Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 3 contracts
Samples: Credit Agreement (Unisys Corp), Credit Agreement (Unisys Corp), Credit Agreement (Unisys Corp)
Cash Management Systems. (a) On or prior to the Closing Date, the Borrower shall have established and shall thereafter maintain in existence one or more lockboxes (each a “Lockbox”) with such Lenders as shall be reasonably acceptable to the Required Lenders (each a “Depositary Account Bank”) and shall instruct all account debtors on the Borrower’s Accounts to remit all payments to a Lockbox. All payments remitted by account debtors of the Borrower to any Lockbox, all other amounts received by the Borrower from any account debtor and all other cash received by the Borrower from any other source shall in each case upon receipt thereof be deposited into a Deposit Account.
(b) Each Loan Party Deposit Account or Securities Account of the Borrower or any other Grantor that is not a Permitted Unperfected Account (each such Deposit Account, a “Controlled Deposit Account,” and each such Securities Account, a “Controlled Securities Account,” Controlled Securities Accounts together with Controlled Deposit Accounts may sometimes be referred to herein individually as a “Controlled Account” and, collectively, as “Controlled Accounts”), shall enter intobe maintained with a Depositary Account Bank.
(c) Within the time period prescribed under Section 6.15 of the Credit Agreement, the Borrower and cause each depository other Grantor shall have entered into a deposit account control agreement or securities account control agreement in form and substance satisfactory to enter into, Control Agreements providing for “springing” cash dominion the Administrative Agent and the Required Lenders with respect to each Collection Controlled Account with the respective Depositary Account Bank and in favor of the Administrative Agent (each Concentration an “Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as Control Agreement”), which, in the case of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Account Control Agreements providing for “springing” cash dominion with respect to Controlled Deposit Accounts, shall provide that, among other things, upon the occurrence and during the continuance of an Event of Default and to the extent permitted by and in accordance with the Interim Financing Order (and the Final Financing Order, when applicable), at the instruction of the Administrative Agent, all available amounts held in each deposit, securities, commodity or similar Controlled Deposit Account maintained at such Depositary Account Bank shall be wired on each Business Day into an account (the “Administrative Agent Account”) maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree Agent; provided, that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at hereby agrees that it will not give any time that instructions under any Account Control Agreement unless and until an Event of Default is shall have occurred and be continuing.
(d) The closing of any Lockbox or Controlled Account and the termination of any Account Control Agreement, except in connection with a release of Liens under Section 8.15 hereof or Section 9.12 of the Credit Agreement, shall require in each case the prior written consent of the Administrative Agent may, and (at the direction of the Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementLenders).
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Paperweight Development Corp), Guarantee and Collateral Agreement (Paperweight Development Corp)
Cash Management Systems. Each Loan Party shall enter into(a) The Credit Parties shall, as promptly as practicable after the Closing Date (and in any event within 90 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter, (i) use commercially reasonable efforts to cause each depository all their Customers on any and all Receivables of the Credit Parties from time to enter into, Control Agreements providing for “springing” cash dominion time included in the Borrowing Base to make all payments and remittances with respect to each Collection Account such Receivables into one or more deposit accounts located with a depositary bank in the United States of America (or into one or more lockboxes established and each Concentration Account maintained by a depositary bank in the United States of America and with respect to which such Person depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the United States of America); provided that, in the case of payments or remittances with respect to Receivables owed to any Discretionary Guarantor, a depositary bank located in the country or jurisdiction where such Discretionary Guarantor is organized or operates (or into one or more lockboxes established and maintained by a depositary bank located in the country or jurisdiction where such Discretionary Guarantor is organized or operates and with respect to which such depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the country or jurisdiction where such Discretionary Guarantor is organized or operates) (such deposit accounts being referred to as the “Collection Deposit Accounts” and such lockboxes being referred to as the “Collection Lockboxes”), (ii) cause all proceeds of the Disposition of any ABL Priority Collateral (other than any account that constitutes an Excluded Bank proceeds of any Disposition of Inventory in the ordinary course of business, which shall be subject to clause (i) above), to be deposited directly into a Collection Deposit Account or the Concentration Deposit Account, (iii) as of cause each Collection Deposit Account and the Concentration Deposit Account at all times to be solely a collection account, and no Credit Party shall make any disbursements or other direct payments therefrom, and (iv) deposit or cause to be deposited promptly, and in any event no later than the three Business Days after the Effective Date. Each Loan date of its receipt thereof, all cash, checks, drafts or other similar items of payment received by it relating to or constituting payments or remittances with respect to any Receivables of any Credit Party from time to time included in the Borrowing Base into one or more Collection Deposit Accounts or Collection Lockboxes in precisely the form in which they are received (but with any endorsements of such Credit Party necessary for deposit or collection), and until they are so deposited to hold such payments in trust for the benefit of the Collateral Agent.
(b) The Credit Parties shall use commercially reasonable efforts to enter intoensure that as promptly as practicable after the Closing Date (but in any event within 90 days after the Closing Date, or such longer period as the Administrative Agent may agree to), and cause shall at all times thereafter ensure that, each depositorydepositary bank where a Collection Deposit Account or the Concentration Deposit Account is maintained, securities intermediary or commodities intermediary to enter intoand each depositary bank that maintains a Collection Lockbox, shall have entered into a Control Agreements providing for “springing” cash dominion Agreement with respect to each depositsuch deposit account or lockbox. Each such Control Agreement shall provide, securitiesamong other things, commodity or similar account maintained by such Person that (other than any account that constitutes an Excluded Bank Accounti) that does not constitute a Collection Account or a Concentration Account (and all funds deposited into any such deposit, securities, commodity or similar account shall Collection Lockbox subject to a Control Agreement may be swept on a daily basis into a Concentration Collection Deposit Account). With , (ii) with respect to accounts subject depositary banks at which a Collection Deposit Account is maintained, such depositary bank agrees, from and after the receipt of a notice (an “Activation Notice”) from the Collateral Agent to “springing” Control Agreementsforward immediately all amounts in each Collection Deposit Account (net of any customary minimum balance as may be required to be maintained in such Collection Deposit Account by such depositary bank) to the Concentration Deposit Account and to commence the process of daily sweeps from such Collection Deposit Account into the Concentration Deposit Account and (iii) with respect to the depositary bank at which the Concentration Deposit Account is maintained, such depositary bank agrees, from and after the receipt of an Activation Notice from the Collateral Agent, to forward all amounts received in the Concentration Deposit Account (net of any customary minimum balance as may be required to be maintained in the Concentration Deposit Account by such depositary bank) to the Administrative Agent and Lenders agree that Account through daily sweeps from the Concentration Deposit Account into the Administrative Agent shall only be authorized to deliver Account. If on or prior to the relevant depository, securities intermediary date that is 90 days after the Closing Date (or commodities intermediary a notice or other instruction which provides for exclusive control over such account by longer period as the Administrative Agent as follows: (imay agree to) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent depositary bank shall not have entered into a Control Agreement with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities lockbox required to be subject to a Control Agreement under this Section 5.17(b), such deposit account or lockbox shall be closed on such date and all funds therein transferred on such date to a deposit account or lockbox with a depositary bank that has entered into a Control Agreement for such deposit account or lockbox, as applicable.
(c) Any Credit Party may replace any Collection Deposit Account, Collection Lockbox or Concentration Deposit Account, or establish any new Collection Deposit Account, Collection Lockbox or Concentration Deposit Account; provided, in each case, other than Excluded Bank Accounts) that is not each such replacement or new Collection Deposit Account, Collection Lockbox or Concentration Deposit Account shall be subject to a Control Agreement in excess favor of outstanding checks the Collateral Agent and wire transfers payable from such accounts and amounts necessary to shall otherwise meet minimum balance requirements. The Loan Parties shall the requirements of this Section 5.17 (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) provided that in the case of STL Related Accountsany newly acquired Credit Party, directly to a Qualified Trust Account or any associated lockbox. If the requirements of this Section 5.17 shall not apply until the date that is 60 days after the date of the acquisition of such Credit Party).
(xd) All amounts deposited in the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Account under Section 5.11 while no Event of Default is continuing and (y5.17(b) no Trigger Event is continuing, shall be deemed received by the Administrative Agent in accordance with Section 2.16 and shall use commercially reasonable efforts following be applied (and allocated) by the Administrative Agent in accordance with Section 2.14(b). In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Administrative Agent Account. Any amount so received in a currency other than Dollars may be converted to Dollars in accordance with the Administrative Agent’s customary practices.
(e) The Collateral Agent shall promptly (but in any event within three Business Days) furnish written notice to each depositary bank that shall have received an Activation Notice of any payment in full of the Obligations. Any amount received in the Administrative Agent Account under Section 5.17(b) at any time when all the Obligations have been paid in full shall be remitted to an operating account designated by the Borrower’s request therefor .
(f) Without the prior written consent of the Administrative Agent, no Credit Party shall modify or amend the instructions pursuant to (A) restore control any of the Control Agreements. So long as no notice has been provided under Section 8.1, each Credit Party shall, and the Collateral Agent hereby authorizes each Credit Party to, enforce and collect all amounts owing on the Inventory and Receivables, provided that such authorization shall automatically terminate if the Administrative Agent provides a notice under Section 8.1. Each Credit Party acknowledges and agrees that disposition of funds in the Collection Deposit Accounts to and the applicable Loan Parties (Concentration Deposit Account shall be subject to the continuing rights of the Administrative Agent to assert exclusive Collateral Agent’s control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this accordance with Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement5.17(b).
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (QualTek Services Inc.), Abl Credit and Guaranty Agreement (QualTek Wireline LLC)
Cash Management Systems. Each Loan Party shall enter into(a) The Credit Parties shall, as promptly as practicable after the Closing Date (and in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter, (i) use commercially reasonable efforts to cause each depository all the Account Debtors on any and all Accounts of the Credit Parties from time to enter into, Control Agreements providing for “springing” cash dominion time included in the Borrowing Base to make all payments and remittances with respect to each Collection Account such Accounts into one or more deposit accounts located with a depositary bank in the United States of America (or into one or more lockboxes established and each Concentration Account maintained by a depositary bank in the United States of America and with respect to which such Person depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the United States of America) (such deposit accounts being referred to as the “Collection Deposit Accounts” and such lockboxes being referred to as the “Collection Lockboxes”), (ii) cause all proceeds of the Disposition of any ABL Priority Collateral (other than any account that constitutes an Excluded Bank proceeds of any Disposition of Inventory in the ordinary course of business, which shall be subject to clause (i) above), to be deposited directly into a Collection Deposit Account or the Concentration Deposit Account, (iii) as of cause each Collection Deposit Account and the Concentration Deposit Account at all times to be solely a collection account, and no Credit Party shall make any disbursements or other direct payments therefrom, and (iv) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the Effective Date. Each Loan date of its receipt thereof, all cash, checks, drafts or other similar items of payment received by it relating to or constituting payments or remittances with respect to any Accounts of any Credit Party from time to time included in the Borrowing Base into one or more Collection Deposit Accounts or Collection Lockboxes in precisely the form in which they are received (but with any endorsements of such Credit Party necessary for deposit or collection), and until they are so deposited to hold such payments in trust for the benefit of the Collateral Agent.
(b) The Credit Parties shall use commercially reasonable efforts to enter intoensure that as promptly as practicable after the Closing Date (but in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter each depositary bank where a Collection Deposit Account or the Concentration Deposit Account is maintained, and cause each depositorydepositary bank that maintains a Collection Lockbox, securities intermediary or commodities intermediary to enter into, shall have entered into a Control Agreements providing for “springing” cash dominion Agreement with respect to each depositsuch deposit account or lockbox. Each such Control Agreement shall provide, securitiesamong other things, commodity or similar account maintained by such Person that (other than i) upon the commencement and during the continuance of any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and Cash Dominion Period, all funds deposited into any such deposit, securities, commodity or similar account shall Collection Lockbox subject to a Control Agreement may be swept on a daily basis into a Concentration Collection Deposit Account). With , (ii) with respect to accounts subject to “springing” Control Agreementsdepositary banks at which a Collection Deposit Account is maintained, such depositary bank agrees, from and after the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary receipt of a notice or other instruction (an “Activation Notice”) from the Collateral Agent (which provides for exclusive control over such account Activation Notice may be given by the Administrative Collateral Agent as follows: (i) at any time that an Event of Default the Collateral Agent determines that a Cash Dominion Period has commenced and is continuing, and shall be given by the Administrative Collateral Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent or the Requisite Lenders during any Cash Dominion Period), to forward immediately all amounts in each Collection Deposit Account (net of any customary minimum balance as may be required to be maintained in such Collection Deposit Account by such depositary bank) to the Concentration Deposit Account and to commence the process of daily sweeps from such Collection Deposit Account into the Concentration Deposit Account and (iii) with respect to the depositary bank at which the Concentration Deposit Account is maintained, such depositary bank agrees, from and after the receipt of an Activation Notice from the Collateral Agent, to forward all amounts received in the Concentration Deposit Account (net of any customary minimum balance as may be required to be maintained in the Concentration Deposit Account by such depositary bank) to the Administrative Agent Account through daily sweeps from the Concentration Deposit Account into the Administrative Agent Account. If on or prior to the date that is 120 days after the Closing Date (or such longer period as the Administrative Agent may agree to) any depositary bank shall not have entered into a Control Agreement with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities lockbox required to be subject to a Control Agreement under this Section 5.15(b), such deposit account or lockbox shall be closed and all funds therein transferred to a deposit account or lockbox with a depositary bank that has entered into a Control Agreement for such deposit account or lockbox, as applicable.
(c) Any Credit Party may replace any Collection Deposit Account, Collection Lockbox or Concentration Deposit Account, or establish any new Collection Deposit Account, Collection Lockbox or Concentration Deposit Account; provided, in each case, other than Excluded Bank Accounts) that is not each such replacement or new Collection Deposit Account, Collection Lockbox or Concentration Deposit Account shall be subject to a Control Agreement in excess favor of outstanding checks the Collateral Agent and wire transfers payable from such accounts and amounts necessary to shall otherwise meet minimum balance requirements. The Loan Parties shall the requirements of this Section 5.15 (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) provided that in the case of STL Related Accountsany newly acquired Credit Party, directly to a Qualified Trust Account or any associated lockbox. If the requirements of this Section 5.15 shall not apply until the date that is 60 days after the date of the acquisition of such Credit Party).
(xd) All amounts deposited in the Administrative Agent Account shall be deemed received by the Administrative Agent in accordance with Section 2.16 and during any Cash Dominion Period shall be applied (and allocated) by the Administrative Agent in accordance with Section 2.14(b). In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Administrative Agent Account. Any amount so received in a currency other than Dollars may be converted to Dollars in accordance with the Administrative Agent’s customary practices.
(e) The Collateral Agent shall promptly (but in any event within one Business Day) furnish written notice to each depositary bank that shall have received an Activation Notice of any termination of a Cash Dominion Period. Any amount received in the Administrative Agent Account at any time when no Cash Dominion Period is continuing or all the Obligations have been paid in full shall be remitted to an operating account designated by the Borrower.
(f) Without the prior written consent of the Administrative Agent, no Credit Party shall modify or amend the instructions pursuant to any of the Control Agreements. So long as no Cash Dominion Event has exercised its right to take exclusive occurred or is continuing, each Credit Party shall, and the Collateral Agent hereby authorizes each Credit Party to, enforce and collect all amounts owing on the Inventory and Accounts and each Credit Party shall have sole control over the manner of disposition of funds in the Collection Deposit Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuingthe Concentration Deposit Account; provided that such authorization may, at the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights direction of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan PartiesCollateral Agent, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementbe terminated during any Cash Dominion Period.
Appears in 2 contracts
Samples: Abl Credit and Guaranty Agreement (Entegris Inc), Abl Credit and Guaranty Agreement (Entegris Inc)
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than than, so long as such accounts are not collateral under agreements, instruments or documents evidencing or governing any other Indebtedness, (i) any payroll account that constitutes an Excluded Bank Accountso long as such payroll account is a zero balance account, (ii) that does not constitute a Collection Account or a Concentration withholding tax and fiduciary accounts and (iii) any Segregated Governmental Account (such accounts in clauses (i), (ii) and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account(iii). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent “Excluded Accounts”)) as of and after the Closing Date; provided, however, that the Loan Parties shall have until the date that is thirty (30) days following the Closing Date (or such later date as may be agreed to by the Required Lenders in their sole discretion) to comply with the provisions of this Section 6.11 with regard to such accounts (other than Excluded Accounts) of the Loan Parties existing on the Closing Date. (b) In addition, in order to segregate and to facilitate perfection of the Agent’s security interest and Lien (for the benefit of the Secured Parties) in funds received from Governmental Payors making payments under Medicare or Medicaid, if any, the Loan Parties agree that the Administrative Agent Loan Parties shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event segregate collections made from Governmental Payors making payments under Medicare or Medicaid from collections made from all other account debtors and customers of Default is continuingthe applicable Loan Parties, the Administrative Agent mayincluding by (A) notifying all payors (other than Governmental Payors making payments under Medicare or Medicaid) then instructed to make payments to such Loan Parties’ deposit accounts to make payments to a deposit account subject to a Control Agreement, and at the direction of Required Lenders shall(B) notifying all Governmental Payors making payments under Medicare or Medicaid to make payments to a Segregated Governmental Account, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if enter into, and cause each applicable depository to enter into, a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver “sweep” agreement (a “Sweep Agreement”) with respect to each Segregated Governmental Account pursuant to which such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if depository will agree to sweep amounts deposited therein on daily basis to a Trigger Event occurs solely as a result deposit account of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess favor of outstanding checks Agent (for the benefit of the Secured Parties) as and wire transfers payable when funds clear and become available in accordance with such depository’s customary procedures, each with such financial institution and each in form and substance reasonably acceptable to the Required Lenders. Any change by any Loan Party in the sweep instructions set forth in such Sweep Agreement will cause an immediate Event of Default. To the extent any Person, whether a Governmental Payor or otherwise, remits payments to an incorrect deposit account or otherwise makes payments not in accordance with the provisions of this Section 6.11 or an applicable Loan Party’s payment direction, such Loan Party shall contact such Person and use its commercially reasonable efforts to redirect payment from such accounts Person in accordance with the terms hereof and amounts necessary with applicable Health Care Laws. Each of Agent and each Lender agrees and confirms that the Loan Parties will have sole dominion and “control” (within the meaning of Section 9-104 of the UCC and the common law) over each Segregated Governmental Account and all funds therein, and each of Agent and each Lender disclaims any right of any nature whatsoever to meet minimum balance requirementscontrol or otherwise direct or make any claim against the funds held in any Segregated Governmental Account from time to time. The Notwithstanding the foregoing, the Loan Parties shall have until ninety (i90) cause all Collections received days after the Closing Date (or such later date as may be agreed to by them each day the Required Lenders in their sole discretion) to be deposited in a Collection Account or a Concentration Account or, comply with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case provisions of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y6.11(b) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor with regard to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementarrangements.
Appears in 2 contracts
Samples: Facility Agreement (Oncology Institute, Inc.), Facility Agreement (Oncology Institute, Inc.)
Cash Management Systems. Each Loan (a) No Credit Party shall enter intoestablish or maintain any deposit, brokerage or other account with any financial institution (except for deposit accounts solely dedicated to the payment of payroll expenses provided that the aggregate amount on deposit in all such deposit accounts does not exceed the aggregate payroll obligations of the Credit Parties for the current pay period) unless, prior to the Closing Date or opening such account, Agent, the applicable Credit Party and cause each depository to enter into, such financial institution shall have entered into an Account Control Agreements providing for “springing” cash dominion Agreement with respect to each Collection Account such account. Each Credit Party shall ensure that all collections of accounts and each Concentration Account maintained all other payments received by such Person (other than any Credit Party are remitted directly to a deposit account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” an Account Control Agreements, Agreement.
