AMENDED AND RESTATED CREDIT AGREEMENT

Exhibit 10.01

Execution Copy

AMENDED AND RESTATED

CREDIT AGREEMENT

By and Between

WEST RECEIVABLES PURCHASING, LLC,

as Borrower,

and

TOGM, LLC,

as Lender,

Dated as of April 30, 2009

Effective as of December 30, 2008

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AMENDED AND RESTATED CREDIT AGREEMENT

This Amended and Restated Credit Agreement (this “ Agreement ”) is made as of April 30, 2009, by and between WEST RECEIVABLES PURCHASING, LLC, a Nevada limited liability company (the “ Borrower ”), and TOGM, LLC, a Nebraska limited liability company (the “ Lender ”).

Recitals

WHEREAS, the Borrower may from time to time wish to purchase a pool or pools of assets, which assets include charged off credit card accounts and other delinquent or deficiency consumer obligations.

WHEREAS, the Borrower has requested that the Lender consider making loans to the Borrower from time to time to finance a portion of the purchase price to be paid by the Borrower for such pools of accounts.

WHEREAS, the Borrower and Lender previously entered into a Credit Agreement dated as of May 21, 2008 (the “Original Credit Agreement”) pursuant to which the Lender agreed to consider making such financing available to the Borrower pursuant to the terms and subject to the conditions set forth therein.

WHEREAS, the Borrower and Lender have agreed to amend and restate the Original Credit Agreement to provide the terms upon which the Lender has agreed to consider making additional financing available to the Borrower.

NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter set forth, the Lender and the Borrower hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions . For all purposes of this Agreement, except as otherwise expressly provided or unless the context otherwise requires:

(a) the terms defined in the preamble hereto have the meanings therein assigned to them;

(b) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;

(c) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; and

(d) all accounting terms, unless otherwise specified, shall be deemed to refer to Persons and their subsidiaries on a consolidated basis in accordance with GAAP.

“ Accepted Borrowing Request ” shall have the meaning set forth in Section 2.1(b) .

“ Account ” means an obligation of an Obligor to pay money, whether under a credit card arrangement, open account balance, installment sales or payment agreement, deferred payment contract or any other arrangement whatsoever, as set forth and described in a Purchase Agreement, and all unpaid balances due from the Obligors with respect to such obligations, together with all documents evidencing such Obligors’ agreement to make payment of such unpaid balances, including without limitation each credit card application or agreement, and each promissory note, loan agreement, receivable, chattel paper, payment agreement, contract, installment sales agreement or other obligation or promise to pay of an Obligor, all as described and referred to in a Purchase Agreement.

“ Advanced Court Costs ” means, with respect to any given Account, the filing fees and service of process costs advanced by the Servicer from its own funds in connection with the commencement of a collection action with respect to such Account.

“ Affiliated Party ” shall mean, with respect to a Person, another Person that is controlled by, or under common control or ownership with such Person; provided that, for purposes of this Agreement, Lender and its Affiliated Parties shall not be considered Affiliated Parties of West Corporation or any of its direct or indirect subsidiaries.

“ Agreement ” means this Credit Agreement and all exhibits, amendments and supplements hereto.

“ Asset ” shall mean, with respect to an Asset Pool, each Account and any property or other right obtained by the Borrower in connection with collection of any such Account or in substitution therefor, all of which constituting a part of the Asset Pool into which such Account was initially delivered.

“ Asset Pool ” shall mean all Accounts and other Assets described in a Borrowing Request or an Accepted Borrowing Request, as the context may require, together with (a) each and every Asset obtained in replacement or satisfaction of or substitution for, any such Account so purchased, (b) each and every item of property obtained by the Borrower as a result of its collection activities with respect to any such Account, (c) each and every item of collateral or security, including all security interests, liens, guarantees and other interests securing payment of any Account, and all other rights and interests of the Borrower with respect to each Account, (d) each judgment rendered against an Obligor in respect of an Account, together with all lien rights related thereto, (e) Asset Proceeds derived from or paid or payable with respect thereto, together with any and all earnings thereon and (f) each and every other right, claim and interest associated therewith; it being understood that unless otherwise agreed by Borrower and Lender, it is the intent that the Asset Pools financed hereunder shall meet the criteria set forth on Schedule 1.1 attached hereto.

“ Asset Pool Contribution ” shall mean, with respect to each Asset Pool, that portion of the Total Cost of such Asset Pool not funded with proceeds of a Loan. The term Asset Pool Contribution also includes all contributions previously made by Borrower as Asset Pool Equity Contributions prior to the date of this Agreement.

 

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“ Asset Pool Equity Contribution ” shall mean, with respect to each Asset Pool, that portion of the Total Cost of such Asset Pool not funded with proceeds of a Loan, which, unless otherwise approved by the Lender in an Approved Borrowing Request or otherwise approved in writing, shall in no event be less than thirty percent (30%) of such Total Cost for any Asset Pool funded with proceeds of a Loan after the date hereof.

