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 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 AT ANY
TIME AND FROM TIME TO TIME TO
7
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.
[END OF ARTICLE II]
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.
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 OF THE PURCHASE PRICE PAYABLE DUE OR OWED BY
LLC.
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 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'S RECEIPT OF NOTICE FROM COLUMBUS BANK.
(C)
IN THE EVENT LLC HAS REASON TO DISPUTE THE ACCURACY OF THE
PURCHASE PRICE REPORTED BY COLUMBUS BANK FOR ANY DAY, LLC SHALL PROMPTLY SO
NOTIFY COLUMBUS BANK, BUT SUCH NOTICE SHALL NOT AFFECT LLC'S OBLIGATION FOR
TIMELY PAYMENT OF THE PURCHASE PRICE AS NOTIFIED BY COLUMBUS BANK TO LLC.
IN
THE EVENT IT IS DETERMINED THAT LLC 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 THE GREATER OF (I)
THE AMOUNT DUE LLC WITH INTEREST THEREON COMPUTED AT THE 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 SHALL FAIL FOR ANY