(b) Upon the Administrative request of Agent and Lenders agree that the Administrative Agent shall only be authorized from time to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that if an Event of Default is continuingexists, each Credit Party shall establish lockbox or blocked accounts (collectively, “Blocked Accounts”) in such Credit Party’s name with such banks as are reasonably acceptable to Agent (“Depository Banks”), each subject to an Account Control Agreement between Agent the applicable Credit Party the applicable Collecting Bank (each, a “Blocked Account Agreement”). Each Credit Party (i) promptly thereafter shall direct all of its account debtors to remit all payments directly to a Blocked Account, (ii) promptly (and in any event within two Business Days of receipt) deposit in a Blocked Account, in the identical form in which such payment was made, all cash, money, checks, notes, drafts or other payments relating to and/or constituting proceeds of accounts or other Collateral which come into the possession or under the control of such Credit Party and (iii) until deposited in a Blocked Account, hold such items in trust for Agent, for the benefit of the Lender Parties.
(c) Agent, for the benefit of the Lender Parties, may establish one or more deposit accounts at each Depository Bank or at a centrally located bank in the name of Agent or such Credit Party as customer (collectively, the Administrative “Concentration Accounts”). If Agent may, and at so directs all collected funds on deposit in the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control Blocked Accounts shall be transferred by the Administrative Depository Banks on each Business Day to Agent or any of the Concentration Accounts. All funds received in the Concentration Account pursuant to this Section 2.13 shall be applied by Agent on each Business Day to reduce the Obligations under the Revolving Facility in such order and manner as Agent shall determine. If a credit balance exists with respect to the Concentration Account, such credit balance shall not accrue interest in favor of any or all such accounts; and (ii) if Credit Party, but unless a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and exists, shall be available to Borrowers upon written request in accordance with the terms of this Agreement.
(d) If at any time while a Depository Bank is continuingobligated to transfer to Agent or any Concentration Account all amounts held or deposited in the Blocked Accounts held by such Depository Bank, then the Administrative Agent no Credit Party shall not deliver nor shall any such notices Credit Party permit any Subsidiary to, accumulate or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account disbursement or securities account (payroll account, as of any date, in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement an amount in excess of checks outstanding checks and wire transfers payable from against such accounts account as of such date and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Fibernet Telecom Group Inc\), Credit Agreement (Fibernet Telecom Group Inc\)
Cash Management Systems. Each Loan Party shall enter into(a) Annexed hereto as Schedule 6.15(a) is a schedule of all DDAs, and cause each depository to enter intothat are maintained by the Borrowers, Control Agreements providing for “springing” cash dominion which Schedule includes, with respect to each Collection depository (i) the name and address of such depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole reasonable discretion), each Borrower shall enter into a blocked account agreement (each, a “Blocked Account and each Concentration Agreement”), reasonably satisfactory to the Administrative Agent, with respect to the DDAs existing as of the Closing Date listed on Schedule 6.15(c) attached hereto (collectively, the “Blocked Accounts”). Each Borrower hereby agrees that, once the Blocked Account maintained Agreements are entered into, all cash received by such Person Borrower in any DDA that is not a Blocked Account (other than any account that constitutes an Excluded Bank Account(i) as xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $250,000 or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion exceed $50,000 with respect to any one account (or in each depositcase, securitiessuch greater amounts to which the Administrative Agent may agree), commodity or similar and (ii) payroll, trust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law) will be promptly transferred into a Blocked Account. After entering into the Blocked Account Agreement, there shall be at all times thereafter at least one Blocked Account.
(c) Each Blocked Account Agreement entered into by a Borrower shall permit the Administrative Agent to instruct the depository, after the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), to transfer on each Business Day of all available cash receipts to the concentration account maintained by such Person the Administrative Agent at Bank of America (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts; and
(iii) each Blocked Account (including all cash deposited therein from each DDA). If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents owned by any Borrower (other than (i) xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $250,000 or exceed $50,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), and (ii) payroll, trust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that constitutes an Excluded Bank Account) that does not constitute is subject to a Collection Blocked Account Agreement (or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be DDA which is swept on daily to a daily basis into a Concentration Blocked Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent may require the applicable Borrower to close such account and Lenders agree that have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Cash Dominion Event, at the request of the Administrative Agent, the Borrowers shall provide the Administrative Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the reasonable satisfaction of the Administrative Agent, the proceeds from the Collateral which were deposited into a Blocked Account and swept to the Concentration Account.
(d) The Borrowers may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust, and tax withholding accounts or unless expressly waived by the Administrative Agent) consistent with and to the extent required by the provisions of this Section 6.15 and otherwise reasonably satisfactory to the Administrative Agent. The Borrowers shall furnish the Administrative Agent with prior written notice of its intention to open or close a Blocked Account and the Administrative Agent shall only be authorized promptly notify the Parent Borrower as to deliver to whether the relevant depository, securities intermediary or commodities intermediary Administrative Agent shall require a notice or other instruction which provides for exclusive control over Blocked Account Agreement with the Person with whom such account will be maintained.
(e) The Borrowers may also maintain one or more disbursement accounts to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(f) The Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. Each Borrower hereby acknowledges and agrees that (i) such Borrower has no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.15, during the continuation of a Cash Dominion Event, any Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Borrower for the Administrative Agent, shall not be commingled with any of such Borrower’s other funds or deposited in any account of such Borrower and shall promptly be deposited into the Concentration Account or dealt with in such other fashion as such Borrower may be instructed by the Administrative Agent Agent.
(g) So long as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger no Cash Dominion Event has occurred and is continuing, the Borrowers may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(h) Any amounts received in the Concentration Account at any time when all of the Obligations then due have been and remain fully repaid shall be remitted to the operating account of the Borrowers maintained with the Administrative Agent.
(i) The Administrative Agent mayshall promptly (but in any event within one Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(j) The following shall apply to deposits and payments under and pursuant to this Agreement:
(i) Funds shall be deemed to have been deposited to the Concentration Account on the Business Day on which deposited, in its sole discretion, deliver provided that such notices or instructions providing for exclusive control by deposit is available to the Administrative Agent over the Collection Accounts, provided, by 4:00 p.m. on that Business Day (except that if a Trigger Event occurs solely as a result of the imposition Obligations are being paid in full, by 2:00 p.m. New York City time, on that Business Day);
(ii) Funds paid to the Administrative Agent, other than by deposit to the Concentration Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that such payment is available to the Administrative Agent of by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. New York City time, on that Business Day);
(iii) If a new deposit to the Concentration Account or increased Reserve at a time when no Default or Event of Default has occurred and payment is continuing, then not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall not deliver such notices or instructions unless such circumstance continues for be deemed to have been made at 9:00 a.m. on the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in then next Business Day;
(iv) If any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject item deposited to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a the Concentration Account orand credited to the Loan Account is dishonored or returned unpaid for any reason, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts whether or any associated lockboxes not such return is rightful or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuingtimely, the Administrative Agent shall use commercially reasonable efforts following have the Borrower’s request therefor right to (A) restore control reverse such credit and charge the amount of such Collection Accounts item to the applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all reasonable out-of-pocket claims and losses resulting from such dishonor or return;
(subject to the continuing rights of the Administrative Agent to assert exclusive control v) All amounts received under this Section 6.15 shall be applied in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries manner set forth in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement8.03.
Appears in 2 contracts
Samples: Credit Agreement (LVB Acquisition, Inc.), Credit Agreement (Biolectron, Inc.)
Cash Management Systems. (a) Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than than, (i) so long as such accounts are not collateral under agreements, instruments or documents evidencing or governing any other Indebtedness and that are specifically and exclusively for (A) payroll, so long as such payroll account that constitutes an is a zero balance account, (B) any withholding tax and fiduciary accounts, (C) any Excluded Bank AccountSecurities Accounts and (D) that does not constitute a Collection Account capital increase accounts and lease security accounts in Switzerland or a Concentration Account (ii) Segregated Governmental Accounts (such accounts in clauses (i) and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account(ii). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent “Excluded Accounts”)) as of and after the Initial Convertible Loan Disbursement Date; provided, however, that the Loan Parties shall have until the date that is thirty (30) days following the Initial Convertible Loan Disbursement Date or the closing date of such Permitted Acquisition, as applicable (or such later date as may be agreed to by the Required Lenders in their sole discretion) to comply with the provisions of this Section 6.11 with regard to such accounts (other than Excluded Accounts) of the Loan Parties existing on the Initial Convertible Loan Disbursement Date or acquired in connection with such Permitted Acquisition, as applicable.
(b) In addition, in order to segregate and to facilitate perfection of Agent’s security interest and Lien (for the benefit of the Secured Parties) in funds received from Governmental Payors making payments under Medicare or Medicaid, if any, the Loan Parties agree that the Administrative Agent shall only be authorized to deliver to Loan Parties shall, no later than thirty (30) days following the relevant depository, securities intermediary date of commencement of receipt of such payments or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event segregate collections made from Governmental Payors making payments under Medicare or Medicaid from collections made from all other account debtors and customers of Default is continuingthe applicable Loan Parties, the Administrative Agent mayincluding by (A) notifying all payors (other than Governmental Payors making payments under Medicare or Medicaid) then instructed to make payments to such Loan Parties’ deposit accounts to make payments to a deposit account subject to a Control Agreement, and at the direction of Required Lenders shall(B) notifying all Governmental Payors making payments under Medicare or Medicaid to make payments to a Segregated Governmental Account, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if enter into, and cause each applicable depository to enter into, a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver “sweep” agreement (a “Sweep Agreement”) with respect to each Segregated Governmental Account pursuant to which such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if depository will agree to sweep amounts deposited therein on daily basis to a Trigger Event occurs solely as a result deposit account of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess favor of outstanding checks Agent (for the benefit of the Secured Parties) as and wire transfers payable from when funds clear and become available in accordance with such accounts depository’s customary procedures, each with such financial institution and amounts necessary each in form and substance reasonably acceptable to meet minimum balance requirementsthe Required Lenders. The Any change by any Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) Party in the case sweep instructions set forth in such Sweep Agreement will cause an immediate Event of STL Related AccountsDefault. To the extent any Person, directly whether a Governmental Payor or otherwise, remits payments to a Qualified Trust Account an incorrect deposit account or any associated lockbox. If (x) otherwise makes payments not in accordance with the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to provisions of this Section 5.11 while no Event of Default is continuing 6.11 or an applicable Loan Party’s payment direction, such Loan Party shall contact such Person and (y) no Trigger Event is continuing, the Administrative Agent shall use its commercially reasonable efforts following to redirect payment from such Person in accordance with the Borrower’s request therefor to (A) restore control terms hereof and with applicable Health Care Laws. Each of such Collection Accounts to Agent and each Lender agrees and confirms that the applicable Loan Parties will have sole dominion and “control” (subject to within the continuing rights meaning of Section 9-104 of the Administrative UCC and the common law) over each Segregated Governmental Account and all funds therein, and each of Agent and each Lender disclaims any right of any nature whatsoever to assert exclusive control or otherwise direct or make any claim against the funds held in the circumstances provided herein) and (B) so long as such control has not been restored any Segregated Governmental Account from time to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementtime.
Appears in 2 contracts
Samples: Facility Agreement (ADC Therapeutics SA), Facility Agreement (ADC Therapeutics SA)
Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter into, the Term Agent and shall notify their accounts debtors to make payment of amounts due to the Loan Parties directly into a Control Agreements providing for “springing” cash dominion Account. Other than with respect to the Control Account described in Section 2.1(v), each Collection Account and each Concentration Account maintained by such Person Borrower shall, no later than the date that is thirty (other than any account that constitutes an Excluded Bank Account30) as of or days after the Effective Date. Each Loan Party shall use commercially reasonable efforts to Closing Date (or such later date as the Term Agent may determine in its sole discretion) enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Borrower.
(b) Each Control Agreement shall provide, among other than any account things, that constitutes an Excluded Bank Account(i) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) from and after the receipt of a notice or other instruction (an “Activation Notice”) from the Term Agent (which provides for exclusive control over such account by Activation Notice may be furnished only during the Administrative Agent as follows: (i) at any time that continuance of an Event of Default is continuingDefault), without any further action or consent by any Borrower, the Administrative Agent mayapplicable depository institution, securities intermediary and at commodities intermediary shall comply solely with the direction instructions of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Term Agent with respect to any or all such accounts; the disposition and (ii) if a Trigger Event has occurred transfer of assets from the applicable account. Each Borrower agrees that it will, and, after the occurrence and is continuing, during the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result continuation of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or an Event of Default has occurred and is continuingDefault, then will cooperate with the Administrative Term Agent shall not deliver such notices in all respects with respect to the Term Agent’s direction of funds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in replace any deposit account or securities account (in each caseother account; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust additional or replacement Control Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case time of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event opening of Default is continuing and (y) no Trigger Event is continuingsuch account, the Administrative Agent applicable Borrower and the applicable depository, securities intermediary or commodities intermediary shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts have executed and delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 2 contracts
Samples: Credit Agreement (Mediaco Holding Inc.), Term Loan Agreement (Mediaco Holding Inc.)
Cash Management Systems. Each Loan Party (a) On or prior to the Closing Date, the Borrower shall enter into, have established and cause shall thereafter maintain in existence one or more lockboxes (each depository to enter into, Control Agreements providing for “springing” cash dominion a "Lockbox") with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that or such other Lender as shall be reasonably acceptable to the Administrative Agent (each a "Depositary Account Bank") and shall only instruct all account debtors on the Borrower's Accounts to remit all payments to a Lockbox. All payments remitted by account debtors of the Borrower to any Lockbox, all other amounts received by the Borrower from any account debtor and all other cash received by the Borrower from any other source shall in each case upon receipt thereof be authorized deposited into a Deposit Account.
(b) Each Deposit Account or Securities Account of the Borrower or any other Grantor that is not a Permitted Unperfected Account (each such Deposit Account, a "Controlled Deposit Account," and each such Securities Account, a "Controlled Securities Account," Controlled Securities Accounts together with Controlled Deposit Accounts may sometimes be referred to deliver herein individually as a "Controlled Account" and, collectively, as "Controlled Accounts") shall be maintained with a Depositary Account Bank.
(c) On or prior to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuingClosing Date, the Administrative Agent may, Borrower and at the direction of Required Lenders shall, deliver such notices each other Grantor shall have entered into a deposit account control agreement or instructions providing for exclusive securities account control by agreement in form and substance satisfactory to the Administrative Agent with respect to any or all such accounts; each Controlled Account with the respective Depositary Account Bank and (ii) if a Trigger Event has occurred and is continuing, in favor of the Administrative Agent may(each an "Account Control Agreement"), in its sole discretionwhich, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Account Control Agreements with respect to Controlled Deposit Accounts, directly to a Qualified Trust Account or any associated lockbox. If shall provide that, among other things, (xi) upon the Administrative Agent has exercised its right to take exclusive control over occurrence and during the Collection Accounts pursuant to this Section 5.11 while no continuance of an Event of Default is continuing or (ii) upon the commencement and (y) no during the continuance of an Availability Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basisPeriod, all available amounts held in each Controlled Deposit Account maintained at such Depositary Account Bank shall be wired on deposit in such Collection Accounts each Business Day into an account (the "Administrative Agent Account") maintained by the Administrative Agent; provided, that the Administrative Agent hereby agrees that it will not give any instructions under any Account Control Agreement unless and until an Event of Default shall have occurred and be continuing or the occurrence of an Availability Trigger Period. All amounts swept and wired into an Administrative Agent Account pursuant to a Concentration any Account that is Control Agreement during the continuance of an Availability Trigger Period shall, subject to a Section 6.5 if an Event of Default shall have occurred and be continuing and subject to the Administrative Agent's election to subject such amounts to Section 6.5, be applied first to reduce that portion of the Obligations consisting of the then aggregate outstanding balance of the Loans, L/C Borrowings and all other Obligations, second to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, and last, after all other Obligations then due have been indefeasibly paid in full, to be deposited into an account as directed by the Borrower.
(d) The closing of any Lockbox or Controlled Account and the termination of any Account Control AgreementAgreement shall require in each case the prior written consent of the Administrative Agent.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Paperweight Development Corp), Guarantee and Collateral Agreement (Appleton Papers Inc/Wi)
Cash Management Systems. Each (a) Annexed hereto as Schedule 6.15(a) is a schedule of all DDAs, that are maintained by the Loan Party shall enter intoParties, and cause each depository to enter intowhich Schedule includes, Control Agreements providing for “springing” cash dominion with respect to each Collection depository (i) the name and address of such depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Within ninety (90) days after the Closing Date (or such longer period as the Administrative Agent may agree in its sole reasonable discretion), each applicable Borrower will enter into a blocked account agreement (each, a “Blocked Account and each Concentration Agreement”), reasonably satisfactory to the Administrative Agent, with respect to the DDAs existing as of the Closing Date listed on Schedule 6.15(b) attached hereto (collectively, the “Blocked Accounts”). Each Borrower hereby agrees that, once the Blocked Account maintained Agreements are entered into, all cash in respect of Collateral received by such Person a Loan Party in any DDA that is not a Blocked Account (other than any account that constitutes an Excluded Bank amounts held in payroll, trust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law) will be promptly transferred into a Blocked Account) as of or after . After entering into the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter intoBlocked Account Agreement, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account there shall be swept on at all times thereafter at least one Blocked Account.
(c) Each Blocked Account Agreement entered into by a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, Borrower shall permit the Administrative Agent to instruct the depository, after the occurrence and Lenders agree that during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent shall only be authorized Agent), to deliver transfer on each Business Day of all available cash receipts to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such concentration account maintained by the Administrative Agent as follows: at Citibank, N.A. (the “Concentration Account”), from:
(i) the sale of Collateral;
(ii) all proceeds of collections of Accounts; and
(iii) each Blocked Account (including all cash deposited therein from each DDA). If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents that an Event are Collateral (or proceeds thereof) owned by any Loan Party (other than (i) xxxxx cash and minimum daily working capital accounts funded in the ordinary course of Default is continuingbusiness, the deposits in which shall not at any time aggregate more than $20.0 million (or such greater amounts to which the Administrative Agent maymay agree), and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred payroll, trust and is continuingtax withholding accounts funded in the ordinary course of business and required by Applicable Law) are deposited to any account, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new held or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit invested in any deposit account or securities account (in each casemanner, other otherwise than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Blocked Account that is subject to a Control Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Administrative Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Cash Dominion Event, at the request of the Administrative Agent, the Loan Parties shall provide the Administrative Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the reasonable satisfaction of the Administrative Agent, the proceeds from the Collateral which were deposited into a Blocked Account and swept to the Concentration Account.
(d) The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust, and tax withholding accounts or unless expressly waived by the Administrative Agent) consistent with and to the extent required by the provisions of this Section 6.15 and otherwise reasonably satisfactory to the Administrative Agent. The Parent Borrower shall furnish the Administrative Agent with prior written notice of its intention to open or close a Blocked Account and the Administrative Agent shall promptly notify the Parent Borrower as to whether the Administrative Agent shall require a Blocked Account Agreement with the Person with whom any such new account will be maintained.
Appears in 2 contracts
Samples: Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)
Cash Management Systems. (a) Each Loan Party shall enter intoDeposit Account or Securities Account of any Grantor that is not a Permitted Unperfected Account (each such Deposit Account, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account a "Controlled Deposit Account," and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Securities Account, a "Controlled Securities Account," Controlled Securities Accounts together with Controlled Deposit Accounts may sometimes be referred to herein individually as a "Controlled Account" and, collectively, as "Controlled Accounts") as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, maintained with the Administrative Agent and Lenders agree that or such other Lender as shall be reasonably acceptable to the Administrative Agent shall only be authorized to deliver (each, a "Depositary Account Bank").
