EX-10 8 ex10-40.txt EXHIBIT 10.40 EXHIBIT 10.40
CREDIT AGREEMENT
By and Between
INOVISION-MEDCLR-NCOP-F, L.L.C. as Borrower
and
CFSC CAPITAL CORP. XXXIV as Lender,
Dated as of March 9, 2001 CREDIT AGREEMENT
This Credit Agreement (this "Agreement") is made as of March 9, 2001, by and between INOVISION-MEDCLR-NCOP-F, L.L.C., a Delaware limited liability company (the "Borrower") and CFSC CAPITAL CORP. XXXIV, a Delaware corporation (the "Lender").
Recitals
WHEREAS, the Borrower may from time to time wish to purchase a pool or pools of assets, which assets include delinquent or charged off health care or utility consumer accounts, bad, dishonored and returned checks, and/or 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 Lender has agreed to consider making such financing available to the Borrower pursuant to the terms and subject to the conditions set forth in this Agreement.
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 an account owing to a provider of health care products or services, account owing to a utility provider (including without limitation providers of electrical, water, gas, cable, internet services, cellular, telecom and sewer utilities and services), open account balance, installment sales or payment agreement, deferred payment contract or any other arrangement whatsoever, or a check, 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 agreement, and each promissory note, loan agreement, receivable, chattel paper, check, instrument, 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.
"Adequate Security" means security acceptable to the Lender in the exercise of its reasonable discretion in light of all circumstances in connection with the tender of such security, whether in the nature of payment, documentation, indemnity or a combination thereof.
"Affiliated Party" means a Person which is (a) related (by blood or marriage) to, controlling or controlled by, or under common control with, or common ownership of, the Borrower, the Servicer or the Parent or (b) any member or equity holder of the Borrower, the Servicer or the Parent which holds nine percent (9%) or more of the membership or other equity interests in the Borrower, the Servicer or the Parent; provided, that, Robert E. Jenkins and Gold Key Credit, Inc. shall not be considered Affiliated Parties so long as Warren Dedrick holds no equity or other financial interest in Gold Key Credit, Inc.
"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.
- 2 - "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 Pool 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.
"Asset Pool Equity Contribution" shall mean, with respect to each Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), that portion of the Total Cost of an Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement) not funded with proceeds of a Loan, which, unless otherwise approved by the Lender in an Approved Borrowing Request, shall be ten percent (10%) of such Total Cost.
"Asset Pool Proceeds" shall mean, with respect to an Asset Pool, any and all payments, revenues, income, receipts, collections, recoveries and other proceeds or assets received with respect to such Asset Pool, 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 any Asset in such Asset Pool, (b) interest on the Collateral Account or any other account created in connection herewith, (c) legal fees, credit insurance costs, guaranty fees and other amounts recovered on account of any Asset in such Asset Pool, to the extent the obligation giving rise thereto has previously been paid or is otherwise not due and payable with any such receipts and (d) 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 any Asset or in connection with the sale, transfer or disposition of any Asset constituting a part of such Asset Pool and (e) 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 any Asset or in connection with the sale, disposition or transfer of any Asset constituting a part of such Asset Pool.
"Asset Pool Seller" shall mean, with respect to an Asset Pool, the party described in a Borrowing Request which has agreed to sell a specified Asset Pool to the Borrower pursuant to the terms and conditions of a Purchase Agreement; provided, that, in connection with an assignment of a Purchase Agreement to the Borrower from the Parent or a Purchase Affiliate, as applicable, in connection with Section 2.1(g) hereof, the Asset Pool Seller shall be deemed to be the Person (who shall not be an Affiliated Party) initially selling such Asset Pool to the Parent or Purchase Affiliate, as applicable.
- 3 - "Asset Pool Shortfall Amount" shall have the meaning set forth in Section 2.9.
"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 that 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.
"Borrower" shall have the meaning specified in the preamble.
"Borrowing Date" shall have the meaning specified in Section 2.1(d).
"Borrowing Request" shall have the meaning set forth in Section 2.1(a).
"Borrowing Request Threshold Amount" means two million dollars ($2,000,000).
"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 New York or Minnesota are authorized or obligated by law, executive order or governmental decree to be closed.
