Exhibit
10.1


	
   

  



 


PURCHASE AGREEMENT


 


 


by and among


 


 


*****,

as a Seller


 


 


*****,

as a Seller


 


 


and


 


 


CLST ASSET TRUST II,

as the Buyer


 


 


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. GENERAL

  	
   

  	
  1

  
	
  Section 1.1.

  	
  Defined Terms

  	
   

  	
  1

  
	
  Section 1.2.

  	
  Other Terms

  	
   

  	
  2

  
	
  Section 1.3.

  	
  Computation of Time Periods

  	
   

  	
  2

  
	
  Section 1.4.

  	
  Interpretation

  	
   

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  Article II. SALE, TRANSFER AND ASSIGNMENT

  	
   

  	
  3

  
	
  Section 2.1.

  	
  Sale, Transfer and Assignment

  	
   

  	
  3

  
	
  Section 2.2.

  	
  Purchase Price

  	
   

  	
  5

  
	
  Section 2.3.

  	
  Payment of Purchase Price

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  Article III. CONDITIONS PRECEDENT

  	
   

  	
  6

  
	
  Section 3.1.

  	
  Consummation of the Transaction Documents

  	
   

  	
  6

  
	
  Section 3.2.

  	
  Conditions Precedent to all Purchases

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  Article IV. REPRESENTATIONS AND WARRANTIES

  	
   

  	
  6

  
	
  Section 4.1.

  	
  Representations and Warranties of the Sellers
  Relating to the Sale Assets

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  
	
  Article V. COVENANTS

  	
   

  	
  7

  
	
  Section 5.1.

  	
  Affirmative Covenants of the Sellers

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VI. REPURCHASE OBLIGATION

  	
   

  	
  7

  
	
  Section 6.1.

  	
  Retransfer of Sale Assets

  	
   

  	
  7

  
	
  Section 6.2.

  	
  Repurchase Limitations

  	
   

  	
  7

  
	
  Section 6.3.

  	
  Retransfer of Sale Assets

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VII. ADDITIONAL RIGHTS AND OBLIGATIONS
  IN RESPECT OF THE SALE ASSETS

  	
   

  	
  8

  
	
  Section 7.1.

  	
  Rights of the Buyer

  	
   

  	
  8

  
	
  Section 7.2.

  	
  Notice to Administrative Agent

  	
   

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  Article VIII. MISCELLANEOUS

  	
   

  	
  9

  
	
  Section 8.1.

  	
  Amendments and Waivers

  	
   

  	
  9

  
	
  Section 8.2.

  	
  Notices, Etc.

  	
   

  	
  9

  
	
  Section 8.3.

  	
  Limitation of Liability

  	
   

  	
  9

  
	
  Section 8.4.

  	
  Binding Effect; Benefit of Agreement

  	
   

  	
  9

  
	
  Section 8.5.

  	
  GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF
  OBJECTION TO VENUE

  	
   

  	
  9

  
	
  Section 8.6.

  	
  WAIVER OF JURY TRIAL

  	
   

  	
  10

  
	
  Section 8.7.

  	
  Costs, Expenses and Taxes

  	
   

  	
  10

  
	
  Section 8.8.

  	
  No Proceedings

  	
   

  	
  10

  
	
  Section 8.9.

  	
  Recourse Against Certain Parties

  	
   

  	
  10

  



 


i

















 


	
  Section 8.10.

  	
  Protection of Right, Title and Interest in the Sale
  Assets; Further Action Evidencing the Purchase

  	
   

  	
  11

  
	
  Section 8.11.

  	
  Execution in Counterparts; Severability; Integration

  	
   

  	
  12

  
	
  Section 8.12.

  	
  Waiver of Setoff

  	
   

  	
  12

  
	
  Section 8.13.

  	
  Heading and Exhibits

  	
   

  	
  12

  
	
  Section 8.14.

  	
  Confidentiality

  	
   

  	
  13

  
	
  Section 8.15.

  	
  Assignment

  	
   

  	
  14

  
	
  Section 8.16.

  	
  No Waiver; Cumulative Remedies

  	
   

  	
  14

  
	
  Section 8.17.

  	
  Subordination

  	
   

  	
  14

  
	
  Section 8.18.