“ Asset Pool Seller ” shall mean, with respect to an Asset Pool, the party described in an Accepted Borrowing Request which has agreed to sell a specified Asset Pool to the Borrower pursuant to the terms and conditions of a Purchase Agreement.

“ Asset Proceeds ” shall mean, with respect to an Asset, any and all payments, revenues, income, receipts, collections, recoveries and other proceeds or assets received net of identified non-sufficient funds with respect to such Asset, including (without limitation) (a) payments of principal, interest, fees, late charges, insufficient funds charges, guaranty payments and any interest thereon, credit insurance payments and other cash receipts on account of such Asset, (b) interest earned on such Asset in a Collateral Account or any other account created in connection herewith, (c) court-awarded legal fees and expenses, court-awarded reimbursements of fees, costs and expenses, (d) legal fees, credit insurance costs, guaranty fees and other amounts recovered on account of such Asset, to the extent the obligation giving rise thereto has previously been paid or is otherwise not due and payable with any such receipts and (e) settlements, compromises, liquidations, foreclosure proceeds, dispositions, sales, transfers or other proceeds, whether cash or otherwise, received as a result of or in any way in connection with collection activities related to such Asset or in connection with the sale, transfer or disposition of such Asset and (f) payments, fees, rebates, refunds, commissions, kickbacks, rakeoffs, discounts, deductions, whether cash or otherwise, received by Borrower, or any Affiliated Party, as a result of or in any way in connection with collection activities related to such Asset or in connection with the sale, disposition or transfer of such Asset.

“ Asset Series ” shall have the meaning given in Section 2.1(d) .

“ Asset Series Equity Contribution ” shall mean, with respect to an Asset Series, the sum of the Asset Pool Equity Contributions made by the Borrower in connection with the purchase of the Asset Pools included in such Asset Series.

“ Asset Series Proceeds ” shall mean for an Asset Series, all Asset Proceeds from all Asset Pools in the Asset Series.

“ Bad Faith ” shall mean, as applied to any action, representation or warranty hereunder or in any Loan Document, the taking of such action or the giving of such representation or warranty other than in Good Faith.

“ Base Rate ” shall mean the rate of interest published from time to time as the “prime rate” in the Wall Street Journal under the heading Money Rates , with each change in the base rate becoming effective on the corresponding day any change in such “prime rate” is so published; provided, however, that (i) if more than one such “prime rate” is published therein, the base rate shall be the highest such rate and (ii) if the “prime rate” is no longer published therein, the base rate shall be a substantially comparable index selected by the Lender in its reasonable discretion.

 

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“ Borrower ” shall have the meaning specified in the preamble.

“ Borrowing Date ” shall have the meaning specified in Section 2.1(c) .

“ Borrowing Request ” shall have the meaning set forth in Section 2.1(a) .

“ Bulk Transfer ” shall have the meaning set forth in Section 3.4(b) .

“ Business Day ” shall mean any day other than (a) a Saturday or Sunday and (b) a day on which banking institutions in the states of Nevada or Nebraska are authorized or obligated by law, executive order or governmental decree to be closed.

“ Change of Control ” shall mean, except as otherwise permitted by the Operating Agreement, (a) any event, circumstance or occurrence that results in West Corporation, a Delaware corporation, holding and owning, directly or indirectly, less than seventy-five percent (75%) of the issued and outstanding equity interests in West Receivable; (b) any event, circumstance or occurrence that results in West Receivable or an Affiliated Party of West Corporation directly or indirectly owning less than seventy-five percent (75%) of the Servicer; or (c) any event, circumstance or occurrence that results in West Receivable or an Affiliated Party of West Corporation directly or indirectly owning less than seventy percent (70%) of the Borrower except as permitted by the Operating Agreement.

“ Collateral Account ” shall have the meaning set forth in Section 2.7 .

“ Collateral Account Agreement ” shall mean the Blocked Account Control Agreement dated as of May 21, 2008 by and among the Borrower, the Lender and the Collateral Agent as to the deposit of Asset Pool Proceeds to one or more Collateral Accounts.

“ Collateral Agent ” shall initially mean U.S. Bank National Association, and if thereafter replaced, shall mean any replacement or permitted successor or assignee thereof pursuant to the Collateral Account Agreement.

