby.


 


Section 13.12.                  Protection of
Right, Title and Interest in the Collateral; Further Action Evidencing Loans.


 


(a)                                  The
Servicer shall cooperate with the Administrative Agent with respect to all
financing statements and continuation statements and any other necessary
documents covering the right, title and interest of the Administrative Agent,
as agent for the Secured Parties, to the Collateral to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the first priority security interest (subject to Permitted
Liens) of the Administrative Agent, as agent the Secured Parties, hereunder to
all property comprising the Collateral. 
The Servicer shall deliver to the Administrative Agent and the
Collateral Custodian file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above and in the possession
of the Servicer, as soon as available following such recording, registration or
filing.  The Borrowers shall cooperate
fully with the Servicer in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the intent of
this Section 13.12(a).


 


(b)                                 The
Borrowers agree that from time to time, at its expense, they will promptly
authorize, execute and deliver all instruments and documents, and take all
actions, that the Administrative Agent may reasonably request in order to
perfect, protect or more fully evidence the Loans hereunder and the first
priority perfected security interest (subject to


 


109
















 


Permitted Liens) granted in the Collateral, or to enable the
Administrative Agent or the Secured Parties to exercise and enforce their
rights and remedies hereunder or under any other Transaction Document.


 


(c)                                  If
any Borrower or the Servicer fails to perform any of its obligations hereunder
with respect to the maintenance of the Administrative Agent’s first priority
perfected security interest in the Collateral (subject to Permitted Liens), the
Administrative Agent or any Secured Party may (but shall not be required to)
perform, or cause performance of, such obligation; and the Administrative Agent’s
or such Secured Party’s costs and expenses incurred in connection therewith
shall be payable by such Borrower.  If
any Borrower or the Servicer fails to perform any of its other obligations
hereunder for 10 days following receipt of notice from any Secured Party, the
Administrative Agent or any Secured Party may (but shall not be required to)
perform, or cause performance of, such obligation; and the Administrative Agent’s
or such Secured Party’s costs and expenses incurred in connection therewith
shall be payable by such Borrower or the initial Servicer, as applicable. Each
Borrower irrevocably authorizes the Administrative Agent and appoint the
Administrative Agent as its attorney-in-fact to act on behalf of such Borrower (i) to
execute on behalf of such Borrower as debtor and to file financing statements
necessary or desirable in the Administrative Agent’s sole discretion to perfect
and to maintain the perfection and priority 
(subject to Permitted Liens) of the interest of the Secured Parties in
the Collateral, including those that describe the Collateral as “all assets,”
or words of similar effect, and (ii) to file a carbon, photographic or
other reproduction of this Agreement or any financing statement with respect to
the Collateral as a financing statement in such offices as the Administrative
Agent in its sole discretion deems necessary or desirable to perfect and to
maintain the perfection and priority (subject to Permitted Liens) of the
interests of the Secured Parties in the Collateral.  This appointment is coupled with an interest
and is irrevocable.


 


(d)                                 Without
limiting the generality of the foregoing, the Borrowers will, not earlier than
six (6) months and not later than three (3) months prior to the fifth
(5th) anniversary of the date of filing of any financing statement
filed pursuant to this Agreement, unless the Collection Date shall have
occurred:


 


(i)                                     authorize,
execute (if necessary) and deliver and file or cause to be filed an appropriate
continuation statement with respect to such financing statement; and


 


(ii)                                  deliver
or cause to be delivered to the Administrative Agent an opinion of the counsel
for the Borrowers, in form and substance reasonably satisfactory to the
Administrative Agent, confirming and updating the opinion delivered pursuant to
Section 3.1 with respect to perfection and otherwise to the effect
that the security interest hereunder continues to be an enforceable and
perfected security interest, subject to no other Liens of record except as
expressly permitted hereunder, which opinion may contain usual and customary
assumptions, limitations and exceptions.


 


Section 13.13.                  Confidentiality.