(b) On or prior to the relevant depositoryClosing Date, each Grantor shall have entered into a deposit account control agreement or securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive account control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, agreement in form and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by substance satisfactory to the Administrative Agent with respect to any or all such accounts; each Controlled Account with the respective Depositary Account Bank and (ii) if a Trigger Event has occurred and is continuing, in favor of the Administrative Agent may(each an "Account Control Agreement"), in its sole discretionwhich, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Account Control Agreements with respect to Controlled Deposit Accounts, directly to a Qualified Trust Account or any associated lockbox. If shall provide that, among other things, (xi) upon the Administrative Agent has exercised its right to take exclusive control over occurrence and during the Collection Accounts pursuant to this Section 5.11 while no continuance of an Event of Default is continuing or (ii) upon the commencement and (y) no during the continuance of an Availability Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basisPeriod, all available amounts held in each Controlled Deposit Account maintained at such Depositary Account Bank shall be wired on deposit in such Collection Accounts each Business Day into an account (the "Administrative Agent Account") maintained by the Administrative Agent; provided, that the Administrative Agent hereby agrees that it will not give any instructions under any Account Control Agreement unless and until an Event of Default shall have occurred and be continuing or the occurrence of an Availability Trigger Period. All amounts swept and wired into an Administrative Agent Account pursuant to a Concentration any Account that is Control Agreement during the continuance of an Availability Trigger Period shall, subject to a Section 6.5 if an Event of Default shall have occurred and be continuing and subject to the Administrative Agent's election to subject such amounts to Section 6.5, be applied first to reduce that portion of the Obligations consisting of the then aggregate outstanding balance of the Loans, L/C Borrowings and all other Obligations, second to Cash Collateralize that portion of the L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit, and last, after all other Obligations then due have been indefeasibly paid in full, to be deposited into an account as directed by the Grantor.
(c) The closing of any Controlled Deposit Account and the termination of any Account Control AgreementAgreement shall require in each case the prior written consent of the Administrative Agent.
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Paperweight Development Corp), Guarantee and Collateral Agreement (Appleton Papers Inc/Wi)
Cash Management Systems. Each The Loan Party shall enter into, Parties will establish and cause each depository to enter into, Control Agreements providing for “springing” maintain the cash dominion with respect to each Collection Account and each Concentration Account management system described below:
(a) Schedule 6.19 sets forth all DDAs maintained by such Person (other than any account that constitutes an Excluded Bank Account) the Loan Parties as of or after the Effective Closing Date, including all Dominion Accounts. Each Loan Party shall use commercially reasonable efforts to enter into, be the sole account holder of each DDA (other than an Excluded Account) and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such shall not allow any other Person (other than the Administrative Agent, the Collateral Agent or, subject to the ABL Intercreditor Agreement, any account that constitutes Fixed Assets Debt Agent (as defined in the ABL Intercreditor Agreement)) to have control over or a Lien on a DDA (other than an Excluded Bank Account) or any property deposited therein.
(b) (i) Within 90 days after the Closing Date (or such later date as may be agreed to by the Administrative Agent in its Permitted Discretion), the Loan Parties shall have delivered to the Administrative Agent an effective account control agreement or blocked account agreement (a “Deposit Account Control Agreement”) for all of the DDAs of the Loan Parties (other than Excluded Accounts), in each case duly executed by each applicable Loan Party and the applicable depositary bank in form and substance reasonably satisfactory to the Collateral Agent and (ii) the applicable Loan Party shall enter into a Deposit Account Control Agreement with respect to any such DDA (other than an Excluded Account) which is established or acquired (including, for the avoidance of doubt, pursuant to a Permitted Acquisition) after the Closing Date, promptly and in any event within ninety (90) days upon such establishment or acquisition (or such later date as may be agreed to by the Administrative Agent (such agreement not to be unreasonably withheld or delayed)).
(c) Each Borrower hereby agrees to promptly (and, with respect to account debtors as of the Closing Date, in any event within 90 days after the Closing Date) instruct all account debtors that does are not constitute currently making payments directly to DDAs listed on Schedule 6.19 or otherwise subject to such Deposit Account Control Agreements to make all future payments in respect of ABL Priority Collateral directly to the DDAs subject to such Deposit Account Control Agreements. Upon the occurrence and during the continuation of a Collection Account or a Concentration Account Cash Dominion Period (and following delivery of notice of the commencement thereof from the Administrative Agent to the Parent Borrower and the account bank party to such instrument or agreement), all funds deposited into any such deposit, securities, commodity and financial assets held in or similar account credited to each DDA shall be swept into the Dominion Account on a daily basis into a Concentration Account(or less frequently as agreed by the Administrative Agent) for application as set forth in Section 2.05(b)(iii). With respect to accounts subject to “springing” Control Agreements.
(d) So long as no Cash Dominion Period is continuing, the Loan Parties may direct, and shall have control over, the manner of disposition of funds in the DDAs. The Administrative Agent and Lenders the other Secured Parties hereby acknowledge and agree that that, subject to Section 8.02, so long as no Cash Dominion Period is continuing the Loan Parties shall have the right to withdraw all funds remaining on deposit in any Dominion Account and the Administrative Agent shall only no longer be authorized permitted to deliver direct any account bank under any Deposit Account Control Agreement to sweep funds into any Dominion Account.
(e) The Loan Parties may close DDAs and/or open new DDAs without the Administrative Agent’s consent, subject to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, prompt execution and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect delivery to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new Deposit Account Control Agreement to the extent required by, and within the time periods set forth in, the provisions of this Section 6.19; provided that, in any event, the Parent Borrower shall furnish the Administrative Agent with prior or increased Reserve contemporaneous notice of its opening or closing any DDA. The Loan Parties may open or close Excluded Accounts at any time, without requirement of delivery of a time when no Default Deposit Account Control Agreement without consent of the Administrative Agent. The Parent Borrower shall furnish the Administrative Agent with prior written notice of its intention to open or Event of Default has occurred close a Dominion Account and is continuing, then the Administrative Agent shall not deliver promptly notify the Parent Borrower as to whether the Administrative Agent shall require a Deposit Account Control Agreement with the Person with whom any such notices or instructions unless such circumstance continues for new account will be maintained.
(f) Any amounts received in the Designated Period. The Loan Parties shall not maintain cash or Dominion Account (including all interest and other earnings with respect thereto, if any) at any time after the payment in full of all Obligations (other than contingent indemnification obligations as to which no claim has been asserted), Cash Equivalents on deposit in Collateralization of all Letters of Credit and termination of the aggregate Revolving Credit Commitments hereunder and (ii) any deposit account or securities account (amounts that continue to be swept to the Dominion Accounts after no Cash Dominion Period exists, shall, in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts remitted to the applicable Loan Parties (subject to the continuing rights operating account of the Administrative Agent to assert exclusive control in Parent Borrower as specified by the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementParent Borrower.
Appears in 2 contracts
Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.), Abl Credit Agreement (Clear Channel Outdoor Holdings, Inc.)
Cash Management Systems. Each Loan Party shall enter into, (a) The Credit Parties will establish and cause each depository to enter into, Control Agreements providing for maintain the cash management systems described below (the “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: Cash Management Systems”):
(i) at any time that an Event of Default is continuing, Within 60 calendar days after the Closing Date (or such later date as the Administrative Agent may, in its reasonable discretion, consent to in writing), (x) the Parent Borrower shall deliver to the Collateral Agent Schedule 9.15(a) which shall list as of the date such Schedule is delivered all Single Store DDAs and at all Consolidated Stores DDAs that to the direction knowledge of Required Lenders shallthe Parent Borrower are maintained by the Credit Parties and (y) the Borrowers shall have established one or more concentration accounts in the respective Borrower’s name (the “Concentration Accounts”) that shall be designated as the Concentration Accounts and listed on Schedule 9.15(a).
(ii) The Parent Borrower may maintain, deliver in its name, one or more accounts (any such notices or instructions providing for exclusive control by account, a “Disbursement Account”) into which the Administrative Agent shall, from time to time, deposit proceeds of Loans made to the Borrowers pursuant to Section 2.1 for use by the Borrowers solely in accordance with respect the provisions of Section 9.13 (it being understood that the Administrative Agent may also deposit or wire proceeds of Loans into any other account designated by the Parent Borrower at any time other than during the continuance of any Cash Dominion Event). The Parent Borrower may also maintain, in its name, one or more accounts that (x) do not contain any funds that are proceeds of Accounts or Inventory constituting Collateral, (y) are payroll accounts, trust or tax withholding accounts or (z) the Parent Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Account” ), provided that (A) the amount on deposit in the Designated Account shall not exceed at any or all such accounts; time $25,000,000 and (iiB) if so long as a Trigger Cash Dominion Event has occurred and is continuing, the funds in the Designated Account shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral (each account under clause (x) through (z), a “Non-Controlled Account”). In addition to the account described in clause (z) in the immediately preceding sentence, upon receipt of any proceeds of “Collateral” (as defined in the Term Loan Agreement) that does not constitute Collateral hereunder, the Parent Borrower shall create and maintain an account that it shall designate in writing to the Administrative Agent as the account, the sole proceeds of which shall constitute such proceeds of such property and any additional property that constitutes “Collateral” (as defined in the Term Loan Agreement) but not Collateral hereunder. Subject to the Intercreditor Agreement, amounts deposited into such account shall be distributed in accordance with the provisions set forth in this Section 9.15.
(iii) Within 60 calendar days after the Closing Date (or such later date as the Administrative Agent may, in its sole reasonable discretion, consent to in writing), each Credit Party shall deliver to the Collateral Agent for the Concentration Accounts and any Disbursement Accounts, a tri-party blocked account agreement or lockbox account agreement between the Collateral Agent, the bank at which each such notices Concentration Account or instructions providing Disbursement Account is maintained and the relevant Credit Parties, in form and substance reasonably satisfactory to the Collateral Agent (each a “Blocked Account Agreement”). Each such Blocked Account Agreement shall provide, among other things, that at all times following the establishment of the Cash Management Systems pursuant to this Section 9.15(a), upon the occurrence and during the continuation of a Cash Dominion Event, the bank at which such Concentration Account or Disbursement Account is maintained shall, upon receipt of notice from the Collateral Agent of such Cash Dominion Event, commence the process of daily sweeps from such accounts into the Collection Account (it being understood that any such daily sweep in respect of any cash or other amount in a Disbursement Account shall be subject to the rights of the applicable Credit Parties to transfer, apply or otherwise use the proceeds of any Loans hereunder for exclusive control any purpose in accordance with Section 9.13 by moving any cash or other amount on deposit in any Disbursement Account out of such account for any such purpose); provided that any amounts in any Concentration Accounts reasonably identified (with reasonably detailed written support) to the Administrative Agent as not constituting Collateral will be distributed as directed by the Administrative Agent over as requested by the Parent Borrower, including to one or more Non-Controlled Accounts. Notwithstanding anything to the contrary herein or in any other Credit Document, no cash or other amount that is disbursed or otherwise transferred from the Disbursement Account (other than to the extent swept back into the Collection Accounts, provided, that if a Trigger Event occurs solely as a result Account) shall constitute Collateral.
(iv) Following the establishment of the imposition Cash Management Systems pursuant to Section 9.15(a), the Borrowers will, and will cause the other Credit Parties to, (x) transfer from each Consolidated Stores DDA no less frequently than on a daily basis the amount reasonably projected to be available in such Consolidated Stores DDA on the next succeeding Business Day (net of any reserves maintained by the Administrative Agent respective Credit Party in the ordinary course of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accountsbusiness) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect and (y) transfer from each Single Store DDA on a regular basis the amount reasonably projected to be available in such Single Store DDA on the next succeeding Business Day (net of any STL Related Accounts, reserves maintained by the respective Credit Party in the ordinary course of business) to a Qualified Trust Concentration Account, within two provided that a transfer under this clause (2y) Business Days following shall in any event be made promptly after receipt by a Credit Party of the monthly account statement from the depositary institution with which such Single Store DDA is maintained (the “Monthly Account Statement”) and (iiz) direct all not transfer any funds out of any DDA except to a Concentration Account.
(v) Prior to the occurrence of any Cash Dominion Event, the balance from time to time standing to the credit of the Concentration Accounts shall be distributed as directed by the Parent Borrower, including to one or more Non-Controlled Accounts. Notwithstanding anything to the contrary, cash held in overnight deposit or investment accounts shall be deemed to be in a Concentration Account Debtors overnight.
(vi) The Parent Borrower, following the establishment of the Cash Management Systems pursuant to remit all payments either (ASection 9.15 and the delivery of Schedule 9.15(a), may amend Schedule 9.15(a) directly to Collection Accounts add or replace a bank, any Concentration Account, any DDA or any associated lockboxes or Disbursement Account; provided that (Bx) in the case of STL Related Accounts, directly to a Qualified Trust new or replacement Concentration Account or any associated lockbox. If Disbursement Account (xA) the Parent Borrower shall have given prior written notice to the Administrative Agent has exercised of its right intention to take exclusive control over open such new or replacement account with the Collection Accounts pursuant relevant bank and (B) contemporaneously with the opening of a new Concentration Account or Disbursement Account, the applicable Credit Party and such bank shall have executed and delivered to this the Collateral Agent a Blocked Account Agreement consistent with Section 5.11 while no Event of Default is continuing 9.15(a)(iii) and (y) no Trigger Event is continuing, in the case of a new or replacement DDA (A) the Parent Borrower shall give written notice to the Administrative Agent of the opening of such new or replacement account no later than five Business Days after the opening of such account and (B) the Credit Parties shall use commercially reasonable efforts comply with the obligations set forth in Section 9.15(a)(iv).
(vii) All amounts deposited in the Collection Account shall be deemed received by the Administrative Agent in accordance with Section 5 and shall be applied (and allocated) by the Administrative Agent in accordance with Section 5. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to the Collection Account.
(viii) The Borrowers shall and shall cause their respective Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with a Borrower (each a “Related Person”) to (x) hold in trust for the Administrative Agent, for the benefit of itself and Lenders, all checks, cash and other items of payment received by a Borrower or by a Related Person on behalf of a Borrower in respect of Accounts or Inventory that constitute Collateral, and (y) following the Borrower’s request therefor establishment of the Cash Management Systems pursuant to Section 9.15(a), within three Business Days after receipt by a Borrower or by a Related Person on behalf of a Borrower of any checks, cash or other items of payment in respect of Accounts that constitute Collateral, deposit the same into a DDA or a Concentration Account. Each Borrower and each Related Person acknowledges and agrees that all cash, checks or other items of payment constituting proceeds of Collateral are part of the Collateral. Following the establishment of the Cash Management Systems pursuant to Section 9.15(a), all proceeds of the sale or other disposition of any Collateral shall be deposited directly into a DDA or a Concentration Account.
(Ab) restore Upon the occurrence and during the continuance of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 9.15(a), each Concentration Account shall at all times be under the sole dominion and control of such Collection the Collateral Agent. The Borrowers hereby acknowledge and agree that during the continuance of a Cash Dominion Event following the establishment of the Cash Management Systems pursuant to Section 9.15(a), (i) the Credit Parties have no right of withdrawal from the Concentration Accounts to the applicable Loan Parties (subject to the continuing rights proviso to the second to last sentence of Section 9.15(a)(iii)), (ii) the funds on deposit in the Concentration Accounts shall at all times be collateral security for all of the Obligations (other than to the extent such funds do not constitute proceeds of Accounts or Inventory that are otherwise Collateral) and (iii) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 9.15, any Borrower receives or otherwise has dominion and control of any proceeds or collections of Accounts or Inventory that otherwise constitute Collateral outside of any Concentration Account, any DDA and any Disbursement Account, such proceeds and collections shall be held in trust by such Borrower for the Collateral Agent and shall, not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other fashion as such Borrower may be instructed by the Collateral Agent.
(c) (i) Annexed hereto as Schedule 9.15(c) (such schedule to be delivered to the Administrative Agent on or before the 60th calendar day after the Closing Date (or such later date as the Administration Agent may, in its reasonable discretion, consent to assert exclusive control in writing)) is a list as of the circumstances provided hereindate such Schedule 9.15(c) and (B) so long as such control has not been restored is delivered, of all arrangements to which any Credit Party is a party with respect to the applicable Loan Parties, instruct the depositaries in respect payment to such Credit Party of the Collection Accounts proceeds of all credit card charges for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in services or sales by such Collection Accounts to a Concentration Account that is subject to a Control AgreementCredit Party.
Appears in 2 contracts
Samples: Abl Credit Agreement (Dollar General Corp), Abl Credit Agreement (Dollar General Corp)
Cash Management Systems. (a) Each Loan Party Deposit Account or Securities Account of any Grantor that is not a Permitted Unperfected Account (each such Deposit Account, a “Controlled Deposit Account,” and each such Securities Account, a “Controlled Securities Account,” Controlled Securities Accounts together with Controlled Deposit Accounts may sometimes be referred to herein individually as a “Controlled Account” and, collectively, as “Controlled Accounts”) shall enter intobe maintained with the Administrative Agent or such other Lender as shall be reasonably acceptable to the Required Lenders (each, a “Depositary Account Bank”).
(b) Within the time period prescribed under Section 6.15 of the Credit Agreement, each Grantor shall have entered into a deposit account control agreement or securities account control agreement in form and cause each depository substance satisfactory to enter into, Control Agreements providing for “springing” cash dominion the Administrative Agent and the Required Lenders with respect to each Collection Controlled Account with the respective Depositary Account Bank and in favour of the Administrative Agent (each Concentration an “Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as Control Agreement”), which, in the case of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Account Control Agreements providing for “springing” cash dominion with respect to Controlled Deposit Accounts, shall provide that, among other things, upon the occurrence and during the continuance of an Event of Default, at the instruction of the Administrative Agent, all available amounts held in each deposit, securities, commodity or similar Controlled Deposit Account maintained at such Depositary Account Bank shall be wired on each Business Day into an account (the “Administrative Agent Account”) maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree Agent; provided, that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at hereby agrees that it will not give any time that instructions under any Account Control Agreement unless and until an Event of Default is shall have occurred and be continuing.
(c) The closing of any Controlled Deposit Account and the termination of any Account Control Agreement, except in connection with a release of Liens under Section 8.15 hereof or Section 9.12 of the Credit Agreement, shall require in each case the prior written consent of the Administrative Agent may, and (at the direction of the Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementLenders).
Appears in 2 contracts
Samples: Guarantee and Collateral Agreement (Paperweight Development Corp), Guarantee and Collateral Agreement (Paperweight Development Corp)
Cash Management Systems. Each Loan Party (a) On or prior to the Closing Date, the Borrower shall enter into, have established and cause shall thereafter maintain in existence one or more lockboxes (each depository to enter into, Control Agreements providing for a “springing” cash dominion Lockbox”) with respect to each Collection Account and each Concentration Account maintained by the Revolver Agent or such Person (other than any account that constitutes an Excluded Bank Account) Lender as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect reasonably acceptable to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Revolver Agent (each a “Depositary Account Bank”) and shall only be authorized instruct all account debtors on the Borrower’s Accounts to deliver remit all payments to a Lockbox. All payments remitted by account debtors of the relevant depositoryBorrower to any Lockbox, securities intermediary or commodities intermediary a notice or all other instruction which provides for exclusive control over such account amounts received by the Administrative Agent Borrower from any account debtor and all other cash received by the Borrower from any other source shall in each case upon receipt thereof be deposited into a Deposit Account.
(b) Each Deposit Account or Securities Account of the Borrower or any other Grantor that is not a Permitted Unperfected Account (each such Deposit Account, a “Controlled Deposit Account,” and each such Securities Account, a “Controlled Securities Account,” Controlled Securities Accounts together with Controlled Deposit Accounts may sometimes be referred to herein individually as follows: a “Controlled Account” and, collectively, as “Controlled Accounts”) shall be maintained with a Depositary Account Bank.
(ic) at any Within the time that an Event period prescribed under Section 6.15 of Default is continuingthe Credit Agreement, the Administrative Agent may, Borrower and at the direction of Required Lenders shall, deliver such notices each other Grantor shall have entered into a deposit account control agreement or instructions providing for exclusive securities account control by agreement in form and substance satisfactory to the Administrative Agent with respect to any or all such accounts; each Controlled Account with the respective Depositary Account Bank and (ii) if a Trigger Event has occurred and is continuing, in favor of the Administrative Agent may(each an “Account Control Agreement”), in its sole discretionwhich, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Account Control Agreements with respect to Controlled Deposit Accounts, directly to a Qualified Trust shall provide that, among other things, upon the occurrence and during the continuance of an Event of Default, at the instruction of the Administrative Agent, all available amounts held in each Controlled Deposit Account or any associated lockbox. If maintained at such Depositary Account Bank shall be wired on each Business Day into an account (xthe “Administrative Agent Account”) maintained by the Administrative Agent; provided, that the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no hereby agrees that it will not give any instructions under any Account Control Agreement unless and until an Event of Default is continuing shall have occurred and be continuing.