“ Collection Period ” shall mean, with respect to an Asset Series, a period commencing on the initial Borrowing Date for the initial Loan related to such Asset Series and continuing through and including the last day of the month in which such initial Borrowing Date occurred, and thereafter each period commencing on the first day of a calendar month (or, if otherwise designated by Borrower as contemplated below, the first day following the end of the last Collection Period) and continuing through the last day of such calendar month (unless otherwise agreed to in writing by the Lender and the Borrower, or continuing for a period ending prior to the last day of such calendar month as may be designated by Borrower, provided that the end of such period is followed by a corresponding Distribution Date designated by Borrower pursuant to this Agreement) until all Assets constituting a part of such Asset Series have been collected, sold, abandoned or otherwise disposed of to the satisfaction of the Borrower and the Lender.

“ Court Awarded Advanced Costs ” shall mean, with respect to any given Account, the court awarded filing fees and service

 

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of process costs collected with respect to such Account, which filing fees and service of process costs, when incurred, had constituted Advanced Court Costs with respect to which Servicer has been reimbursed pursuant to Section 2.7, Section 2.8 and/or Section 8.6(b). For any given Account, upon the court awarding filing fees and service of process costs, such court awarded filing fees and service of process costs shall be deemed to be the amounts collected first in respect of such Account, prior to any collections on any other obligation due in respect of such Account.

“ Default ” shall mean a Loan Series Default or a Facility Default, as applicable.

“ Distribution Date ” shall mean, with respect to each Note in an Asset Series, the Loan Maturity Date and the thirteenth (13th) day of each month (unless otherwise agreed in writing by the Lender and the Borrower) commencing on the first such specified day following the Borrowing Date for the initial Loan in the Loan Series related to such Asset Series and continuing thereafter until the date all Assets constituting a part of such Asset Series have been collected, sold, abandoned or otherwise disposed of to the satisfaction of the Borrower and the Lender; provided, that, if any Distribution Date will occur on a day which is not a Business Day, such Distribution Date shall be the next succeeding Business Day; and, provided further, in the sole discretion of Borrower, Borrower may designate any other day as a Distribution Date (but in any event, Borrower shall not make such designation more frequently than Borrower shall have deposited Asset Series Proceeds pursuant to Section 2.7 ).

“ Distribution Report ” shall have the meaning set forth in Section 2.7 .

“ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

“ Externally Prepared Information ” shall have the meaning specified in Section 5.11 .

“ Event of Default ” shall mean a Loan Series Event of Default or a Facility Event of Default, as applicable.

“ Facility Default ” shall mean an event that, with giving of notice or passage of the grace period (if any) or both, would constitute a Facility Event of Default.

“ Facility Event of Default ” shall have the meaning given in Section 8.2 .

“ Facility Termination Date ” shall mean December 31, 2009, or such later date as shall be mutually agreed between Borrower and Lender; it being understood that neither Borrower nor Lender shall be under any obligation to extend the term past December 31, 2009.

“ Fixed Rate ” shall mean an annual rate of interest equal to eight and one half percent (8.5%) or such higher or lower rate as agreed to by the Lender and the Borrower in an Accepted Borrowing Request.

“ Floating Rate ” shall mean an annual rate of interest equal to the sum of (a) the Base Rate and (b) three and one-half percent (3.5%) or such higher or lower rate as agreed to by the Lender and the Borrower in an Accepted Borrowing Request.

 

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“ GAAP ” shall mean generally accepted accounting principles, consistently applied.

“ Good Faith ” shall mean honesty in fact and the observance of reasonable commercial standards of fair dealing in the trade.

“ Indemnitees ” shall have the meaning specified in Section 9.6 .

“ Interest Period ” shall mean (a) initially, the period commencing on the Borrowing Date with respect to a Loan and ending on (and including) the thirteenth (13th) day of the following month, and (b) thereafter, each successive period commencing on the date immediately succeeding the last day of the next preceding Interest Period and ending on (and including) the thirteenth (13th) day of the following calendar month (or such earlier date as may be designated by Borrower as a Distribution Date pursuant to this Agreement), provided, that:

(i) if any Interest Period will otherwise end on a day which is not a Business Day, such Interest Period shall be extended to the next succeeding Business Day; and

(ii) any Interest Period that would otherwise extend beyond the Loan Maturity Date shall end on the Loan Maturity Date.

“ Internally Prepared Information ” shall have the meaning specified in Section 5.11 .

“ Lender ” shall have the meaning specified in the preamble .

“ Lender Affiliate ” shall mean any Person directly or indirectly controlling or controlled by or under direct or common control with the Lender, including without limitation, any material investor in the Lender and any investment pool or fund now or hereafter existing that is controlled by or under common control of the owner or one or more general partners or managing members of, or shares the same management company with the Lender. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling”, “controlled by”, and “under common control with”), as used with respect to the Lender, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the Lender, whether through the ownership of voting securities, by agreement or otherwise.

“ Loan ” shall mean, with respect to an Asset Pool, the loan made by the Lender to the Borrower pursuant to Section 2.1 .