"Change of Control" shall mean:
(a) any event, circumstance or occurrence (i) that results in the Parent holding and owning less than one hundred percent (100%) of the issued and outstanding equity interests in the Borrower, free and clear of all liens, security interests and other encumbrances, (ii) that results in NCOP holding and owning less than one hundred percent (100%) of the issued and outstanding equity interests in NCOP/Nevada, free and clear of all liens, security interests and encumbrances, (iii) that results in NCOP/Nevada holding and owning less than one hundred percent (100%) of the issued and outstanding equity interests in NCOP/Marlin, (iv) that results in (1) Warren Dedrick, (2) family and estate planning trusts or comparable estate planning entities with respect to which Mr. Dedrick retains the ability to vote all shares of Marlin Integrated Capital Holding Corporation, a Delaware corporation, held therein, or (3) other corporations, limited liability companies or partnerships wholly owned by Mr. Dedrick (together with the entities described in (2) above), holding and owning less than eighty percent (80%) of the issued and outstanding stock of Marlin Integrated Capital Holding Corporation, free and clear of all liens, security interests and other encumbrances, or (v) that results in Marlin owning and holding less than one hundred percent (100%) of the issued and outstanding equity interests of IMNV; or (vi) that results in either NCOP/Marlin or IMNV holding and owning less than fifty percent (50%), respectively, of the issued and outstanding equity interests in the Parent,
- 4 - (b) Warren Dedrick shall cease to be the President or Chairman of Marlin,
(c) Warren Dedrick shall cease to be a member of the boards of managers of the Parent or the Borrower, or his powers and responsibilities on such boards of managers shall be substantially changed from the respective powers and responsibilities delegated as of the date of this Agreement, or
(d) the filing of a petition under the United States Bankruptcy Code naming the Borrower or the Parent as debtor.
"Collateral Account" shall have the meaning set forth in Section 2.7.
"Collateral Account Agreement" shall mean the Collateral Account Agreement by and among the Borrower, the Servicer, 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 Mellon Bank, N.A., 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 Pool, a period commencing on the initial Borrowing Date for such Asset Pool and continuing through and including Sunday of that week and thereafter each period commencing on Monday of each week and continuing through the following Sunday (unless otherwise agreed to in writing by the Lender and the Borrower) until all Assets constituting a part of such Asset Pool have been collected, sold, abandoned or otherwise disposed of to the satisfaction of the Borrower and the Lender.
"Contingent Payment" shall mean, with respect to each Asset Pool, a payment in an amount equal to the amount determined by multiplying the Contingent Payment Percentage and the amount of all remaining Asset Pool Proceeds generated from Assets in such Asset Pool after the payments contemplated in Section 2.8(a) through (h) have been made with respect to such Asset Pool.
"Contingent Payment Percentage" shall mean, with respect to each Asset Pool, fifty percent (50%).
"Default" shall mean an event that, with giving of notice or passage of the grace period (if any) or both, would constitute an Event of Default.
"Default Rate" shall have the meaning set forth in Section (b).
- 5 - "Distribution Date" shall mean, with respect to an Asset Pool, Wednesday of each week (unless otherwise agreed in writing by the Lender and the Borrower) commencing on the first such specified day following a Borrowing Date and continuing thereafter until all Assets constituting a part of such Asset Pool have been collected, sold, abandoned or otherwise disposed of to the satisfaction of the Borrower and the Lender; provided, however, that if on the last day of any Collection Period Asset Pool Proceeds then on deposit in the Collateral Account are less than $20,000 the Wednesday following such Collection Period shall not constitute a Distribution Date hereunder unless such Wednesday is the last Wednesday of the month, in which event such Wednesday shall constitute a Distribution Date hereunder regardless of the amount of Asset Pool Proceeds then on deposit in the Collateral Account.
"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.
"Event of Default" shall have the meaning specified in Section 8.1.
"Exclusivity Agreement" means that certain letter agreement of even date herewith among the Lender, the Borrower, the Servicer, Warren Dedrick, Michael Barrist and certain other related parties as therein described, as to the Lender's exclusive right to finance Assets acquired by such parties and other Affiliated Parties as described therein.
"Facility Termination Date" shall mean (i) the date upon which the Borrower has completed full performance of the Obligations, or (ii) after the occurrence of an Event of Default, the date so declared by the Lender after the Lender has fully exercised all of its rights and remedies hereunder.