(yd) no Trigger Event is continuingThe closing of any Lockbox or Controlled Account and the termination of any Account Control Agreement, except in connection with a release of Liens under Section 8.15 hereof or Section 9.12 of the Administrative Agent Credit Agreement, shall use commercially reasonable efforts following require in each case the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights prior written consent of the Administrative Agent to assert exclusive control in and the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementRevolver Agent.
Appears in 1 contract
Samples: Guarantee and Collateral Agreement (Paperweight Development Corp)
Cash Management Systems. Each Loan Party (a) For each Liquidation Sale, prior to Lender’s making the Inventory Advance or incurring the Letter of Credit Obligations with respect to such Liquidation Sale, Borrower shall enter intoestablish a blocked account in Borrower’s name (the “Blocked Account”) at a bank acceptable to Lender, for the deposit of all Collections and other amounts that Borrower is entitled to receive and use with respect to such Liquidation Sale, and Borrower shall deposit or cause each depository to enter intobe deposited to the Blocked Account such amounts at least two times per week, Control Agreements providing for “springing” cash dominion or more frequently as Borrower may determine is appropriate.
(b) Prior to Lender’s making the Inventory Advance or incurring the Letter of Credit Obligations with respect to each Liquidation Sale, the bank at which the Blocked Account for such Liquidation Sale has been established shall have entered into a tri-party blocked account agreement with Lender and Borrower, in form and substance acceptable to Lender, which shall immediately become operative at the bank at which the Blocked Account is maintained. Such blocked account agreement shall provide, among other things, that such bank executing such agreement has no rights of setoff or recoupment or any other claim against such Blocked Account, other than for payment of its service fees and other charges directly related to the administration of such account, and the bank at which the Blocked Account is located agrees to forward immediately all amounts in the Blocked Account to the Collection Account and to commence the process of daily sweeps from the Blocked Account into the Collection Account.
(c) For each Concentration Liquidation Sale, Borrower shall establish, in its name, a separate account (each a “Disbursement Account”) at a bank acceptable to Lender into which Lender shall deposit proceeds of the Revolving Credit Advances with respect to such Liquidation Sale, except for those proceeds as to which Lender and Borrower have agreed upon an alternative method of funding, for use by Borrower solely in accordance with the provisions of Section 2.2.
(d) The Blocked Account maintained by and the Disbursement Account for each Liquidation Sale shall be cash collateral accounts, with all cash, checks and other similar items of payment in such Person (accounts securing payment of the Liquidation Loan and all other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts Obligations with respect to enter intosuch Liquidation Sale, and cause each depositoryin which Borrower shall have granted a Lien to Lender pursuant to the Collateral Documents. Unless Lender otherwise agrees, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion Borrower shall maintain the Blocked Account and the Disbursement Account with respect to each deposit, securities, commodity Liquidation Sale so long as there is any reasonable expectation that any additional Collections will be received or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent Revolving Credit Advances made with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementLiquidation Sale.
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, (a) At all times:
(i) maintain deposit accounts (“Collection Accounts”) only at banks reasonably approved in advance by the Administrative Agent and cause only permit authorized signatories on each depository to enter into, Control Agreements providing for “springing” cash dominion Collection Account who are reasonably approved in advance by the Administrative Agent;
(ii) provide the Administrative Agent with the account name and number with respect to each Collection Account and each Concentration Account maintained by such Person (other than any deposit account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each a Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt after opening or acquiring any such account, along with the authorized signatories on each such account;
(iii) direct all account debtors or other payment obligors of any Loan Party that pay by wire, ACH or other electronic funds transfer to directly remit all payments on each Loan Party’s accounts directly to a Collection Account and immediately deposit in a Collection Account all payments received from account debtors or made for inventory or other payments constituting proceeds of Collateral received in the identical form in which such payment was made, whether by cash or check;
(iv) irrevocably direct all account debtors or other payment obligors of any Loan Party that pay such Loan Party by cash or check to directly remit all payments on such Loan Party’s accounts to a Collection Account and otherwise deposit all such cash or checks received into a Collection Account; and
(v) ensure that no Person other than the Administrative Agent, for the benefit of the Secured Parties, has “control” (within the meaning of Section 9-104 of the UCC) or dominion over any deposit account of the Loan Parties.
(b) At all times, ensure that:
(i) all receivables from governmental Third Party Payor Programs are deposited by the applicable Third Party Payor, or the party which is legally entitled to the payment of the same, into separate Collection Accounts (the “Government Collections Accounts”) and not commingled with any other funds;
(ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly are subject to a Qualified Trust Account or any associated lockbox. If (x) “hard” account control agreement in form and substance reasonably satisfactory to the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, each Business Day all available amounts on deposit in such Collection Accounts Accounts, including without limitation, the Government Collections Accounts, constituting good funds shall be automatically swept to a Concentration Account single account of the Borrower maintained at Compass BankBBVA USA (with respect to Akumin Imaging Texas, LLC and each Subsidiary thereof that is subject a Loan Party), PNC Bank, National Association (with respect to other Loan Parties), or such other banks as are reasonably approved by the Administrative Agent (each such account, a Control Agreement“Concentration Account”); and any such default, and cause each of its Subsidiaries to do so, except, in any case, where the failure to do so, either individually or in the aggregate, could not be reasonably likely to have a Material Adverse Effect.
Appears in 1 contract
Samples: Loan Agreement (Akumin Inc.)
Cash Management Systems. (a) Credit Parties shall cash management systems reasonably satisfactory to the Term Agent. Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Person.
(other b) The Credit Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Control Account all amounts on deposit in each deposit account (that constitutes an is not a Control Account or Excluded Bank Account) that does and all payments due from all customers or other Persons; provided, however, that, solely with respect to the SunTrust Accounts, the Credit Parties shall not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept required to sweep all amounts on deposit on a daily basis into basis, but, rather shall be required to, no less than quarterly, sweep all amounts in such deposit accounts representing fees and other amounts owed to the Credit Parties. Each Control Agreement shall provide, among other things, that (i) the depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) from and after the receipt of a Concentration Accountnotice (an “Activation Notice”) from the Term Agent (which Activation Notice may be furnished only during the continuance of an Event of Default). With , without any further action or consent by any Credit Party, the applicable depository institution, securities intermediary and commodities intermediary shall comply solely with the instructions of the Term Agent with respect to accounts subject the disposition and transfer of assets from the applicable account. Each Credit Party agrees that it will not cause proceeds of any Control Account or any other deposit account to “springing” be directed in a manner contrary to the terms of the Loan Documents, and, after the occurrence and during the continuation of an Event of Default, will cooperate with the Term Agent in all respects with respect to the Term Agent’s direction of funds from Control AgreementsAccounts and any other deposit accounts.
(c) The Credit Parties may amend Schedule 3.22 to add or replace any deposit account or other account; provided, that (i) the Administrative Agent and Lenders agree that the Administrative Term Agent shall only have consented in writing (such consent not be authorized unreasonably withheld) in advance to deliver to the opening of such account with the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: and (iii) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any additional or all replacement Control Account, securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to the time of the opening of such accounts; and (ii) if a Trigger Event has occurred and is continuingaccount, the Administrative Agent mayapplicable Credit Party and the applicable depository, in its sole discretion, deliver such notices securities intermediary or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred commodities intermediary shall have executed and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter into, the Term Agent and shall notify their accounts debtors to make payment of amounts due to the Loan Parties directly into a Control Agreements providing for “springing” cash dominion Account. Other than with respect to the Control Account described in Section 2.1(u), each Collection Account and each Concentration Account maintained by such Person Borrower shall, no later than the date that is thirty (other than any account that constitutes an Excluded Bank Account30) as of or days after the Effective Date. Each Loan Party shall use commercially reasonable efforts to Closing Date (or such later date as the Term Agent may determine in its sole discretion) enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Borrower.
(b) Each Control Agreement shall provide, among other than any account things, that constitutes an Excluded Bank Account(i) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) subject to the Intercreditor Agreement, from and after the receipt of a notice (an “Activation Notice”) from the Term Agent (which Activation Notice may be furnished only during the continuance of an Event of Default), without any further action or other instruction which provides for exclusive control over such account consent by any Borrower, the Administrative applicable depository institution, securities intermediary and commodities intermediary shall comply solely with the instructions of the Term Agent as follows: (i) at any time with respect to the disposition and transfer of assets from the applicable account. Each Borrower agrees that it will, and, after the occurrence and during the continuation of an Event of Default is continuing(but subject to the Intercreditor Agreement), will cooperate with the Administrative Term Agent may, and at in all respects with respect to the Term Agent’s direction of Required Lenders shallfunds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or replace any deposit account or other account; provided, deliver such notices or instructions providing for exclusive control by the Administrative Agent that with respect to any additional or all replacement Control Account, securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to the time of the opening of such accounts; and (ii) if a Trigger Event has occurred and is continuingaccount, the Administrative Agent mayapplicable Borrower and the applicable depository, in its sole discretion, deliver such notices securities intermediary or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred commodities intermediary shall have executed and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 1 contract
Samples: Second Lien Term Loan Agreement (Mediaco Holding Inc.)
Cash Management Systems. Each (1) The Loan Party shall enter intoParties shall, as promptly as practicable after the Closing Date (and in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter, (i) use commercially reasonable efforts to cause each depository all the Account Debtors on any and all Accounts of the Loan Parties to enter into, Control Agreements providing for “springing” cash dominion make all payments and remittances with respect to each Collection Account such Accounts into one or more deposit accounts located with a depositary bank in the United States of America (or into one or more lockboxes established and each Concentration Account maintained by a depositary bank in the United States of America and with respect to which such Person depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the United States of America) (other such deposit accounts being referred to as the “Collection Deposit Accounts” and such lockboxes being referred to as the “Collection Lockboxes”), (ii) cause all proceeds of the disposition of any ABL Priority Collateral to be deposited directly into a Collection Deposit Account, (iii) cause all amounts received in the Collection Lockboxes to be remitted on a daily basis to the Collection Deposit Accounts, and (iv) deposit or cause to be deposited promptly, and in any event no later than any account that constitutes an Excluded Bank Account) as of or the second Business Day after the Effective Date. Each date of its receipt thereof, all Cash, checks, drafts or other similar items of payment received by it relating to or constituting payments or remittances with respect to any Accounts of any Loan Party into one or more Collection Deposit Accounts or Collection Lockboxes in precisely the form in which they are received (but with any endorsements of such Loan Party necessary for deposit or collection), and until they are so deposited to hold such payments in trust for the benefit of the Collateral Agent.
(2) The Loan Parties shall use commercially reasonable efforts to enter intoensure that as promptly as practicable after the Closing Date (but in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter each depositary bank where a Collection Deposit Account is maintained, and cause each depositorydepositary bank that maintains a Collection Lockbox, securities intermediary or commodities intermediary to enter into, shall have entered into a Control Agreements providing for “springing” cash dominion Agreement with respect to each depositsuch deposit account or lockbox. Upon the commencement and during the continuance of any Cash Dominion Period, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and all funds deposited into any such deposit, securities, commodity or similar account Collection Deposit Account shall be swept directed by wire transfer on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depositoryAccount.
(3) Any Loan Party may replace any Collection Deposit Account or Collection Lockbox, securities intermediary or commodities intermediary a notice establish any new Collection Deposit Account or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuingCollection Lockbox; provided that, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not each such replacement or new Collection Deposit Account or Collection Lockbox shall be subject to a Control Agreement in excess favor of outstanding checks the Collateral Agent and wire transfers payable from such accounts and shall otherwise meet the requirements of this Section 6.18.
(4) All amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, Account shall be deemed received by the Administrative Agent in accordance with Section 2.13 and during any Cash Dominion Period shall use commercially reasonable efforts following the Borrower’s request therefor to be applied (Aand allocated) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of by the Administrative Agent to assert exclusive control in the circumstances provided herein) accordance with Section 2.05(3)(b). In no event shall any amount be so applied unless and (B) so long as until such control has not amount shall have been restored credited in immediately available funds to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.Agent
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Cash Management Systems. Each (a) Within (x) ninety (90) days after the Effective Date and (y) ninety (90) days after the acquisition of any deposit accounts as a result of a Permitted Acquisition permitted hereunder (in each case under clauses (x) and (y), as such date may be extended by the Administrative Agent in its sole discretion) and at all times thereafter, the Borrowereach Borrowers shall, and shall cause each other Loan Party shall to, enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion into deposit account control agreements with respect to each Collection Account and each Concentration Account deposit account maintained or acquired by thesuch Borrower or any such Person Loan Party (other than (i) any payroll or benefits account, (ii) any zero balance account, (iii) any withholding tax, trust or fiduciary account, (iv) any deposit account held in Canada that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) has a balance that does not constitute exceed $50,000 and any other deposit account held in Canada if, in the reasonable determination of the Administrative Agent pursuant to advice of counsel, such deposit account control agreement is not necessary for the Administrative Agent, for the benefit of the Lenders, to have a Collection Account or a Concentration Account first priority Lien on such deposit accounts, (v) Segregated Health Care Accounts and funds deposited into any (vi) accounts maintained at the Administrative Agent, such depositexcluded accounts described in clauses (i)-(vi), securitiescollectively, commodity or similar the “Excluded Accounts”). Each deposit account control agreement shall be swept on a daily basis into a Concentration Account)in form and substance reasonably satisfactory to the Administrative Agent. With respect to accounts subject to “springing” Control AgreementsAfter the occurrence and during the continuance of an Event of Default, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized entitled to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive to any financial institution of its exercise of control over such any deposit account by the Administrative Agent as follows: (i) at any time that subject to a deposit account control agreement. For greater certainty, it is understood that, unless an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the BorrowerBorrowers and any Loan Parties shall have absolute control of such deposit accounts and the Administrative Agent shall agrees not to deliver any such notices notice or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in instruction at any deposit account or securities account (in each case, time other than Excluded Bank Accounts) during the occurrence of an Event of Default that is not subject continuing.
(b) In order to segregate and to facilitate perfection of the Administrative Agent’s security interest in funds received from Governmental Payor Programs, to the extent theany Borrower or any other Loan Party or any Managed Entity receives payments from a Control Agreement in excess Government Payor Program as of outstanding checks and wire transfers payable from the Effective Date, thesuch Borrower or such accounts and amounts necessary to meet minimum balance requirements. The other Loan Parties shall Party or such Managed Entity shall, within thirty (i30) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account days after the Effective Date (or, with respect to future participation in any STL Related Governmental Payor Programs, prior to thesuch Borrower’s or such other Loan Party’s receipt of payments from such Governmental Payor Programs) notify all Governmental Authorities making any payments under any Governmental Payor Program to make any such payments only to one or more Segregated Health Care Accounts, . None of the BorrowerBorrowers or any other Loan Party nor any of their respective Subsidiaries nor any Managed Entities shall deposit any funds to a Qualified Trust Segregated Health Care Account or direct or permit any other Person to deposit any funds to a Segregated Health Care Account, within two other than payments received from Governmental Payor Programs. The BorrowerBorrowers and the other Loan Parties shall have until the date that is ninety (290) Business Days days following receipt and (i) the Effective Date (or such later date as may be agreed to by the Administrative Agent), or (ii) direct the date theany Borrower or other Loan Party begins receiving payments from any Governmental Payor Program) to cause all Account Debtors amounts deposited into the Segregated Health Care Accounts to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly be automatically swept on a daily basis to a Qualified Trust Account deposit account of the BorrowerBorrowers or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts another Loan Party pursuant to this Section 5.11 while no Event of Default is continuing and a Sweep Agreement (y) no Trigger Event is continuinga “Controlled Deposit Account”). Any such Sweep Agreement will require such depository bank (including, the Administrative Agent shall use commercially reasonable efforts following if it is the Borrower’s request therefor depository bank) to (A) restore control waive all of such Collection Accounts to the applicable Loan Parties (subject to the continuing its existing and future rights of recoupment and set-off and banker’s lien against any Segregated Health Care Accounts, but shall permit such depository bank (including, the Administrative Agent if it is the depository bank) to assert exclusive control in the circumstances provided herein) maintain its existing and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect future rights of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementrecoupment and set-off and banker’s lien against any Controlled Deposit Account.
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Samples: Credit Agreement (CRH Medical Corp)
Cash Management Systems. Each Loan Party shall enter into(a) On or before the Closing Date, deliver to the Administrative Agent a schedule (the "Initial Account Identification Schedule") identifying, for the Borrower and cause each depository to enter intoSubsidiary Guarantor, Control Agreements providing for “springing” cash dominion (i) the name and location of each bank and securities intermediary at which the Borrower or such Subsidiary Guarantor maintains a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States and (ii) the account number and account name or other relevant descriptive data with respect to each Collection such account and such other information with respect to each such account as the Administrative Agent shall reasonably request. Within 30 days after the opening of any deposit account, securities account, lockbox account, concentration account, collection account or disbursement account, in each case other than any Immaterial Account, in the United States not identified in the Initial Account Identification Schedule, deliver to the Administrative Agent a schedule (a "Supplemental Account Identification Schedule") which provides, in respect of each such account opened since the date of the Initial Account Identification Schedule, the information set forth in clauses (i) and (ii) of the preceding sentence.
(b) On or before the date which is 30 days after the Closing Date, cause to be delivered to the Administrative Agent a Control Agreement and/or a Lockbox Agreement, as appropriate, with respect to each Concentration Account maintained by such Person account (other than any account that constitutes an Excluded Bank Immaterial Account) as of described in the Initial Account Identification Schedule which the Administrative Agent reasonably requires to be subject to such an agreement, in each case duly executed and delivered by the Borrower or the relevant Subsidiary Guarantor and by the bank or securities intermediary that maintains such account. On or before the date which is 30 days after the Effective Date. Each Loan Party shall use commercially reasonable efforts delivery of any Supplemental Account Identification Schedule, cause to enter into, and cause each depository, securities intermediary or commodities intermediary be delivered to enter into, the Administrative Agent a Control Agreements providing for “springing” cash dominion Agreement and/or a Lockbox Agreement with respect to each deposit, securities, commodity or similar account maintained by described in such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Supplemental Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, Identification Schedule which the Administrative Agent reasonably requires to be subject to such an agreement, in each case duly executed and Lenders agree that delivered by the Administrative Agent shall only be authorized to deliver to Borrower or the relevant depository, Subsidiary Guarantor and by the bank or securities intermediary that maintains such account.
(c) Cause all proceeds of any Collateral in every form, including, without limitation, cash, checks, wire transfers and other forms of receipts, to be deposited promptly in a collection account or commodities intermediary a notice or other instruction which provides for exclusive control over such lockbox account by the Administrative Agent as follows: (i) at any time that an Event in respect of Default which a Control Agreement and/or Lockbox Agreement, as appropriate, is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; in effect and (ii) if a Trigger Event has occurred and is continuingwhich, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a any time when no Default or after an Event of 50 Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues is used solely for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess purpose of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case receiving proceeds of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementCollateral.
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Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter intothe Term Agent and shall notify their accounts debtors to make payment of amounts due to the Loan Parties directly into a Control Account. Each Borrower shall, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other no later than any account the date that constitutes an Excluded Bank Account) as of or is 30 days after the Effective Date. Each Loan Party shall use commercially reasonable efforts to Date (or such later date as the Term Agent may determine in its sole discretion) enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Borrower.