 


(a)                                  Each
of the Secured Parties, the Servicer, the Originator, the Guarantors, the
Collateral Custodian, the Backup Servicer and the Borrowers shall maintain and
shall cause each of its employees and officers to maintain the confidentiality
of the Agreement and all 


 


110

















 


information with respect
to the other parties, including all information regarding the business of the
other parties obtained by it or them in connection with the structuring,
negotiating and execution of the transactions contemplated herein, except that
each such party and its directors, officers and employees may (i) disclose
such information to its external accountants, attorneys, investors, potential
investors, credit enhancers and the agents and advisors of such Persons (“Excepted
Persons”); provided, however,
that each Excepted Person shall be notified of the confidentiality
restrictions hereof and shall, as a condition to any such disclosure, agree for
the benefit of the parties hereto that such information shall be used solely in
connection with such Excepted Person’s evaluation of, or relationship with, the
Borrowers, the Servicer, Sub-Servicer, the Backup Servicer, Collateral
Custodian and the Originator and their affiliates, (ii) disclose the
existence of the Agreement, but not the financial terms thereof, (iii) disclose
such information as is required by Applicable Law and (iv) disclose the
Agreement and such information in any suit, action, proceeding or investigation
(whether in law or in equity or pursuant to arbitration) involving any of the
Transaction Documents for the purpose of defending itself, reducing its
liability, or protecting or exercising any of its claims, rights, remedies, or
interests under or in connection with any of the Transaction Documents.  It is understood that the financial terms
that may not be disclosed except in compliance with this Section 13.13(a) include,
without limitation, all fees and other pricing terms, and all Events of
Default, Servicer Defaults, and the priority of payment provisions herein.  If any Person discloses any confidential
information with respect to another party pursuant to this Section 13.13(a),
it shall provide prompt notice thereof to such other party with respect to
which such confidential information related.


 


(b)                                 Anything
herein to the contrary notwithstanding, each of the parties hereto hereby
consents to the disclosure of any nonpublic information with respect to it (i) to
the Collateral Custodian, the Backup Servicer or the Secured Parties by each
other, (ii) by the Collateral Custodian, the Backup Servicer and the
Secured Parties to any prospective or actual assignee or participant of any of
them, or (iii) by the Secured Parties to any Rating Agency, any provider
of a surety, guaranty or credit enhancement to any Lender or any Person
providing financing to, or holding equity interests in, any Lender, as
applicable, and to any officers, directors, employees, outside accountants,
advisors and attorneys of any of the foregoing, provided each such Person in
the case of subclauses (ii) and (iii) is informed of
the confidential nature of such information.


 


(c)                                  Notwithstanding
anything herein to the contrary, the foregoing shall not be construed to
prohibit (i) disclosure of any and all information that is or becomes
publicly known (other than through the violation of this Agreement), (ii) disclosure
of any and all information (A) if required to do so by any applicable
statute, law, rule or regulation, (B) to any government agency or
regulatory body having or claiming authority to regulate or oversee the
disclosing entity or its affiliates, or (C) pursuant to any subpoena,
civil investigative demand or similar demand or request of any court,
regulatory authority, arbitrator or arbitration to which the disclosing entity
or an officer, director, employer, shareholder or affiliate of any of the
foregoing is a party (so long as the disclosing Person provides prompt notice
thereof to the applicable party with respect to which such information
relates), or (iii) any other disclosure authorized by any Borrower, the
Servicer, the Guarantors or the Originator in the case of information with
respect to it.


 


111

















 


Section 13.14.                  Execution in
Counterparts; Severability; Integration.


 


This Agreement
may be executed in any number of counterparts and by different parties hereto
in separate counterparts (including by facsimile), 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. 
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.  This
Agreement and any agreements or letters (including fee letters) executed in
connection herewith contain the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written understandings.


 


Section 13.15.                  Waiver of
Setoff.


 


Each of the
Borrowers, the Servicer, the Originator and the Guarantors hereby waives any
right of setoff it may have or to which it may be entitled under this Agreement
from time to time against any Lender or its assets.