"Floating Rate" shall mean, with respect to a Loan, an annual rate of interest equal to the Base Rate plus four and one quarter percent (4.25%).
"Forward Flow Purchase Agreement" shall have the meaning specified in Section 2.1(c).
"Funding Termination Date" shall mean (i) the earlier of (a) March 9, 2005, or (b) the date the Lender demands payment of the Obligations pursuant to Section 8.2, or (ii) the date upon which a Change of Control is effective, upon written declaration of the Lender to the Borrower that it will no longer consider Borrowing Requests, or (iii) the date upon which the Lender delivers a written declaration to the Borrower that it will no longer consider Borrowing Requests pursuant to Section 8.3.
"GAAP" shall mean generally accepted accounting principles.
- 6 - "IMNV" shall mean IMNV Holdings, LLC, a Delaware limited liability company and a member of the Parent.
"Indemnitees" shall have the meaning specified in Section 9.6.
"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, or any Person that has purchased undivided participating interests in a Note pursuant to a participation interest sale agreement. For purposes of this definition, "control" when used with respect to any specified Person, means ownership of a majority of the voting ownership interests of the Person controlled.
"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 have the meaning set forth in Section 3.1.
"Loan Costs" shall mean those out-of-pocket payments, costs and expenses paid or incurred by the Lender pursuant to Section 9.5.
"Loan Documents" shall mean this Agreement, the Security Agreement, the Collateral Account Agreement, the Servicing Agreement, the Exclusivity Agreement, 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 a Loan, the final maturity date specified in the Note evidencing the Borrower's obligation to repay such Loan, which shall be: (a) twenty-four (24) months after the initial funding date with respect to a Loan that is not financing Accounts in connection with a Forward Flow Purchase Agreement, (b) twenty-seven (27) months after the initial funding date with respect to a Loan that is financing Accounts in connection with a Forward Flow Purchase Agreement of less than or equal to six (6) months, and (c) thirty (30) months after the initial funding date with respect to a Loan that is financing Accounts in connection with a Forward Flow Purchase Agreement of greater than six (6) months.
"Marlin" when not used as a part of another defined term herein, shall mean Marlin Integrated Capital Holding Corporation, a Delaware corporation.
- 7 - "MIM" shall mean MIM Servicing, L.L.C., a Delaware limited liability company.
"NCOP" shall mean NCO Portfolio Management, Inc., a Delaware corporation, formerly known as NCO Portfolio Funding, Inc.
"NCOP/Marlin" shall mean NCOP/Marlin, Inc., a Nevada corporation and a member of the Parent.
"NCOP/Nevada" shall mean NCOP Nevada Holdings, Inc., a Nevada corporation.
"Note" shall mean, with respect to an Asset Pool, the promissory note of the Borrower payable to the order of the Lender, as described in Section 2.2, evidencing a Loan made by the Lender with respect to such Asset Pool pursuant to Section 2.1, including all replacements, extensions, restatements and substitutions therefor.
"Obligations" shall mean each Note and each and every other debt, liability and obligation of every type and description which the Borrower may now or at any time hereafter owe to the Lender under this Agreement or any other Loan Document, whether such debt, liability or obligation now exists or is hereafter created or incurred and whether it is direct or indirect, due or to become due, absolute or contingent, primary or secondary, liquidated or unliquidated, or sole, joint, several or joint and several.
"Obligor" shall mean the customer, obligor, maker, borrower or other party primarily obligated to pay an Account.
"Parent" shall mean Inovision-Medclr-NCOP Ventures, L.L.C., a Delaware limited liability company.
"Permitted Lien" shall mean
(i) a lien for a tax, assessment or other governmental charge not yet due and payable, or which is being contested in good faith by appropriate proceedings, which, during the pendency thereof prevents (a) the collection of, or realization on the lien, tax, assessment or other governmental charge 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, and has given the Lender such security therefor as may be demanded by the Lender; and
- 8 - (ii) a lien for which the Borrower, within ten (10) days of its attachment, has provided evidence reasonably satisfactory to the Lender that the same shall have been satisfied and terminated.
"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.
"Projected Accrual Schedule" shall have the meaning set forth in Section 2.1(a).
"Purchase Affiliate" shall mean any Person other than the Parent, Borrower or Servicer, directly or indirectly controlling or controlled by or under direct or indirect common control with the Parent.