“ Loan Collateral ” shall mean, with respect to a Loan Series, all Assets of the Borrower constituting a part of the Asset Series to which the Loan Series relates, whether now owned or hereafter acquired, wherever located, howsoever arising or created and whether now existing or hereafter arising, including without limitation each and every Account and any and all liens, claims and property securing payment of the indebtedness evidenced by any such Account (if any), and all property realized, collected or

 

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obtained in connection with or as a result of collections made on account of any such Account, and any and all Asset Series Proceeds paid or received with respect thereto, whether deposited to or held in a Collateral Account or otherwise, and all rights of the Borrower under each and every Purchase Agreement related to such Loan Series or the Asset Series related thereto.

“ Loan Costs ” shall mean those out-of-pocket payments, costs and expenses paid or incurred by the Lender pursuant to Section 9.5(b) .

“ Loan Documents ” shall mean this Agreement, the Security Agreement, the Collateral Account Agreement, the Servicing Agreement, the Accepted Borrowing Requests, and, as and when issued, each Note and any other instrument, document or agreement entered into by the Borrower or the Servicer for the benefit of the Lender to evidence or secure any Loan, in each case as amended, supplemented or modified with the consent of the Lender from time to time.

“ Loan Maturity Date ” shall mean, with respect to all of the Loans in a Loan Series funded in any calendar month, twenty-four (24) months after the most recently funded Loan in such calendar month or such later date as agreed to by the Borrower and Lender with respect to a Loan; provided that if a later date is proposed by either the Borrower or the Lender and is not agreed upon by the recipient of such proposal within the time required pursuant to Section 2.1 , then the Loan Maturity Date for such Loan shall be thirty (30) months after the most recently funded Loan in such calendar month.

“ Loan Series ” shall have the meaning given in Section 2.1(d) .

“ Loan Series Default ” shall mean an event that, with giving of notice or passage of the grace period (if any) or both, would constitute a Loan Series Event of Default.

“ Loan Series Event of Default ” shall have the meaning given in Section 8.1 .

“ Material Adverse Effect ” shall mean a material adverse effect on (i) the financial condition, properties or operations of the Borrower, (ii) the ability of the Borrower to perform its obligations under the Loan Documents, or (iii) the validity or enforceability of any of the Loan Documents or the rights or remedies of the Lender thereunder; it being agreed that, without limiting the generality of the foregoing, an event resulting in a loss of 35% of the fair market value of the Borrower shall constitute a “Material Adverse Effect” hereunder.

“ Maximum Monthly Amount ” shall mean Three Million Dollars ($3,000,000) or such greater amount as may be agreed upon between Borrower and Lender.

“ Note ” shall mean each promissory note of the Borrower payable to the order of the Lender, as described in Section 2.2 , including all consolidations, replacements, extensions, restatements and substitutions therefor.

“ Obligor ” shall mean the customer, obligor, maker, borrower or other party primarily obligated to pay an Account.

 

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“ Obligations ” shall mean, with respect to a Loan Series, the due and prompt payment by the Borrower of each Note in a Loan Series, together with all interest thereon and all other obligations of the Borrower to the Lender arising hereunder or under any other Loan Document in connection with such Loan Series or the related Asset Series.

“ Operating Agreement ” means the Operating Agreement of the Borrower of even date herewith by and among West Receivable and the Lender.

“ Organizational Documents ” means with respect to any Person, as applicable, such Person’s certificate of incorporation, articles of incorporation, by-laws, certificate of formation, articles of organization, limited liability company agreement, management agreement, operating agreement, shareholder agreement, partnership agreement or similar document or agreement governing such Person’s existence, organization or management or concerning disposition of ownership interests of such Person or voting rights among such Person’s owners.

“ Permitted Cure Funds ” shall mean funds provided by an Affiliated Party, or, to the extent such funds shall be invested as equity in the Borrower on or after the initial occurrence of the applicable Default, by the Borrower, to the Lender for purposes of curing a Default or Event of Default hereunder; provided , that , any funds provided from any Asset, Asset Pool Proceeds or other asset of the Borrower or where, as a result of the provision of such funds (or in connection therewith), any Affiliated Party or any lender or other creditor of such Affiliated Party receives any security or ownership interest in or to any Asset, Asset Pool Proceeds or other asset of the Borrower, shall not constitute Permitted Cure Funds.

“ Permitted Contest ” shall mean a contest with respect to the amount, applicability or validity of any tax, assessment or other governmental charge (or lien in connection therewith) in good faith and by appropriate proceedings which during the pendency thereof prevents (a) the collection of, or realization on any tax, assessment or other governmental charge (or any lien in connection therewith) so contested, (b) the sale, forfeiture or loss of any Asset or any part thereof, and (c) any interference with the collection or use of any Asset or any portion thereof, and for which the Borrower has made adequate reserves therefor in accordance with GAAP.