 


Section 13.16.                  Assignments
by the Lenders.


 


With the prior
written consent of the Borrowers (which consent will not be unreasonably
withheld), any Lender may at any time assign, or grant a security interest or
sell a participation interest in, its rights in its Loans (or portion thereof)
or Commitment (or portion thereof) to any Person; provided that
(i) no such consent of the Borrowers shall be required following the
occurrence of an Event of Default, (ii) in the case of an assignment of
its Loans or Commitments with respect to such Lender, the assignee shall
execute and deliver to the Servicer and the Administrative Agent a Joinder
Supplement substantially in the form of Exhibit I hereto, and (iii) no
Lender shall need prior consent to at any time assign, or grant a security
interest or sell a participation interest in, its Loans (or portion thereof) or
Commitment (or portion thereof) to an Affiliate or an Approved Fund.  The parties to any such assignment or sale of
a participation interest by a Lender shall execute and deliver to the
Administrative Agent, for its acceptance and recording in its books and
records, such agreement or document as may be satisfactory to such parties and
the Administrative Agent.  Neither the
Borrowers, the Originator, the Servicer nor any Guarantor shall assign or
delegate, or grant any interest in, any of its rights, obligations or duties
under this Agreement without the prior written consent of the Administrative
Agent.


 


Section 13.17.                  Heading and
Exhibits.


 


The headings
herein are for purposes of references only and shall not otherwise affect the
meaning or interpretation of any provision hereof.  The schedules and exhibits attached hereto
and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.


 


112

















 


Section 13.18.                  Right of
First Refusal.


 


Each of the
LLC Borrower, the Trust Borrower, as applicable, the Originator and the initial
Servicer hereby agrees, from the Closing Date until the Maturity Date, to grant
to Administrative Agent a right of first refusal with respect to any financing
facility such Person or any of its Affiliates may enter as a borrower to
finance receivables substantially similar to the Eligible Receivables (a “Proposed
Facility”).  Each of the LLC
Borrower, the Trust Borrower, as applicable, the Originator and the initial
Servicer hereby agrees to notify the Administrative Agent of its intention to
enter into a Proposed Facility and will inform the Administrative Agent of the
general terms upon which such financing is sought, based on current market
conditions.  The Administrative Agent
shall then have five (5) Business Days to inform the applicable Borrower,
the Originator and the initial Servicer if it is interested in providing such
financing.  In the event that
Administrative Agent indicates an interest in providing such financing, the
applicable Borrower, the Originator and the Servicer thereafter agree to not
enter into any such Proposed Facility with any third party and to negotiate
such Proposed Facility with the Administrative Agent in good faith; provided that the Administrative Agent’s right of first
refusal as set forth in this Section 13.18 shall only apply to the
first $50,000,000 of such financing.  In
the event that the Administrative Agent declines to provide such financing or
does not respond to the applicable Borrower, the Originator or the Servicer
within five (5) Business Days of its receipt of such notice, the
Borrowers, the Originator and the initial Servicer shall be permitted to enter
the Proposed Facility with a third party on substantially similar or better
terms in which such financing was proposed to Administrative Agent.  For the avoidance of doubt, the right of
first refusal set forth in this Section 13.18 shall not apply to
the Trust II Borrower.


 


Section 13.19.                  Concerning
Joint and Several Liability of the Borrowers.


 


(a)                                  Each
Borrower accepts joint and several liability hereunder in consideration of the
financial accommodation to be provided by the Lenders under this Agreement, for
the mutual benefit, directly and indirectly, of each of the other Borrowers and
in consideration of the undertaking of the other Borrowers to accept joint and
several liability for such Borrower’s obligations.