  	
  Survival of Certain Provisions

  	
   

  	
  14

  



 


ANNEXES


 


	
  ANNEX A

  	
   

  	
  Notice Addresses

  



 


SCHEDULES


 


	
  SCHEDULE I

  	
   

  	
  Sale Assets List

  



 


EXHIBITS


 


	
  EXHIBIT A

  	
   

  	
  Form of Sale Assignment

  



 


ii

















 


THIS PURCHASE AGREEMENT (such agreement as amended, modified, supplemented or restated from
time to time, the “Agreement”) is dated as of December 10, 2008, by
and among*****, a Delaware limited liability company (together with its
successors and assigns, “*****”), as a seller,*****, a Delaware statutory trust
(together with its successors and assigns, “Trust I”), as a seller (each
of***** and Trust I, a “Seller” and, together, the “Sellers”),
and CLST ASSET TRUST II, a Delaware statutory trust, as the buyer (in such
capacity, the “Buyer”).


 


W  I  T  N  E  S  S  E  T
H:


 


WHEREAS, the
Buyer desires to purchase from each Seller and each Seller desires to sell to
the Buyer from time to time certain receivables and installment sales contracts
originated or acquired by such Seller in the ordinary course of its business,
together with, among other things, certain related security and rights of
payment thereunder; and


 


WHEREAS, each
Seller and the Buyer acknowledge that any liens and security interests in the
receivables, installment sales contracts and related security sold or otherwise
conveyed by such Seller to the Buyer hereunder will be granted and assigned by
the Buyer, pursuant to the Credit Agreement (as defined herein) and the related
Transaction Documents, to the Administrative Agent, as agent for the Secured
Parties under the Credit Agreement.


 


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


 


ARTICLE I.


 


GENERAL


 


Section 1.1.           Defined Terms.


 


Capitalized terms used but not defined herein
have the meanings provided in the Credit Agreement (as defined below). As used
herein, the following terms have the meanings provided below.


 


“Agreement”: Defined in the Preamble.


 


“Buyer”: Defined in the Preamble.


 


“Credit Agreement”: The Second Amended
and Restated Revolving Credit Agreement, dated as of December 10, 2008, by
and among*****, as a borrower, the Buyer, as a borrower, Trust I, as a
borrower,*****, as the originator and as a
guarantor,*****, as the initial servicer,*****, as a guarantor, each of the Lenders from time to time
party thereto,*****, as the administrative agent,
Lyon Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services), as the
backup servicer, and U.S. Bank National Association, as the collateral
custodian.


 


“Excepted Persons”: Defined in Section 8.14(a).


 


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“Inconsistent Determination”: Defined
in Section 2.1(g).


 


“Protective Filing”: Defined in Section 2.1(g).


 


“Purchase”: A purchase by the Buyer of
Sale Assets pursuant to Section 2.1.


 


“Purchase Date”: Each Business Day on
which any Sale Assets is acquired by the Buyer pursuant to the terms of this
Agreement, as set forth in the related Sale Assignment.


 


“Purchase Price”: Defined in Section 2.2.


 


“Receivables”: The receivables and
installment sales contracts listed on Schedule I hereto that are sold,
transferred, assigned or otherwise conveyed by the applicable Seller to the
Buyer on the initial Purchase Date, and any receivables listed on the
appropriate schedule to an applicable Sale Assignment (which schedules shall be
incorporated herein by reference) that are sold, transferred, assigned or
otherwise conveyed by such Seller to the Buyer on any subsequent Purchase Date.


 


“Sale Assets”: Defined in Section 2.1(a).


 


“Sale Assignment”: Defined in Section 2.1(b).


 


“Seller” and “Sellers”: Defined
in the Preamble.


 


“Termination Effective Date”: The date
that is the later of (a) the date the non-terminating party receives
written notice of termination from the terminating party and (b) the date
specified in the written termination notice delivered by the terminating party.


 


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 this Agreement, unless a contrary intention
appears:


 


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


 


(ii)                                  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;


 


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


 


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


 


(v)                                 reference
to any time means Eastern Standard time;


 


(vi)                              reference
to any agreement (including any Transaction Document), document or instrument
means such agreement, document or instrument as amended, modified,
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


 


(vii)                           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.