"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; provided, that, in connection with an assignment to the Borrower of a Purchase Agreement from the Parent or a Purchase Affiliate, as applicable, in connection with Section 2.1(g) hereof, the Purchase Agreement shall be deemed to be the asset or account purchase and sale agreement by and between the Parent or Purchase Affiliate, as applicable, and the seller named therein, as the same shall have been assigned to the Borrower in accordance with Section 2.1(g) and the Exclusivity Agreement.
"Purchase Expenses" shall mean, with respect to an Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), the lesser of (a) the maximum estimated expenses to be incurred in connection with the purchase of an Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), as set forth in the related Borrowing Request, or (b) the sum of (i) any brokers' fees incurred in connection with acquisition of an Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), not to exceed one percent (1%) of the proposed purchase price for such Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement) 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 (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement) and the making of the Loan or Loans secured by such Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement) and (iii) out-of-pocket costs and expenses incurred by the Borrower in connection with its due diligence investigation of the Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), 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.
- 9 - "Response Period" shall have the meaning specified in Section 2.1(a).
"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 Obligations.
"Servicer" shall initially mean NCO Financial Systems, Inc., a Delaware corporation, and, if thereafter replaced, shall mean 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.
"Servicer Default" shall have the meaning given to it in the Servicing Agreement.
"Servicing Fee" shall mean, with respect to an Asset Pool, the fee calculated in accordance with the Servicing Agreement, unless otherwise agreed by the Lender, the Servicer and the Borrower in an Accepted Borrowing Request
"Total Cost" shall mean, with respect to an Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement), an amount equal to the sum of (a) the price actually paid by the Borrower to purchase such Asset Pool (or the applicable portion of an Asset Pool in connection with a Forward Flow Purchase Agreement) pursuant to the related Purchase Agreement (or related Forward Flow 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 Minnesota 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.
"Underwriting and Marketing Agreement" shall mean an agreement among MIM, the Borrower, Inovision-Medclr-NCOP-NF, L.L.C. and the Parent pursuant to which MIM agrees to provide certain underwriting and marketing services, in form and content acceptable to the Lender.
- 10 - "Underwriting and Marketing Fee" shall mean a fee payable to MIM pursuant to the Underwriting and Marketing Agreement in an amount approximately equal to MIM's actual reasonable costs of providing the services described in the Underwriting and Marketing Agreement, but in no event to exceed seven and three-quarters percent (7.75%) of the Asset Pool Proceeds actually collected by the Servicer, which shall be subject to review and modification from time to time by the Lender and MIM; provided, that, in determining such costs, to the extent such fee does not cover all costs in one period, such uncovered costs shall be carried over to subsequent periods for purposes determining the appropriate amount of such fee.
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 Funding 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 to finance ninety percent (90%) of the Total Cost of 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 be accompanied by the relevant bid package (including, if available, the proposed Purchase Agreement (or Forward Flow Purchase Agreement, if applicable and available) to be entered into if the Borrower is the successful bidder for such Asset Pool (or in the case of a Purchase Agreement assigned by the Parent or a Purchase Affiliate, as applicable, in connection with Section 2.1(g), the Purchase Agreement so assigned), all relevant information 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 such Accounts, a projection of the combined interest and Contingent Payments to be paid to the Lender over the expected term of such Asset Pool as contemplated in Treasury Regulation ss. 1.1275-4(b), which projection shall constitute the accrual for federal income tax purposes, of the Borrower's interest deductions and the Lender's interest income with respect to such Asset Pool (the "Projected Accrual Schedule") and such other information as the Lender may reasonably request. The Lender shall accept or reject a Borrowing Request within (a) three (3) Business Days if the Asset Pool to be purchased in connection therewith has an anticipated purchase price (as described in the submitted Borrowing Request) less than or equal to the Borrowing Request Threshold Amount, or (b) ten (10) Business Days if the Asset Pool to be purchased in connection therewith has an anticipated purchase price (as described in the submitted Borrowing Request) greater than the Borrowing Request Threshold Amount ((a) or (b), as applicable, being the "Response Period"), after receipt thereof from the Borrower. The Lender's failure to accept a Borrowing Request within the Response Period 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.
