IN EXCESS OF $100,000, (II) SETTLE,
COMPROMISE OR OFFSET ANY AMOUNT PAYABLE BY THE COUNTERPARTIES TO SUCH GRANTOR
UNDER ANY MATERIAL CONTRACT IN EXCESS OF $100,000 OR (III) AMEND OR OTHERWISE
MODIFY ANY MATERIAL CONTRACT IN ANY MANNER WHICH IS ADVERSE TO THE INTERESTS OF
THE SECURED PARTY.
(B)
EACH GRANTOR SHALL PERFORM AND OBSERVE ALL
THE TERMS AND CONDITIONS OF EACH MATERIAL CONTRACT TO BE PERFORMED BY IT,
MAINTAIN EACH MATERIAL CONTRACT IN FULL FORCE AND EFFECT, ENFORCE IN ALL
MATERIAL RESPECTS EACH MATERIAL CONTRACT IN ACCORDANCE WITH ITS TERMS AND TAKE
ALL SUCH ACTION TO SUCH END AS MAY FROM TIME TO TIME BE REASONABLY REQUESTED BY
THE SECURED PARTY, EXCEPT WHERE THE GRANTOR DEMONSTRATES THAT THE FAILURE TO DO
SO WOULD NOT RESULT IN A LOSS OR LOSSES TO SUCH GRANTOR OR AN IMPAIRMENT TO THE
VALUE OF THE COLLATERAL THAT IN THE AGGREGATE EXCEEDS $3,500,000; PROVIDED THAT
THE FOREGOING EXCEPTION SHALL NOT APPLY TO ANY MATERIAL
18
CONTRACT THAT IS NECESSARY FOR THE CONDUCT OF THE BUSINESS OF THE GRANTORS TAKEN
AS A WHOLE AS CONTEMPLATED BY THE ISDA DOCUMENTS.
(C)
ANYTHING HEREIN TO THE CONTRARY
NOTWITHSTANDING, (I) EACH APPLICABLE GRANTOR SHALL REMAIN LIABLE UNDER EACH
MATERIAL CONTRACT TO THE EXTENT SET FORTH THEREIN TO PERFORM ALL OF ITS DUTIES
AND OBLIGATIONS THEREUNDER TO THE SAME EXTENT AS IF THIS AGREEMENT HAD NOT BEEN
EXECUTED, (II) THE EXERCISE BY THE SECURED PARTY OF ANY OF ITS RIGHTS HEREUNDER
SHALL NOT RELEASE ANY GRANTOR FROM ANY OF ITS DUTIES OR OBLIGATIONS UNDER ANY
MATERIAL CONTRACT AND (III) THE SECURED PARTY SHALL NOT HAVE ANY OBLIGATION OR
LIABILITY UNDER ANY MATERIAL CONTRACT BY REASON OF THIS AGREEMENT, NOR SHALL THE
SECURED PARTY BE OBLIGATED TO PERFORM ANY OF THE OBLIGATIONS OR DUTIES OF ANY
GRANTOR THEREUNDER OR TO TAKE ANY ACTION TO COLLECT OR ENFORCE ANY CLAIM FOR
PAYMENT ASSIGNED HEREUNDER.
5.9
DEPOSITARY AND OTHER DEPOSIT ACCOUNTS.
NO
GRANTOR SHALL OPEN NEW DEPOSITARY OR OTHER DEPOSIT ACCOUNTS UNLESS SUCH GRANTOR
SHALL HAVE RECEIVED THE SECURED PARTY'S PRIOR WRITTEN CONSENT TO OPEN ANY SUCH
NEW DEPOSIT ACCOUNTS. THE GRANTORS SHALL DELIVER TO THE SECURED PARTY A REVISED
VERSION OF SCHEDULE 6 SHOWING ANY CHANGES THERETO WITHIN 5 DAYS OF ANY SUCH
CHANGE. EACH GRANTOR HEREBY AUTHORIZES THE FINANCIAL INSTITUTIONS AT WHICH SUCH
GRANTOR MAINTAINS A DEPOSIT ACCOUNT TO PROVIDE THE SECURED PARTY WITH SUCH
INFORMATION WITH RESPECT TO SUCH DEPOSIT ACCOUNT AS THE SECURED PARTY MAY FROM
TIME TO TIME REASONABLY REQUEST, AND EACH GRANTOR HEREBY CONSENTS TO SUCH
INFORMATION BEING PROVIDED TO THE SECURED PARTY. EACH GRANTOR WILL, UPON THE
SECURED PARTY'S REQUEST, CAUSE EACH FINANCIAL INSTITUTION AT WHICH SUCH GRANTOR
MAINTAINS A DEPOSITARY OR OTHER DEPOSIT ACCOUNT TO ENTER INTO A BANK AGENCY OR
OTHER SIMILAR AGREEMENT WITH THE SECURED PARTY AND SUCH GRANTOR, IN FORM AND
SUBSTANCE SATISFACTORY TO THE SECURED PARTY, IN ORDER TO GIVE THE SECURED PARTY
"CONTROL" (AS DEFINED IN THE UCC) OF SUCH ACCOUNT. EACH GRANTOR SHALL DIRECT ALL
ACCOUNT DEBTORS