 


SALE, TRANSFER AND
ASSIGNMENT


 


Section 2.1.           Sale, Transfer and Assignment.


 


(a)                                  On the terms and subject to the conditions set forth in this Agreement
(including the conditions to Purchase set forth in Article III), on
each Purchase Date, the applicable Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to the Buyer, and the Buyer hereby purchases
and takes from such Seller, all right, title and interest of such Seller in the
property identified in clauses (i) through (iii) below,
whether constituting 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 or other property of such Seller, including
the following (in each case excluding any Excluded Amounts and Retained
Interest) (collectively, the “Sale Assets”):


 


(i)                                     the
Receivables identified by such Seller as of any Purchase Date which are listed
on Schedule I to the applicable Sale Assignment, together with all
monies due or to become due in payment under such Receivables on and after the
applicable Purchase Date, including, but not limited to, all Collections;


 


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


 


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(iii)                               all income
and Proceeds of the foregoing.


 


(b)                                 Either the Sellers, on the one hand, or the Buyer, on the other hand,
may, in their respective sole discretion at any time after March 30, 2009
terminate this Agreement by delivery of written notice to the non-terminating
party (i.e., the Sellers or the Buyer, as the case may be) not less than 30
days prior to the Termination Effective Date.


 


(c)                                  The applicable Seller shall, on or prior to each Purchase Date, execute
and deliver to the Buyer a certificate of assignment (the “Sale Assignment”)
in the form of Exhibit A hereto.


 


(d)                                 Except as specifically provided in this Agreement, the sale and
purchase of Sale Assets under this Agreement shall be without recourse to the
Sellers; however, it being understood that the
applicable Seller shall be liable to the Buyer for all representations, warranties
and covenants made by such Seller pursuant to the terms of this Agreement.


 


(e)                                  The Buyer, the Administrative Agent, each Lender, each Guarantor, the
Backup Servicer and the Collateral Custodian shall not have any obligation or
liability to any Obligor (including any obligation to perform any of the
obligations of the Sellers (including any obligation with respect to any other
related agreements)). No such obligation or liability is intended to be assumed
by the Buyer, the Administrative Agent, any Lender, any Guarantor, the Backup
Servicer or the Collateral Custodian, and any such assumption is expressly
disclaimed.


 


(f)                                    In connection with each Purchase of Sale Assets hereunder (other than
the initial Purchase), the applicable Seller shall have delivered the Required
Receivable File 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 acquired from “Sellers” (as such term is defined in the Credit
Agreement) of Receivables included in the Sale Assets on a prior Purchase Date
and (II) five (5) Business Days prior to the related Purchase Date
with respect to all other Receivables acquired from “Sellers” (as such term is
defined in the Credit Agreement) of Receivables not previously included in the
Sale Assets. The Required Receivable Files shall be held by the Collateral
Custodian in escrow until such Purchase shall occur on the related Purchase
Date.


 


(g)                                 It is the intention of the parties hereto that the conveyances of all
right, title and interest of the applicable Seller in and to any Sale Assets to
the Buyer as provided in this Section 2.1 shall constitute absolute
transfers conveying good title, free and clear of any Lien (other than
Permitted Liens) and that the Sale Assets shall not be part of the bankruptcy
estate of such Seller in the event of an Insolvency Event with respect to such
Seller. Furthermore, it is not intended that any such conveyance be deemed a
pledge of the Receivables and the other Sale Assets to the Buyer to secure a
debt or other obligation of the applicable Seller. If, however, notwithstanding
the intention of the parties, any conveyance provided for in this Section 2.1
is determined by a court of competent jurisdiction or other Governmental Authority
to be a transfer for security (an “Inconsistent Determination”), then
this Agreement shall also be deemed to be, and hereby is, a “security agreement”
within the meaning of Article 9 of the UCC and the applicable Seller
hereby grants to the Buyer a “security interest” within the meaning of Article 9
of the UCC in all of its right, title and interest in, to and under the related
Sale Assets, now existing and hereafter created, to secure the prompt and
complete payment of a loan deemed to have been made in an amount equal to the
aggregate Purchase Price of such Sale Assets together with all of the other


 