“ Permitted Lien ” shall mean (a) a lien for a tax, assessment or other governmental charge (i) not yet due and payable, or (ii) which is being contested by a Permitted Contest, or (b) covenants, restrictions, rights, easements and minor irregularities in title which do not materially interfere with the business or operations of the Borrower as presently conducted.

“ Person ” shall mean any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.

“ Plan ” shall mean an employee benefit plan or other plan maintained for employees and covered by Title IV of ERISA.

“ Projections ” shall have the meaning specified in Section 5.11 .

“ Purchase Agreement ” shall mean the asset or account purchase and sale agreement by and between the Borrower and an Asset Pool Seller pursuant to which such Asset Pool Seller agrees to sell a specified Asset Pool to the Borrower for a specified purchase price.

 

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“ Purchase Expenses ” shall mean, with respect to an Asset Pool, the lesser of (a) the maximum estimated expenses to be incurred in connection with the purchase of such Asset Pool, as set forth in the related Borrowing Request, or (b) the sum of (i) any brokers’ fees incurred in connection with acquisition of such Asset Pool, not to exceed one percent (1%) of the proposed purchase price for such Asset Pool and (ii) the out-of-pocket legal costs and expenses incurred by the Borrower and the Lender in connection with the negotiation, preparation and consummation of the related Purchase Agreement, the closing of the purchase by the Borrower of such Asset Pool and the making of the Loan related to such Asset Pool; provided, however, without the Borrower’s written approval, the maximum amount of such out-of-pocket legal costs and expenses incurred by Lender which will qualify as “Purchase Expenses” shall not exceed $20,000 for the initial Asset Pool purchased by the Borrower and $10,000 for each subsequent Asset Pool, and (iii) out-of-pocket costs and expenses incurred by the Borrower in connection with its due diligence investigation of such Asset Pool, but only to the extent such costs and expenses have been included in a due diligence budget submitted to and approved by the Lender in advance.

“ Reportable Event ” shall have the meaning assigned to that term in Title IV of ERISA.

“ Security Agreement ” shall mean the Security Agreement from the Borrower to the Lender pursuant to which the Borrower grants to the Lender a security interest in, among other things, all Loan Collateral to secure payment of the Loans and other obligations hereunder.

“ Settlement ” shall have the meaning set forth in Section 3.4(a) .

“ Servicer ” shall mean West Asset Management, Inc., a Delaware corporation, an Affiliated Party of West Corporation, and any replacement or permitted successor or assign thereof pursuant to the terms and conditions of the Servicing Agreement.

“ Servicing Agreement ” shall have the meaning set forth in Section 3.3 .

“ Servicing Plan ” shall have the meaning set forth in Section 3.3 .

“ Servicing Fee ” shall mean, with respect to an Asset Series, the fee payable to the Servicer for services rendered in connection with collection of the Assets constituting a part of such Asset Series, computed in accordance with the Accepted Borrowing Requests for such Asset Series (customarily calculated as a percentage of Asset Series Proceeds); provided , however , that (i) unless otherwise approved in writing by the Lender (pursuant to an Approved Borrowing Request or otherwise), the Servicing Fee shall not exceed forty percent (40%) of the Asset Series Proceeds actually collected with respect to an Asset Series during any given six (6) month period, (ii) no Servicing Fee shall be payable to the Servicer in connection with any Asset Series Proceeds collected by an independent thirty-party servicer as contemplated by Section 2.11 of the Servicing Agreement, and (iii) solely for purposes of calculating the amount of Servicing Fee payable to Servicer, the amount of Asset Series Proceeds deemed to have been collected during such month shall exclude the Court Awarded Advanced Costs collected during such month (which, for all other purposes, shall be included in the Asset Series Proceeds for such month).

 

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“ 75% Test ” shall have the meaning set forth in Section 2.10.

“ 75% Test Report ” shall have the meaning set forth in Section 2.10.

“ Total Cost ” shall mean, with respect to an Asset Pool, an amount equal to the sum of (a) the price actually paid by the Borrower to purchase such Asset Pool pursuant to the related Purchase Agreement (which in no event shall be greater than the purchase price (and closing adjustments) with respect thereto approved by the Lender in the Accepted Borrowing Request for such Asset Pool) and (b) all Purchase Expenses actually incurred by the Borrower or the Lender in connection with consummation of such purchase by the Borrower, or making of the Loan to finance such purchase.

“ UCC ” means the Uniform Commercial Code as in effect from time to time in Nebraska or in any state whose laws are held to govern the creation, perfection or foreclosure of any security interest granted pursuant to the Security Agreement.

“ West Receivable ” means West Receivable Services, Inc., a Delaware Corporation.

ARTICLE II

LOAN FACILITIES

Section 2.1 Loans to Purchase Asset Pools .

