ACCOUNT PURCHASE AGREEMENT

Exhibit 10.01

ACCOUNT PURCHASE AGREEMENT

This Agreement is dated as of April 21, 2009 between Wells Fargo Bank, National Association, acting through its Wells Fargo Business Credit operating division, a national association (“WFBC”), and Martin Marietta Materials, Inc., a North Carolina corporation (the “Customer”). The Customer and WFBC agree as follows:

Article 1.
Purpose of Agreement

1.01 Purpose of Agreement . The Customer desires to sell, assign and transfer to WFBC, on a fully serviced basis, an undivided ownership interest in all of the Customer’s right, title and interest in certain of its Accounts, all Related Rights with respect thereto and all proceeds of the foregoing and WFBC desires to purchase such undivided ownership interest in all of the Customer’s right, title and interest in such Accounts, all Related Rights with respect thereto and all proceeds of the foregoing on the terms and conditions set forth herein. The purchase of accounts hereunder shall be full recourse as provided herein and shall be on a non-notification of assignment basis. The purpose of this Agreement is commercial in nature and not for household, family and/or personal use. Terms which are not defined herein shall have the meaning set forth in the Uniform Commercial Code as adopted in the State of New York, to the extent defined therein. The Customer acknowledges and agrees that WFBC has not made any representations or warranties concerning the tax, accounting or legal characteristics of the transaction set forth herein and in the Transaction Agreements and that the Customer has obtained and relied upon such tax, accounting and legal advice from its own experts concerning such transaction as it deems appropriate.

Article 2.
Definitions

2.01 “Acceptable Account” means an Account, in an amount equal to the aggregate face amount of such Account, net of any credits or allowances of any nature, which (a) conforms to the representations, warranties and terms set forth herein and (b) is not an Unacceptable Account as defined below.

2.02 “Account” means any right of payment of the net amount for goods sold, or leased and delivered or services rendered in the ordinary course of the Customer’s business which is not evidenced by an instrument or chattel paper.

2.03 “Account Debtor” means the Customer’s customer or any other Person owing money to the Customer with respect to an Account.

2.04 “Affiliate” means (a) any Person that directly, or indirectly through one or more intermediaries, controls another Person (a “Controlling Person”) or (b) any Person which is controlled by or is under common control with a Controlling Person. As used herein, the term “control” means possession, directly or indirectly, of the power to vote 10% or more of any class of voting securities of a Person or to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

2.05 “Agreement” means this Account Purchase Agreement.

2.06 “Assigned Interest” shall have the meaning set forth in Section 12.01(b)(vi).

2.07 “Assignee” shall have the meaning set forth in Section 12.01(b)(i).

2.08 “Assignment and Schedule of Accounts” means the Assignment and Schedule of Accounts, a form of which is attached hereto as Exhibit A, as the same may be revised from time to time by WFBC in its commercially reasonable sole discretion.

2.09 “Bank of America Lockbox” means the lockbox established under the Bank of America Lockbox Agreement.

2.10 “Bank of America Lockbox Agreement” means the Deposit Account Control Agreement by and among the Customer, WFBC and Bank of America, N.A., dated as of April 21, 2009.

2.11 “Bank of America Lockbox Account” means the Customer’s account number 3751585282, ABA number 111000012, maintained at Bank of America, N.A., together with all other deposit accounts which are subject to the Bank of America Lockbox Agreement.

2.12 “Business Day” means a day on which the Federal Reserve Bank of New York is open for business.

2.13 “Change of Control” means the occurrence of any of the following events:

     (a) Any Person or “group” (within the meaning of Section 13 or 14 of the Securities Exchange Act of 1934) shall have acquired (1) beneficial ownership (within the meaning of Rule 13d-3 promulgated by the Securities and Exchange Commission under said Act) of 35% or more of the outstanding shares of common stock of the Customer or (2) 35% or more of the outstanding voting power of all of the capital stock of the Customer entitled to vote generally in the election of directors; or

     (b) During any two-year period, individuals who at the beginning of such period constituted the board of directors of the Customer (together with any new directors whose election by the board of directors or whose nomination for election by the shareholders of the Customer was approved by a vote of at least two-thirds of the directors then in office who either were directors at the beginning of such period or whose election or nomination for election was previously so approved) cease for any reason to constitute a majority of the directors then in office.

2.14 “Chase Lockbox” means the lockbox established under the Chase Lockbox Agreement.

2.15 “Chase Lockbox Agreement” means the Blocked Account Control Agreement by and among the Customer, WFBC and JPMorgan Chase Bank, N.A., dated as of April 21, 2009.

2.16 “Chase Lockbox Account” means the Customer’s account number 5261376, ABA number 021000021, maintained at JPMorgan Chase Bank, N.A., together with all other deposit accounts which are subject to the Chase Lockbox Agreement.

2.17 “Closing Date” means April 21, 2009.

2.18 “Collateral” shall mean all of the following property whether now owned or existing or hereafter created or acquired or arising, or in which the Customer now has or hereafter acquires any rights, and wheresoever located: (a) all of the Purchased Accounts and the Related Rights; (b) all chattel paper (including electronic chattel paper) evidencing, arising out of or related to any Purchased Accounts or any Related Rights; (c) all commercial tort claims arising out of or related to any Purchased Accounts or any Related Rights; (d) all deposit accounts in which proceeds of any Purchased Accounts or any Related Rights are deposited or contained, including the Bank of America Lockbox Account, the Chase Lockbox Account and the Wachovia Lockbox Account; (e) in the case of all Related Rights consisting of goods, all accessions, accessories and attachments now or hereafter attached or affixed to or used in connection with any such goods; (f) all documents (including all warehouse receipts, bills of lading, other documents of title and other documents now or hereafter covering any goods) related to any Purchased Accounts or any Related Rights; (g) all general intangibles (including (i) payment intangibles, (ii) intellectual property, (iii) guaranty and indemnification claims, and (iv) all other choses in action, causes of action, actions, suits, and other legal proceedings of any kind) arising out of or related to any Purchased Accounts or any Related Rights; (h) all instruments, investment property, letters of credit and letter of credit rights, and supporting obligations, in each case to the extent evidencing, arising out of or related to any Purchased Accounts or any Related Rights; (i) all monies and other things of value contained in any Lockbox Account and any other blocked account, lockbox account or collateral account established with or for the benefit of WFBC, and all items in any Lockbox or any other lockbox related to any Purchased Accounts or any Related Rights; (j) all tangible and electronic books and records pertaining to any of the foregoing (including all mail and electronic mail); (k) all amendments, modifications, products, replacements, and substitutions to any of the foregoing; (l) all collateral subject to the Lien of any Related Document; and (m) all proceeds (including cash, insurance and condemnation proceeds) and products of any of the foregoing.