4

















 


obligations of such Seller hereunder. The
Buyer shall have, in addition to the rights and remedies which it may have
under this Agreement, all other rights and remedies provided to a secured
creditor under the UCC and other Applicable Law, which rights and remedies
shall be cumulative. In connection herewith, the Buyer shall be permitted to
file (at its own expense) protective UCC financing statements necessary for the
Buyer to have a perfected security interest in the Sale Assets in the event of
an Inconsistent Determination (each a “Protective Filing”). Furthermore,
automatically upon an Inconsistent Determination and without any further action
by the applicable Seller or the Buyer, or any amendment to this Agreement being
required, each representation or warranty by such Seller attesting as to the
valid conveyance of Sale Assets shall be deemed to be a representation and
warranty that such Seller has granted the Buyer a valid and continuing security
interest in the Sale Assets, free and clear of all Liens (except for Permitted
Liens).


 


Section 2.2.           Purchase Price.


 


The purchase price (the “Purchase Price”)
for each item of Sale Assets sold to the Buyer by a Seller under this Agreement
shall be a dollar amount equal to the purchase price paid by such Seller for
the applicable Receivables under such Seller’s Sale Agreement, in each case to
be paid in accordance with Section 2.3.


 


Section 2.3.           Payment of Purchase Price.


 


(a)                                  The Purchase Price for any Sale Assets sold by a Seller to the Buyer on
any Purchase Date shall be paid in a combination of (i) immediately
available funds and (ii) if the Buyer lacks sufficient funds to pay the
full amount of such Purchase Price (after taking into account the proceeds the
Buyer expects to receive pursuant to the Credit Agreement), cash paid by CLST
Asset II, LLC or other members of the Buyer in connection with a capital
contribution by such member(s) to the Buyer.


 


(b)                                 The applicable Seller, in connection with each delivery of a Sale
Assignment hereunder relating to any Sale Assets, shall be deemed to have
certified, with respect to such Sale Assets, that its representations and
warranties contained in Article IV are true and correct in all
material respects as of the related Purchase Date (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).


 


(c)                                  Upon the payment of the Purchase Price for any Purchase, title to the
Sale Assets included in such Purchase shall rest in the Buyer, whether or not
the conditions precedent to such Purchase and the other covenants and
agreements contained herein were in fact satisfied; provided
that the Buyer shall not be deemed to have waived any claim it may have under
this Agreement for the failure by the applicable Seller in fact to satisfy any
such condition precedent, covenant or agreement.


 


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ARTICLE III.


 


CONDITIONS PRECEDENT


 


Section 3.1.           Consummation of the Transaction Documents.


 


The closing and initial purchase hereunder are
subject to the conditions precedent that each of the conditions precedent to
the execution, delivery and effectiveness of each other Transaction Document
(other than a condition precedent in any such other Transaction Document
relating to the effectiveness of this Agreement) shall have been fulfilled.


 


Section 3.2.           Conditions Precedent to all Purchases.


 


The obligations of the Buyer to Purchase the
Sale Assets as contemplated by this Agreement on any Purchase Date shall be
subject to the satisfaction of the following conditions precedent, which conditions
may be waived by the Buyer with the consent of the Administrative Agent:


 


(a)                                  the applicable Seller shall have delivered to the Buyer a duly executed
and completed Sale Assignment along with a Schedule I thereto that is
true, accurate and complete in all material respects as of the related Purchase
Date (except that, to the extent any representation or warranty referenced
therein expressly relates to an earlier date, such representation or warranty
was true, accurate and complete in all material respects on and as of such
earlier date);


 


(b)                                 no Event of Default or Servicer Default would occur as a result of such
Purchase; and


 


(c)                                  no Applicable Law shall prohibit or enjoin, and no order, judgment or
decree of any Governmental Authority shall prohibit or enjoin, the making of
any such Purchase by the Buyer in accordance with the provisions hereof.


 


ARTICLE IV.


 


REPRESENTATIONS AND
WARRANTIES


 


Section 4.1.           Representations and Warranties of the Sellers Relating
to the Sale Assets.