(a) Requests for Borrowing . From time to time during the period from the date hereof to and including the Facility Termination Date, the Borrower may present to the Lender written information describing a particular Asset Pool (i) with respect to which the Borrower intends to submit an offer to purchase and (ii) requesting that the Lender make a Loan to the Borrower of up to the Maximum Monthly Amount to finance up to sixty three and four hundred fifteen thousandths percent (63.415%) of the Total Cost of such Asset Pool or such other amount as the Lender shall have indicated it would consider financing in any prior discussions with the Borrower related to such Asset Pool. Each such request for a Loan hereunder shall be in substantially the form of Exhibit A hereto (each a “ Borrowing Request ”), and shall state the Loan Series in which such Loan is to be included and shall be accompanied by the relevant bid package (including the proposed Purchase Agreement to be entered into if the Borrower is the successful bidder for such Asset Pool), all relevant written or electronic information acquired by and all material oral information actually known to the Borrower regarding the Accounts comprising such Asset Pool, the proposed Servicing Fee for collection of such Accounts, projections of the Borrower’s anticipated recoveries, cash flows and net returns to be obtained upon collection of all Assets in the Asset Pool, solely for purposes of determining the Target Rate (as defined in the Operating Agreement), a designated internal rate of return, and such other information as the Lender may reasonably request. The Lender shall accept or reject a Borrowing Request within five (5) Business Days after receipt thereof from the Borrower. The Lender’s failure to respond to a Borrowing Request within five (5) Business Days (or within such

 

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extended period as may be required in the event additional information or documentation is requested by the Lender) shall be deemed a rejection of the Borrowing Request by the Lender. Notwithstanding anything in the foregoing to the contrary, the Lender’s decision to accept or reject a Borrowing Request shall be in the Lender’s sole and absolute discretion and the Lender may decline any Borrowing Request for any reason (or no reason), without notification, justification or explanation, and without regard to whether or not the Lender has given any prior indication of interest or oral approval with respect to the specified Asset Pool.

(b) Acceptance of Borrowing Request . Any acceptance of a Borrowing Request shall be evidenced by the Lender’s execution and return to the Borrower of such Borrowing Request, and shall be subject to all terms and conditions of this Agreement and such additional terms and conditions as the Lender may specify, and the Borrower may accept, in such accepted Borrowing Request (each an “ Accepted Borrowing Request ”). An Accepted Borrowing Request delivered to the Borrower by the Lender shall constitute the Lender’s commitment, subject to satisfaction of all applicable terms and conditions of this Agreement, to make a Loan to the Borrower to fund a specified percentage of the Total Cost of the Asset Pool, as set forth in such Accepted Borrowing Request; provided , however , that the Lender’s commitment to make a Loan to the Borrower to finance the purchase of an Asset Pool shall not constitute a revolving commitment and the Borrower shall have no right to reborrow any amounts repaid to the Lender pursuant to an Accepted Borrowing Request; provided , further , that to the extent an Accepted Borrowing Request relates to a forward flow contract, the Lender shall be required to provide Loans for all future purchases under such forward flow contract up to the total amount of the Loan approved in such Accepted Borrowing Request without requiring any additional Borrowing Requests. An Accepted Borrowing Request shall expire and shall have no further force or effect if (i) the Borrower is not the successful bidder for the specified Asset Pool at a purchase price which is not in excess of the anticipated purchase price described in such Borrowing Request, (ii) the Borrower does not consummate its purchase of such Asset Pool pursuant to the terms and conditions of the related Purchase Agreement and as contemplated in the related Accepted Borrowing Request within thirty (30) calendar days following issuance of the Accepted Borrowing Request by the Lender (unless (A) such period of time is extended in writing by the Lender or (B) the Asset Pool Seller has unilaterally extended the closing date for purchase of an Asset Pool and the Borrower is unable to contest any such extension) or (iii) a Facility Default or Facility Event of Default shall occur and shall be continuing under this Agreement.

(c) General Funding Procedures . The Borrower shall provide the Lender with not less than five (5) Business Days prior written notice of the scheduled closing date for purchase of an Asset Pool described in an Accepted Borrowing Request and shall request funding of the related Loan on such date (each a “ Borrowing Date ”). The Borrower shall fund its Asset Pool Contribution for the related Asset Pool by either of the following methods: (i) on the Business Day immediately preceding the applicable Borrowing Date, the Borrower shall transfer to the Lender the Borrower’s Asset Pool Contribution for the related Asset Pool, net of all Purchase Expenses paid or incurred by the Borrower, or (ii) on the Business Day immediately preceding the applicable Borrowing Date, the Borrower shall transfer to the Asset Pool Seller the Borrower’s Asset Pool Contribution for

 