2.19 “Collections” means all cash collections and other cash proceeds of the Purchased Accounts including all cash proceeds of Related Rights and all recoveries and all collections deemed to be proceeds of the Purchased Accounts and Related Rights.

2.20 “Collections Account” means WFBC’s account number 6355033300, ABA number 121000248, maintained at Wells Fargo Bank, N.A. or such other account which is designated in writing by notice to Customer as WFBC’s Collections Account for the purposes hereof.

2.21 “Commercial Dispute” means the occurrence of any dispute, claim or offset, which, if adversely resolved, would preclude WFBC from realizing through payments from the applicable Account Debtor the Outstanding Balance of the affected Purchased Account.

2.22 “Consolidated Debt” means at any date the Debt of the Customer and its Consolidated Subsidiaries, determined on a consolidated basis as of such date.

2.23 “Confidential Information” shall have the meaning set forth in Section 12.17.

2.24 “Consolidated EBITDA” means, for any period, net income (or net loss) (before discontinued operations) plus the sum of (a) consolidated interest expense, (b) income tax expense, (c) depreciation expense, (d) amortization expense, (e) depletion expense, (f) stock based compensation expense and (g) any non-cash losses or expenses from any unusual, extraordinary or otherwise non-recurring items as reasonably determined by the Customer, and minus (x) consolidated interest income and (y) the sum of the amounts for such period of any income tax benefits and any income or gains from any unusual, extraordinary or otherwise non-recurring items as reasonably determined by the Customer, in each case determined on a consolidated basis for the Customer and its Subsidiaries in accordance with generally accepted accounting principles and in the case of items (a) through (g) and items (x) and (y), to the extent such amounts were included in the calculation of net income. For the purpose of calculating Consolidated EBITDA for any period, if during such period the Customer or any Subsidiary shall have made an acquisition or a disposition, Consolidated EBITDA for such period shall be calculated after giving pro forma effect thereto as if such acquisition or disposition, as the case may be, occurred on the first day of such period.

2.25 “Consolidated Subsidiary” means at any date any Subsidiary or other entity the accounts of which would be consolidated with the Customer in its consolidated financial statements if such statements were prepared as of such date.

2.26 “Credit Agreement” means that certain Second Amended and Restated Credit Agreement dated as of October 24, 2008, among the Customer, JPMorgan Chase Bank, N.A. as Administrative Agent and the Lenders party thereto.

2.27 “Credit and Collection Policy” means the Customer’s credit, collection and administration procedures relating to the Accounts (including the Purchased Accounts) and the Related Rights, applied consistent with past practices of the Customer in effect on the date hereof, as such procedures may be amended in compliance with Section 7.03.

2.28 “Debt” of any Person means at any date, without duplication, (a) all obligations of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property, except trade accounts payable arising in the ordinary course of business, (d) all obligations of such Person as lessee which are capitalized in accordance with generally accepted accounting principles, (e) all non-contingent obligations of such Person to reimburse any bank or other Person in respect of amounts paid under a letter of credit, banker’s acceptance, bank guarantee or similar instrument which remain unpaid for two Business Days, (f) all Debt secured by a Lien on any asset of such Person, whether or not such Debt is otherwise an obligation of such Person provided that the amount of such Debt which is not otherwise an obligation of such Person shall be deemed to be the fair market value of such asset and (g) all Debt of others guaranteed by such Person.

2.29 “Disbursement Account” shall have the meaning set forth in Section 3.02(c).

2.30 “Dispute Amount” shall have the meaning set forth in Section 7.02.

2.31 “Eligible Institution” means any commercial bank having total assets in excess of $3,000,000,000 (or the equivalent amount in the local currency of such bank) as determined by WFBC based on the most recent publicly available financial statements of such bank.

2.32 “Event of Termination” shall have the meaning set forth in Article 10.

2.33 “Facility Fee” shall have the meaning set forth in Section 3.04(d).

2.34 “Facility Maximum” means the lesser of (a) $175,000,000 or (b) the sum of the WFBC Commitment plus the Other Commitment.

2.35 “Final Termination Date” shall have the meaning set forth in Section 12.26.

2.36 “Former Plan” means any employee benefit plan in respect of which the Customer or a Subsidiary has engaged in a transaction described in Section 4069 or Section 4212(c) of ERISA.

2.37 “Indemnified Liabilities” shall have the meaning set forth in Section 12.07(a).

2.38 “Indemnitees” shall have the meaning set forth in Section 12.07(a).

2.39 “Insolvency” means, with respect to any Multiemployer Plan, the condition that such Plan is insolvent within the meaning of Section 4245 of ERISA.

2.40 “Insolvency Proceeding” means any proceeding under Title 11 of the United States Code or under the Bankruptcy and Insolvency Act (Canada) or the Companies Creditors Arrangement Act (Canada), any proceeding instituted by or against a Person seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief or composition of it or its debts under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, or any proceeding seeking the entry of an order for relief by the appointment of a receiver, trustee, custodian or similar official for its or a substantial part of its property.

2.41 “Leverage Ratio” means, at any date, the ratio of (a) Consolidated Debt at such date to (b) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to such date, taken as one accounting period.

2.42 “LIBOR” means, as of a selected date, the rate per annum (rounded upward, if necessary, to the nearest whole 1/16 of 1%) and determined pursuant to the following formula:

     (a)  “Base LIBOR” means the rate per annum for United States dollar deposits generally quoted by WFBC to its commercial customers as the London Inter-Bank Market Offered Rate, with the understanding that such rate is quoted by WFBC for the purpose of calculating effective rates of interest for loans making reference to the One Month LIBOR, as the London Inter-Bank Market Offered Rate in effect from time to time.

     (b)  “LIBOR Reserve Percentage” means the reserve percentage prescribed by the Board of Governors of the Federal Reserve System (or any successor) for “Eurocurrency Liabilities” (as defined in Regulation D of the Federal Reserve Board, as amended), adjusted by WFBC for expected changes in such reserve percentage during the term of this Agreement.

     (c)  “One Month LIBOR” means, for any day, the rate of interest equal to LIBOR then in effect for delivery for a one (1) month period.

The Customer understands and agrees that WFBC may base its quotation of the London Inter-Bank Market Offered Rate upon such offers or other market indicators of the London Inter-Bank Market as WFBC in its discretion deems appropriate including the rate offered for U.S. dollar deposits on the London Inter-Bank Market. WFBC’s determination of LIBOR shall be conclusive, absent manifest error.