 


The applicable Seller hereby represents and
warrants to the Buyer, as of each Purchase Date, that (i) the applicable
portion of Schedule I is an accurate and complete listing of all the
Sale Assets to be transferred on such Purchase Date and the information
contained therein with respect to the identity of such Sale Assets and the
amounts owing thereunder is true, correct and complete in all material respects
as of such Purchase Date, and (ii) each Receivable included in such Sale
Assets is an Eligible Receivable.


 


It is understood and agreed that the
representations and warranties provided in this Section 4.1 shall
survive (x) the sale and assignment of such Sale Assets to the Buyer and (y) any
subsequent transfer of such Sale Assets by the Buyer (including its grant of a
security interest in,


 


6

















 


to and under such
Sale Assets pursuant to the Credit Agreement). Upon discovery by the applicable
Seller or the Buyer of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written notice
thereof to the other and to the Administrative Agent and each Lender.


 


ARTICLE V.


 


COVENANTS


 


Section 5.1.           Affirmative Covenants of the Sellers.


 


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


 


(a)                                  Performance and Compliance with Sale Assets. Such
Seller will, at its expense, timely and fully perform and comply in all
material respects with all provisions, covenants and other promises required to
be observed by it under the Sale Assets conveyed by it hereunder and all other
agreements related to such Sale Assets.


 


(b)                                 Furnishing of Information, etc. Such Seller
will furnish to the Buyer promptly, from time to time, such information, documents,
records or reports respecting the Sale Assets or the condition or operations,
financial or otherwise, of such Seller as the Buyer may from time to time
reasonably request in order to protect the interests of the Buyer under or as
contemplated by this Agreement and the Credit Agreement.


 


ARTICLE VI.


 


REPURCHASE OBLIGATION


 


Section 6.1.           Retransfer of Sale Assets.


 


If on any day a Receivable is (or becomes)
subject to a Warranty Event, the applicable Seller shall, within ten (10) Business
Days of the earlier of a Responsible Officer of such Seller obtaining actual
knowledge of such circumstance or receipt by such Seller from the Buyer, the
Servicer or the Administrative Agent of written notice thereof, make a deposit
to the Collection Account in immediately available funds in an amount equal to
the sum of (a) the Outstanding Receivable Balance with respect to such
Receivable and any interest accrued thereon through the applicable Retransfer
Date, and (b) any costs and damages incurred by the Administrative Agent
or by any Secured Party in connection with any violation by such Receivable of
any predatory or abusive lending law (collectively, the “Retransfer Price”).
In the foregoing instance, the applicable Seller shall accept retransfer of
each such Receivable and any Related Security.


 


Section 6.2.           Repurchase Limitations.


 


Each Seller and Buyer agree that the
applicable Seller may only repurchase any Sale Assets from the Buyer in the
case of a repurchase or retransfer of any Receivable pursuant to Section 6.1.


 


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Section 6.3.           Retransfer of Sale Assets.


 


Upon confirmation of the deposit of the
Retransfer Price of a Receivable subject to a Warranty Event into the
Collection Account (the date of such delivery for such Receivable, the “Retransfer
Date”) for such Receivable pursuant to Section 6.1, the Buyer
shall, automatically and without further action be deemed to transfer, assign
and set-over to the applicable Seller, without recourse, representation or
warranty, all the right, title and interest of the Buyer in, to and under such
Receivable and all future monies due or to become due with respect thereto and
the Related Security (including all Proceeds of such Receivable and Recoveries
relating thereto, all rights to security for any such Receivable and all Proceeds
and products of the foregoing).  The
Buyer shall, at the sole expense of the applicable Seller, execute such
documents and instruments of transfer as may be prepared by such Seller,
execute such instruments of termination or release in favor of the Buyer with
respect to such Receivable to be released from the Lien of this Agreement as
the Buyer may reasonably request (in recordable form if necessary) and take any
other such actions as shall reasonably be requested by such Seller to effect
the transfer of such Receivable pursuant to this Section 6.3.


 


ARTICLE VII.


 


ADDITIONAL RIGHTS AND
OBLIGATIONS IN

RESPECT OF THE SALE ASSETS


 


Section 7.1.           Rights of the Buyer.


