A PURCHASE AND
SALE OF SUCH RECEIVABLES AND THE OTHER PURCHASED ASSETS AND NOT A LOAN.
IN THE
EVENT, HOWEVER, THAT IT WERE TO BE DETERMINED THAT THE TRANSACTIONS EVIDENCED
HEREBY CONSTITUTE A LOAN AND NOT A PURCHASE AND SALE, THIS AGREEMENT SHALL
CONSTITUTE A SECURITY AGREEMENT UNDER APPLICABLE LAW, AND COLUMBUS BANK HEREBY
GRANTS TO LLC II A FIRST PRIORITY SECURITY INTEREST IN ALL OF COLUMBUS BANK'S
RIGHT, TITLE AND INTEREST, WHETHER NOW OWNED OR HEREAFTER ACQUIRED, IN, TO AND
UNDER THE RECEIVABLES AND THE OTHER PURCHASED ASSETS.
(E)
WITH RESPECT TO THE FOREGOING AND THE GRANT OF THE SECURITY INTEREST IN
THE PURCHASED ASSETS, COLUMBUS BANK HEREBY AUTHORIZES LLC II AT ANY TIME AND
FROM TIME TO TIME
7
TO FILE ONE OR MORE FINANCING OR CONTINUATION STATEMENTS, AND AMENDMENTS
THERETO, RELATIVE TO ALL OR ANY PART OF THE PURCHASED ASSETS WITHOUT THE
SIGNATURE OF COLUMBUS BANK WHERE PERMITTED BY LAW.
8
ARTICLE III
CONSIDERATION AND PAYMENT
SECTION 3.01
PURCHASE PRICE.
(A)
THE PURCHASE PRICE FOR THE CONVEYANCE WITH RESPECT TO THE RECEIVABLES AND
THE OTHER PURCHASED ASSETS WHICH COME INTO EXISTENCE ON OR AFTER THE TERMINATION
DATE SHALL BE PAYABLE DAILY, ON THE BUSINESS DAY NEXT SUCCEEDING THE BUSINESS
DAY ON WHICH THE NOTICE DELIVERABLE BY COLUMBUS BANK PURSUANT TO SUBSECTION (B)
HEREOF IS RECEIVED BY LLC II.
FOR PURPOSES HEREOF, THE PURCHASE PRICE FOR THE
RECEIVABLES (THE "PURCHASE PRICE") SHALL BE EQUAL TO 100% OF THE PRINCIPAL
BALANCE OF SUCH RECEIVABLES.
(B)
NO LATER THAN 1:00 P.M. (EASTERN TIME) ON EACH BUSINESS DAY, COLUMBUS
BANK SHALL NOTIFY BY FACSIMILE TRANSMISSION THE CHIEF FINANCIAL OFFICER OR SUCH
OFFICER'S DESIGNEE AT LLC II OF THE PURCHASE PRICE PAYABLE DUE OR OWED BY LLC
II.
PAYMENTS DUE FOR ANY DAY SHALL BE MADE BY WIRE TRANSFER NO LATER THAN 4:00
P.M. (EASTERN TIME) ON THE BUSINESS DAY NEXT SUCCEEDING THE DATE OF SUCH NOTICE,
UNLESS COLUMBUS BANK IS LATE IN NOTIFYING LLC II OF THE PURCHASE PRICE DUE FOR
ANY DAY, IN WHICH CASE THE APPROPRIATE PARTY SHALL USE ALL REASONABLE EFFORTS TO
SEND THE WIRE TRANSFER WITHIN THE TIME PERIOD SET FORTH ABOVE OR AS SOON
THEREAFTER AS POSSIBLE, BUT IN ANY EVENT NO LATER THAN 5:00 P.M. (EASTERN TIME)
OF THE NEXT BUSINESS DAY FOLLOWING LLC II'S RECEIPT OF NOTICE FROM COLUMBUS
BANK.
(C)
IN THE EVENT LLC II HAS REASON TO DISPUTE THE ACCURACY OF THE PURCHASE
PRICE REPORTED BY COLUMBUS BANK FOR ANY DAY, LLC II SHALL PROMPTLY SO NOTIFY
COLUMBUS BANK, BUT SUCH NOTICE SHALL NOT AFFECT LLC II'S OBLIGATION FOR TIMELY
PAYMENT OF THE PURCHASE PRICE AS NOTIFIED BY COLUMBUS BANK TO LLC II.
IN THE
EVENT IT IS DETERMINED THAT LLC II WAS CORRECT IN DISPUTING THE ACCURACY OF THE
PURCHASE PRICE FOR A GIVEN DAY, COLUMBUS BANK SHALL PROMPTLY REMIT (BUT IN ANY
EVENT WITHIN 5 BUSINESS DAYS OF SUCH DETERMINATION) TO LLC II THE GREATER OF (I)
THE AMOUNT DUE LLC II WITH INTEREST THEREON COMPUTED AT THE