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the related Asset Pool, net of all Purchase Expenses paid or incurred by the Borrower. Upon receipt by the Lender of the Borrower’s Asset Pool Contribution (if the funding method described in (i) above is used by the Borrower) or upon receipt by the Lender of a written acknowledgment from the Asset Pool Seller of its receipt and acceptance of the Borrower’s Asset Pool Contribution (if the funding method described in (ii) above is used by the Borrower) and upon satisfaction of all applicable conditions set forth in Article IV , the Lender shall make a Loan to the Borrower as specified in the related Accepted Borrowing Request by transferring the amount thereof, together with that portion of the Borrower’s Asset Pool Contribution received by the Lender (if the funding method described in (i) above is used by the Borrower), to the Asset Pool Seller in purchase of the related Asset Pool on the designated Borrowing Date.

(d) Loan Series and Asset Series .

(i) Unless the Borrower and Lender agree otherwise in writing, each Loan shall be grouped together with other Loans made before it (if any) and collectively called a “ Loan Series ” until the earliest of (A) December 31, 2009, (B) the date upon which the aggregate original principal amount of the Loans in the Loan Series equals or exceeds $10,000,000, and (C) the date that Lender directs Borrower in writing to begin a new Loan Series.

(ii) After the earlier of (i)(A) and (i)(B), each Loan made thereafter shall be grouped together with other Loans made following such date in a separate Loan Series until such additional Loan Series contains no fewer than three (3) Asset Pools and the aggregate original principal amount of the Loans in the Loan Series equals or exceeds $10,000,000. If the aggregate original principal amount of Loans related to any one Asset Pool in a Loan Series is greater than 50% of the aggregate original principal amount of the Loan Series, and the aggregate original principal amount of the Loans related to other Asset Pools in the Loan Series does not exceed $5,000,000, then additional Asset Pools must be added to such Loan Series until such time as the aggregate original principal amount of all Loans related to other Asset Pools exceeds $5,000,000. Notwithstanding the foregoing, at any time, the Lender may direct the Borrower to begin a new Loan Series.

(iii) After each Loan Series is filled pursuant to Section 2.1(d)(i) or (ii) , the next Loan shall be the first Loan in a new Loan Series, and the procedure contemplated by Section 2.1(d)(ii) shall be completed in the same manner with respect to all future Loan Series.

(iv) All of the Asset Pools purchased with Loans in a Loan Series shall be grouped together and called an “ Asset Series ”.

Section 2.2 Obligation to Repay Loans; Issuance of Notes . In connection with the first Loan in a Loan Series made in any calendar month, the Borrower shall execute and deliver to the Lender a promissory note in the face amount of the Loan, dated as of the Borrowing Date for such Loan and otherwise in substantially the form of Exhibit B . In connection with each subsequent Loan in

 

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that same Loan Series made in that same calendar month, the Borrower shall execute and deliver to the Lender a promissory note with a face amount equal to the sum of the outstanding principal balance of all previous Loans made in that calendar month plus the amount of the new Loan, as a replacement and consolidation of such previous Loans with the new Loan so that each such consolidation note evidences indebtedness in the aggregate outstanding amount of all Loan advances in that Loan Series in that calendar month. Each such consolidation note shall be in substantially the form of Exhibit C and shall be issued in replacement of and substitution for, but not in payment of the previous promissory notes issued in that Loan Series during that calendar month. Each note issued under this Section 2.2 , whether the original note for a calendar month in a Loan Series or a consolidation note for a calendar month in a Loan Series, is herein called a “ Note ”. The aggregate unpaid principal amount of the Loans evidenced by each Note shall bear interest, be payable and be secured as provided in such Note and herein.

Section 2.3 Interest on Loans . The Borrower hereby agrees to pay interest on the unpaid principal balance of each Loan for the Interest Period commencing on the Borrowing Date for such Loan and for each Interest Period thereafter until such Loan is paid in full, in accordance with the following:

(a) If the Loan (i) was entered into prior to December 30, 2008, or (ii) shall have been designated as bearing interest at a Floating Rate in the applicable Accepted Borrowing Request, the outstanding principal balance of each Loan shall bear interest at an annual rate at all times equal to the Floating Rate applicable to such Loan. If the Loan is entered into on or following December 30, 2008, then such Loan shall bear interest at an annual rate at all times equal to the Fixed Rate applicable to such Loan (unless the Loan shall have been designated as bearing interest at a Floating Rate in the applicable Accepted Borrowing Request).

(b) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, all agreements with respect to interest in this Agreement and the other Loan Documents between the Borrower and the Lender are hereby limited so that in no contingency or event whatsoever shall the total liability for payments in the nature of interest exceed the applicable limits imposed by any applicable usury laws. If any payments in the nature of interest made under this Agreement or any other Loan Document are held to be in excess of the limits imposed by any applicable usury laws, it is agreed that any such amount held to be in excess shall be considered payment of principal in respect of the applicable Loan, and the aggregate indebtedness under this Agreement and the other Loan Documents shall be reduced by such amount so that the total liability for payments in the nature of interest shall not exceed the applicable limits imposed by any applicable usury laws, in compliance with the desires of the Borrower and the Lender.