 


(a)           Except as set forth in Section 6.1
with respect to the retransfer of certain Receivables, the Buyer shall have no
obligation to account for, replace, substitute or return any Sale Assets to the
applicable Seller.  The Buyer shall have
no obligation to account for or to return Collections, or any interest or other
finance charge collected pursuant thereto, to the applicable Seller,
irrespective of whether such Collections and charges are in excess of the
Purchase Price for such Sale Assets.


 


(b)           The Buyer shall have the unrestricted
right to further assign, transfer, deliver, hypothecate, subdivide or otherwise
deal with the Sale Assets and all of the Buyer’s right, title and interest in,
to and under this Agreement, on whatever terms the Buyer shall determine,
pursuant to the Credit Agreement or otherwise.


 


(c)           The Buyer shall have the sole right to
retain any gains or profits created by buying, selling or holding the Sale
Assets and shall have the sole risk of and responsibility for losses or damages
created by such buying, selling or holding.


 


Section 7.2.           Notice to Administrative Agent.


 


Each Seller agrees that, concurrently with its
delivery to the Buyer, copies of all notices, reports, documents and other
information required to be delivered by such Seller to the Buyer hereunder
shall be delivered by such Seller to the Administrative Agent.


 


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ARTICLE VIII.


 


MISCELLANEOUS


 


Section 8.1.           Amendments and Waivers.


 


No amendment, waiver or other modification of
any provision of this Agreement shall be effective unless signed by the Buyer
and the Sellers and consented to in writing by the Administrative Agent.


 


Section 8.2.           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 address) set forth on Annex A hereto or at such
other address as shall be designated by such party in a written notice to the
other parties hereto.  All such notices
and communications shall be effective, upon receipt, or in the case of (a) notice
by e-mail, when verbal or electronic communication receipt is obtained, or (b) notice
by facsimile copy, when verbal communication of receipt is obtained.


 


Section 8.3.           Limitation of Liability.


 


Notwithstanding any contrary provision set
forth herein, no claim may be made by any Person or its Affiliates, directors,
officers, trustees, employees, attorneys or agents for any special, indirect,
consequential or punitive damages in respect of any claim for breach of
contract or any other theory of liability arising out of or related to the
transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and each party 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 to exist in its favor.


 


Section 8.4.           Binding Effect; Benefit of Agreement.


 


This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
permitted assigns.  The Secured Parties,
the Collateral Custodian, the Backup Servicer and any Successor Servicer shall
be express third-party beneficiaries of this Agreement to the extent any such
party has been assigned rights under this Agreement.


 


Section 8.5.           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.  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 


 


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GRANTING OF SUCH
LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.


 


Section 8.6.           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 8.7.           Costs, Expenses and Taxes.


 


Each party hereto agrees to pay its own costs
and expenses incurred in connection with this Agreement and the other documents
to be delivered hereunder or in connection herewith (including but not limited
to any 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).


 


Section 8.8.           No Proceedings.


 


Each Seller hereby agrees that it will not
institute against, or join any other Person in instituting against, the Buyer
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 8.9.           Recourse Against Certain Parties.


 


(a)           Except as otherwise provided in Section 13.11
and Article XIV of the Credit Agreement, no recourse under or with
respect to any obligation, covenant or agreement (including, without
limitation, the payment of any fees or any other obligations) of a Seller 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, officer, trustee, employee or director of such Seller, as
such, 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 such Seller
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 limited liability company or statutory trust obligations,
as the case may be, of such Seller, and that no personal liability whatsoever
shall attach to or be incurred by any incorporator, officer, trustee, employee
or director of such Seller, as such, or any of them, under or by reason of any
of the obligations, covenants or agreements of such Seller contained in this
Agreement or in any other such instruments, documents or agreements, or which
are implied therefrom, and that any and all personal liability of each
incorporator, officer, trustee, employee or director of such Seller, or any of
them, for breaches by such Seller of any such obligations, covenants or
agreements, which liability may arise either at common law or at 


 


10

















 


equity, by statute or constitution, or
otherwise, is hereby expressly waived as a condition of and in consideration
for the execution of this Agreement.