 


(b)                                 Each
of the Borrowers jointly and severally hereby irrevocably and unconditionally
accepts, not merely as a surety but also as a co-debtor, joint and several
liability with each other Borrower with respect to the payment of all of the
Aggregate Unpaids and the performance of all of the obligations of the
Borrowers under this Agreement, it being the intention of the parties hereto
that all the Aggregate Unpaids and obligations hereunder shall be the joint and
several obligations of each of the Borrowers without preferences or distinction
among them.


 


(c)                                  If
and to the extent that any of the Borrowers shall fail to make any payment with
respect to any of the Aggregate Unpaids as and when due or to perform any of
its obligations in accordance with the terms hereof (including any applicable
grace or cure periods), then in each such event, the other Borrower(s) will
make such payment with respect to, or perform, such obligation.


 


113

















 


(d)                                 The
obligations of each Borrower under the provisions of this Section 13.19
constitute full recourse obligations of each such Borrower, enforceable against
it to the full extent of its Collateral, irrespective of the validity,
regularity or enforceability of this Agreement or any other circumstances
whatsoever.


 


(e)                                  Except
as otherwise expressly provided herein, each Borrower hereby waives further
notice of acceptance of its joint and several liability.  Each Borrower hereby assents to, and waives
notice of, any extension or postponement of the time for the payment of any of
the Aggregate Unpaids of the other Borrower, the acceptance of any partial
payment thereon, any waiver, consent or other action or acquiescence by the
Administrative Agent or any Lender at any time or times in respect of any
default by the other Borrower in the performance or satisfaction of any term,
covenant, condition or provision of this Agreement, any and all other
indulgences whatsoever by the Administrative Agent or any Lender in respect of
any of the Aggregate Unpaids of the other Borrower.  Without limiting the generality of the
foregoing, each Borrower assents to any other action or delay in acting or
failure to act with respect to the other Borrower on the part of any Lender,
including, without limitation, any failure strictly or diligently to assert any
right or to pursue any remedy or to comply fully with the applicable laws or
regulations hereunder which might, but for the provisions of this Section 13.19,
afford grounds for terminating, discharging or relieving such Borrower, in
whole or in part, from any of its obligations under this Section 13.19.  The obligations of each Borrower under this Section 13.19
shall not be diminished or rendered unenforceable by any winding up,
reorganization, arrangement, liquidation, reconstruction or similar proceeding
with respect to any Borrower or any Secured Party.  The joint and several liability of the
Borrowers hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
membership, constitution or place of formation of any Borrower or any Secured
Party.


 


(f)                                    The
provisions of this Section 13.19 are made for the benefit of the
Administrative Agent and the Secured Parties and their respective successors
and assigns, and may be enforced by any such Person from time to time against
any of the Borrowers as often as occasion therefor may arise and without
requirement on the part of any such Person first to marshal any of its claims
or to exercise any of its rights against any Borrower or to exhaust any
remedies available to it against any Borrower or to resort to any other source
or means of obtaining payment of any of the Aggregate Unpaids or to elect any
other remedy.  The provisions of this Section 13.19
shall remain in effect until all the Aggregate Unpaids shall have been paid in
full or otherwise fully satisfied.  If at
any time, any payment, or any part thereof, made in respect of any of the
Aggregate Unpaids, is rescinded or must otherwise be restored or returned by
any Secured Party upon the insolvency, bankruptcy or reorganization of any of
the Borrowers, or otherwise, the provisions of this Section 13.19
will forthwith be reinstated in effect, as though such payment had not been
made.


 


(g)                                 Notwithstanding
any provision to the contrary contained herein or in any other of the
Transaction Documents, to the extent the joint obligations of a Borrower 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 obligations of each Borrower
hereunder shall be limited to the maximum amount that is 


 


114

















 


permissible under
applicable law (whether federal or state and including, without limitation, the
Bankruptcy Code).


 


Section 13.20.                  Amendment and
Restatement.


