BUYER HAS DELIVERED TO EACH
SELLER A PROMISSORY NOTE, SUBSTANTIALLY IN THE FORM OF EXHIBIT A, PAYABLE TO THE
ORDER OF SUCH SELLER (EACH SUCH PROMISSORY, NOTE, AS THE SAME MAY BE AMENDED,
AMENDED AND RESTATED, SUPPLEMENTED, ENDORSED OR OTHERWISE MODIFIED FROM TIME TO
TIME, TOGETHER WITH ANY PROMISSORY NOTE ISSUED FROM TIME TO TIME IN SUBSTITUTION
THEREFOR OR RENEWAL THEREOF IN ACCORDANCE WITH THE TRANSACTION DOCUMENTS, BEING
HEREIN CALLED A "BUYER NOTE"), THAT IS SUBORDINATED TO ALL AMOUNTS PAYABLE BY
THE BUYER TO THE PURCHASERS PURSUANT TO THE RECEIVABLES SALE AGREEMENT.
THE
PRINCIPAL BALANCE OF EACH BUYER NOTE SHALL BE INCREASED IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.1 HEREOF AND SHALL BE DECREASED IN (I) THE AMOUNT OF
FUNDS RECEIVED BY EACH SELLER PURSUANT TO SECTION 3.3 HEREOF AND (II) BY THE
SELLER NONCOMPLYING RECEIVABLES ADJUSTMENT OF SUCH SELLER IN ACCORDANCE WITH THE
PROVISIONS OF SECTION 3.1 HEREOF.
EACH BUYER NOTE IS PAYABLE IN FULL ON THE
DATE (THE "SELLER MATURITY DATE") THAT IS ONE YEAR AND ONE DAY AFTER THE DATE ON
WHICH ALL INVESTMENTS (AS DEFINED IN THE RECEIVABLES SALE AGREEMENT) AND OTHER
AMOUNTS THEN DUE AND OWING BY THE BUYER TO THE PURCHASERS UNDER THE TRANSACTION
DOCUMENTS HAVE BEEN PAID IN FULL. BUYER MAY PREPAY ALL OR PART OF THE
OUTSTANDING BALANCE OF ANY BUYER NOTE FROM TIME TO TIME WITHOUT ANY PREMIUM OR
PENALTY, UNLESS THE PREPAYMENT WOULD RESULT IN A DEFAULT IN BUYER'S PAYMENT OF
ANY OTHER AMOUNT REQUIRED TO BE PAID BY IT UNDER ANY TRANSACTION DOCUMENT.
(B)
THE INITIAL COLLECTION AGENT (OR ITS DESIGNEE) SHALL HOLD ALL
BUYER NOTES FOR THE BENEFIT OF THE SELLERS AND SHALL MAKE ALL APPROPRIATE
RECORDKEEPING ENTRIES WITH RESPECT TO THE BUYER NOTES OR OTHERWISE TO REFLECT
THE PAYMENTS ON AND ADJUSTMENT OF THE BUYER NOTES. THE INITIAL COLLECTION
AGENT'S BOOKS AND RECORDS SHALL CONSTITUTE REBUTTABLE PRESUMPTIVE EVIDENCE OF
THE PRINCIPAL AMOUNT OF AND ACCRUED INTEREST ON EACH BUYER NOTE AT ANY TIME.
EACH SELLER HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE INITIAL COLLECTION
AGENT TO MARK ITS BUYER NOTE "CANCELLED" AND RETURN IT TO BUYER UPON THE FINAL
PAYMENT THEREOF.
SECTION 3.3
APPLICATION OF COLLECTIONS AND OTHER FUNDS.
IF, ON
ANY DAY, BUYER (OR, THE INITIAL COLLECTION AGENT, ON BEHALF OF THE BUYER)
RECEIVES (I) PROCEEDS OF TRANSFERS PURSUANT TO THE RECEIVABLES SALE AGREEMENT OR
(II) PURCHASER COLLECTIONS AND/OR SELLER COLLECTIONS, IN EACH CASE PURSUANT TO
THE RECEIVABLES SALE AGREEMENT, BUYER SHALL APPLY THE FUNDS AS FOLLOWS:
(A)
FIRST, TO PAY ITS EXISTING EXPENSES AND TO SET ASIDE FUNDS FOR THE
PAYMENT OF EXPENSES THAT ARE THEN ACCRUED (IN EACH CASE TO THE EXTENT SUCH
EXPENSES ARE PERMITTED TO EXIST UNDER THE RECEIVABLES SALE AGREEMENT),
(B)
SECOND, TO PAY THE PURCHASE PRICE PURSUANT TO SECTION 3.1 FOR
RECEIVABLES AND RELATED ASSETS PURCHASED BY BUYER FROM THE SELLERS ON SUCH DAY,
SUCH PAYMENT TO BE
8
MADE ON A PRO RATA BASIS TO THE SELLER BASED ON THE PURCHASE PRICE THEN PAYABLE
TO EACH SUCH SELLER,