2.43 “Lien” means any security interest, mortgage, assignment (whether absolute or by way of security), tax lien or other lien (statutory or otherwise) or any other encumbrance of any kind or nature whatsoever.

2.44 “Lockbox” means the Bank of America Lockbox, the Chase Lockbox or the Wachovia Lockbox and “Lockboxes” means the Bank of America Lockbox, the Chase Lockbox and the Wachovia Lockbox.

2.45 “Lockbox Account” means the Bank of America Lockbox Account, the Chase Lockbox Account or the Wachovia Lockbox Account, and “Lockbox Accounts” means the Bank of America Lockbox Account, the Chase Lockbox Account and the Wachovia Lockbox Account.

2.46 “Lockbox Agreement” means the Bank of America Lockbox Agreement, the Chase Lockbox Agreement or the Wachovia Lockbox Agreement and “Lockbox Agreements” means the Bank of America Lockbox Agreement, the Chase Lockbox Agreement and the Wachovia Lockbox Agreement.

2.47 “Material Adverse Effect” means any effect upon the business, operations or financial condition of the Customer which, in the reasonable determination of WFBC, materially adversely affects (a) the interest of WFBC in the Purchased Accounts, the Related Rights or the Collateral, (b) the collectibility and enforceability of the Purchased Accounts, the Related Rights or the Collateral or WFBC’s rights thereunder or (c) the ability of the Customer to perform its obligations under this Agreement or any of the Transaction Agreements.

2.48 “Multiemployer Plan” means a Plan which is a multiemployer plan as defined in Section 4001(a)(3) of ERISA.

2.49 “Net Change Amount” means the difference, if any, of (a) 90% of the aggregate Outstanding Balance of Purchased Accounts which are Acceptable Accounts on the last day of the applicable Settlement Period, minus (b) 90% of the aggregate Outstanding Balance of Purchased Accounts which are Acceptable Accounts on the last day of the Settlement Period immediately preceding the applicable Settlement Period. The percentage used in the preceding sentence may be adjusted by WFBC at anytime at WFBC’s commercially reasonable sole discretion. The Net Change Amount may be either positive or negative.

2.50 “Other Commitment” means $0.

2.51 “Other Taxes” shall have the meaning set forth in Section 12.20.

2.52 “Outstanding Balance” means, for any Account, the total amount due and payable by the Account Debtor for goods and/or services rendered by the Customer in respect of such Account, after reduction for any discounts, credits, rebates, allowances, reserves, incentives, penalties or other reductions or similar adjustments, as determined by WFBC in its commercially reasonable sole discretion.

2.53 “Participant” shall have the meaning set forth in Section 12.02.

2.54 “PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA (or any successor thereto).

2.55 “Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint stock company, trust, unincorporated organization or government or any agency or political subdivision of a governmental entity.

2.56 “Plan” means, at a particular time, any employee benefit plan which is covered by ERISA and in respect of which the Customer or a Subsidiary is an “employer” as defined in Section 3(5) of ERISA.

2.57 “Purchase Limit” means the limit WFBC sets from time to time in its commercially reasonable sole discretion establishing the maximum gross face amount of Purchased Accounts which are approved as Acceptable Accounts at any given time owed by a particular Account Debtor.

2.58 “Purchased Account” and “Purchased Accounts” shall have the meanings set forth in Section 3.01(a).

2.59 “Purchased Amount” means, at any time, an amount equal to (a) the aggregate purchase price paid by WFBC for the Purchased Accounts and the Related Rights, minus (b) the aggregate amount paid to WFBC hereunder on account of Purchased Accounts and Related Rights, net of all fees, interest, expenses and costs hereunder, plus (c) all amounts which at any time must be returned for any reason to the Customer by WFBC.

2.60 “Records” means all tangible and electronic books, records, reports and other documents and information (including hard copies of all data maintained in databases of the Customer on tapes, disks and punch cards) maintained in respect of the Purchased Accounts, the Related Rights, the Collateral and the Account Debtors.

2.61 “Register” shall have the meaning set forth in Section 12.01(b)(vi).

2.62 “Related Document” means any agreement, document, exhibit, notice or other written communication to which the Customer is a party or which has at any time been delivered by or on behalf of the Customer to WFBC in connection with this Agreement.

2.63 “Related Rights” shall have the meaning set forth in Section 3.01.

2.64 “Related Security” means, with respect to the Purchased Accounts, (a) all Liens, and all property subject thereto, from time to time purporting to secure payment of any Purchased Account, including any security deposit, whether pursuant to any related agreement or otherwise; (b) all of Customer’s right, title and interest in, to and under all guarantees, indemnities, letters of credit, insurance policies (and proceeds and premium refunds thereof) and other agreements or arrangements of whatsoever character from time to time supporting or securing payment of any Purchased Account, whether pursuant to the related agreement or otherwise; (c) all related Records; and (d) all proceeds of or relating to the foregoing and any Purchased Account.

2.65 “Reorganization” means with respect to any Multiemployer Plan, the condition that such plan is in reorganization within the meaning of Section 4241 of ERISA.

2.66 “Replacement Servicer Fee” shall have the meaning set forth in Section 4.04.

2.67 “Reportable Event” means any of the events set forth in Section 4043(c) of ERISA, other than those events as to which the thirty day notice period is waived under PBGC Reg. § 2615 or any successor regulation thereto.

2.68 “Repurchase Price” for any Purchased Account means the sum of (a) the lesser of (i) the Outstanding Balance of such Account and (ii) the Purchase Price of such Account, plus (b) the WFBC Discount Fee, plus (c) all fees, costs or expenses associated with the repurchase or collection of such Purchased Account.

2.69 “Servicer” shall have the meaning set forth in Section 4.01(a).

2.70 “Settlement Date” means, in respect of any Settlement Period, the fourth Business Day following the last day of such Settlement Period, and when referring to a particular Settlement Date herein, such Settlement Period may be referred to as the applicable Settlement Period.

2.71 “Settlement Period” means (a) from the date hereof to and including May 10, 2009, the period beginning on the date hereof to and including May 10, 2009, (b) thereafter, the fourteen (14) day period beginning on May 11, 2009 and each fourteen (14) day period thereafter beginning on the day following the last day of the immediately preceding Settlement Period; provided that (c) following an Event of Termination, WFBC may select the length of any Settlement Period which commences on or after the date on which such Event of Termination occurs; and (d) any Settlement Period which commences before an Event of Termination and would otherwise terminate after the date of such Event of Termination occurs shall end on the date such Event of Termination occurs.

