WHICH PROCEEDS OF COLLATERAL ARE TO BE DELIVERED OR DEPOSITED
UNLESS CONCURRENTLY WITH THE OPENING OF SUCH BANK ACCOUNT, THE BORROWERS ENTER
INTO A DEPOSIT ACCOUNT CONTROL AGREEMENT WITH RESPECT TO SUCH BANK ACCOUNT.
UPON COMPLIANCE WITH THE TERMS SET FORTH ABOVE, SUCH BANK ACCOUNT SHALL
CONSTITUTE A BLOCKED ACCOUNT FOR PURPOSES OF THIS AGREEMENT.
NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS SECTION 2.14(C), THE BORROWERS MAY MAINTAIN ONE
OR MORE ACCOUNTS CONSTITUTING EXCLUDED ACCOUNTS.
(D)
COLLECTIVE BORROWING ARRANGEMENT.
THE BORROWERS HAVE INFORMED THE
ADMINISTRATIVE AGENT THAT:
(I) IN ORDER TO INCREASE THE EFFICIENCY,
PROFITABILITY AND PRODUCTIVITY OF EACH BORROWER, THE BORROWER REPRESENTATIVE HAS
ESTABLISHED A CENTRALIZED CASH MANAGEMENT SYSTEM FOR THE BORROWERS THAT ENTAILS,
IN PART, CENTRAL DISBURSEMENT AND OPERATING ACCOUNTS FOR EACH OF THE BORROWERS
IN WHICH THE BORROWER REPRESENTATIVE PROVIDES THE WORKING CAPITAL NEEDS OF EACH
OF THE OTHER BORROWERS AND MANAGES AND TIMELY PAYS THE ACCOUNTS PAYABLE OF EACH
OF THE OTHER BORROWERS; (II) THE BORROWER REPRESENTATIVE FURTHER ENHANCES THE
OPERATING EFFICIENCIES OF THE OTHER BORROWERS BY PURCHASING, OR CAUSING TO BE
PURCHASED, IN THE BORROWER REPRESENTATIVE'S NAME FOR ITS ACCOUNT, ALL OR
SUBSTANTIALLY ALL MATERIALS, SUPPLIES, INVENTORY AND SERVICES REQUIRED BY THE
OTHER BORROWERS, RESULTING IN A REDUCTION IN OPERATING COSTS OF THE OTHER
BORROWERS; AND (III) ALL OF THE BORROWERS PRESENTLY ENGAGE IN AN INTEGRATED
OPERATION THAT REQUIRES FINANCING ON AN INTEGRATED BASIS, AND EACH BORROWER
EXPECTS TO BENEFIT FROM THE CONTINUED SUCCESSFUL PERFORMANCE OF SUCH INTEGRATED
OPERATIONS.
THEREFORE, IN ORDER TO BEST UTILIZE THE BORROWING POWERS OF THE
BORROWERS IN THE MOST EFFECTIVE AND COST EFFICIENT MANNER AND TO AVOID ADVERSE
EFFECTS ON THE OPERATING EFFICIENCIES OF EACH BORROWER AND THE EXISTING BACK
OFFICE PRACTICES OF THE BORROWERS, EACH BORROWER HAS REQUESTED THAT ALL
REVOLVING LOANS, DELAYED DRAW LOANS AND THE TERM LOAN BE DISBURSED, AND LETTERS
OF CREDIT BY ISSUED, SOLELY UPON THE REQUEST OF THE BORROWER REPRESENTATIVE AND
TO BANK ACCOUNTS MANAGED SOLELY BY THE BORROWER REPRESENTATIVE, IT BEING THE
INTENT AND DESIRE OF THE BORROWERS THAT THE BORROWER REPRESENTATIVE MANAGE FOR
THE BENEFIT OF EACH BORROWER THE EXPENDITURE AND USAGE OF SUCH FUNDS.
(E)
ACCOUNTS.
IN NO EVENT SHALL PRIOR RECOURSE TO ANY ACCOUNT OR OTHER
SECURITY GRANTED TO OR BY THE BORROWERS BE A PREREQUISITE TO THE ADMINISTRATIVE
AGENT'S OR THE LENDERS' RIGHTS TO DEMAND PAYMENT OF ANY OF THE OBLIGATIONS.
IN
ADDITION, THE BORROWERS AGREE THAT NEITHER THE ADMINISTRATIVE AGENT NOR ANY
LENDER SHALL HAVE ANY OBLIGATION WHATSOEVER TO PERFORM IN ANY RESPECT ANY
BORROWER'S CONTRACTS OR OBLIGATIONS RELATING TO THE ACCOUNTS.
59
SECTION 2.15
INCREMENTAL FACILITY
(A)
AT ANY GIVEN DATE (I) DURING THE ONE HUNDRED AND EIGHTY (180) DAY
PERIOD AFTER THE CLOSING DATE AND (II) SUBJECT TO THE SATISFACTION OF THE
CONDITIONS SET FORTH IN SECTIONS 4.01 (L), (M), (N), (P) (PROVIDED, HOWEVER,
THAT "DECEMBER 31, 2006" BE REPLACED BY THE DATE OF THE LATEST FINANCIAL
STATEMENTS DELIVERED BY THE BORROWERS TO THE ADMINISTRATIVE AGENT PURSUANT TO
SECTION 6.01(A) HEREOF) AND SECTION 4.02, THE