 


(b)           Except as otherwise provided in Section 13.11
and Article XIV of the Credit Agreement, no recourse under or with
respect to any obligation, covenant or agreement (including, without
limitation, the payment of any fees or any other obligations) of the Buyer 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, officer, trustee, employee or director of the Buyer,
as such, 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 the Buyer
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 statutory trust obligations of the Buyer, and that no
personal liability whatsoever shall attach to or be incurred by any
incorporator, officer, trustee, employee or director of the Buyer, as such, or
any of them, under or by reason of any of the obligations, covenants or
agreements of the Buyer contained in this Agreement or in any other such
instruments, documents or agreements, or which are implied therefrom, and that
any and all personal liability of each incorporator, officer, trustee, employee
or director of the Buyer, or any of them, for breaches by the Buyer 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.


 


Section 8.10.        Protection of Right, Title and Interest in the Sale
Assets; Further Action Evidencing the Purchase.


 


(a)           Each Seller shall cooperate with the
Buyer and 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 Buyer to the Sale Assets 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 Buyer hereunder to all property comprising the Sale Assets.  Each Seller shall cooperate fully with the
Buyer in connection with the obligations set forth above and will execute any
and all documents reasonably required to fulfill the intent of this Section 8.10.


 


(b)           Each Seller agrees that from time to
time, at the Buyer’s expense, it will promptly authorize, execute and deliver
all instruments and documents, and take all actions, that the Buyer or the
Administrative Agent may reasonably request in order to perfect, protect or
more fully evidence the Receivables hereunder and the first priority perfected
security interest (subject to Permitted Liens) granted in the Sale Assets, or
to enable the Buyer, the Administrative Agent or the other Secured Parties to
exercise and enforce their rights and remedies hereunder or under any other
Transaction Document.


 


(c)           If a Seller fails to perform any of
its obligations hereunder with respect to the maintenance of the perfection and
priority (subject to Permitted Liens) of the interests of the Buyer or the
Administrative Agent in the Sale Assets, the Buyer, the Administrative Agent or



 


11

















 


any Secured Party may (but shall not be
required to) perform, or cause performance of, such obligation; and the Buyer’s,
the Administrative Agent’s or any Secured Party’s costs and expenses incurred
in connection therewith shall be payable by such Seller.  If a Seller fails to perform any of its other
obligations hereunder for ten (10) days following receipt of notice from
the Buyer or 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 Buyer’s, the Administrative Agent’s or any Secured Party’s
costs and expenses incurred in connection therewith shall be payable by such
Seller.  Each Seller irrevocably
authorizes the Administrative Agent at any time and from time to time at the
Administrative Agent’s sole discretion and appoints the Administrative Agent as
its attorney-in-fact to act on behalf of such Seller (i) to file Protective
Filings on behalf of such Seller, as debtor, 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
Buyer or the Administrative Agent in the Sale Assets in the event of an
Inconsistent Determination, and (ii) to file a carbon, photographic or
other reproduction of this Agreement or any financing statement with respect to
the Sale Assets as a financing statement in such offices as the Buyer or the
Administrative Agent in their sole discretion deem necessary or desirable to
perfect and to maintain the perfection and priority (subject to Permitted
Liens) of the interests of the Buyer or the Administrative Agent in the Sale
Assets.  This appointment is coupled with
an interest and is irrevocable.


 


Section 8.11.        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, the Transaction Documents and
any other 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 8.12.        Waiver of Setoff.


 


Neither the Buyer’s nor any Seller’s
obligations under this Agreement shall be affected by any right of setoff,
counterclaim, recoupment, defense or other right such party might have against
the other such party, the Administrative Agent, any Lender, the Backup
Servicer, the Collateral Custodian and any Successor Servicer or any assignee
of such Persons, all of which rights are hereby waived.


 


Section 8.13.        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 


 


12

















 


and referred to
herein shall constitute a part of this Agreement and are incorporated into this
Agreement for all purposes.


 


Section 8.14.        Confidentiality.


 


(a)           Each of the Buyer and each Seller
shall maintain and shall cause each of its employees, directors, officers,
trustees, members, partners, agents and affiliates to maintain the
confidentiality of this Agreement and all information with respect to the other
parties, including all information regarding the business of the Buyer and the
Sellers 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 employees, directors, officers, trustees, members, partners,
agents and affiliates 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 Buyer and
the Sellers and their affiliates, (ii) disclose the existence of this
Agreement, but not the financial terms thereof, (iii) disclose such
information as is required by Applicable Law and (iv) disclose this
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 8.14(a) include,
without limitation, all fees and other pricing terms, and all Events of
Default.  If any Excepted Person
discloses any confidential information pursuant to this Section 8.14(a),
it shall provide prompt notice thereof to the Buyer or the Sellers, as
appropriate.