(b) Each Control Agreement shall provide, among other than any account things, that constitutes an Excluded Bank Account(i) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) from and after the receipt of a notice or other instruction (an “Activation Notice”) from the Term Agent (which provides for exclusive control over such account by Activation Notice may be furnished only during the Administrative Agent as follows: (i) at any time that continuance of an Event of Default is continuingDefault), without any further action or consent by any Borrower, the Administrative Agent mayapplicable depository institution, securities intermediary and at commodities intermediary shall comply solely with the direction instructions of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Term Agent with respect to the disposition and transfer of assets from the applicable account. Each Borrower agrees that it will not cause proceeds of any or all such accounts; and (ii) if Control Account to be directed in a Trigger Event has occurred and is continuing, manner contrary to the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result terms of the imposition by Loan Documents, and, after the Administrative Agent occurrence and during the continuation of a new or increased Reserve at a time when no Default or an Event of Default has occurred and is continuingDefault, then will cooperate with the Administrative Term Agent shall not deliver such notices in all respects with respect to the Term Agent’s direction of funds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in replace any deposit account or securities account (in each caseother account; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust additional or replacement Control Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case time of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event opening of Default is continuing and (y) no Trigger Event is continuingsuch account, the Administrative Agent applicable Borrower and the applicable depository, securities intermediary or commodities intermediary shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts have executed and delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
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Cash Management Systems. Each (1) The Loan Party shall enter intoParties shall, as promptly as practicable after the Closing Date (and in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter, (i) use commercially reasonable efforts to cause each depository all the Account Debtors on any and all Accounts of the Loan Parties to enter into, Control Agreements providing for “springing” cash dominion make all payments and remittances with respect to each Collection Account such Accounts into one or more deposit accounts located with a depositary bank in the United States of America (or into one or more lockboxes established and each Concentration Account maintained by a depositary bank in the United States of America and with respect to which such Person depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the United States of America) (other such deposit accounts being referred to as the “Collection Deposit Accounts” and such lockboxes being referred to as the “Collection Lockboxes”), (ii) cause all proceeds of the disposition of any ABL Priority Collateral to be deposited directly into a Collection Deposit Account, (iii) cause all amounts received in the Collection Lockboxes to be remitted on a daily basis to the Collection Deposit Accounts, and (iv) deposit or cause to be deposited promptly, and in any event no later than any account that constitutes an Excluded Bank Account) as of or the second Business Day after the Effective Date. Each date of its receipt thereof, all Cash, checks, drafts or other similar items of payment received by it relating to or constituting payments or remittances with respect to any Accounts of any Loan Party into one or more Collection Deposit Accounts or Collection Lockboxes in precisely the form in which they are received (but with any endorsements of such Loan Party necessary for deposit or collection), and until they are so deposited to hold such payments in trust for the benefit of the Collateral Agent.
(2) The Loan Parties shall use commercially reasonable efforts to enter intoensure that as promptly as practicable after the Closing Date (but in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter each depositary bank where a Collection Deposit Account is maintained, and cause each depositorydepositary bank that maintains a Collection Lockbox, securities intermediary or commodities intermediary to enter into, shall have entered into a Control Agreements providing for “springing” cash dominion Agreement 202 with respect to each depositsuch deposit account or lockbox. Upon the commencement and during the continuance of any Cash Dominion Period, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and all funds deposited into any such deposit, securities, commodity or similar account Collection Deposit Account shall be swept directed by wire transfer on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depositoryAccount.
(3) Any Loan Party may replace any Collection Deposit Account or Collection Lockbox, securities intermediary or commodities intermediary a notice establish any new Collection Deposit Account or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuingCollection Lockbox; provided that, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not each such replacement or new Collection Deposit Account or Collection Lockbox shall be subject to a Control Agreement in excess favor of outstanding checks the Collateral Agent and wire transfers payable from such accounts and shall otherwise meet the requirements of this Section 6.18.
(4) All amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, Account shall be deemed received by the Administrative Agent in accordance with Section 2.13 and during any Cash Dominion Period shall use commercially reasonable efforts following the Borrower’s request therefor to be applied (Aand allocated) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of by the Administrative Agent in accordance with Section 2.05(3)(b). In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant Account. Any amount so received in a currency other than Dollars may be converted to this Section 5.11, Dollars in accordance with the Administrative Agent’s customary practices.
(5) The Collateral Agent shall promptly (but in any event within one Business Day) furnish written notice to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is each depositary bank subject to a Control Agreement of any termination of a Cash Dominion Period.
(6) Without the prior written consent of the Administrative Agent, no Loan Party shall modify or amend the instructions pursuant to any of the Control Agreements. So long as no Cash Dominion Period is continuing, each Loan Party shall, and the Collateral Agent hereby authorizes each Loan Party to, enforce and collect all amounts owing on the Inventory and Accounts and each Loan Party shall have sole control over the manner of disposition of funds in the Collection Deposit Accounts subject to the Deposit Agreement; provided that such authorization may, at the direction of the Collateral Agent, be terminated during any Cash Dominion Period.
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Cash Management Systems. Each (a) Within (x) ninety (90) days after the Effective Date and (y) ninety (90) days after the acquisition of any deposit accounts as a result of a Permitted Acquisition permitted hereunder (in each case under clauses (x) and (y), as such date may be extended by the Administrative Agent in its sole discretion) and at all times thereafter, the Borrower shall, and shall cause each other Loan Party shall to, enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion into deposit account control agreements with respect to each Collection Account and each Concentration Account deposit account maintained or acquired by the Borrower or any such Person Loan Party (other than (i) any payroll or benefits account, (ii) any zero balance account, (iii) any withholding tax, trust or fiduciary account, (iv) any deposit account held in Canada that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) has a balance that does not constitute exceed $[REDACTED] and any other deposit account held in Canada if, in the reasonable determination of the Administrative Agent pursuant to advice of counsel, such deposit account control agreement is not necessary for the Administrative Agent, for the benefit of the Lenders, to have a Collection Account or a Concentration Account first priority Lien on such deposit accounts, (v) Segregated Health Care Accounts and funds deposited into any (vi) accounts maintained at the Administrative Agent, such depositexcluded accounts described in clauses (i)-(vi), securitiescollectively, commodity or similar the “Excluded Accounts”). Each deposit account control agreement shall be swept on a daily basis into a Concentration Account)in form and substance reasonably satisfactory to the Administrative Agent. With respect to accounts subject to “springing” Control AgreementsAfter the occurrence and during the continuance of an Event of Default, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized entitled to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive to any financial institution of its exercise of control over such any deposit account by the Administrative Agent as follows: (i) at any time that subject to a deposit account control agreement. For greater certainty, it is understood that, unless an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Borrower and any Loan Parties shall have absolute control of such deposit accounts and the Administrative Agent shall agrees not to deliver any such notices notice or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in instruction at any deposit account or securities account (in each case, time other than Excluded Bank Accounts) during the occurrence of an Event of Default that is not subject continuing.
(b) In order to segregate and to facilitate perfection of the Administrative Agent’s security interest in funds received from Governmental Payor Programs, to the extent the Borrower or any other Loan Party or any Managed Entity receives payments from a Control Agreement in excess Government Payor Program as of outstanding checks and wire transfers payable from the Effective Date, the Borrower or such accounts and amounts necessary to meet minimum balance requirements. The other Loan Parties shall Party or such Managed Entity shall, within thirty (i30) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account days after the Effective Date (or, with respect to future participation in any STL Related Governmental Payor Programs, prior to the Borrower s or such other Loan Party’s receipt of payments from such Governmental Payor Programs) notify all Governmental Authorities making any payments under any Governmental Payor Program to make any such payments only to one or more Segregated Health Care Accounts, . None of the Borrower or any other Loan Party nor any of their respective Subsidiaries nor any Managed Entities shall deposit any funds to a Qualified Trust Segregated Health Care Account or direct or permit any other Person to deposit any funds to a Segregated Health Care Account, within two other than payments received from Governmental Payor Programs. The Borrower and the other Loan Parties shall have until the date that is ninety (290) Business Days days following receipt and (i) the Effective Date (or such later date as may be agreed to by the Administrative Agent), or (ii) direct the date the Borrower or other Loan Party begins receiving payments from any Governmental Payor Program) to cause all Account Debtors amounts deposited into the Segregated Health Care Accounts to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly be automatically swept on a daily basis to a Qualified Trust Account deposit account of the Borrower or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts another Loan Party pursuant to this Section 5.11 while no Event of Default is continuing and a Sweep Agreement (y) no Trigger Event is continuinga “Controlled Deposit Account”). Any such Sweep Agreement will require such depository bank (including, the Administrative Agent shall use commercially reasonable efforts following if it is the Borrower’s request therefor depository bank) to (A) restore control waive all of such Collection Accounts to the applicable Loan Parties (subject to the continuing its existing and future rights of recoupment and set-off and banker’s lien against any Segregated Health Care Accounts, but shall permit such depository bank (including, the Administrative Agent if it is the depository bank) to assert exclusive control in the circumstances provided herein) maintain its existing and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect future rights of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.recoupment and set-off and banker’s lien against any Controlled Deposit Account. 00000000.4
Appears in 1 contract
Samples: Credit Agreement (CRH Medical Corp)
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection (a) Within 90 days following (x) the Closing Date or (y) the establishment of any Deposit Account and each Concentration or Securities Account maintained by such Person (other than any account that constitutes Excluded Accounts, but only for so long as it is an Excluded Bank Account) (as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall date may be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account extended by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion), deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause deposit (and thereafter continue to deposit) in an Approved Deposit Account all Collections cash proceeds of ABL Priority Collateral received by them each day (other than cash in any Excluded Account), (ii) not establish or maintain any Securities Account that is not an Approved Securities Account and (iii) not establish or maintain any Deposit Account (other than any Excluded Account) that is not with a Deposit Account Bank. Each Loan Party shall instruct all Account Debtors of such Loan Party to be deposited in a Collection remit all payments to the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Deposit Account Bank (or a Concentration to remit such payments to the applicable Deposit Account or, Bank by electronic settlement) with respect to all accounts of such Account Debtor, which remittances shall be collected by the applicable Deposit Account Bank and deposited into an Approved Deposit Account. All amounts received by any STL Related AccountsLoan Party and any Deposit Account Bank in respect of any Account of an Account Debtor of any Loan Party shall upon receipt be deposited into an Approved Deposit Account.
(i) Each Deposit Account Control Agreement relating to an Approved Deposit Account shall (unless otherwise agreed by the Administrative Agent in its sole discretion) include provisions that allow, a Qualified Trust Accountduring any Trigger Period, within two (2) for all collected amounts held in such Approved Deposit Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Days following receipt Day to one or more accounts maintained by the Administrative Agent or an Affiliate thereof and (ii) direct all each Securities Account Debtors Control Agreement relating to remit all payments either an Approved Securities Account shall (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) unless otherwise agreed by the Administrative Agent has exercised in its right sole discretion) include provisions that allow, during any Trigger Period, for all collected amounts held in such Approved Securities Account from and after the date requested by the Administrative Agent, to take exclusive control over be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to one or more accounts maintained by the Collection Accounts Administrative Agent or an Affiliate thereof. Subject to the terms of the respective Collateral Documents, all amounts received by the Administrative Agent pursuant to this clause (b) shall be applied (and allocated) on a daily basis in accordance with Section 5.11 while no Event of Default 6.19(d).
(c) In the event that any Loan Party or any Deposit Account Bank or Securities Intermediary at a financial institution at which an Approved Deposit Account or an Approved Securities Account is continuing and (y) no Trigger Event is continuingopen shall terminate a Deposit Account Control Agreement or a Securities Account Control Agreement for any reason, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject Party shall notify all of its obligors that were making payments to such terminated Deposit Account or Securities Account, as the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11case may be, to transfer on a daily basismake all future payments to another Approved Deposit Account or Approved Securities Account, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementas the case may be.
Appears in 1 contract
Cash Management Systems. Each Loan Party Holdings and its Subsidiaries shall enter intoestablish and maintain cash management systems reasonably acceptable to Administrative Agent, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion including with respect to blocked account arrangements. Without limiting the foregoing, Holdings will, and will cause each Collection Account of its Subsidiaries to, comply with all terms and each Concentration Account maintained by such Person provisions of the Working Capital Agreement (or any successor or replacement agreement acceptable to Administrative Agent) with respect to the cash management of Credit Parties, provided that, if the Working Capital Agreement shall have been terminated and Credit Parties shall not have entered into a successor or replacement agreement acceptable to Administrative Agent, then Credit Parties shall enter into control agreements, lockbox agreements and other similar agreements in form and substance reasonably satisfactory to Administrative Agent; provided further, that Administrative Agent shall require Working Capital Agent to transfer (or cause to be transferred) all funds on deposit in the Blocked Accounts (other than any account that constitutes an Excluded Bank Accountfunds necessary to repay Working Capital Loans then outstanding in full and to cash collateralize Working Capital Letters of Credit then outstanding in full, which funds may be retained by Working Capital Agent and applied to repay all Working Capital Loans then outstanding in full and to cash collateralize all Working Capital Letters of Credit then outstanding in full) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Administrative Agent’s Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis for application to the Obligations in accordance with Section 2.13(i); provided that, if, on any Business Day, there are no Revolving Loans outstanding and the aggregate amount of funds deposited into a Concentration Administrative Agent’s Account (when taken together with all funds on deposit in an interest-bearing cash collateral account in Administrative Agent’s name for Credit Parties (the “Cash Collateral Account”). With respect to accounts subject to “springing” Control Agreements) is less than $5,000,000, the funds deposited into Administrative Agent and Lenders agree Agent’s Account on such day shall be transferred into the Cash Collateral Account (it being understood that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an (i) any Revolving Loan is outstanding, (ii) the funds on deposit in the Cash Collateral Account equal or exceed $5,000,000, or (iii) a Default or Event of Default is shall have occurred and be continuing, the Administrative Agent mayshall have the right to apply all funds on deposit in the Cash Collateral Account to the Obligations in accordance with Section 2.13(i). As of the Fifth Amendment Effective Date, all bank accounts and at investment accounts of Credit Parties are listed on Schedule 5.15 and such Schedule designates which such accounts are deposit accounts. Except as permitted by Section 6.6(a), no Credit Party shall maintain or open any deposit account unless the direction of Required Lenders shall, deliver depository bank for such notices or instructions providing for exclusive control by the account shall have entered into a blocked account agreement with Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent mayAgent, in its sole discretion, deliver such notices or instructions providing for exclusive control by the form and substance reasonably satisfactory to Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely Agent. So long as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuingcontinuing or would not result therefrom, then upon the Administrative prior written request by Borrower Representative, Collateral Agent shall not deliver such notices or release any Blocked Cash to Borrowers and instruct the applicable depository bank to transfer the requested funds in accordance with the instructions unless such circumstance continues for received from the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each caseBorrower Representative; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections Agent shall have received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) at least 2 Business Days following receipt (or such greater period as may be required by the applicable depository bank) advance written notice of such request, and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in such requested transfer, and the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in proceeds therefrom, is otherwise permitted under the circumstances provided hereinterms and conditions of this Agreement.”
(u) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect Section 5.21 of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant Credit Agreement is hereby amended and restated to this Section 5.11, to transfer on a daily basis, all available amounts on deposit read in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.its entirety as follows:
Appears in 1 contract
Cash Management Systems. Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person Credit Party (other than (a) any payroll account that constitutes an Excluded Bank Accountso long as such payroll account is a zero balance account, (b) that does xxxxx cash accounts, amounts on deposit in which do not constitute a Collection Account or a Concentration Account exceed $10,000 in the aggregate at any one time and (c) withholding tax and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account)fiduciary accounts) as of and after the Closing Date. With respect to collection accounts subject to “springing” Control Agreements, (y) unless and until either (1) an Event of Default has occurred and is continuing, or (2) Availability falls below $1,000,000 for five consecutive Business Days at any time during the Administrative Agent and Lenders agree that first 89 days following the Administrative Closing Date, or (3) Availability falls below $3,600,000 for five consecutive days at any time on or after the 90th day following the Closing Date, Agent shall only be authorized to not deliver to the relevant depository, securities securities, intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by Agent, and (z) subject to the Administrative Agent agreement of the relevant depository, securities, intermediary or commodities intermediary, exclusive control shall return to “springing” cash dominion if Availability equals or exceeds $3,600,000 for 90 consecutive days so long as follows: (i) at any time that an no Event of Default is continuing, the Administrative Agent may, and otherwise continuing at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with time. With respect to any or all such accounts; disbursement accounts subject to “springing” Control Agreements, unless and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or until an Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver to the relevant depository, securities, intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such notices or instructions unless such circumstance continues for the Designated Periodaccount by Agent. The Loan Credit Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Credit Parties shall (i) cause all Collections received by them each day establish lockboxes subject to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt Control Agreements and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementthose lockboxes.
Appears in 1 contract
Samples: Credit Agreement (Landec Corp \Ca\)
Cash Management Systems. Each Loan Party shall enter intoOn or prior to the Closing Date, Borrowers and the other Credit Parties will establish, and cause each depository will maintain until the Termination Date, a cash management system (including as to enter into, Control Agreements providing for “springing” cash dominion which Deposit Accounts are disbursement accounts) acceptable to Agent in its sole discretion. Without limiting the foregoing:
(a) with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) Deposit Accounts of the Credit Parties in existence as of or after the Effective Closing Date. Each Loan , the applicable Credit Party shall use commercially reasonable efforts have executed and delivered to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion Agent a Blocked Account Agreement with respect to each depositall such Deposit Accounts;
(b) after the Closing Date no Credit Party shall add or replace any banks at which they maintain Deposit Accounts, securitiesor open any new Deposit Accounts, commodity or similar account maintained by unless (x) Agent shall have consented in writing in advance to such Person change and (other than any account that constitutes an Excluded Bank Accounty) that does not constitute prior to the time of such change, the applicable Credit Party and bank shall have executed and delivered to Agent a Collection Blocked Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With Agreement with respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over all Deposit Accounts at such account by the Administrative Agent as follows: bank;
(i) at with respect to any time Deposit Account that is a disbursement account, Agent agrees that the applicable Credit Party who holds such Deposit Account may continue to write checks on, and otherwise make withdrawals from, such Deposit Account unless and until an Event of Default is continuingoccurs, the Administrative at (or after) which time Agent maymay elect, in its sole and absolute discretion, to take control of such Deposit Account and all cash deposited therein, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent (ii) with respect to any or all such accounts; and (ii) if Deposit Account that is not a Trigger Event has occurred and is continuingdisbursement account, the Administrative applicable Blocked Account Agreement shall provide that Agent may, at all times controls such Deposit Account and all cash deposited therein (unless otherwise agreed to by Agent in its sole discretion); and
(d) each Borrower shall at all times maintain a designated Deposit Account (each, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accountsa "Designated Deposit Account"), provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent which shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each casebe a disbursement account, into which all proceeds other than Excluded Bank Accountsproceeds of Working Capital Loan Primary Collateral (or proceeds that constitute Working Capital Loan Primary Collateral) that is shall, to the extent not subject paid directly to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to Agent, be deposited in a Collection Account or a Concentration Account orimmediately upon receipt by any Credit Party, and with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to which the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) Borrower and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative bank shall have executed and delivered to Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Blocked Account that is subject to a Control Agreement.. Credit Agreement (Omni)
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account (a) Schedule 6.11 sets forth all deposit accounts maintained by such Person (other than any account that constitutes an Excluded Bank Account) the Loan Parties as of the Closing Date, including all Dominion Accounts. Before or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion concurrently with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control opening by the Administrative Agent with respect to Parent Borrower or any other Loan Party of any deposit account, securities account, lockbox account, concentration account, collection account or all such accounts; disbursement account, and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that which is not subject to a Control Agreement that previously constituted an Immaterial Account or an Excluded Account ceasing to constitute an Immaterial Account or an Excluded Account, in excess each case, the Parent Borrower shall deliver to the Administrative Agent a schedule (a “Supplemental Account Identification Schedule”) which provides, in respect of outstanding checks each such account (A) the name and wire transfers payable from location of each bank and securities intermediary at which the Parent Borrower or such accounts Loan Party maintains a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States and amounts necessary (B) the account number and account name or other relevant descriptive data with respect to meet minimum balance requirements. The each such account and such other information with respect to each such account as the Administrative Agent shall reasonably request.
(b) On or before the date any Loan Parties shall (i) cause all Collections received by them each day Party deposits any funds or permits any funds to be deposited in a Collection or credited to any account (other than an Excluded Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust an Immaterial Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is currently subject to a Control Agreement, Parent Borrower shall cause to be delivered to the Administrative Agent a Control Agreement with respect to such account, in each case duly executed and delivered by the Parent Borrower or the relevant Loan Party and by the bank or securities intermediary that maintains such account. The applicable Loan Party shall be the sole account holder of each deposit account, securities account, lockbox account, concentration account, collection account or disbursement account on Schedule 6.11 or a Supplemental Account Identification Schedule and shall not allow any other Person (other than the Administrative Agent or any agent or similar representative under any secured Junior Loan Obligations) to have control over a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account or any property deposited therein.