 


(a)                                  On
the date hereof, the Amended Agreement shall be amended, restated and superseded
in its entirety by this Agreement but the indebtedness evidenced thereby shall
neither be cancelled nor extinguished. 
The parties hereto hereby (i) acknowledge and agree that the Liens
granted under the Transaction Documents securing the payment of such
indebtedness are in all respects continuing and in full force and effect,
secure the payment of such indebtedness and from and after the date hereof
shall secure the Loans under this Agreement in addition to such indebtedness
and (ii) fully and unconditionally, to the extent of each of their
respective interests therein, ratify and affirm all Transaction Documents.


 


(b)                                 On
and after the date hereof, (i) each reference in the Transaction Documents
to the “Agreement”, “thereunder”, “thereof” or similar words referring to the
Agreement shall mean and be a reference to this Agreement and (ii) each
reference in the Transaction Documents to a “Variable Funding Notes” or “VFNs”
and the “Loans” shall mean and be a reference to the Variable Funding Notes or
VFNs and the Loans as defined in this Agreement.


 


ARTICLE
XIV



GUARANTY


 


Section 14.1.                         Guaranty
of Trigger Events


 


To induce the
Lenders to make Loans to the Borrowers upon the terms and subject to the
conditions set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Guarantors,
jointly and severally, each hereby agree, upon the occurrence of any Trigger
Event, to be personally and unconditionally liable with the Borrowers and any
other Person in the amount of, and to indemnify, reimburse, and hold
Administrative Agent and each other Secured Party harmless from, any liability,
loss, damage, cost or expense of whatever kind or nature, known or unknown,
foreseen or unforeseen, contingent or otherwise (including but not limited to
reasonable attorneys’ fees and expenses) suffered or incurred by such Secured
Party (including any reasonable attorneys’ fees and expenses of enforcing this
Guaranty), and any material damage or material diminution in value of any of
the Collateral (collectively the “Guaranteed Amounts”) resulting from or
arising in connection with any one or more of the following “Trigger Events”:


 


(a)                                  FRAUD:  Fraud (including and without limitation any
claim of fraudulent conveyance) by the Borrowers, the Servicer, the Originator,
the Guarantors or any of their Affiliates or any Responsible Officer of any of
the Borrowers, the Servicer, or the Originator or any of their Affiliates;


 


(b)                                 THEFT
OR MISAPPROPRIATION OF FUNDS:  Theft,
or misappropriation of funds (including, without limitation, dividends,
distributions or payments being made to the Servicer, either Guarantor or any
Affiliate of the Servicer, either Guarantor or 


 


115

















 


the Borrowers in
contravention of the provisions of the Transaction Documents, including,
without limitation, in violation of the prepayment provisions of Section 2.3);


 


(c)                                  CRIMES:  Any felonies or crimes of the Servicer,
either Guarantor, Borrowers or any Affiliates of the Borrowers or any of their
principals and/or equity owners thereof, or any willful violation of any laws
or legal requirements by any of the foregoing relating to the business,
property or assets of the Servicer, either Guarantor, the Borrowers or any
Affiliates of a Borrower;


 


(d)                                 HINDRANCE:  Any intentional act by the Servicer, either
Guarantor, the Borrowers or any Affiliates of the Borrowers which prevents,
delays or hinders the Secured Parties’ perfection of its interest in the
Collateral (other than in connection with an Insolvency Proceeding at the
direction of a court or Governmental Authority);


 


(e)                                  UNPERMITTED
DISPOSITION:  Any voluntary sale,
encumbrance or disposition of any Collateral or Receivables or any part thereof
or interest therein not expressly permitted by the Transaction Documents (other
than in connection with an Insolvency Proceeding at the direction of a court or
Governmental Authority);


 


(f)                                    VOLUNTARY
BANKRUPTCY:  If any Borrower files,
initiates or consents to the filing of a voluntary petition under any chapter
of the Bankruptcy Code, or in any manner seeks relief under the insolvency laws
of any state or jurisdiction or the appointment of a trustee, receiver,
conservator or liquidator for all or any part of the properties and assets of
such Borrower; or any Borrower, or any of its equity owners or Affiliates,
files, initiates or consents to the filing of an involuntary petition under any
chapter of the Bankruptcy Code against such Borrower;