 


(b)           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, trustee, members,
partners, 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 the Buyer or the applicable Seller in the case
of information with respect to it.


 


(c)           Notwithstanding anything to the
contrary in this Agreement, to the extent this Section 8.14 is
inconsistent with that certain letter agreement regarding confidentiality dated
December 1, 2008 among *****, *****, *****, Trust I, ***** and CLST
Financo, Inc., such letter agreement shall control.


 


13

















 


Section 8.15.        Assignment.


 


Notwithstanding anything to the contrary
contained herein, this Agreement may not be assigned by the Buyer or a Seller
except as permitted by this Section 8.15 or by the Credit
Agreement.  Simultaneously with the
execution and delivery of this Agreement, the Buyer will, pursuant to the
Credit Agreement, assign all of its right, title and interest in this Agreement
to the Administrative Agent as agent for the Secured Parties, to which
assignment each Seller hereby expressly consents.  Upon assignment, each Seller agrees to perform
its obligations hereunder for the benefit of the Administrative Agent as agent
for the Secured Parties and the Administrative Agent, in such capacity, shall
be a third party beneficiary hereof.  The
Administrative Agent as agent for the Secured Parties upon such assignment may
enforce the provisions of this Agreement, exercise the rights of the Buyer and
enforce the obligations of each Seller hereunder without joinder of the Buyer.


 


Section 8.16.        No Waiver; Cumulative Remedies.


 


No failure to exercise and no delay in
exercising, on the part of the Buyer or a Seller, any right, remedy, power or
privilege hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.  Any waiver of this Agreement shall be effective
only in the specific instance and for the specific purpose for which given.


 


Section 8.17.        Subordination.


 


Each Seller shall have the right to receive,
and the Buyer shall make, any and all payments relating to any indebtedness,
obligation or claim such Seller may from time to time hold or otherwise have
against the Buyer or any assets or properties of the Buyer, whether arising
hereunder or otherwise existing; provided that
after giving effect to any such payment, there may not be a Borrowing Base
Deficiency.  Each Seller hereby agrees
that at any time during which the condition set forth in the proviso of the
preceding sentence shall not be satisfied, such Seller shall be subordinate in
right of payment to the prior payment of any indebtedness or obligation of the
Buyer owing to the Lenders, the Administrative Agent or any other Secured Party
under the Credit Agreement.


 


Section 8.18.        Survival of Certain Provisions.


 


Notwithstanding any provision contained herein
to the contrary, each Seller’s representations, covenants and obligations set
forth in Articles IV, V, VI, and VII 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 each Seller pursuant to Articles III and IV, and the
provisions of Sections 8.3, 8.4, 8.5, 8.6, 8.7,
8.8, 8.9 and 8.14 shall be continuing and shall survive
any termination of this Agreement.


 


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Blank]


 


14

















 


IN WITNESS WHEREOF, the Buyer and the Sellers have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized, as of the day
and year first above written.


 


 


	
   

  	
  *****,

  
	
   

  	
  as a Seller

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ *****

  
	
   

  	
  Name:

  	
    *****

  
	
   

  	
  Title:

  	
    President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  *****,

  
	
   

  	
  as a Seller

  
	
   

  	
   

  
	
   

  	
  By:

  	
  *****,

  not in its individual capacity but solely

  as statutory trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ *****

  
	
   

  	
  Name:

  	
    *****

  
	
   

  	
  Title:

  	
    Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  CLST ASSET TRUST II,

  
	
   

  	
  as the Buyer

  
	
   

  	
   

  
	
   

  	
  By:

  	
  *****,

  not in its individual capacity but solely

  as statutory trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ *****

  
	
   

  	
  Name:

  	
    *****

  
	
   

  	
  Title:

  	
    Vice
  President

  



 


Purchase Agreement


 


S-1