2.72 “Single Employer Plan” means any Plan which is covered by Title IV of ERISA, but which is not a Multiemployer Plan.

2.73 “Specified Acquisition” means any single acquisition by the Customer or a Subsidiary of the Customer of any Person (the “Target”) that (a) is in the same line or lines of business as the Customer or in the judgment of the Customer is related to such line or lines of business and (b) such Target’s board of directors have not objected to such acquisition.

2.74 “Specified Acquisition Notice” means a notice delivered by the Customer notifying the Administrative Agent (as defined in the Credit Agreement) and WFBC of the Specified Acquisition and stating that the conditions in clauses (a) and (b) of Section 7.12 have been satisfied.

2.75 “Subsidiary” means, as to any Person, any corporation or other entity of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other persons performing similar functions are at the time directly or indirectly owned by such Person; unless otherwise specified, “Subsidiary” means a Subsidiary of the Customer.

2.76 “Taxes” shall have the meaning set forth in Section 12.20.

2.77 “Termination Date” means the earliest of (a) April 20, 2012, (b) the date the Customer terminates this Agreement pursuant to Section 3.06, (c) the date on which an Event of Termination described in Section 10.01(f) occurs, or (d) during the continuation of an Event of Termination, the date on which WFBC exercises its right to cease purchasing Accounts.

2.78 “Transaction Agreements” means this Agreement, the Lockbox Agreements and any other agreement, instrument or document that WFBC and the Customer agree in writing is a Transaction Agreement.

2.79 “Unacceptable Account” means any Account which is not acceptable in WFBC’s commercially reasonable sole discretion including the following:

     (a) Accounts unpaid more than 90 days after the invoice date;

     (b) Accounts owed by any unit of any foreign government or the United States federal government (provided, however, that Unacceptable Accounts shall not include that portion of Accounts owed by such units of government for which the Customer has provided evidence satisfactory to WFBC that (i) WFBC has a first priority perfected security interest in such Accounts and (ii) such Accounts may be enforced by WFBC directly against such unit of government under all applicable laws);

     (c) Accounts not payable in United States dollars unless approved by WFBC in writing;

     (d) Any Account which is not an “account” or “payment intangible” within the meaning of Article 9 of the Uniform Commercial Code of all applicable jurisdictions;

     (e) Any Account which (i) does not arise under a contract or invoice which is in full force and effect, (ii) does not constitute the legal, valid and binding obligation of the related Account Debtor enforceable against such Account Debtor in accordance with its terms, (iii) is subject to a material counterclaim, a defense or a Lien (other than WFBC’s Lien), or (iv) is an executory contract or unexpired lease within the meaning of Section 365 of the Bankruptcy Code;

     (f) Any Account which arises under a contract or invoice which (i) does not contain an obligation to pay a specified sum of money or is subject to contingencies, (ii) requires the Account Debtor under such contract or invoice to consent to the transfer, sale or assignment of the rights to payment under such contract or invoice, (iii) limits or restricts the sale, transfer or assignment (whether absolutely or by way of security) of such contract or invoice, or (iv) contains a confidentiality provision that purports to restrict WFBC’s exercise of rights under this Agreement, including the right to review such contract or invoice;

     (g) Any Account which, in whole or in part, contravenes any law, rule or regulation applicable thereto (including those relating to usury, truth in lending, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy), which contravention would reasonably be expected to have a Material Adverse Effect;

     (h) Unless WFBC agrees to the contrary in writing, Accounts owed by an Account Debtor which is located outside the United States or Canada;

     (i) Unless WFBC agrees to the contrary in writing, Accounts owed by an Account Debtor that is insolvent, the subject of an Insolvency Proceeding or has ceased doing business;

     (j) Accounts owed (i) by an owner or shareholder of the Customer owning, directly or indirectly, more than 5% of the Customer’s outstanding equity interests, or (ii) by a Subsidiary, Affiliate, officer or employee of the Customer;

     (k) Accounts not beneficially or legally owned by the Customer immediately prior to purchase by WFBC;

     (l) Accounts which represent indebtedness of an Account Debtor that constitutes an illegal, invalid or unenforceable obligation of such Account Debtor to pay the amount thereof on the maturity date stated therein;

     (m) Accounts which, upon purchase by WFBC, are not subject to a duly perfected Lien in WFBC’s favor or which are subject to any Lien in favor of any Person other than WFBC, including any payment or performance bond;

     (n) Accounts that have been restructured, extended, amended or modified;

     (o) That portion of Accounts that constitutes allowances, finance charges, service charges or excise taxes;

     (p) Accounts that have been invoiced, paid or partially paid in advance of the full delivery and acceptance of goods or the performance and acceptance of services or in advance of the submission of such Accounts to WFBC;

     (q) Any Account which (i) does not satisfy in all material respects all applicable requirements of the Credit and Collection Policy or (ii) was not generated in the ordinary course of the Customer’s business;

     (r) Any Account as to which not all of the related invoices have been made available to WFBC in a form reasonably acceptable to WFBC, and which are not included in an Assignment and Schedule of Accounts acceptable to WFBC in its commercially reasonable sole discretion prior to the proposed purchase of such Accounts;

     (s) Any Account which is subject to any asserted reduction (including any reduction on account of any offsetting account payable of the related Account Debtor or the Customer to an Account Debtor), cancellation, rebate or refund or any dispute, offset, counterclaim, Lien or defense whatsoever (including any unresolved Commercial Dispute); provided that an Account that is subject only in part to any of the foregoing but otherwise qualifies as an Acceptable Account (as determined by WFBC in its commercially reasonable sole discretion) shall be an Acceptable Account to the extent not subject to reduction, cancellation, refund, dispute, offset, counterclaim, Lien or other defense;

     (t) Accounts which would cause the Purchase Limit for such Account Debtor to be exceeded;

     (u) Accounts which would cause the Purchased Amount to exceed the Facility Maximum;

     (v) Accounts owed by such Account Debtor, regardless of whether otherwise acceptable, if twenty percent (20%) or more of the total amount of Accounts due from such Account Debtor is unacceptable under clause (a) above; and

     (w) Accounts, or portions thereof, that fail to conform to the representations and warranties contained herein.

2.80 “Unused Fee” shall have the meaning set forth in Section 3.04(c).

2.81 “Wachovia Lockbox” means the lockbox established under the Wachovia Lockbox Agreement.

2.82 “Wachovia Lockbox Agreement” means the Deposit Account Control Agreement by and among the Customer, WFBC and Wachovia Bank, National Association, dated as of April 21, 2009.

