UCC AND CONTROL OF SUCH TRANSFERABLE RECORD UNDER SECTION
201 OF THE FEDERAL ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT OR,
AS THE CASE MAY BE, SECTION 16 OF THE UNIFORM ELECTRONIC TRANSACTIONS ACT, AS IN
EFFECT IN SUCH JURISDICTION.
(D)
NO BORROWER OR GUARANTOR HAS ANY DEPOSIT ACCOUNTS AS OF THE DATE
HEREOF, EXCEPT AS SET FORTH IN SUCH BORROWER'S OR GUARANTOR'S INFORMATION
CERTIFICATE. NO BORROWER OR GUARANTOR SHALL, DIRECTLY OR INDIRECTLY, AFTER THE
DATE HEREOF OPEN, ESTABLISH OR MAINTAIN ANY CENTRAL COLLECTION DEPOSIT ACCOUNT
UNLESS EACH OF THE FOLLOWING CONDITIONS IS SATISFIED:
(I) AGENT SHALL HAVE
RECEIVED NOT LESS THAN FIVE (5) BUSINESS DAYS PRIOR WRITTEN NOTICE OF THE
INTENTION OF SUCH BORROWER OR GUARANTOR TO OPEN OR ESTABLISH SUCH ACCOUNT WHICH
NOTICE SHALL SPECIFY IN REASONABLE DETAIL AND SPECIFICITY ACCEPTABLE TO AGENT
THE NAME OF THE CENTRAL COLLECTION DEPOSIT ACCOUNT, THE OWNER OF THE CENTRAL
COLLECTION DEPOSIT ACCOUNT, THE NAME AND ADDRESS OF THE BANK AT WHICH SUCH
CENTRAL COLLECTION DEPOSIT ACCOUNT IS TO BE OPENED OR ESTABLISHED, THE
INDIVIDUAL AT SUCH BANK WITH WHOM SUCH BORROWER OR GUARANTOR IS DEALING AND THE
PURPOSE OF THE CENTRAL COLLECTION DEPOSIT ACCOUNT, (II) THE BANK WHERE SUCH
CENTRAL COLLECTION DEPOSIT ACCOUNT IS OPENED OR MAINTAINED SHALL BE REASONABLY
ACCEPTABLE TO AGENT, AND (III) ON OR BEFORE THE OPENING OF SUCH CENTRAL
COLLECTION DEPOSIT ACCOUNT, SUCH BORROWER OR GUARANTOR SHALL AS AGENT MAY
SPECIFY EITHER (A) DELIVER TO AGENT A DEPOSIT ACCOUNT CONTROL AGREEMENT WITH
RESPECT TO SUCH CENTRAL COLLECTION DEPOSIT ACCOUNT DULY AUTHORIZED, EXECUTED AND
DELIVERED BY SUCH BORROWER OR GUARANTOR AND THE BANK AT WHICH SUCH DEPOSIT
ACCOUNT IS OPENED AND MAINTAINED OR (B) ARRANGE FOR AGENT TO BECOME THE CUSTOMER
OF THE BANK WITH RESPECT TO THE DEPOSIT ACCOUNT ON TERMS AND CONDITIONS
REASONABLE ACCEPTABLE TO AGENT. THE TERMS OF THIS SUBSECTION (D) SHALL NOT APPLY
TO DEPOSIT ACCOUNTS SPECIFICALLY AND EXCLUSIVELY USED FOR PAYROLL, PAYROLL TAXES
AND OTHER EMPLOYEE WAGE AND BENEFIT PAYMENTS TO OR FOR THE BENEFIT OF SUCH
BORROWER'S OR GUARANTOR'S SALARIED EMPLOYEES. AGENT SHALL NOT EXERCISE ITS RIGHT
TO REQUIRE
58
amounts in such accounts to be sent to the Agent Payment Account except as
provided by Section 6.3 hereof.
(E)
NO BORROWER OR GUARANTOR OWNS OR HOLDS, DIRECTLY OR INDIRECTLY,
BENEFICIALLY OR AS RECORD OWNER OR BOTH, ANY INVESTMENT PROPERTY, AS OF THE DATE
HEREOF, OR HAS ANY INVESTMENT ACCOUNT, SECURITIES ACCOUNT, COMMODITY ACCOUNT OR
OTHER SIMILAR ACCOUNT WITH ANY BANK OR OTHER FINANCIAL INSTITUTION OR OTHER
SECURITIES INTERMEDIARY OR COMMODITY INTERMEDIARY AS OF THE DATE HEREOF, IN EACH
CASE EXCEPT AS SET FORTH ON SCHEDULE 5.2(E) HERETO.
(I)
IN THE EVENT THAT ANY BORROWER OR GUARANTOR SHALL BE ENTITLED TO
OR SHALL AT ANY TIME AFTER THE DATE HEREOF HOLD OR ACQUIRE ANY CERTIFICATED
SECURITIES, WHICH TOGETHER WITH ALL OTHER CERTIFICATED SECURITIES IN WHICH
BORROWERS AND GUARANTORS HOLD OR ACQUIRE AN INTEREST AFTER THE DATE HEREOF HAVE
A FAIR MARKET VALUE IN EXCESS OF $100,000 INDIVIDUALLY OR IN THE