 


(g)                                 CONSOLIDATION
IN OTHER CASE:  If the Servicer,
either Guarantor, any Borrower, or any of their respective equity owners or
Affiliates consents to, initiates or institutes or makes any claim or
proceeding that seeks or is intended to result in consolidating any Borrower or
any of its properties or assets to become subject to any other Person’s case,
action or proceeding under the insolvency laws of any state or jurisdiction, or
the Collateral, or any portion thereof or interest therein, to be included in
any other Person’s bankrupt estate or otherwise subject to the claims of
creditors of any other Person as a result of the violation of the separateness
covenants of the Borrowers herein and/or the applicable Borrower’s
organizational documents the property of any bankruptcy estate or subject to
any proceeding under any insolvency laws of any state or other jurisdiction;
and


 


(h)                                 VOLUNTARY
DISSOLUTION:  A Borrower, or any of
its equity owners or Affiliates, voluntarily seeks, causes or takes any action
to effect a dissolution or liquidation of such Borrower.


 


Section 14.2.                         Limited
Guaranty of Payment.


 


Subject to the
limitations set forth below, *****,
individually, as a Guarantor hereby unconditionally guarantees to the
Administrative Agent, for the benefit of the 
Secured Parties, the prompt payment of the Aggregate Unpaids up to a
cumulative amount of 10% of the Maximum Committed Amount upon written demand by
the Administrative Agent at any time 


 


116

















 


after the occurrence and continuance of a Borrowing
Base Deficiency.  This limited guaranty
is a guaranty of payment and not of collection and is a continuing
guaranty.  For the avoidance of doubt, in
no event shall ***** liability under this
Agreement, or any of the other Transaction Documents or otherwise, exceed in
the aggregate, to any and all parties from the date hereof forward, an amount
equal to 10% of the highest aggregate Outstanding Receivables Balance of
Eligible Receivables since the Closing Date. 
Notwithstanding any provision to the contrary contained herein or in any
of the other Transaction Documents, to the extent the obligations of such
Guarantor shall be adjudicated to be invalid or unenforceable for any reason,
then the obligations of such Guarantor hereunder shall be limited to the
maximum amount that is permissible under Applicable Law.


 


Section 14.3.                         Guarantor
Payments.


 


If at any time
payment is due pursuant to the either of the Guaranties and the Servicer or the
Administrative Agent informs in writing the Guarantors of the same, the
Guarantors, as applicable, shall within two (2) Business Days deposit the
amount due into the Collection Account for distribution in accordance with Section 2.7
or Section 2.8, as applicable. 
The Servicer shall keep records of the amount of Guarantor Payments made
by each Guarantor and such amount shall be reflected in all Servicer Reports
after the initial Guarantor Payment.


 


Section 14.4.                         Obligations
Unconditional.


 


The
obligations of the Guarantors hereunder, subject to the limitations of Sections
14.1 and 14.2, 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 herein
or 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 (other than the prior
payment of the amounts due).  Each
Guarantor agrees that either Guaranty may be enforced by the Administrative
Agent on behalf of the Secured Parties 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 of the Transaction
Documents or any Collateral, if any, hereafter securing the Aggregate Unpaids
or otherwise and each Guarantor hereby waives the right to require
Administrative Agent on behalf of the Secured Parties to make demand on or proceed
against the Borrowers or any other Person or to require Administrative Agent on
behalf of the Secured Parties to pursue any other remedy or enforce any other
right.  Each Guarantor further agrees
that it shall have no right of subrogation, indemnity, reimbursement or
contribution against the Borrowers for amounts paid under the Guaranties until
such time as the Aggregate Unpaids have been paid in full in cash, all
Commitments under this Agreement have been terminated and, to the extent the
Borrowers or either Guarantor is party to any Insolvency Proceeding, no Person
or Governmental Authority shall have any right to request any return or
reimbursement of funds from the Administrative Agent or the other Secured
Parties in connection with monies received under the Transaction
Documents.  Each Guarantor further agrees
that nothing contained herein shall prevent the Administrative Agent from
enforcing the Transaction Documents or foreclosing its security interest in or
Lien on any Collateral, if any, securing the Aggregate Unpaids or from
exercising any other rights available to it under any of the Transaction
Documents, or any other instrument of security, if any, and the exercise of any
of 