2.83 “Wachovia Lockbox Account” means the Customer’s account number 2079900132667, ABA number 053101561, maintained at Wachovia Bank, National Association, together with all other deposit accounts which are subject to the Wachovia Lockbox Agreement.

2.84 “Wells Receivers” shall have the meaning set forth in Section 12.17.

2.85 “WFBC Commitment” means $100,000,000.

2.86 “WFBC Discount” means, for any Settlement Period, the product of (a) the sum of (i) LIBOR in effect as of the first day of such Settlement Period plus (ii) 275 basis points, multiplied by (b) the quotient of (i) the number of days in such Settlement Period divided by (ii) 360.

2.87 “WFBC Discount Fee” shall have the meaning set forth in Section 3.04(e).

Article 3.
Purchase and Assignment of Accounts

3.01 Purchase and Assignment of Accounts . Pursuant to the terms herein and in consideration for amounts paid to the Customer on the date hereof as well as amounts paid to the Customer during the term hereof, the Customer hereby agrees to sell, transfer and assign to WFBC, its successors and assigns, with recourse as provided herein, as absolute owner, on a fully serviced basis, and WFBC hereby agrees to purchase from the Customer, during the period from the Closing Date to but excluding the Termination Date, as of the date of each delivery of each Assignment and Schedule of Accounts acceptable to WFBC in its commercially reasonable sole discretion, all without the need of any other formal agreement, document or instrument of assignment, other than the delivery of each such Assignment and Schedule of Accounts, all of the Customer’s right, title and interest in and to the following:

     (a) Each Acceptable Account generated by the Customer to, but excluding, the Termination Date, which is offered for sale by the Customer pursuant to an Assignment and Schedule of Accounts delivered to WFBC by the Customer and accepted by WFBC in its commercially reasonable sole discretion (collectively, the “Purchased Accounts” and each, a “Purchased Account”);

     (b) All rights of action (including all rights of stoppage in transit, replevin, repossession, reclamation, setoff, detinue, repurchase, lienholder and all other rights of action of a consignor, consignee, unpaid vendor, mechanic, artisan, or other lienor) accrued or to accrue on each Purchased Account, including full power to collect, sue for, compromise, assign, in whole or in part, or in any other manner enforce collection thereof in the Customer’s name or otherwise;

     (c) All right, title and interest of the Customer in and to the Records, the Related Security, all agreements, documents or instruments relating to the Purchased Accounts, the Collections and all deposits and other security for the obligation of any Person under or relating to the Purchased Accounts, in each case whether presently existing or hereafter arising, now owned or hereafter acquired;

     (d) All inventory and goods relating to, or which by sale have resulted in, Purchased Accounts, including returned inventory and goods; and

     (e) All proceeds of the foregoing in any form (collectively, with the assets described in Section 3.01(b), Section 3.01(c), and Section 3.01(d), the “Related Rights”).

The foregoing sales, transfers and assignments do not constitute, and are not intended to result in, an assumption by WFBC of any liability or obligation of the Customer or any other Person in connection with the Purchased Accounts, the Related Rights or under any agreement or instrument relating thereto.

3.02 Purchased Amount .

     (a) On the terms and subject to the conditions set forth in this Agreement, WFBC agrees to pay to the Customer for the purchase to be made by WFBC on April 28, 2009, an amount equal to the lesser of (a) the Facility Maximum and (b) 90% of the aggregate Outstanding Balance of Acceptable Accounts on April 15, 2009.

     (b) At least one Business Day prior to each Settlement Date, WFBC will determine, in its reasonable discretion, and will provide such determination to the Customer on such day, (a) the aggregate Outstanding Balance of Purchased Accounts which are Acceptable Accounts on the last day of the Settlement Period immediately preceding the applicable Settlement Period, (b) the aggregate Outstanding Balance of Purchased Accounts which are Acceptable Accounts on the last day of the applicable Settlement Period, (c) the Net Change Amount, and (d) the WFBC Discount Fee due as of such Settlement Date.

     (c) On each Settlement Date, as long as no Event of Termination exists and is continuing and upon fulfillment of all conditions precedent set forth in Section 5.02, WFBC will pay to the Customer an amount equal to the Net Change Amount, if the Net Change Amount is positive. Any such payment shall be made, at the expense of the Customer, by wire transfer of immediately available funds to the account of the Customer specified on the signature pages hereto, unless a different account is specified by the Customer in a written notice to WFBC (the “Disbursement Account”).

     (d) On each Settlement Date, the Customer will pay to WFBC, or deposit Collections into the Collections Account, an amount equal to the sum of (i) the absolute value of the Net Change Amount, if the Net Change Amount is negative, plus (ii) the WFBC Discount Fee due as of such Settlement Date, plus (iii) the Unused Fee, if then due and payable, plus (iv) the Facility Fee, if then due and payable, plus (v) any other amount then due and payable by the Customer pursuant to this Agreement or any Transaction Agreement.

     (e) On each Settlement Date during the continuation of an Event of Termination, the Customer, as servicer, or any replacement Servicer, as applicable, will deposit from Collections into the Collections Account, in respect of the immediately preceding Settlement Period, an aggregate amount equal to the sum of (i) all such Collections in reduction of the Purchased Amount until the Purchased Amount is reduced to zero plus (ii) any other amount due from the Customer to WFBC hereunder.

3.03 Repurchase of Accounts . The Customer shall (a) repurchase any and all Purchased Accounts and the Related Rights with respect thereto, whether disputed or undisputed, as may be requested by WFBC, from time to time in its commercially reasonable sole discretion, and (b) pay on demand the Repurchase Price for such Purchased Accounts and the Related Rights with respect thereto.

3.04 Fees .

     (a)  Structuring Fee . The Customer shall pay WFBC a one time structuring fee of $250,000, which shall be fully earned and payable upon the execution of this Agreement. WFBC acknowledges that $75,000 of such initial structuring fee has been paid to WFBC.

     (b)  Upfront Fee . The Customer shall pay WFBC an initial upfront fee of $350,000, which shall be fully earned and payable upon the execution of this Agreement. Each time the Facility Maximum increases after the date hereof, the Customer shall pay WFBC an additional upfront fee equal to 0.35% of such increase, which shall be fully earned and payable on the date of such increase.

     (c)  Unused Fee . From the Closing Date to and including the Final Termination Date, the Customer shall pay WFBC an unused fee (the “Unused Fee”) in the amount of (i) one quarter of one percent (0.25%) per annum times (ii) (A) the Facility Maximum less (B) the average daily Purchased Amount during the preceding month. The Unused Fee shall be calculated monthly in arrears and payable (y) on the first Settlement Date immediately following the date an invoice is presented by WFBC to the Customer, which invoice shall be presented at least two Business Days prior to the Settlement Date on which it is payable, and (z) on the Final Termination Date.