Section 2.4 Computation and Payment of Interest on Loans . Interest accruing on each Note shall be computed on the basis of the actual number of days elapsed in a year of three hundred and sixty-five (365) days. If Asset Series Proceeds received during a Collection Period and available to pay interest on Notes evidencing Loans of a given Loan Series on a given Distribution Date in accordance with Section 2.8 are sufficient to pay in full interest on such Notes accruing during the Interest Period ending on such

 

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Distribution Date, the amount of such accrued interest shall be due and payable in arrears on such Distribution Date for the related Asset Series; otherwise, any deficiency between the Asset Series Proceeds available to pay such interest on such Distribution Date and the amount of such interest due and payable on such Distribution Date shall be capitalized by increasing the outstanding principal balance of the deficient Note in such Loan Series by such deficiency amount, provided that if doing so would cause the outstanding principal balance of a Note to exceed the face amount of a Note, upon request of the Lender, the Borrower shall execute and deliver to the Lender a replacement Note in a face amount equal to such outstanding principal balance.

Section 2.5 Payment of Principal and Interest on Loans . Interest accruing on the indebtedness evidenced by a Note in a Loan Series shall be payable in arrears on the next occurring Distribution Date, but only to the extent available in accordance with Section 2.8 . If not paid in full on a Distribution Date, all accrued and unpaid interest on a Note in a Loan Series shall be capitalized as of such date in accordance with Section 2.4 . Principal of each Note in a Loan Series shall be finally due and payable on the Loan Maturity Date for such Note to the extent available in accordance with Section 2.8 . In addition, each Note in a Loan Series shall be subject to mandatory prepayment on each Distribution Date for the related Asset Series in an amount equal to the Asset Series Proceeds available for such prepayment on such date, as provided in Section 2.8 . The Borrower may prepay each Note in a Loan Series, in whole or in part, at any time and from time to time, without premium or penalty; provided , however , that any such prepayment can only be made from Asset Series Proceeds (including, for purposes of this Section 2.5 , any Permitted Cure Funds or Special Capital Contributions with respect to such Asset Series) received with respect to the Asset Series for such Loan Series and not with any other proceeds or funds from any other source, unless otherwise approved in writing by the Lender.

Section 2.6 Transfer or Assignment of Loans . Each Note evidencing a Loan shall contain the following provisions restricting the transferability of such Note and the Lender’s rights to receive payments thereunder: “This Note shall not be transferred without compliance with Section 9.12 hereof and providing written notice of the transfer and the identity of the transferee to the Borrower, which shall be in the form of a true and correct copy of the original endorsement of this Note provided to the Borrower in accordance with the notice provisions of the Credit Agreement. Any transfer without compliance with the previous sentence shall be null and void.” In the event that a Note is issued that does not contain this language, the provisions of this Section 2.6 shall be deemed to govern and apply to such Note as if such language were contained therein.

Section 2.7 Collection and Deposit of Asset Series Proceeds . Except as provided in Sections 8.6 and 8.7 , the Notes in each Loan Series shall be paid out of Asset Series Proceeds collected with respect to the related Asset Series. The Borrower shall cause all Asset Series Proceeds received by the Servicer or the Borrower (net of the Servicing Fees earned and unpaid and Advanced Court Costs actually incurred by the Servicer and not previously reimbursed with respect to such Asset Series) to be deposited, beginning in April 2009, not less than weekly, but in any event before the next succeeding Distribution Date, to a separate Collateral Account for the Asset Series opened and maintained by the Collateral Agent, in the name of and under the sole control of the Lender, pursuant to the Collateral Account Agreement (each, a “ Collateral Account ”). The Borrower will not and will not permit the Servicer to

 

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commingle any Asset Series Proceeds deposited in the Collateral Account with any moneys or other funds that are not Asset Series Proceeds. Each Collateral Account shall be an interest bearing account and all interest earned on amounts on deposit therein shall constitute, and be treated as, Asset Series Proceeds collected with respect to the applicable Asset Series. All Asset Series Proceeds so deposited shall be held in the applicable Collateral Account until the next occurring Distribution Date. Not later than 3:00 p.m., Chicago, Illinois time, on the Business Day preceding each Distribution Date, the Servicer shall deliver to the Lender a report for the preceding Collection Period setting forth, by Note, the Asset Series Proceeds, Servicing Fees, Advanced Court Costs, outstanding balances of the Notes in each Loan Series and other relevant information (which may include without limitation documentation requested by the Lender to support the Servicer&r