(c) Borrowers shall maintain Dominion Accounts pursuant to lockbox or other arrangements reasonably acceptable to Administrative Agent. Each applicable Loan Party shall obtain an agreement (in form and substance satisfactory to Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Administrative Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Administrative Agent and Lenders assume no responsibility to any Borrower for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any depositary bank.
(d) Each Borrower shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors of the Loan Parties forward payment directly to Dominion Accounts (or a lockbox relating to a Dominion Account) maintained pursuant to and in accordance with Section 6.11(c). If any Loan Party receives cash or any Payment Items constituting payments made in respect of any Collateral (whether or not otherwise delivered to a lockbox), it shall hold the same in trust for the Administrative Agent and promptly (and in any event no later than the first Business Day after the date of receipt thereof) deposit the same or cause the same to be deposited into one or more Dominion Accounts. All Net Cash Proceeds of the sale, Net Loss Proceeds relating to or other disposition of any Collateral shall be deposited directly into a Dominion Account.
(e) The Administrative Agent agrees that it will not give any instructions or entitlement orders, as the case may be, in respect of any account subject to a Control Agreement unless a Cash Dominion Trigger Period has commenced and is continuing.
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Cash Management Systems. Each (1) The Loan Party shall enter intoParties shall, as promptly as practicable after the Closing Date (and in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter, (i) use commercially reasonable efforts to cause each depository all the Account Debtors on any and all Accounts of the Loan Parties to enter into, Control Agreements providing for “springing” cash dominion make all payments and remittances with respect to each Collection Account such Accounts into one or more deposit accounts located with a depositary bank in the United States of America (or into one or more lockboxes established and each Concentration Account maintained by a depositary bank in the United States of America and with respect to which such Person depositary bank retrieves and process all checks and other evidences of payment so received at such lockbox and deposits the same into one or more deposit accounts located with it in the United States of America) (other such deposit accounts being referred to as the “Collection Deposit Accounts” and such lockboxes being referred to as the “Collection Lockboxes”), (ii) cause all proceeds of the disposition of any ABL Priority Collateral to be deposited directly into a Collection Deposit Account, (iii) cause all amounts received in the Collection Lockboxes to be remitted on a daily basis to the Collection Deposit Accounts, and (iv) deposit or cause to be deposited promptly, and in any event no later than any account that constitutes an Excluded Bank Account) as of or the second Business Day after the Effective Date. Each date of its receipt thereof, all Cash, checks, drafts or other similar items of payment received by it relating to or constituting payments or remittances with respect to any Accounts of any Loan Party into one or more Collection Deposit Accounts or Collection Lockboxes in precisely the form in which they are received (but with any endorsements of such Loan Party necessary for deposit or collection), and until they are so deposited to hold such payments in trust for the benefit of the Collateral Agent.
(2) The Loan Parties shall use commercially reasonable efforts to enter intoensure that as promptly as practicable after the Closing Date (but in any event within 120 days after the Closing Date, or such longer period as the Administrative Agent may agree to) and at all times thereafter each depositary bank where a Collection Deposit Account is maintained, and cause each depositorydepositary bank that maintains a Collection Lockbox, securities intermediary or commodities intermediary to enter into, shall have entered into a Control Agreements providing for “springing” cash dominion Agreement with respect to each depositsuch deposit account or lockbox. Upon the commencement and during the continuance of any Cash Dominion Period, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and all funds deposited into any such deposit, securities, commodity or similar account Collection Deposit Account shall be swept directed by wire transfer on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depositoryAccount.
(3) Any Loan Party may replace any Collection Deposit Account or Collection Lockbox, securities intermediary or commodities intermediary a notice establish any new Collection Deposit Account or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuingCollection Lockbox; provided that, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not each such replacement or new Collection Deposit Account or Collection Lockbox shall be subject to a Control Agreement in excess favor of outstanding checks the Collateral Agent and wire transfers payable from such accounts and shall otherwise meet the requirements of this Section 6.18.
(4) All amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, Account shall be deemed received by the Administrative Agent in accordance with Section 2.13 and during any Cash Dominion Period shall use commercially reasonable efforts following the Borrower’s request therefor to be applied (Aand allocated) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of by the Administrative Agent in accordance with Section 2.05(3)(b). In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant Account. Any amount so received in a currency other than Dollars may be converted to this Section 5.11, Dollars in accordance with the Administrative Agent’s customary practices.
(5) The Collateral Agent shall promptly (but in any event within one Business Day) furnish written notice to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is each depositary bank subject to a Control Agreement of any termination of a Cash Dominion Period.
(6) Without the prior written consent of the Administrative Agent, no Loan Party shall modify or amend the instructions pursuant to any of the Control Agreements. So long as no Cash Dominion Period is continuing, each Loan Party shall, and the Collateral Agent hereby authorizes each Loan Party to, enforce and collect all amounts owing on the Inventory and Accounts and each Loan Party shall have sole control over the manner of disposition of funds in the Collection Deposit Accounts subject to the Deposit Agreement; provided that such authorization may, at the direction of the Collateral Agent, be terminated during any Cash Dominion Period.
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Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter into, the Term Agent and shall notify their accounts debtors to make payment of amounts due to the Loan Parties directly into a Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person Account. On or before the date that is thirty (other than any account that constitutes an Excluded Bank Account30) as of or days after the Effective Date. Each Loan Party Closing Date (or such later date as the Term Agent may agree), and at all times thereafter, each Borrower shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person (Borrower, other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection with respect to the Control Agreement governing the WT Securities Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account which shall be swept on maintained as a daily basis into a Concentration Account). With respect to accounts subject to “springingblocked” account agreement.
(b) Each Control AgreementsAgreement shall provide, among other things, that (i) the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other instruction which provides for exclusive control over such account by items of payment (except as the Administrative Term Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent maymay otherwise agree in writing), and at (ii) (x) with respect to the direction Control Agreement governing the WT Securities Account the applicable depository institution, securities intermediary and commodities intermediary shall comply solely with the instructions of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Term Agent with respect to any or all such accounts; the disposition and transfer of assets from the applicable account and (iiy) if with respect to each other Control Account, from and after the receipt of a Trigger notice (an “Activation Notice”) from the Term Agent (which Activation Notice may be furnished only during the continuance of an Event has occurred and is continuingof Default), without any further action or consent by any Borrower, the Administrative Agent mayapplicable depository institution, in its sole discretion, deliver such notices or securities intermediary and commodities intermediary shall comply solely with the instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by Term Agent with respect to the Administrative Agent disposition and transfer of assets from the applicable account. Each Borrower agrees that it will not cause proceeds of any Control Account to be directed in a new or increased Reserve at a time when no Default or manner contrary to the terms of the Loan Documents, and, after the occurrence and during the continuation of an Event of Default has occurred and is continuingDefault, then will cooperate with the Administrative Term Agent shall not deliver such notices in all respects with respect to the Term Agent’s direction of funds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in replace any deposit account or securities account (in each caseother account; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust additional or replacement Control Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case time of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event opening of Default is continuing and (y) no Trigger Event is continuingsuch account, the Administrative Agent applicable Borrower and the applicable depository, securities intermediary or commodities intermediary shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts have executed and delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
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Cash Management Systems. Each Loan Party shall enter into(a) On or before the Closing Date, deliver to the Designated Agents a schedule (the "Initial Account Identification Schedule") identifying, for the Borrower and cause each depository to enter intoSubsidiary Guarantor, Control Agreements providing for “springing” cash dominion (i) the name and location of each bank and securities intermediary at which the Borrower or such Subsidiary Guarantor maintains a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States and (ii) the account number and account name or other relevant descriptive data with respect to each Collection such account and such other information with respect to each such account as the Designated Agents shall reasonably request. Within 10 days after the opening of any deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States not identified in the Initial Account Identification Schedule, deliver to the Designated Agents a schedule (a "Supplemental Account Identification Schedule") which provides, in respect of each such account opened since the date of the Initial Account Identification Schedule, the information set forth in clauses (i) and (ii) of the preceding sentence.
(b) Within 10 Business Days of the Closing Date, cause to be delivered to the Collateral Agent a Control Agreement and/or a Lockbox Agreement, as appropriate, with respect to each Concentration Account maintained by such Person account (other than any account that constitutes an Excluded Bank Immaterial Account) as of described in the Initial Account Identification Schedule which the Designated Agents require, in their sole discretion, to be subject to such an agreement, in each case duly executed and delivered by the Borrower or the relevant Subsidiary Guarantor and by the bank or securities intermediary that maintains such account. On or before the date which is 30 days after the Effective Date. Each Loan Party shall use commercially reasonable efforts delivery of any Supplemental Account Identification Schedule, cause to enter into, and cause each depository, securities intermediary or commodities intermediary be delivered to enter into, the Collateral Agent a Control Agreements providing for “springing” cash dominion Agreement and/or a Lockbox Agreement with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Immaterial Account) that does not constitute a Collection described in such Supplemental Account or a Concentration Account (and funds deposited into any such depositIdentification Schedule which the Designated Agents require, securitiesin their sole discretion, commodity or similar account shall to be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreementssuch an agreement, in each case duly executed and delivered by the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to Borrower or the relevant depository, Subsidiary Guarantor and by the bank or securities intermediary that maintains such account.
(c) Cause all proceeds of any Revolving Credit Facility Collateral in every form, including, without limitation, cash, checks, wire transfers and other forms of receipts, to be deposited promptly in a collection account or commodities intermediary a notice or other instruction which provides for exclusive control over such lockbox account by the Administrative Agent as follows: (i) at any time that an Event in respect of Default which a Control Agreement and/or Lockbox Agreement, as appropriate, is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; in effect and (ii) if which, at any time after a Trigger Dominion Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and occurred, is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues used solely for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess purpose of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case receiving proceeds of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementRevolving Credit Facility Collateral.
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Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person the Term Agent. On or before the date that is thirty (other than any account that constitutes an Excluded Bank Account30) as of or days after the Effective Date. Each Loan Party Closing Date (or such later date as the Term Agent may agree), and at all times thereafter, each Borrower shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Borrower.
(b) Each Control Agreement shall provide, among other than any account things, that constitutes an Excluded Bank Account(i) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) from and after the receipt of a notice or other instruction (an “Activation Notice”) from the Term Agent (which provides for exclusive control over such account by Activation Notice may be furnished only during the Administrative Agent as follows: (i) at any time that continuance of an Event of Default is continuingDefault), without any further action or consent by any Borrower, the Administrative Agent mayapplicable depository institution, securities intermediary and at commodities intermediary shall comply solely with the direction instructions of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Term Agent with respect to the disposition and transfer of assets from the applicable account. Each Borrower agrees that it will not cause proceeds of any or all such accounts; and (ii) if Control Account to be directed in a Trigger Event has occurred and is continuing, manner contrary to the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result terms of the imposition by Loan Documents, and, after the Administrative Agent occurrence and during the continuation of a new or increased Reserve at a time when no Default or an Event of Default has occurred and is continuingDefault, then will cooperate with the Administrative Term Agent shall not deliver such notices in all respects with respect to the Term Agent’s direction of funds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in replace any deposit account or securities account (in each caseother account; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust additional or replacement Control Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case time of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event opening of Default is continuing and (y) no Trigger Event is continuingsuch account, the Administrative Agent applicable Borrower and the applicable depository, securities intermediary or commodities intermediary shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts have executed and delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
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Samples: Term Loan Agreement (Standard Diversified Opportunities Inc.)
Cash Management Systems. Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each of the accounts listed on Schedule 4.11 and each other deposit, securities, commodity or similar account maintained by such Person as of or after the Closing Date into which the proceeds of Collateral are or may be deposited (other than (i) any payroll account that constitutes so long as such payroll account is a zero balance account, (ii) withholding tax accounts, (iii) fiduciary accounts, (iv) disbursement accounts and (v) deposit accounts with an Excluded Bank Accountamount on deposit of (x) that does not constitute a Collection Account less than $1,000,000 at any time with respect to any particular deposit account and (y) less than $2,500,000 at any time in the aggregate for all such deposit accounts of either of the EINA Borrowers and their respective Subsidiaries or a Concentration Account (the EICA Borrowers and funds deposited into any such deposittheir respective Subsidiaries, securities, commodity or similar account shall be swept on a daily basis into a Concentration Accountas the case may be). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent unless and Lenders agree that the Administrative until an Event of Default has occurred and is continuing or a Trigger Event has occurred with respect to any Borrower Group (unless a corresponding Trigger Reset Event has occurred with respect thereto), Agent shall only be authorized to not deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such any applicable account by the Administrative Agent as follows: (i) at Agent. At any time that an following a Trigger Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and Borrower Group (ii) if unless a corresponding Trigger Reset Event has occurred and is continuingwith respect thereto), the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties Borrower Group shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall In addition, (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account orfollowing the occurrence and during the continuance of an Event of Default at Agent’s request, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt Credit Parties will enter into Control Agreements providing for “springing” cash dominion over their respective disbursement accounts and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or at any associated lockboxes or (B) in the case of STL Related Accounts, directly to time following a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing(unless a corresponding Trigger Reset Event has occurred with respect thereto), the Administrative Agent Credit Parties shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts maintain cash on deposit in any disbursement account in excess of outstanding checks and wire transfers payable from such Collection Accounts disbursement account and amounts necessary to meet minimum balance requirements. A “disbursement account” under this Section 4.11 refers to an account of a Concentration Account that Credit Party from which payments are made and which is a zero balance account and shall also include, for purposes of clarity, account no. 8666054646 (or any successor account thereto) with Bank of America, N.A., as long as, unless Agent otherwise consents, such account has no more than $2,000,000 on deposit therein as of the close of business on any Business Day. For purposes of clarification, any Credit Party may close any account or open new accounts at any time, as long as (i) the Borrower Representative provides prior written notice of its intention to close any account to Agent, (ii) concurrently with, or within five (5) Business Days after the opening of an account, the applicable Credit Party satisfies the other provisions of this Section 4.11 with respect thereto and (iii) there shall at all times be at least one account for each Borrower Group subject to a Control Agreement.
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Cash Management Systems. (a) Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person. Notwithstanding anything to the contrary contained in this Section 4.11, until the date that is 90 days (that the Term Agent may extend in its sole discretion) after the Closing Date (or at the request of the Term Agent if an Event of Default has occurred and is continuing), (a) Credit Parties shall not be required to obtain Control Agreements with respect to Control Accounts and (b) the Credit Parties shall be permitted to maintain their cash management structure as in effect on the Closing Date.
(b) Except as provided in Section 1.6(b) hereof, each Credit Party shall cause all proceeds of Term Loan Priority Collateral to be segregated from all other cash and Cash Equivalents and deposited solely into the Term Loan Priority Account; provided that, unless an Event of Default has occurred and is continuing, such proceeds shall be immediately available for use by the Credit Parties, subject to compliance with the other terms and conditions of the Loan Documents; and provided further than the Credit Parties shall have a period, not to exceed sixty (60) days following the Closing Date, to cause royalty payments owing to the Credit Parties which are currently deposited in a lockbox account at PNC Bank, National Association, to be deposited into the Term Loan Priority Collateral Account and to instruct any such Person making such royalty payments to transfer such payments to the Term Loan Priority Account. In addition, each Credit Party shall (i) instruct each Account Debtor or other Person obligated to make a payment to any of them under any Account to make payment, or to continue to make payment, to a Control Account, (ii) deposit in a Control Account promptly upon receipt all cash receipts, checks and other collections received by any Credit Party from any other Person not constituting Term Loan Priority Collateral, and (iii) instruct each depository institution for each deposit account to cause all amounts on deposit and available at the close of each Business Day in such deposit account which do not constitute Term Loan Priority Collateral to be swept to one of the Credit Parties' concentration accounts (which shall be a Control Account) no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Term Agent; and
(c) Each Control Agreement shall provide, among other things, that (i) the depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent (or the Revolving Agent, as agent for the Term Agent under the Intercreditor Agreement) may otherwise agree in writing), and (ii) from and after the receipt of a notice (an “Activation Notice”) from the Term Agent (or the Revolving Agent, as agent for the Term Agent under the Intercreditor Agreement) (which Activation Notice may be furnished only during the continuance of an Event of Default), without any further action or consent by any Credit Party (A) the applicable depository institution, securities intermediary and commodities intermediary shall comply solely with the instructions of the Term Agent (or the Revolving Agent, as agent for the Term Agent under the Intercreditor Agreement) with respect to the disposition and transfer of assets from the applicable account that constitutes an Excluded Bank Accountand (B) that does not constitute with respect to each Control Agreement for a Collection Account or a Concentration Account (deposit account, all available cash balances and funds deposited into any cash receipts of each such deposit, securities, commodity or similar deposit account shall be swept on a no less frequently than once per Business Day into the Collection Account or another Control Account which is swept daily basis into the Collection Account; provided that to the extent not deposited directly into the Term Loan Priority Account, as required herein, all amounts which constitute proceeds of Term Loan Priority Collateral shall be swept no less frequently than once per Business Day into a Concentration Term Loan Priority Account. Each Credit Party agrees that it will not cause proceeds of any Control Account or Term Loan Priority Account to be otherwise redirected.
(d) All amounts deposited in any Term Loan Priority Account shall be deemed received by the Term Agent in accordance with Section 1.8(a) and shall be applied (and allocated) by the Term Agent in accordance with Section 1.8(c)(i) or Section 1.8(c)(ii), as the case may be. With respect In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to accounts subject such Term Loan Priority Account.
(e) The Credit Parties may amend Schedule 3.22 of the Disclosure Letter to “springing” Control Agreementsadd or replace any deposit account or other account; provided, that (i) the Administrative Agent and Lenders agree that the Administrative Term Agent shall only have consented in writing (such consent not be authorized unreasonably withheld) in advance to deliver to the opening of such account with the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: and (iii) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any additional or all replacement Control Account, securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to the time of the opening of such accounts; and (ii) if a Trigger Event has occurred and is continuingaccount, the Administrative applicable Credit Party and the applicable depository, securities intermediary or commodities intermediary shall have executed and delivered to the Term Agent may, a Control Agreement.
(f) The Credit Parties shall use commercially reasonable efforts to close any of their respective accounts (and establish replacement accounts in its sole discretion, deliver such notices or instructions providing for exclusive control by accordance with clause (e) hereof) promptly and in any event within ninety (90) days following notice from the Administrative Term Agent over that the Collection Accounts, provided, that if a Trigger Event occurs solely as a result creditworthiness of any bank holding an account is no longer acceptable in the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. Term Agent's Permitted Discretion.
(g) The Loan Credit Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall .
(ih) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while So long as no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent Credit Parties may direct, and shall use commercially reasonable efforts following have sole control over, the Borrower’s request therefor manner of disposition of funds in each Control Account.
(i) Each Credit Party shall cause (i) all payments received by them (including, without limitation, all cash, checks, drafts or other similar items of payment) to be deposited into a Control Account or Local Deposit Account within one (A1) restore control Business Day after the receipt thereof and (ii) all funds in local deposit accounts (other than, for the avoidance of such Collection Accounts any doubt, deminimus amounts excluded pursuant to the applicable Loan Parties definition of Control Account) which do not constitute Control Accounts (subject “Local Deposit Accounts”) to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer be transferred on a daily basis, all available amounts on deposit in such Collection Accounts basis to a Concentration Control Account that is subject to a Control Agreement; provided that, except as provided in Section 1.6(b) hereof, all proceeds of Term Loan Priority Collateral shall be deposited only in the Term Loan Priority Accounts.
(j) Schedule 4.11(k) of the Disclosure Letter contains a list describing, as of the Closing Date, all arrangements between a Credit Party and a credit card processor or issuer. On or prior to the date that is 90 days (which the Term Agent may extend in its sole discretion) after the Closing Date (or at the request of the Term Agent if an Event of Default has occurred and is continuing), each Credit Party will deliver to the Term Agent notifications (each, a “Credit Card Notification”) in the form and substance reasonably satisfactory to the Term Agent which have been executed on behalf of the applicable Credit Party and addressed to such Credit Party's credit card clearinghouses and processors and/or issuers listed on Schedule 4.11(k) of the Disclosure Letter and for each new credit card clearinghouse and processor and/or issuer after the Closing Date, which Credit Card Notifications shall require the ACH or wire transfer on each Business Day of the cash proceeds of all credit card charges to a Control Account. No Credit Party shall, and no Credit Party shall permit any of its Subsidiaries to, directly or indirectly, to deposit any proceeds of any Collateral, other than proceeds of credit card receivables processed by Fifth Third Bank into any deposit account maintained by a Credit Party or any of its Subsidiaries at Fifth Third Bank.