     (d)  Facility Fee . The Customer shall pay WFBC a fully earned facility fee (the “Facility Fee”) payable on the date of the first purchase of Accounts and on each anniversary of the Closing Date in an amount equal to one quarter of one percent (0.25%) of the Facility Maximum.

     (e)  WFBC Discount Fee . The Customer shall pay WFBC a fully earned WFBC Discount fee (the “WFBC Discount Fee”) which shall be due and payable in arrears on each Settlement Date and on the Final Termination Date, shall accrue daily and shall be equal to the product of the WFBC Discount multiplied by the Purchased Amount as of the last day of the applicable Settlement Period.

     (f)  Audit Fees . The Customer shall pay WFBC, on demand, audit fees in connection with any audits or inspections conducted by WFBC of the Purchased Accounts, the Related Rights, the Collateral or the Customer’s operations or business, at the rates established from time to time by WFBC as its audit fees, together with all actual out of pocket costs and expenses incurred in conducting any such audit or inspection; provided that the Customer shall not, with the exception of fees, costs, and expenses incurred upon the occurrence and during the continuation of an Event of Termination, be required to reimburse WFBC for more than two such audits or inspections in any calendar year.

     (g)  Termination Fee . If the Termination Date occurs on or before April 20, 2012 pursuant to Section 3.06, the Customer shall pay WFBC on the Termination Date a fully earned termination fee equal to: (x) three percent (3%) of the Facility Maximum, if the Termination Date occurs before the first anniversary of the date hereof; (y) two percent (2%) of the Facility Maximum, if the Termination Date occurs on or after the first anniversary of the date hereof but before the second anniversary of the date hereof; and (z) one percent (1%) of the Facility Maximum, if the Termination Date occurs on or after the second anniversary of the date hereof but before the third anniversary of the date hereof; provided that no such termination fee shall be payable if the Customer terminates this Agreement within 30 days of the occurrence of any of the following:

          (i) WFBC’s reduction of the percentage in Section 2.49 to less than 50%;

          (ii) WFBC’s calculation of the Outstanding Balance on the last day of any Settlement Period is less than 50% of the Customer’s calculation of the Outstanding Balance on such date, based on both parties’ good faith reasonable calculations;

          (iii) The aggregate amount of the Purchase Limits on the last day of any two consecutive Settlement Periods is less than 50% of the aggregate amount of the Purchase Limits on the last day of the Settlement Period preceding such consecutive Settlement Periods solely as a result of a change in one or more Purchase Limits unrelated to a change in any applicable Account Debtor’s creditworthiness;

          (iv) The aggregate Outstanding Balance of Acceptable Accounts on the last day of any two consecutive Settlement Periods is less than 50% of the aggregate Outstanding Balance of Acceptable Accounts on the last day of the Settlement Period preceding such consecutive Settlement Periods solely as a result of the exercise by WFBC of its commercial reasonable sole discretion under Section 2.79 (as opposed to application of the parameters set forth in the subsections of Section 2.79);

          (v) During any Settlement Period when no Event of Termination exists or has occurred and is continuing, WFBC exercises its rights under Section 3.03 with respect to more than 50% of the aggregate Outstanding Balance of the Purchased Accounts, measured as an average during such Settlement Period; or

          (vi) As of any Settlement Date, as a result of any combination of one or more of the circumstances referenced in clauses (i) through (v) above (after giving effect to any repurchase(s) contemplated by clause (v) above), the Purchased Amount at any time is less than 50% of the Outstanding Balance of Acceptable Accounts, based on WFBC’s reasonable calculations (without giving effect to the exercise by WFBC of its commercially reasonable sole discretion under Section 2.79 (as opposed to application of the parameters set forth in the subsections of Section 2.79)).

3.05 Mandatory Payments . Without notice or demand, unless WFBC shall otherwise consent in a written agreement that sets forth the terms and conditions which WFBC in its discretion may deem appropriate, if the Purchased Amount as measured on the last day of a Settlement Period is greater than the Facility Maximum, the Customer shall pay to WFBC, on or before the Settlement Date immediately following such Settlement Period, the amount necessary to eliminate such excess. Any such payment received by WFBC under this Agreement shall be applied to the amounts owing to WFBC from the Customer, in such order and in such amounts as WFBC in its commercially reasonable sole discretion may determine from time to time.

3.06 Termination of this Agreement by Customer . The Customer may terminate this Agreement at any time if it (a) gives WFBC at least 30 days advance written notice prior to the proposed Termination Date and (b) subject to Section 3.04(g), pays WFBC applicable termination fees in accordance with the terms of this Agreement; provided that, if, pursuant to Section 3.03, WFBC requests that the Customer repurchase all of the Purchased Accounts and the Related Rights with respect thereto and the Customer terminates this Agreement within 30 days after the date WFBC makes such request, such 30 day notice period shall be waived and the payment of such termination fees shall be waived. If the Customer terminates this Agreement,

on such Termination Date (x) all amounts due hereunder shall be immediately due and payable and (y) the Customer shall repurchase all outstanding Purchased Accounts and the Related Rights with respect thereto and immediately pay the Repurchase Price for such Purchased Accounts and the Related Rights with respect thereto.

3.07 Sole Property . Once WFBC has purchased an Account, any and all payments from whatever source as to such Account are the sole property of WFBC; provided that (a) the Customer shall have the right to use any and all such payments in accordance with the terms of this Agreement and for working capital and other corporate purposes until the occurrence and during the continuation of an Event of Termination, and (b) as long as no Event of Termination has occurred and is continuing, WFBC shall remit to the Customer any amounts received by it in excess of the Purchased Amount and all other amounts then due and owing to WFBC hereunder.

3.08 Miscellaneous Payments . Should WFBC receive a duplicate payment on a Purchased Account or other payment which is not identified, WFBC shall carry these sums as open items in its accounting and (a) shall remit any duplicate payment to the Customer if the Customer is the Servicer or (b) shall remit any duplicate payment to the Account Debtor or apply such unidentified payment pursuant to the terms hereof upon proper identification and documentation, if the Customer is no longer the Servicer.