 


117

















 


the aforesaid rights and the completion of any foreclosure proceedings
shall not constitute a discharge of such Guarantor’s obligations hereunder; it
being the purpose and intent of each Guarantor that its obligations hereunder
shall be absolute, independent and unconditional under any and all
circumstances.  Neither Guarantor’s
obligations hereunder 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 Borrowers, the Servicer or the Originator or by reason of the
bankruptcy or insolvency of the Borrowers, the Servicer, the Originator or the
Guarantor.  The Aggregate Unpaids, 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
Guaranties provided in Sections 14.1 and 14.2.  All dealings between the Borrowers, the
Servicer, the Originator and the Guarantors, on the one hand, and the
Administrative Agent and the other Secured Parties, on the other hand, likewise
shall be conclusively presumed to have been had or consummated in reliance upon
the Guaranties provided in Sections 14.1 and 14.2.  Each Guarantor hereby subordinates to the
Aggregate Unpaids 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 by any of the
Borrowers, the Servicer or the Originator to the Guarantor.


 


Section 14.5.                         Modifications.


 


Each Guarantor
agrees that: (a) all or any part of the Collateral now or hereafter held
for the Aggregate Unpaids, if any, may be exchanged, compromised or surrendered
from time to time; (b) none of the Secured Parties or the Administrative
Agent 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 Aggregate Unpaids or the properties subject thereto; (c) the time or
place of payment of the Aggregate Unpaids 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; (d) the Borrowers, the Servicer, the Originator and
any other party liable for payment under the Transaction Documents may be
granted indulgences generally; (e) any of the provisions of the
Transaction Documents may be modified, amended or waived in accordance with the
terms thereof; (f) any party liable for the payment thereof may be granted
indulgences or be released; and (g) any deposit balance for the credit of
the Borrowers, the Servicer, the Originator or any other party liable for the
payment of the Aggregate Unpaids 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 Aggregate Unpaids, all without notice to or further
assent by the Guarantors and the Guarantors shall remain bound thereon the
extent contemplated hereunder, notwithstanding any such exchange, compromise,
surrender, extension, renewal, acceleration, modification, indulgence or
release.


 


Section 14.6.                         Waiver
of Rights.


 


Each Guarantor
expressly waives to the fullest extent permitted by applicable law: (a) notice
of acceptance of the Guaranties provided in Sections 14.1 and 14.2
by the Secured Parties and of all extensions of credit to the Borrowers; (b) presentment
and demand for payment or performance of any of the Aggregate Unpaids; (c) protest
and notice of dishonor or of default with respect to the Aggregate Unpaids or
with respect to any security therefor; (d) notice of the 


 


118

















 


Secured Parties obtaining, amending, substituting for, releasing,
waiving or modifying any security interest, lien or encumbrance, if any,
hereafter securing the Aggregate Unpaids, or the Secured Parties’
subordinating, compromising, discharging or releasing such security interests,
liens or encumbrances, if any; and (e) all other notices to which such
Guarantor might otherwise be entitled.


 


Section 14.7.                         Reinstatement.


 


Notwithstanding
anything contained in this Agreement or the other Transaction Documents, the
obligations of each Guarantor under this Article XIV 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 Aggregate Unpaids is rescinded or
must be otherwise restored by any holder of any of the Aggregate Unpaids,
whether as a result of any proceedings in bankruptcy or reorganization or
otherwise, and each Guarantor agrees that it will indemnify the Administrative
Agent and each other Secured Party on demand for all reasonable costs and
expenses (including, without limitation, reasonable attorney costs) incurred by
such Person in connection with such rescission or restoration, including any
such reasonable 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.


