have been made one (1) Banking Day
after such transfer, provided, however, if no Liabilities are outstanding, then
any amounts contained in the Concentration Account shall then be transferred
immediately to the Funding Account.
(B)
THE LENDER SHALL TRANSFER TO THE FUNDING ACCOUNT ANY SURPLUS IN
EXCESS OF THE LIABILITIES IN THE CONCENTRATION ACCOUNT (ATTRIBUTABLE TO
BORROWERS) REMAINING AFTER THE APPLICATION TOWARDS THE LIABILITIES REFERRED TO
IN SECTION 7-5( A), ABOVE (LESS THOSE AMOUNTS WHICH ARE TO BE NETTED OUT, AS
PROVIDED THEREIN) PROVIDED, HOWEVER, IN THE EVENT THAT BOTH (I) A SUSPENSION
EVENT HAS OCCURRED AND (II) ONE OR MORE L/C'S ARE THEN OUTSTANDING, THE LENDER
MAY ESTABLISH A FUNDED RESERVE OF UP TO ONE HUNDRED TEN (110%) PERCENT OF THE
AGGREGATE STATED AMOUNTS OF SUCH L/C'S.
7-6.
THE FUNDING ACCOUNT.
ALL CHECKS SHALL BE DRAWN BY THE BORROWERS
UPON, AND OTHER DISBURSEMENTS MADE BY THE BORROWERS SOLELY FROM, THE FUNDING
ACCOUNT.
7-7.
CAPITAL INFUSIONS, ETC.
THE PROCEEDS OF ANY INVESTMENT IN THE
BORROWERS FROM ANY SOURCE, INCLUDING WITHOUT LIMITATION, PROCEEDS OF THE
ISSUANCE OR SALE OF ANY CAPITAL STOCK OR DEBT INSTRUMENTS, SHALL BE DEPOSITED BY
THE PURCHASER THEREOF DIRECTLY INTO THE BLOCKED ACCOUNT. IN ADDITION, ANY FUNDS
RECEIVED BY BORROWERS OTHER THAN FROM ORDINARY BUSINESS OPERATIONS, INCLUDING
WITHOUT LIMITATION, TAX REFUNDS, INSURANCE OR CONDEMNATION PROCEEDS OR DAMAGE
AWARDS, SHALL BE DEPOSITED DIRECTLY INTO THE BLOCKED ACCOUNT.
ARTICLE 8 - LENDER AS BORROWER'S ATTORNEY-IN-FACT
8-1.
APPOINTMENT AS ATTORNEY-IN-FACT.
THE BORROWERS HEREBY IRREVOCABLY
CONSTITUTE AND APPOINT THE LENDER AS THE BORROWERS' TRUE AND LAWFUL ATTORNEY,
WITH FULL POWER OF SUBSTITUTION, TO CONVERT THE COLLATERAL INTO CASH AT THE SOLE
RISK, COST, AND EXPENSE OF THE BORROWERS, BUT FOR THE SOLE BENEFIT OF THE
LENDER. THE RIGHTS AND POWERS GRANTED THE LENDER BY THIS APPOINTMENT SHALL BE
EXERCISABLE BY THE LENDER ONLY AFTER THE OCCURRENCE AND DURING THE CONTINUANCE
OF AN EVENT OF DEFAULT AND INCLUDE BUT ARE NOT LIMITED TO THE RIGHT AND POWER
TO:
(A)
PROSECUTE, DEFEND, COMPROMISE, OR RELEASE ANY ACTION RELATING TO
THE COLLATERAL.
(B)
SIGN CHANGE OF ADDRESS FORMS TO CHANGE THE ADDRESS TO WHICH THE
BORROWERS' MAIL IS TO BE SENT TO SUCH ADDRESS AS THE LENDER SHALL DESIGNATE;
RECEIVE AND OPEN THE BORROWERS' MAIL; REMOVE ANY RECEIVABLES COLLATERAL AND
PROCEEDS OF COLLATERAL THEREFROM AND TURN OVER THE BALANCE OF SUCH MAIL EITHER
TO THE BORROWERS OR TO ANY TRUSTEE IN BANKRUPTCY, RECEIVER, ASSIGNEE FOR THE
BENEFIT OF CREDITORS OF THE BORROWERS, OR OTHER LEGAL REPRESENTATIVE OF THE
BORROWERS WHOM THE LENDER DETERMINES TO BE THE APPROPRIATE PERSON TO WHOM TO SO
TURN OVER SUCH MAIL.
(C)
ENDORSE THE NAME OF THE BORROWERS IN FAVOR OF THE LENDER UPON ANY
AND ALL CHECKS, DRAFTS, NOTES, ACCEPTANCES, OR OTHER ITEMS OR INSTRUMENTS; SIGN
AND ENDORSE THE NAME OF
32
the Borrowers on, and receive as secured party, any of the Collateral, any
invoices, schedules of Collateral, freight or express receipts, or bills of
lading, storage receipts, warehouse receipts, or other documents of title
respectively