3.09 Repayment of Account Debtor . In the event WFBC is required to repay any Account Debtor for a payment received by WFBC on an Account or Related Right, the amount of the repayment by WFBC shall be an obligation of the Customer to WFBC whether or not this Agreement has been terminated. In the event the Customer receives a payment from WFBC to which the Customer has no rights, repayment of the funds to WFBC is an obligation of the Customer to WFBC whether or not this Agreement has been terminated. In either event, if the obligation is not paid upon five (5) Business Days notice of the obligation to pay from WFBC to the Customer, WFBC may file a financing statement in connection with the security interest granted herein (if necessary) or otherwise perfect its interest in the Collateral and exercise any and all rights it has under this Agreement, any Related Document or otherwise to collect the amounts due.

3.10 Hold Harmless . The Customer shall hold WFBC harmless against any Account Debtor ill will arising from WFBC’s collecting or attempting to collect on any Purchased Account and the Related Rights with respect thereto, provided that WFBC acts in good faith and in a commercially reasonable manner.

3.11 Book Entry . The Customer shall, immediately upon sale of each Account to WFBC, make proper entries on its books and records disclosing the sale of such Accounts, and the Related Rights related thereto, to WFBC on said books and records, in accordance with generally accepted accounting principles, and other documents as so directed by WFBC.

3.12 Information . In the event WFBC provides financial information to the Customer regarding a third party, whether by setting a Purchase Limit, at the request of the Customer or otherwise, the Customer understands that WFBC is not making any representations or warranties or expressing an opinion as to the creditworthiness of any such third party.

3.13 Payment Terms .

     (a) All accrued and unpaid fees, expenses, default interest, costs and any other amounts due from the Customer shall be due and payable (i) on the date set forth herein or, if no date is set forth herein, on each applicable Settlement Date, and (ii) on the Final Termination Date. Whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, such payment may be made on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of the fees, expenses, interest, costs and any other amounts due hereunder, as the case may be.

     (b) All amounts to be paid by or deposited hereunder will be paid or deposited not later than 1:00 p.m. (New York City time) on the day when due in same day funds. All computations of interest and fees shall be calculated for the actual days elapsed based on a 360 day year.

     (c) All Collections in respect of Purchased Accounts and other amounts due to WFBC hereunder shall be remitted to WFBC in United States dollars.

     (d) The Customer shall pay, as a full recourse obligation, all fees, interest, costs and expenses, including all amounts payable under Section 12.07.

     (e) The Customer or the Servicer, as the case may be, will pay on demand to WFBC interest (before and after default and before and after judgment, with interest on overdue interest at the same rate) on all amounts not paid to or deposited when due hereunder at a rate equal to LIBOR plus five and three quarters of one percent (5.75%) per annum calculated daily.

     (f) The Customer will make all payments required to be made by it hereunder without deduction or setoff regardless of any defense or counterclaim.

     (g) The Customer acknowledges that (i) WFBC may maintain records of the Purchased Amount, and all amounts paid by the Customer to WFBC hereunder, including all fees, interest, costs and expenses; (ii) such records shall, absent manifest error, be conclusive evidence thereof and (iii) the failure of WFBC to maintain any such records shall not limit or otherwise affect the obligations of the Customer or the rights and remedies of WFBC hereunder or under any Transaction Agreement.

     (h) The Customer acknowledges that (i) WFBC may maintain records of the Purchased Accounts and all Collections, (ii) such records shall be presumed correct as between the Customer and WFBC, unless (A) the Customer notifies WFBC in a detailed record of its intention to dispute such records within 30 days of receipt thereof and (B) the Customer proves such records to be incorrect as determined by WFBC in its commercially reasonable sole discretion and (iii) the failure of WFBC to maintain any such records shall not limit or otherwise affect the obligations of the Customer or the rights and remedies of WFBC hereunder or under any Transaction Agreement.

Article 4.
Administration and Collections

4.01 Appointment of Servicer .

     (a) The servicing, administering and collecting of the Purchased Accounts shall be conducted by a Person or Persons (a “Servicer”) designated to so act on behalf of WFBC under this Article 4. As the initial Servicer, the Customer is hereby designated as, and agrees to perform the duties and obligations of, the Servicer. The Customer acknowledges that WFBC has relied on the Customer’s agreement to act as Servicer in making the decision to execute and deliver this Agreement and agrees that it will not voluntarily resign as Servicer. At any time after the occurrence of an Event of Termination, WFBC may designate a replacement Servicer to succeed the Customer or any other replacement Servicer.

     (b) The Servicer may, with the prior written consent of WFBC, which consent may be withheld in WFBC’s commercially reasonable sole discretion, delegate its duties and obligations as Servicer to another Person affiliated with the Customer. Notwithstanding any such delegation, the Servicer shall remain primarily liable for the performance of the duties and obligations so delegated, and WFBC shall have the right to look solely to the Servicer for such performance. WFBC may at any time after the occurrence of an Event of Termination remove or replace any such sub-Servicer.

     (c) If replaced, the Customer agrees it will terminate, and will cause each existing sub-Servicer to terminate, its collection activities in a manner requested by WFBC to facilitate the transition to a replacement Servicer. The Customer shall cooperate with and assist any replacement Servicer in assuming the obligation to service the Purchased Accounts and the Related Rights, including all reasonable efforts to provide the replacement Servicer with access to all software programs necessary or desirable to collect the Purchased Accounts and the Related Rights. After the appointment of a replacement Servicer, at its own expense, the Customer irrevocably agrees to act (if requested to do so) as the data-processing agent for any replacement Servicer in substantially the same manner as the Customer conducted such data-processing functions while it acted as the Servicer.

4.02 Duties of Servicer .

     (a) The Servicer shall take, or cause to be taken, all action necessary or advisable to collect each Purchased Account and the Related Rights in accordance with this Agreement, the Credit and Collection Policy and all applicable laws, rules and regulations, using the skill and attention the Servicer exercises in collecting other receivables or obligations owed solely to it, including:

          (i) hold all Collections in trust for WFBC’s account without commingling such funds with Customer’s funds, provided, that the Customer shall be entitled to use all such Collections in accordance with the terms of this Agreement until the occurrence and during the continuation of an Event of Termination, provided, further that, upon the occurrence and during the continuation of an Event of Termination, the Customer shall immediately deposit all such Collections into the Collections Account until the Purchased Amount is reduced to zero, all other

amounts due to WFBC under this Agreement have been paid in full and WFBC has no further obligations hereunder;

          (ii) maintain and implement prudent and reasonable administrative and operating procedures (including an ability to recreate Records in the event of the destruction of the originals thereof), keep and maintain all Records and all other books, records, documents and other information reasonably necessary or advisable for the collection of the Purchased Accounts (including records adequate to permit the daily identification of each Purchased Account, the Related Rights and all collections of and reductions or adjustments to the Purchased Accounts) and clearly and conspicuously mark its files containing the Records and its computer and master data processing books and records, in each case with a legend describing WFBC’s interests therein;