- 11 - (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 in the Borrowing Request so accepted (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 ninety percent (90%) 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. 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 Default or Event of Default shall occur and shall be continuing under this Agreement.
- 12 - (c) Additional Provisions Relating to Accounts and other Assets Purchased under Forward Flow Purchase Agreements. The Borrower and the Lender contemplate that certain of the Purchase Agreements will provide for the purchase by the Borrower from an Asset Pool Seller of Accounts and other Assets on a periodic basis for a specified period of time (for example, the monthly purchase of Accounts and other Assets during a specified period of time) (each such Purchase Agreement is herein called a "Forward Flow Purchase Agreement"). All Accounts and other Assets purchased by the Borrower during a period of twelve (12) months (or such shorter period as the Lender shall agree to in writing) under a Forward Flow Purchase Agreement shall constitute a single Asset Pool for all purposes of this Agreement and the other Loan Documents. The Loan made by the Lender with respect to an Asset Pool purchased by the Borrower under a Forward Flow Purchase Agreement shall be made in multiple advances, with each such advance of the Loan occurring on the date that the Borrower makes one of the periodic purchases of the Accounts and other Assets under such Forward Flow Purchase Agreement; provided, that, advances shall be made no more often than once per month for any Asset Pool. In addition to the items required by Section 2.1(a), a Borrowing Request related to a Forward Flow Purchase Agreement shall contain the Borrower's good faith estimate of the total amount of all Accounts and other Assets to be purchased under the Forward Flow Purchase Agreement for a period not to exceed twelve (12) months (or such shorter period as the Lender shall agree to in writing) (regardless of the duration of the purchasing period under the Forward Flow Purchase Agreement) and the Borrower's good faith estimate of the Total Cost of all Accounts and other Assets to be purchased under the Forward Flow Purchase Agreement for a period not to exceed twelve (12) months (or such shorter period as the Lender shall agree to in writing) (regardless of the duration of the purchasing period under the Forward Flow Purchase Agreement). The Lender shall accept or reject a Borrowing Request related to a period of twelve (12) months (or such shorter period as the Lender shall agree to in writing) under a Forward Flow Purchase Agreement in accordance with the provisions of Sections 2.1(a) and (b); provided, however, an Accepted Borrowing Request related to a Forward Flow Purchase Agreement shall only constitute the Lender's commitment to make a Loan to fund ninety percent (90%) of the Total Cost of the Asset Pool being purchased under such Forward Flow Purchase Agreement for such period of twelve (12) months (or such shorter period as the Lender shall agree to in writing) as estimated by the Borrower in the Accepted Borrowing Request related to such Forward Flow Purchase Agreement. In the event that the Borrower determines that the actual Total Cost of the Asset Pool being purchased under a Forward Flow Purchase Agreement during such period of twelve (12) months (or such shorter period as the Lender shall agree to in writing) will exceed the estimated Total Cost of the Asset Pool as specified in the Accepted Borrowing Request or if the Borrower wishes the Lender to continue financing its purchase of Accounts and other Assets after the expiration of the currently approved period of twelve (12) months (or such shorter period as the Lender shall agree to in writing), the Borrower shall submit to the Lender a supplemental Borrowing Request, and the Lender may accept or reject such supplemental Borrowing Request in accordance with the provisions of Sections 2.1(a) and (b). Upon the Lender's rejection of such supplemental Borrowing Request, the Lender shall have no obligation to provide any funding to the Borrower in excess of that agreed to in any Accepted Borrowing Request in connection with the applicable Forward Flow Purchase Agreement and the Borrower shall be permitted to seek financing from a third party in connection with the amount of accounts and assets to be purchased under such Forward Flow Purchase Agreement which exceed that set forth in any Accepted Borrowing Request in connection therewith and such excess shall not be considered an Asset or Asset Pool subject to this Agreement.
- 13 - (d) General Funding Procedures. The Borrower shall provide the Lender with not less than three (3) 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"). On the Business Day immediately preceding a Borrowing Date, the Borrower shall transfer to the Lender the Borrower's Asset Pool Equity Contribution for the related Asset Pool, net of all Purchase Expenses paid or incurred by the Borrower. Upon receipt by the Lender of such funds from the Borrower and upon satisfaction of all applicable conditions set forth in Article IV and elsewhere in this Agreement, the Lender shall mak