(k) Each of the Credit Parties agrees that all payments received by them (including, without limitation, all cash, checks, drafts or other similar items of payment) in any deposit account over which Sage Payment Solutions has a security interest shall be swept into a deposit account over which Sage Payment Solutions does not have a security interest within one (1) Business Day after the receipt thereof.
Appears in 1 contract
Samples: Term Loan Agreement (Furniture Brands International Inc)
Cash Management Systems. Each Loan Party (a) On or before the Closing Date, such Grantor shall enter intodeliver to the Administrative Agent a schedule (the "Initial Account Identification Schedule") identifying the name and location of each bank and securities intermediary at which such Grantor maintains a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States and cause each depository to enter into, Control Agreements providing for “springing” cash dominion (ii) the account number and account name or other relevant descriptive data with respect to each Collection such account and such other information with respect to each such account as the Administrative Agent shall reasonably request. Within 30 days after the opening of any deposit account, securities account, lockbox account, concentration account, collection account or disbursement account, in each case other than any Immaterial Account, in the United States not identified in the Initial Account Identification Schedule, such Grantor shall deliver to the Administrative Agent a schedule (a "Supplemental Account Identification Schedule") which provides, in respect of each such account opened since the date of the Initial Account Identification Schedule, the information set forth in clauses (i) and (ii) of the preceding sentence.
(b) On or before the date which is 30 days after the Closing Date, such Grantor shall cause to be delivered to the Administrative Agent a Control Agreement and/or a Lockbox Agreement, as appropriate, with respect to each Concentration Account maintained by such Person account (other than any account that constitutes an Excluded Bank Immaterial Account) as of described in the Initial Account Identification Schedule which the Administrative Agent reasonably requires to be subject to such an agreement, in each case duly executed and delivered by such Grantor and by the bank or securities intermediary that maintains such account. On or before the date which is 30 days after the Effective Date. Each Loan Party delivery of any Supplemental Account Identification Schedule, such Grantor shall use commercially reasonable efforts cause to enter into, and cause each depository, securities intermediary or commodities intermediary be delivered to enter into, the Administrative Agent a Control Agreements providing for “springing” cash dominion Agreement and/or a Lockbox Agreement with respect to each deposit, securities, commodity or similar account maintained by described in such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Supplemental Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, Identification Schedule which the Administrative Agent reasonably requires to be subject to such an agreement, in each case duly executed and Lenders agree that delivered by such Grantor and by the Administrative Agent shall only be authorized to deliver to the relevant depository, bank or securities intermediary that maintains such account.
(c) Such Grantor shall cause all proceeds of any Collateral received by it in every form, including, without limitation, cash, checks wire transfers and other forms or commodities intermediary receipts, to be deposited promptly in a notice Control Account or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: Lockbox Account (i) at any time that an Event in respect of Default which a Control Agreement and/or Lockbox Agreement, as appropriate, is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; in effect and (ii) if a Trigger Event has occurred and is continuingwhich, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a any time when no Default or after an Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues is used solely for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess purpose of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case receiving proceeds of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementCollateral.
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Accounta) as of or after On the Effective Date. Each Loan , each Credit Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion (including, without limitation, providing for “control” thereover as such term is defined in the Securities Transfer Act (2006) (Ontario) in respect of Canadian Collateral) with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account as of the Effective Date. The Credit Parties shall not, directly or a Concentration Account (and funds deposited into indirectly, after the Effective Date, open, establish or maintain any such deposit, securities, commodity or similar account (other than an Excluded Account) unless on or before the opening of such account, such Credit Party shall be swept on deliver to Administrative Agent a daily basis Control Agreement with respect to such account. In addition, at Administrative Agent’s request, Credit Parties will enter into a Concentration Account)Control Agreements providing for springing cash dominion over disbursement accounts as of the Effective Date, except as set forth in the preceding sentence. With respect to accounts subject to “springing” Control AgreementsAgreements or such “control”, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to may deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if only during a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Cash Dominion Period. The Loan Credit Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. .
(b) The Loan Parties shall (i) cause all Collections received by them each day Borrower Representative may from time to be deposited in time provide a Collection written request to the Administrative Agent requesting that the Administrative Agent permit the withdrawal of a requested amount of Qualified Cash from any Qualified Cash Securities Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Accountand, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuingsuch written request, the Administrative Agent shall use commercially reasonable efforts following permit (or, if the Borrower’s request therefor relevant Qualified Cash Securities Account is not held with the Administrative Agent, shall instruct the relevant depositary bank or securities intermediary to so permit) the withdrawal of the requested amount of Qualified Cash in accordance with the written instructions of the Borrower Representative so long as (i) no Default or Event of Default has occurred and is continuing or would result from such withdrawal of the requested amount of Qualified Cash in accordance with such written instructions of the Borrower Representative, (ii) after giving effect to such withdrawal, (A) restore control the U.S. Dollar Equivalent of the aggregate principal amount of all outstanding Revolving Loans shall not exceed the Maximum Revolving Loan Balance, (B) the aggregate principal amount of all outstanding U.S. Revolving Loans shall not exceed the Maximum U.S. Revolving Loan Balance and ( C) the U.S. Dollar Equivalent of the aggregate principal amount of all outstanding Canadian Revolving Loans shall not exceed the Maximum Canadian Revolving Loan Balance (it being agreed that, immediately upon such Collection Accounts withdrawal, without any further act of any Person, the U.S. Borrowing Base or the Canadian Borrowing Base, as applicable, shall be calculated excluding the amount of Qualified Cash so withdrawn), and (iii) the Borrower Representative shall have provided an update to the applicable Loan Parties (subject Borrowing Base Certificate most recently delivered to the continuing rights of the Administrative Agent pursuant to assert exclusive control in Section 4.2(d) reflecting the circumstances provided hereinresult of such withdrawal on the calculation of the U.S. Borrowing Base or the Canadian Borrowing Base, as applicable.
(c) On or before the first date of Borrowing of any Export-Related Loans, the U.S. Borrowers shall have established a Control Agreement (the “Export-Related Blocked Account”) over a deposit account with a financial institution to be agreed (the “Export-Related Blocked Account Depositary Bank”) and (B) so long as shall, in connection with payments in respect of Export-Related Accounts, request in writing and otherwise take such control has not been restored reasonable steps to ensure that all Account Debtors of Export-Related Accounts forward payment directly to deposit or cause to be deposited promptly, and in any event no later than the applicable Loan Partiesfirst Business Day after receipt thereof, instruct all cash, checks, drafts or similar items of payment relating to or constituting payments made in respect of Export-Related Accounts into the depositaries Export-Related Blocked Account, which cash, checks, drafts or similar items for payment shall be segregated from other cash, drafts or similar items of payment relating to or constituting payments made in respect of the Collection Accounts for which other Collateral. On or before the Administrative Agent has delivered notices first date of exclusive control pursuant to this Section 5.11Borrowing of any Export-Related Loans, to transfer on the U.S. Borrowers shall have established a daily basis, all available amounts on deposit concentration account in such Collection Accounts to a its name (the “Export-Related Concentration Account that is Account”) subject to a Control AgreementAgreement with a financial institution reasonably satisfactory to the Administrative Agent (the “Export-Related Concentration Account Bank”). Each such Control Agreement shall provide that such Export-Related Blocked Account Depositary Bank agrees to forward immediately all amounts in such Export-Related Blocked Account to the Export-Related Concentration Account Bank and to commence the process of daily sweeps from such the Export-Related Blocked Account into the Export-Related Concentration Account.
Appears in 1 contract
Samples: Credit Agreement (Axiall Corp/De/)
Cash Management Systems. Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each of the accounts listed on Schedule 4.11 and each other deposit, securities, commodity or similar account maintained by such Person as of or after the Closing Date into which the proceeds of Collateral are or may be deposited (other than (i) any payroll account that constitutes so long as such payroll account is a zero balance account, (ii) withholding tax accounts, (iii) fiduciary accounts, (iv) disbursement accounts and (v) deposit accounts with an Excluded Bank Accountamount on deposit of (x) that does not constitute a Collection Account less than $1,000,000 at any time with respect to any particular deposit account and (y) less than $2,500,000 at any time in the aggregate for all such deposit accounts of either of the EINA Borrowers and their respective Subsidiaries or a Concentration Account (the EICA Borrowers and funds deposited into any such deposittheir respective Subsidiaries, securities, commodity or similar account shall be swept on a daily basis into a Concentration Accountas the case may be). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent unless and Lenders agree that the Administrative until an Event of Default has occurred and is continuing or a Trigger Event has occurred with respect to any Borrower Group (unless a corresponding Trigger Reset Event has occurred with respect thereto), Agent shall only be authorized to not deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such any applicable account by the Administrative Agent as follows: (i) at Agent. At any time that an following a Trigger Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and Borrower Group (ii) if unless a corresponding Trigger Reset Event has occurred and is continuingwith respect thereto), the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties Borrower Group shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall In addition, (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account orfollowing the occurrence and during the continuance of an Event of Default at Agent’s request, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt Credit Parties will enter into Control Agreements providing for “springing” cash dominion over their respective disbursement accounts and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or at any associated lockboxes or (B) in the case of STL Related Accounts, directly to time following a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing(unless a corresponding Trigger Reset Event has occurred with respect thereto), the Administrative Agent Credit Parties shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts maintain cash on deposit in any disbursement account in excess of outstanding checks and wire transfers payable from such Collection Accounts disbursement account and amounts necessary to meet minimum balance requirements. A “disbursement account” under this Section 4.11 refers to an account of a Concentration Account that Credit Party from which payments are made and which is a zero balance account and shall also include, for purposes of clarity, account no. xxxxxxxxx (or any successor account thereto) with Bank of America, N.A., as long as, unless Agent otherwise consents, such account has no more than $2,000,000 on deposit therein as of the close of business on any Business Day. For purposes of clarification, any Credit Party may close any account or open new accounts at any time, as long as (i) the Borrower Representative provides prior written notice of its intention to close any account to Agent, (ii) concurrently with, or within five (5) Business Days after the opening of an account, the applicable Credit Party satisfies the other provisions of this Section 4.11 with respect thereto and (iii) there shall at all times be at least one account for each Borrower Group subject to a Control Agreement.
Appears in 1 contract
Cash Management Systems. (a) Each Loan Credit Party shall enter intomaintain its primary depository banking relationship, including all of its principal operating and depository accounts and its lockbox administration, at Capital One.
(b) Each Credit Party shall (A) establish and maintain cash management services of a type and on terms reasonably satisfactory to Agent at Capital One, and shall take reasonable steps to ensure that all of its Collateral Loan Obligors forward payment of the amounts owed by them directly to a Collection Account at Capital One (each, a “Controlled Account”) (by wire transfer to Capital One or to a lockbox maintained by Capital One for deposit into such Collection Account), and (B) deposit or cause each depository to enter intobe deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all of their Collections (including those sent directly by their Collateral Loan Obligors to a Credit Party) and proceeds of Collateral into a Controlled Account.
(c) Each Credit Party shall establish and maintain Control Agreements providing for “springing” cash dominion with Agent, with respect to all deposit accounts where payments on Collateral Loans by Collateral Loan Obligors will be deposited, in form and substance reasonably acceptable to Agent and Capital One, with respect to all deposit accounts in form and substance reasonably acceptable to Agent. Agent agrees not to issue an Activation Instruction with respect to the Controlled Accounts unless a Cash Dominion Period is continuing at the time such Activation Instruction is issued.
(d) Each Credit Party hereby grants to Agent, for the benefit of the Secured Parties, a security interest in each Collection Account and each Concentration Account maintained by all checks, drafts, instruments, certificates of deposit, cash and other items at any time received for deposit in the such Person Collection Account.
(other than any account that constitutes an Excluded Bank Accounte) as No Credit Party will make, acquire, or permit to exist investments consisting of cash, Cash Equivalents, or after the Effective Date. Each Loan Party shall use commercially reasonable efforts amounts credited to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, (a) At all times:
(i) maintain deposit accounts (“Collection Accounts”) only at banks reasonably approved in advance by the Administrative Agent and cause only permit authorized signatories on each depository to enter into, Control Agreements providing for “springing” cash dominion Collection Account who are reasonably approved in advance by the Administrative Agent;
(ii) provide the Administrative Agent with the account name and number with respect to each Collection Account and each Concentration Account maintained by such Person (other than any deposit account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each a Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt after opening or acquiring any such account, along with the authorized signatories on each such account;
(iii) direct all account debtors or other payment obligors of any Loan Party that pay by wire, ACH or other electronic funds transfer to directly remit all payments on each Loan Party’s accounts directly to a Collection Account and immediately deposit in a Collection Account all payments received from account debtors or made for inventory or other payments constituting proceeds of Collateral received in the identical form in which such payment was made, whether by cash or check;
(iv) irrevocably direct all account debtors or other payment obligors of any Loan Party that pay such Loan Party by cash or check to directly remit all payments on such Loan Party’s accounts to a Collection Account and otherwise deposit all such cash or checks received into a Collection Account; and
(v) ensure that no Person other than the Administrative Agent, for the benefit of the Secured Parties, has “control” (within the meaning of Section 9-104 of the UCC) or dominion over any deposit account of the Loan Parties.
(b) At all times, ensure that:
(i) all receivables from governmental Third Party Payor Programs are deposited by the applicable Third Party Payor, or the party which is legally entitled to the payment of the same, into separate Collection Accounts (the “Government Collections Accounts”) and not commingled with any other funds;
(ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly are subject to a Qualified Trust Account or any associated lockbox. If (x) “hard” account control agreement in form and substance reasonably satisfactory to the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, each Business Day all available amounts on deposit in such Collection Accounts Accounts, including without limitation, the Government Collections Accounts, constituting good funds shall be automatically swept to a single account of the Borrower maintained at Compass Bank (with respect to Akumin Imaging Texas, LLC and each Subsidiary thereof that is a Loan Party), PNC Bank, National Association (with respect to other Loan Parties), or such other banks as are reasonably approved by the Administrative Agent (each such account, a “Concentration Account”); and
(iii) each Concentration Account that is subject to a Control Agreement“springing” account control agreement in form and substance reasonably satisfactory to Agent.
(c) Within sixty (60) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the First Amendment Effective Date or ninety (90) days (or such longer period as the Administrative Agent may agree in its sole discretion) of any Permitted Acquisition of an entity having deposit accounts, take such actions as the Administrative Agent may request in order to ensure that the Administrative Agent has “control” (within the meaning of Section 9-104 of the UCC) or dominion, for the benefit of the Secured Parties, over each deposit account of the Loan Parties or such acquired entity, other than Excluded Accounts, provided “control” over any Government Collections Account shall be revocable by the applicable Loan Party to the extent required by Law.
Appears in 1 contract
Samples: Loan Agreement (Akumin Inc.)
Cash Management Systems. The Credit Parties will establish and maintain the cash management systems described below (the “Cash Management Systems”):
(a) Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) establish lock boxes (“Lock Boxes”) and/or at any time that an Event Administrative Agent’s reasonable discretion, lockbox or blocked accounts at one or more of Default is continuing, the Administrative Agent maybanks set forth in Disclosure Schedule 6.20 (“Blocked Accounts”), and at the direction of Required Lenders shallshall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors forward payment directly to such Lock Boxes, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof at Borrower’s offices in Boca Raton, FL or North Aurora, IL, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all Collateral (whether or not otherwise delivered to a Trigger Event has occurred Lock Box) into one or more Blocked Accounts in such Credit Party’s name, but under the sole dominion and is continuingcontrol of Administrative Agent, and at a bank identified in Disclosure Schedule 6.20 (each, a “Relationship Bank”). Each Credit Party and each Related Person thereof acknowledges and agrees that all cash, checks or other items of payment constituting proceeds of Collateral are part of the Administrative Agent mayCollateral. All proceeds of the sale or other disposition of any Collateral, shall be deposited directly into the applicable Blocked Accounts, subject to the provisions of Section 2.8.
(b) The Borrower may maintain, in its sole discretionname, deliver such notices or instructions providing accounts (each a “Disbursement Account” and collectively, the “Disbursement Accounts”) at a bank reasonably acceptable to Administrative Agent into which Administrative Agent shall, from time to time, deposit proceeds of Revolving Credit Advances and Swingline Advances made to the Borrower pursuant to Section 2.1 for exclusive control use by the Borrower solely in accordance with the provisions of Section 6.8.
(c) The Borrower may maintain, in its name, an account (“Xxxxx Cash Account”) at a bank reasonably acceptable to Administrative Agent over which account shall have funds on deposit not to exceed $25,000 at any time and shall be used by the Borrower solely in accordance with the provisions of Section 6.8.
(d) On or before the Closing Date, each bank where a Disbursement Account or the Xxxxx Cash Account is maintained and all Relationship Banks, shall have entered into tri-party blocked account agreements with Administrative Agent, for the benefit of the Lending Parties, and the Credit Parties, as applicable, in form and substance reasonably acceptable to Administrative Agent, which shall become operative on or prior to the Closing Date. Each such blocked account agreement shall provide, among other things, that (i) the bank acknowledges that all items of payment deposited in such account and proceeds thereof deposited in the applicable Blocked Account are subject to a security interest of the Administrative Agent, on behalf of the Lending Parties, (ii) that the parties to such blocked account agreement agree that the bank shall comply with the instruction originated by Administrative Agent directing disposition of the funds in the deposit account without further consent of the applicable Credit Party, (iii) the bank executing such agreement has no rights of setoff or recoupment or any other claim against such account, as the case may be, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment, and (iv) from and after the Closing Date (A) with respect to banks at which a Blocked Account is maintained, such bank agrees to forward immediately all amounts in each Blocked Account to the Collection AccountsAccount and to commence the process of daily sweeps from such Blocked Account into the Collection Account and (B) with respect to banks at which a Disbursement Account or the Xxxxx Cash Account is maintained, provided, that if from and after the receipt of a Trigger Event occurs solely as a result of the imposition by the notice (an “Activation Notice”) from Administrative Agent of (which Activation Notice may be given by Administrative Agent at any time at which (1) a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuingcontinuing after its applicable cure period, then the (2) Administrative Agent reasonably believes based upon information available to it that a Default or an Event of Default is likely to occur; (3) Administrative Agent reasonably believes that an event or circumstance that is likely to have a Material Adverse Effect has occurred, or (4) Administrative Agent reasonably has grounds to question the integrity of the Borrower’s Cash Management Systems or any Credit Party’s compliance with the provisions of this Section 6.20 or any other provisions of the Loan Documents to the extent related to such Cash Management Systems), such bank agrees to forward immediately all amounts in such Disbursement Account or Xxxxx Cash Account to the Collection Account and to commence the process of daily sweeps from such Disbursement Account or Xxxxx Cash Account into the Collection Account. No Credit Party shall not deliver such notices accumulate or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash in Disbursement Accounts or Cash Equivalents on deposit in payroll accounts as of any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement date of determination in excess of (x) the aggregate amount of checks outstanding checks and wire transfers payable from against such accounts and as of that date plus (y) all amounts necessary to meet minimum balance requirements. The Loan Parties shall .
(e) So long as no Default has occurred and is continuing, the Borrower may amend Disclosure Schedule 6.20 to add or replace a Relationship Bank, Lock Box or Blocked Account or to replace any Disbursement Account or the Xxxxx Cash Account; provided that (i) cause all Collections received by them each day Administrative Agent shall have consented, such consent not to be deposited unreasonably withheld conditioned or delayed, in a Collection Account writing in advance to the opening of such account or a Concentration Account or, Lock Box with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt the relevant bank and (ii) direct prior to the time of the opening of such account or Lock Box, the applicable Credit Party, and such bank shall have executed and delivered to Administrative Agent a tri-party blocked account agreement, in form and substance reasonably satisfactory to Administrative Agent.