          (iii) direct and take all reasonable steps to require its auditors to assist WFBC’s auditors to the extent and in such manner as is required for WFBC’s auditors to report on the status of the Purchased Accounts, the Related Rights and the Collateral;

          (iv) timely and fully perform and comply with all terms, covenants and other provisions of the Related Rights required to be performed and observed by it or WFBC;

          (v) investigate all delinquencies and defaults under the Purchased Accounts in accordance with the Credit and Collection Policy;

          (vi) respond to all reasonable inquiries of the Account Debtors in accordance with the Credit and Collection Policy;

          (vii) promptly notify WFBC of any Commercial Dispute in which $50,000 or more is in dispute;

          (viii) comply in all respects with the Credit and Collection Policy in regard to each Purchased Account and the Related Rights except where any noncompliance would not have a material adverse effect on the collectibility or enforceability of such Purchased Account, such Related Rights or WFBC’s rights thereunder;

          (ix) use reasonable care and due diligence to collect all Purchased Accounts (together with all applicable sales, goods and services and similar taxes in respect thereof) on behalf of WFBC, all in accordance with all applicable laws, rules and regulations, the provisions hereof and the Credit and Collections Policy;

          (x) make all payments payable by it to government agencies and others where a Lien or deemed trust might arise having priority over WFBC’s interest in any Purchased Account or any Related Rights and, where a portion of the Collections received by it represents an amount owing in respect of federal or state taxes, remit the amount of taxes so owing and prepare and file all returns and reports required in respect thereof; provided that it may protest the payment of any such amounts if it is acting in good faith and if it either provides WFBC with cash in an amount sufficient to satisfy the same (including all interest and penalties) or otherwise satisfies WFBC that its interests in such Purchased Account or Related Rights are not materially prejudiced thereby;

          (xi) as soon as possible, effect all filings or recordings with respect to WFBC’s interest in the Purchased Accounts and the Related Rights necessary by law or reasonably prudent or desirable for the perfection and protection of such interest and all appropriate renewals or amendments thereof;

          (xii) promptly, from time to time, furnish to WFBC such Records and other documents, records, information or reports in respect of the Purchased Accounts, the Related Rights and the Collateral or its condition or operations, financial or otherwise, as may be in existence in written form or, if available in databases it maintains, may be produced with existing software, each as WFBC may from time to time reasonably request;

          (xiii) establish and maintain current and accurate records with respect to the location and mailing address of each Account Debtor and provide copies thereof to WFBC on reasonable request;

          (xiv) promptly upon the reasonable request of WFBC, advise WFBC in writing of any changes in any Account Debtor’s name or address which, prior to such request and since the last such request, if any, came to the attention of any officer of the Customer responsible for monitoring the status of the applicable Purchased Accounts; and

          (xv) apply all Collections pursuant to the terms of this Agreement and the Credit and Collection Policy and post all new Purchased Accounts and the Related Rights to its books as promptly as practicable after such Account is generated.

     (b) On or prior to the date hereof, the Servicer shall have given written directions to each Account Debtor to remit all amounts due in respect of the Purchased Accounts and the Related Rights to a Lockbox Account; provided that if the Customer or any replacement Servicer shall receive any Collections, it shall remit such Collections to the Lockbox Account (designated by WFBC) within three (3) Business Days of such receipt. Each party hereto hereby appoints the Servicer to enforce such Person’s rights and interests in the Purchased Accounts and the Related Rights. The Servicer shall be entitled to commence or settle any legal action to enforce the collection of any Purchased Account or any Related Right; provided that, WFBC shall have the right to approve any such settlement unless the Customer shall have repurchased such Purchased Account and the Related Rights with respect thereto and shall have paid in full the Repurchase Price for such Purchased Account and the Related Rights with respect thereto as set forth in Section 3.03. If at any time, WFBC notifies the Servicer that WFBC believes litigation would be an appropriate means to collect any Purchased Account or Related Rights, and the Servicer declines to initiate such litigation after good faith discussion with WFBC, WFBC shall be entitled to notify the Account Debtor on such Purchased Account of the assignment of an interest therein to WFBC or to initiate litigation with respect thereto in the name of WFBC or in the name of the Customer unless the Customer shall have repurchased such Purchased Account and the Related Rights with respect thereto and shall have paid in full the Repurchase Price for such Purchased Account and the Related Rights with respect thereto as set forth in Section 3.03.

     (c) The Servicer shall not, without the prior written consent of WFBC, extend, amend or otherwise modify or waive any term or condition of any Purchased Account or any Related Rights with respect thereto unless any such extension, amendment, modification or waiver (i) is

made or granted when no Event of Termination has occurred and is continuing; (ii) would not reasonably be expected to have a material adverse effect on the collectibility or enforceability of any Purchased Account, any Related Rights or WFBC’s rights thereunder; and (iii) is otherwise permitted in accordance with the terms of the Credit and Collection Policy, and the Servicer acknowledges that no such extension, amendment, modification or waiver will, in and of itself, cause any Purchased Account to become an Acceptable Account.

     (d) At WFBC’s request, if an Event of Termination has occurred and is continuing, the Servicer will, at the expense of the Customer, notify each Account Debtor of WFBC’s right, title and interest in the Purchased Accounts and the Related rights and direct that payments be made directly to WFBC or a designee of WFBC.

4.03 Enforcement Rights .

     (a) If an Event of Termination has occurred and is continuing, WFBC may direct any Account Debtors to make all payments on the Purchased Accounts and the Related Rights directly to WFBC or its designee. WFBC may, and the Customer shall, at WFBC’s request, withhold WFBC’s identity from the Account Debtors. Upon WFBC’s request following an Event of Termination, the Customer (at the Customer’s expense) shall (i) give notice to each Account Debtor and other Persons of WFBC’s ownership of the Purchased Accounts and the Related Rights and direct that payments on Purchased Accounts and Related Rights be made directly to WFBC (or its designee), (ii) assemble for WFBC all Related Rights and Collateral (other than returned goods and inventory) and make the same available to WFBC (or its designee) at a place selected by WFBC (or its designee), (iii) transfer (or cause to be transferred) to WFBC (or its designee) non-exclusive and non-transferable licenses for the use of, all software useful to collect the Purchased Accounts and the Related Rights and (iv) segregate, in a manner reasonably acceptable to WFBC, all cash, checks and other instruments constituting Collections which are received by or on behalf of the Customer from time to time and, within one Business Day of receipt, remit the same to