RATE OF 3 PERCENTAGE
POINTS ABOVE THE COLUMBUS BANK "PRIME RATE" IN EFFECT ON THE DATE SAID SUM WAS
FIRST DUE, OR (II) $100.
IF LLC II SHALL FAIL FOR ANY REASON TO REMIT TO
COLUMBUS BANK THE PURCHASE PRICE DUE FOR ANY GIVEN DAY, THEN LLC II SHALL
PROMPTLY REMIT TO COLUMBUS BANK THE AMOUNT DUE COLUMBUS BANK WITH INTEREST
THEREON FROM THE DATE SUCH SUM WAS DUE UNTIL THE DATE THE PURCHASE PRICE IS PAID
COMPUTED AT THE RATE OF 3
PERCENTAGE POINTS ABOVE THE COLUMBUS BANK "PRIME
RATE" IN EFFECT ON THE DATE SAID SUM WAS FIRST DUE.
(D)
IF LLC II FAILS ON ANY GIVEN DAY TO PAY THE PURCHASE PRICE INDICATED BY
COLUMBUS BANK, AS PROVIDED HEREUNDER, EVEN IN THE EVENT LLC II DISPUTES SUCH
AMOUNT, AND SUCH FAILURE IS NOT CURED WITHIN 2 BUSINESS DAYS FROM THE DATE LLC
II RECEIVES NOTIFICATION OF NONPAYMENT, COLUMBUS BANK MAY (BUT NEED NOT AND
WITHOUT WAIVER OF ITS RIGHTS), IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES IT
MAY HAVE, UPON NOTICE TO LLC II SELL TO ANY THIRD PARTY ANY INTEREST IN THE
RECEIVABLES THAT LLC II FAILED TO PURCHASE.
(E)
THE SALE OF RECEIVABLES CONTEMPLATED HEREIN SHALL OCCUR UPON SETTLEMENT
THEREFOR BY OR ON BEHALF OF LLC II AND NO ADDITIONAL DOCUMENTS SHALL BE REQUIRED
BY THE PARTIES TO
9
EFFECT ANY SUCH SALE.
NOTWITHSTANDING THE FOREGOING, IF, IN THE REASONABLE
JUDGMENT OF EITHER PARTY IN CONNECTION WITH ANY SUCH PURCHASE AND SALE, ANY
ADDITIONAL INSTRUMENT, DOCUMENT, OR CERTIFICATE IS REQUIRED TO FURTHER EVIDENCE
SUCH PURCHASE AND SALE, THE OTHER PARTY SHALL EXECUTE AND DELIVER ANY SUCH
DOCUMENT.
[END OF ARTICLE III]
10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01
REPRESENTATIONS AND WARRANTIES OF COLUMBUS BANK RELATING TO
COLUMBUS BANK.
(A)
REPRESENTATIONS AND WARRANTIES OF COLUMBUS BANK RELATING TO COLUMBUS
BANK.
COLUMBUS BANK HEREBY REPRESENTS AND WARRANTS TO, AND AGREES WITH, LLC II
AS OF THE DATE HEREOF AND AS OF THE TERMINATION DATE THAT:
(I)
ORGANIZATION.
COLUMBUS BANK IS A BANK DULY ORGANIZED, VALIDLY EXISTING
AND IN GOOD STANDING UNDER THE LAWS OF THE STATE OF GEORGIA.
(II)
CAPACITY; AUTHORITY; VALIDITY.
COLUMBUS BANK HAS ALL NECESSARY
CORPORATE POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND TO PERFORM ALL OF
THE OBLIGATIONS TO BE PERFORMED BY IT UNDER THIS AGREEMENT.
THIS AGREEMENT AND
ANY OTHER DOCUMENT OR INSTRUMENT DELIVERED PURSUANT HERETO (SUCH OTHER DOCUMENTS
OR INSTRUMENTS, COLLECTIVELY, THE "CONVEYANCE PAPERS") AND THE CONSUMMATION BY
COLUMBUS BANK OF THE TRANSACTIONS CONTEMPLATED HEREBY AND BY THE CONVEYANCE
PAPERS HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION ON THE PART
OF COLUMBUS BANK, AND THIS AGREEMENT HAS BEEN DULY EXECUTED AND DELIVERED BY
COLUMBUS BANK AND CONSTITUTES THE VALID AND BINDING OBLIGATION OF COLUMBUS BANK
AND IS ENFORCEABLE IN ACCORDANCE WITH ITS TERMS (EXCEPT AS SUCH ENFORCEABILITY
MAY BE LIMITED BY EQUITABLE LIMITATIONS ON THE AVAILABILITY OF EQUITABLE
REMEDIES AND BY BANKRUPTCY AND OTHER LAWS AFFECTING THE RIGHTS OF CREDITORS
GENERALLY).
(III)
COMPLIANCE.
ALL