(f) The Lock Boxes, Blocked Accounts, Disbursement Accounts and the Xxxxx Cash Account shall be cash collateral accounts, with all cash, checks and other similar items of payment in such accounts securing payment of the Loans and all other Obligations, and in which each Credit Party thereof shall have granted a Lien to Agent, on behalf of the Lending Parties, pursuant to the Security Agreement.
(g) All amounts deposited in the Collection Account Debtors shall be deemed received by Administrative Agent in accordance with Section 2.14 and shall be applied (and allocated) by Administrative Agent in accordance with Section 2.10. In no event shall any amount be so applied unless and until such amount shall have been credited in immediately available funds to remit the Collection Account. Each Credit Party shall and shall cause its Affiliates, officers, employees, agents, directors or other Persons acting for or in concert with such Credit Party (each a “Related Person”) to hold in trust for Administrative Agent, for the benefit of the Lending Parties, all payments either (A) directly to Collection Accounts checks, cash and other items of payment received by such Credit Party or any associated lockboxes or (B) in the case of STL such Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control AgreementPerson.
Appears in 1 contract
Samples: Credit Agreement (Medical Staffing Network Holdings Inc)
Cash Management Systems. Each Loan Party shall enter into(a) The Borrowers shall, and shall cause each depository of their Subsidiaries to, maintain cash management systems reasonably satisfactory to enter into, the Term Agent and shall notify their accounts debtors to make payment of amounts due to the Loan Parties directly into a Control Agreements providing for “springing” cash dominion with Account. Other than respect to the Control Account described in Section 2.1(u), each Collection Account and each Concentration Account maintained by such Person (other Borrower shall, no later than any account the date that constitutes an Excluded Bank Account) as of or is 30 days after the Effective Date. Each Loan Party shall use commercially reasonable efforts to Closing Date (or such later date as the Term Agent may determine in its sole discretion) enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each depositControl Account (including, securitieswithout limitation, commodity all lockbox or similar account arrangements) maintained by such Person Borrower.
(b) Each Control Agreement shall provide, among other than any account things, that constitutes an Excluded Bank Account(i) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary executing such agreement has no rights of setoff or recoupment or any other claim against such account, other than for payment of its service fees and other charges directly related to the administration of such account and for returned checks or other items of payment (except as the Term Agent may otherwise agree in writing), and (ii) from and after the receipt of a notice or other instruction (an “Activation Notice”) from the Term Agent (which provides for exclusive control over such account by Activation Notice may be furnished only during the Administrative Agent as follows: (i) at any time that continuance of an Event of Default is continuingDefault), without any further action or consent by any Borrower, the Administrative Agent mayapplicable depository institution, securities intermediary and at commodities intermediary shall comply solely with the direction instructions of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Term Agent with respect to the disposition and transfer of assets from the applicable account. Each Borrower agrees that it will not cause proceeds of any or all such accounts; and (ii) if Control Account to be directed in a Trigger Event has occurred and is continuing, manner contrary to the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result terms of the imposition by Loan Documents, and, after the Administrative Agent occurrence and during the continuation of a new or increased Reserve at a time when no Default or an Event of Default has occurred and is continuingDefault, then will cooperate with the Administrative Term Agent shall not deliver such notices in all respects with respect to the Term Agent’s direction of funds from Control Accounts.
(c) The Borrowers may amend Schedule 3.22 to add or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in replace any deposit account or securities account (in each caseother account; provided, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust additional or replacement Control Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors securities account, or commodities account, except as the Term Agent may otherwise agree in writing, prior to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case time of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event opening of Default is continuing and (y) no Trigger Event is continuingsuch account, the Administrative Agent applicable Borrower and the applicable depository, securities intermediary or commodities intermediary shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts have executed and delivered to the applicable Loan Parties (subject to the continuing rights of the Administrative Term Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, (a) At all times:
(i) maintain deposit accounts (“Collection Accounts”) only at banks reasonably approved in advance by the Administrative Agent and cause only permit authorized signatories on each depository to enter into, Control Agreements providing for “springing” cash dominion Collection Account who are reasonably approved in advance by the Administrative Agent;
(ii) provide the Administrative Agent with the account name and number with respect to each Collection Account and each Concentration Account maintained by such Person (other than any deposit account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each a Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt after opening or acquiring any such account, along with the authorized signatories on each such account;
(iii) direct all account debtors or other payment obligors of any Loan Party that pay by wire, ACH or other electronic funds transfer to directly remit all payments on each Loan Party’s accounts directly to a Collection Account and immediately deposit in a Collection Account all payments received from account debtors or made for inventory or other payments constituting proceeds of Collateral received in the identical form in which such payment was made, whether by cash or check;
(iv) irrevocably direct all account debtors or other payment obligors of any Loan Party that pay such Loan Party by cash or check to directly remit all payments on such Loan Party’s accounts to a Collection Account and otherwise deposit all such cash or checks received into a Collection Account; and
(v) ensure that no Person other than the Administrative Agent, for the benefit of the Secured Parties, has “control” (within the meaning of Section 9-104 of the UCC) or dominion over any deposit account of the Loan Parties.
(b) At all times, ensure that:
(i) all receivables from governmental Third Party Payor Programs are deposited by the applicable Third Party Payor, or the party which is legally entitled to the payment of the same, into separate Collection Accounts (the “Government Collections Accounts”) and not commingled with any other funds;
(ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly are subject to a Qualified Trust Account or any associated lockbox. If (x) “hard” account control agreement in form and substance reasonably satisfactory to the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, each Business Day all available amounts on deposit in such Collection Accounts Accounts, including without limitation, the Government Collections Accounts, constituting good funds shall be automatically swept to a single account of the Borrower maintained at Compass Bank (with respect to Preferred Medical Imaging, LLC and each Subsidiary thereof that is a Loan Party), PNC Bank, National Association (with respect to other Loan Parties), or such other banks as are reasonably approved by the Administrative Agent (each such account, a “Concentration Account”); and
(iii) each Concentration Account that is subject to a Control Agreement“springing” account control agreement in form and substance reasonably satisfactory to Agent.
(c) Within sixty (60) days (or such longer period as the Administrative Agent may agree in its sole discretion) of the Closing Date, take such actions as the Administrative Agent may request in order to ensure that the Administrative Agent has “control” (within the meaning of Section 9-104 of the UCC) or dominion, for the benefit of the Secured Parties, over each deposit account of the Loan Parties, other than Excluded Accounts, provided “control” over any Government Collections Account shall be revocable by the applicable Loan Party to the extent required by Law.
Appears in 1 contract
Samples: Credit Agreement (Akumin Inc.)
Cash Management Systems. Each Loan Credit Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Closing Date. Each Loan Credit Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute constitutes a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and at any time that Excess Availability is continuingbelow $20.0 million, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely Excess Availability falls below $20.0 million as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuingReserve, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Credit Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Credit Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockboxlockboxes. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 4.11 while no Event of Default is continuing and (y) no Trigger a Cash Management Restoration Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Credit Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Credit Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.114.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement. Notwithstanding the preceding sentence, the Agent shall not take any of the actions contemplated by clause (A) of the immediately preceding sentence on any date if control of the Collection Accounts has been restored to the applicable Credit Parties in accordance with the immediately preceding sentence two or more times during the twelve-month period ended on such date.
Appears in 1 contract
Samples: Credit Agreement (Unisys Corp)
Cash Management Systems. Each Loan Party Within sixty (60) days after the Closing Date, as such period may be extended from time to time by Agent in its reasonable discretion (plus, in the event that any depositary or intermediary refuses to execute such Control Agreement, an additional sixty (60) days to move such account to an institution which shall enter intoexecute such Control Agreement), and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account the Borrower and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party Domestic Subsidiary shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than (i) any segregated payroll account so long as such payroll account is a zero balance account, (ii) any withholding tax and fiduciary accounts and (iii) any other account with monthly average balances not in excess of $50,000 (provided that constitutes an Excluded Bank Accountthe aggregate monthly balance for all such accounts shall not exceed $250,000)) that does not constitute a Collection Account as of or a Concentration Account (and funds deposited after the Closing Date. In addition, at Agent’s request, Credit Parties will enter into any such depositControl Agreements providing for springing cash dominion over disbursement accounts as of the Closing Date, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account)except as set forth in the preceding sentence. With respect to accounts subject to “springing” Control Agreements, the Administrative Agent unless and Lenders agree that the Administrative until a Specified Event of Default has occurred and is continuing or Control Agreement Availability falls below $5,000,000, Agent shall only be authorized not deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction (an “Exclusive Control Notice”) which provides for exclusive control over such account by Agent. At any time after Agent has delivered an Exclusive Control Notice, upon the Borrower’s delivery of evidence reasonably satisfactory to Agent that (x) Control Agreement Availability has equaled or exceeded $5,000,000 for a period of forty-five (45) consecutive days following the delivery of the Exclusive Control Notice and (y) no Specified Event of Default has occurred and is continuing, Agent shall deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for terminates the exclusive control over such account by Agent (for the Administrative Agent as follows: (i) at avoidance of doubt, such notice or instruction shall not in any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent manner terminate Agent’s “springing” cash dominion with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Periodaccount). The Loan Credit Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement disbursement accounts in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall As used herein, “Control Agreement Availability” means, as of any date of determination, the amount by which (a) the sum of (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and the Maximum Revolving Loan Balance plus (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case amount of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing unrestricted cash and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights Cash Equivalents of the Administrative Agent to assert exclusive control Credit Parties held in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for deposit or securities accounts which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is are subject to a Control AgreementAgreement in favor of Agent, exceeds (b) the sum of (i) the aggregate outstanding principal balance of Revolving Loans plus (ii) the aggregate amount of outstanding Letter of Credit Obligations (excluding any such Letter of Credit Obligations to the extent they are fully cash collateralized in accordance with Section 7.4 hereof).
Appears in 1 contract
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account (a) Schedule 6.11 sets forth all deposit accounts maintained by such Person (other than any account that constitutes an Excluded Bank Account) the Loan Parties as of the Closing Date, including all Dominion Accounts. Before or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion concurrently with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control opening by the Administrative Agent with respect to Parent Borrower or any other Loan Party of any deposit account, securities account, lockbox account, concentration account, collection account or all such accounts; disbursement account, and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that which is not subject to a Control Agreement that previously constituted an Immaterial Account or an Excluded Account ceasing to constitute an Immaterial Account or an Excluded Account, in excess each case, the Parent Borrower shall deliver to the Administrative Agent a schedule (a “Supplemental Account Identification Schedule”) which provides, in respect of outstanding checks each such account (A) the name and wire transfers payable from location of each bank and securities intermediary at which the Parent Borrower or such accounts Loan Party maintains a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account in the United States and amounts necessary (B) the account number and account name or other relevant descriptive data with respect to meet minimum balance requirements. The each such account and such other information with respect to each such account as the Administrative Agent shall reasonably request.
(b) On or before the date any Loan Parties shall (i) cause all Collections received by them each day Party deposits any funds or permits any funds to be deposited in a Collection or credited to any account (other than an Excluded Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust an Immaterial Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is currently subject to a Control Agreement, Parent Borrower shall cause to be delivered to the Administrative Agent a Control Agreement with respect to such account, in each case duly executed and delivered by the Parent Borrower or the relevant Loan Party and by the bank or securities intermediary that maintains such account. The applicable Loan Party shall be the sole account holder of each deposit account, securities account, lockbox account, concentration account, collection account or disbursement account on Schedule 6.11 or a Supplemental Account Identification Schedule and shall not allow any other Person (other than the Administrative Agent or any agent or similar representative under any secured Junior Loan Obligations) to have control over a deposit account, securities account, lockbox account, concentration account, collection account or disbursement account or any property deposited therein.
(c) Borrowers shall maintain Dominion Accounts pursuant to lockbox or other arrangements reasonably acceptable to Administrative Agent. Each applicable Loan Party shall obtain an agreement (in form and substance satisfactory to Administrative Agent) from each lockbox servicer and Dominion Account bank, establishing Administrative Agent’s control over and Lien in the lockbox or Dominion Account, which may be exercised by Administrative Agent during any Cash Dominion Trigger Period, requiring immediate deposit of all remittances received in the lockbox to a Dominion Account, and waiving offset rights of such servicer or bank, except for customary administrative charges. If a Dominion Account is not maintained with Bank of America, Administrative Agent may, during any Cash Dominion Trigger Period, require immediate transfer of all funds in such account to a Dominion Account maintained with Bank of America. Administrative Agent and Xxxxxxx assume no responsibility to any Borrower for any lockbox arrangement or Dominion Account, including any claim of accord and satisfaction or release with respect to any Payment Items accepted by any depositary bank.
(d) Each Borrower shall request in writing and otherwise take such reasonable steps to ensure that all Account Debtors of the Loan Parties forward payment directly to Dominion Accounts (or a lockbox relating to a Dominion Account) maintained pursuant to and in accordance with Section 6.11(c). If any Loan Party receives cash or any Payment Items constituting payments made in respect of any Collateral (whether or not otherwise delivered to a lockbox), it shall hold the same in trust for the Administrative Agent and promptly (and in any event no later than the first Business Day after the date of receipt thereof) deposit the same or cause the same to be deposited into one or more Dominion Accounts. All Net Cash Proceeds of the sale, Net Loss Proceeds relating to or other disposition of any Collateral shall be deposited directly into a Dominion Account.
(e) The Administrative Agent agrees that it will not give any instructions or entitlement orders, as the case may be, in respect of any account subject to a Control Agreement unless a Cash Dominion Trigger Period has commenced and is continuing.
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Cash Management Systems. Each (a) The Borrower shall, and shall cause each other Loan Party shall enter intoto, and cause each depository to enter intoupon the request of the Administrative Agent, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than (a) any payroll account so long as such payroll account is a zero balance account, (b) xxxxx cash accounts, amounts on deposit in which do not exceed $500,000 in the aggregate at any one time and (c) withholding tax and fiduciary accounts and any Segregated Governmental Account (such excluded accounts, “Excluded Accounts”)) as of and after the Effective Date. It is agreed and understood that the Loan Parties shall have until the date that is (a) ninety (90) days following the request for such Control Agreements by the Administrative Agent (or such later date as may be agreed to by the Administrative Agent in its sole discretion) to comply with the provisions of this Section 5.10(a) with regard to accounts (other than Excluded Accounts) of the Loan Parties existing on the date of such request and (b) ninety (90) days following the closing date of a Permitted Acquisition (or such later date as may be agreed to by the Administrative Agent in its sole discretion) to comply with the provisions of this Section 5.10(a) with regard to accounts (other than Excluded Accounts) acquired by the Loan Parties in connection with such Permitted Acquisition. Control Agreements shall permit Loan Parties to withdraw or otherwise dispose of funds deposited in or credited to any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts is subject to “springing” a Control Agreements, Agreement until the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver delivers to the relevant applicable depository, securities intermediary or commodities intermediary a notice of exclusive control or other instruction which provides for exclusive control over such account by similar notice, and the Administrative Agent as follows: (i) at agrees that it shall not deliver any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has occurred and is continuing, the Administrative Agent maynotice unless, in its sole discretioneach case, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or an Event of Default has occurred and is continuing.
(b) In addition, then the Administrative Agent Borrower shall, and shall not deliver such notices cause each other Loan Party to, (a) segregate collections made from Governmental Payors making payments under Medicare or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each caseMedicaid, from collections made from all other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case and customers of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct including, without limitation, by (i) notifying all payors (other than Governmental Payors making payments under Medicare or Medicaid) then instructed to make payments to such Loan Parties’ deposit accounts to make payments to a deposit account other than a Segregated Governmental Account (such accounts, “Other Accounts”), and (ii) notifying all Governmental Payors making payments under Medicare or Medicaid to make payments to a Segregated Governmental Account, and (b) enter into, and cause each applicable depository to enter into, a “sweep” agreement (a “Sweep Agreement”) with respect to each Segregated Governmental Account pursuant to which such depository will agree to sweep amounts deposited therein on daily basis to an Other Account as and when funds clear and become available in accordance with such depository’s customary procedures, each with such financial institution and each in form and substance, and pursuant to such arrangements as are, reasonably acceptable to the depositaries Administrative Agent. The Borrower shall not, and shall not allow any Loan Party to, change any sweep instruction set forth in respect such Sweep Agreement without the prior written consent of the Collection Accounts for which Administrative Agent. To the extent any Person, whether a Governmental Payor or otherwise, remits payments to an incorrect deposit account or otherwise makes payments not in accordance with the provisions of this Section 5.10(b) or an applicable Loan Party’s payment direction, such Loan Party shall contact such Person and use its commercially reasonable efforts to redirect payment from such Person in accordance with the terms hereof. The Administrative Agent agrees and confirms that Loan Parties will have sole dominion and “control” (within the meaning of Section 9-104 of the UCC and the common law) over each Segregated Governmental Account and all funds therein and the Administrative Agent has delivered notices disclaims any right of exclusive any nature whatsoever to control pursuant or otherwise direct or make any claim against the funds held in any Segregated Governmental Account from time to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreementtime.
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Samples: Credit Agreement (Almost Family Inc)
Cash Management Systems. Each Loan Party shall enter into, and cause each depository to enter into, Control Agreements providing for “springing” cash dominion with respect to each Collection Account and each Concentration Account maintained by such Person (other than any account that constitutes an Excluded Bank Account) as of or after the Effective Date. Each Loan Party shall use commercially reasonable efforts to enter into, and cause each depository, securities intermediary or commodities intermediary to enter into, Control Agreements providing for “springing” cash dominion with respect to each deposit, securities, commodity or similar account maintained by such Person (other than any account that constitutes an Excluded Bank Account) that does not constitute a Collection Account or a Concentration Account (and funds deposited into any such deposit, securities, commodity or similar account shall be swept on a daily basis into a Concentration Account). With respect to accounts subject to “springing” Control Agreements, the Administrative Agent and Lenders agree that the Administrative Agent shall only be authorized to deliver to the relevant depository, securities intermediary or commodities intermediary a notice or other instruction which provides for exclusive control over such account by the Administrative Agent as follows: (i) at any time that an Event of Default is continuing, the Administrative Agent may, and at the direction of Required Lenders shall, deliver such notices or instructions providing for exclusive control by the Administrative Agent with respect to any or all such accounts; and (ii) if a Trigger Event has 1032ACTIVE 224321401v.2 occurred and is continuing, the Administrative Agent may, in its sole discretion, deliver such notices or instructions providing for exclusive control by the Administrative Agent over the Collection Accounts, provided, that if a Trigger Event occurs solely as a result of the imposition by the Administrative Agent of a new or increased Reserve at a time when no Default or Event of Default has occurred and is continuing, then the Administrative Agent shall not deliver such notices or instructions unless such circumstance continues for the Designated Period. The Loan Parties shall not maintain cash or Cash Equivalents on deposit in any deposit account or securities account (in each case, other than Excluded Bank Accounts) that is not subject to a Control Agreement in excess of outstanding checks and wire transfers payable from such accounts and amounts necessary to meet minimum balance requirements. The Loan Parties shall (i) cause all Collections received by them each day to be deposited in a Collection Account or a Concentration Account or, with respect to any STL Related Accounts, a Qualified Trust Account, within two (2) Business Days following receipt and (ii) direct all Account Debtors to remit all payments either (A) directly to Collection Accounts or any associated lockboxes or (B) in the case of STL Related Accounts, directly to a Qualified Trust Account or any associated lockbox. If (x) the Administrative Agent has exercised its right to take exclusive control over the Collection Accounts pursuant to this Section 5.11 while no Event of Default is continuing and (y) no Trigger Event is continuing, the Administrative Agent shall use commercially reasonable efforts following the Borrower’s request therefor to (A) restore control of such Collection Accounts to the applicable Loan Parties (subject to the continuing rights of the Administrative Agent to assert exclusive control in the circumstances provided herein) and (B) so long as such control has not been restored to the applicable Loan Parties, instruct the depositaries in respect of the Collection Accounts for which the Administrative Agent has delivered notices of exclusive control pursuant to this Section 5.11, to transfer on a daily basis, all available amounts on deposit in such Collection Accounts to a Concentration Account that is subject to a Control Agreement.
Appears in 1 contract
Samples: Credit Agreement (Unisys Corp)