 


Section 14.8.                         Remedies.


 


Each Guarantor
agrees that, as between such Guarantor, on the one hand, and the Administrative
Agent and the other Secured Parties, on the other hand, the Aggregate Unpaids
may be declared to be forthwith due and payable as provided in Section 10.2
hereof (and shall be deemed to have become automatically due and payable in the
circumstances provided in Section 10.2) notwithstanding any stay,
injunction or other prohibition preventing such declaration (or preventing such
Aggregate Unpaids from becoming automatically due and payable) as against any
other Person and that, in the event of such declaration (or such Aggregate
Unpaids being deemed to have become automatically due and payable), such
Aggregate Unpaids (whether or not due and payable by any other Person) shall
forthwith become due and payable by such Guarantor, subject to the limitations
in Sections 14.1 and 14.2.


 


Section 14.9.                         Subrogation.


 


Each Guarantor
agrees that, until the Collection Date, it will not exercise any right of
reimbursement, subrogation, contribution, offset or other claims against the
Borrowers, the Servicer and the Originator arising by contract or operation of
law in connection with any payment made or required to be made by the Guarantor
under the Transaction Documents.  After
the payment in full in cash of the Aggregate Unpaids (other than any part of
the Aggregate Unpaids that represents contingent contractual indemnities) and
the termination of the Commitments, the Guarantor shall be entitled to exercise
against the Borrowers, the Servicer and the Originator all such rights of
reimbursement, subrogation, contribution, and offset, and all such other
claims, to the fullest extent permitted by law.


 


[Remainder of Page Intentionally Left
Blank]


 


119
















 


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.


 


	
   

  	
  *****, 

  as a Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:       *****

  
	
   

  	
  Title:         President

  



 


 


Second Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  *****, 

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  *****,

  not in its individual capacity but solely 

  as statutory trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:         ***** 

  Title:           Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CLST ASSET TRUST II,
  

  as a Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
  *****,

  not in its individual capacity but solely 

  as statutory trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:         *****

  Title:           Vice
  President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  *****, as the
  Originator and as a Guarantor

  
	
   

  	
   

  
	
   

  	
  BY:

  	
  *****, its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  *****, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:        *****

  
	
   

  	
  Title:          President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  *****, as the
  Servicer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  *****, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:  

  	
  /s/ *****

  
	
   

  	
  Name:       *****

  
	
   

  	
  Title:         President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  *****, 

  as a Guarantor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ *****

  
	
   

  	
       *****

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  *****, 

  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:          *****

  
	
   

  	
  Title:            President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  *****,  

  as the Administrative Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:          *****

  
	
   

  	
  Title:            President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
   

  	
  For purposes of Section 3.4 of the Agreement 

  only:

  
	
   

  	
   

  
	
   

  	
  *****,  

  as the Administrative Agent under the Term 

  Credit Agreement

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ *****

  
	
   

  	
  Name:          *****

  
	
   

  	
  Title:            President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
  THE BACKUP SERVICER:

  	
  LYON FINANCIAL SERVICES, INC., 

  (d/b/a U.S. Bank Portfolio Services),  

  not in its individual capacity but 

  solely as Backup Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joseph Andries

  
	
   

  	
  Name:          Joseph
  Andries

  
	
   

  	
  Title:            Senior
  Vice President

  



 


 


Second
Amended and Restated Revolving Credit Agreement


 

















 


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.


 


	
  THE COLLATERAL CUSTODIAN:

  	
  U.S. BANK NATIONAL ASSOCIATION,  

  not in its individual capacity but 

  solely as Collateral Custodian

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diane Reyonlds

  
	
   

  	
  Name:          Diane
  L. Reynolds

  
	
   

  	
  Title:            Vice
  President

  



 


 


Second Amended and
Restated Revolving Credit Agreement