Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above).
Appears in 4 contracts
Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transferssuch Loan Party with respect to each depository institution listed on Schedule 5.21(a);
(ii) on or prior to the Closing Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date, a fully executed Blocked Account Agreement with respect to the Concentration Account designated on Schedule 5.21(a); and
(iv) on or prior to the Closing Date, fully executed Blocked Account Agreements or Securities Account Control Agreements satisfactory in form and substance to the Agents with each Blocked Account Bank designated on Schedule 5.21(a) and applicable securities intermediary designated on Schedule 5.21(a) (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts”). Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Cash Dominion Trigger Event. After the occurrence and during the continuance of a Cash Dominion Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each case such DDA (provided, that such covenant shall not apply to (i) minimum balances as a result of may be required to be kept in the ordinary course operations of subject DDA by the Loan Partiesdepository institution at which such DDA is maintained, (ii) cash necessary for if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilitiespast practice, or (iii) any amounts held in Excluded Accounts) and all payments due from credit card processors.
(c) During any Cash Dominion Trigger Period, each Blocked Account Agreement and Securities Account Control Agreement shall require the transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to one of the concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the proceeds of all credit card charges;
(v) the then contents of each DDA (net of any minimum balance, not to exceed the Maximum DDA Balance, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(d) During any Buy-Back Standstill Period with respect to any Loan Party, so long as no Buy-Back Trigger Period has occurred and is continuing, (i) no Ordinary Blocked Account Agreement shall require any transfer of any cash receipts or collections, and (ii) each Loan Party covenants and agrees to transfer to a Prepayment Event described Concentration Account by ACH or wire transfer no less frequently than daily all amounts on deposit in clause each such Blocked Account in excess of amounts that such Loan Party reasonably deems to be necessary to satisfy projected buy-back obligations under the Permitted Buy-Back Program at each Store. In addition to inspection rights permitted under Section 6.10, the Administrative Agent shall have the right, upon reasonable prior notice to the Lead Borrower, to audit and or evaluate, or to cause professionals retained by the Administrative Agent to audit and/or evaluate, the Loan Parties’ compliance with this Section 6.13(d), and the Loan Parties shall pay the reasonable and documented expenses of the Administrative Agent or such professionals for such audits and evaluations.
(ae) or If the Borrowers fail to maintain Availability of at least thirteen and a half percent (b13.5%) of the definition Aggregate Loan Cap at any time, then the Borrowers covenant and agree that the Loan Parties will establish one or more special operating accounts (“Buy-Back Trigger Period Accounts”) that can only be funded with Borrowings of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt Committed Loans in accordance with clause (xig) of this Section 6.13.
(f) During any Buy-Back Trigger Period, each Ordinary Blocked Account Agreement shall require the first proviso in transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Concentration Account of all cash receipts and collections, including, without limitation, the definition following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Disposition giving rise to a mandatory prepayment under Section 2.05(e);
(iv) the term “Refinancing Indebtedness”, proceeds of all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(g) During any Buy-Back Trigger Period, Borrowings of Committed Loans may be deposited pursuant in Buy-Back Trigger Period Accounts and the amounts on deposit in such Buy-Back Trigger Period Accounts may only be applied to Section 2.05(j) fund Permitted Buy-Back Programs or, upon the expiration of the applicable Permitted Buy-Back Programs or otherwise the occurrence of an Event of Default, to cash collateralize letters the prepayment of credit the Obligations then outstanding under and in accordance with the applicable loan or letter Credit Agreement; provided, that, except as otherwise provided in Section 8.03, upon payment in full of credit documents such outstanding Obligations, any remaining amounts will be released and (viii) cash held in any Deposit Account transferred to a deposit account of the Loan Parties which is as the Lead Borrower shall direct.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured 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 6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent. During the continuation of a Cash Dominion Trigger Event, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that except as otherwise provided in Section 8.03, upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes a Cash Dominion Trigger Event described in clause (ii)b) of the definition thereof shall not, in and of itself, impair the right of the Borrowers to Committed Loans in accordance with the terms hereof.
(iv)i) Upon the request of the Administrative Agent, (v) or (vii) the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 4 contracts
Samples: Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.), Credit Agreement (Barnes & Noble Education, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transferssuch Loan Party with respect to each depository institution listed on Schedule 5.21(a);
(ii) on or prior to the Closing Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date, a fully executed Blocked Account Agreement with respect to the Concentration Account designated on Schedule 5.21(a); and
(iv) on or prior to the Closing Date, fully executed Blocked Account Agreements or Securities Account Control Agreements satisfactory in form and substance to the Agents with each Blocked Account Bank designated on Schedule 5.21(a) and applicable securities intermediary designated on Schedule 5.21(a) (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts”). Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Cash Dominion Trigger Event. After the occurrence and during the continuance of a Cash Dominion Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each case such DDA (provided, that such covenant shall not apply to (i) minimum balances as a result of may be required to be kept in the ordinary course operations of subject DDA by the Loan Partiesdepository institution at which such DDA is maintained, (ii) cash necessary for if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilitiespast practice, or (iii) any amounts held in Excluded Accounts) and all payments due from credit card processors.
(c) During any Cash Dominion Trigger Period, each Blocked Account Agreement and Securities Account Control Agreement shall require the Net Proceeds received in respect of a Prepayment Event described in clause transfer by ACH or wire transfer no less frequently than daily (aand whether or not there are then any outstanding Secured Obligations) or (b) to one of the definition concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of “all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, ;
(iv) cash the proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be deposited pursuant to Section 2.05(jkept in the subject DDA by the depository institution at which such DDA is maintained).
(d) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and [Intentionally Omitted.]
(viiie) cash held in any Deposit [Intentionally Omitted.]
(f) [Intentionally Omitted.]
(g) [Intentionally Omitted.]
(h) The Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured 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 6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent. During the continuation of a Cash Dominion Trigger Event, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that, except as otherwise provided in Section 8.03, upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes a Cash Dominion Trigger Event described in clause (ii)b) of the definition thereof shall not, in and of itself, impair the right of the Borrowers to Committed Loans in accordance with the terms hereof.
(iv)i) Upon the request of the Administrative Agent, (v) or (vii) the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 3 contracts
Samples: Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc), Credit Agreement (Barnes & Noble Inc)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingImmediately upon the occurrence of a Cash Dominion Event, the Borrower shall notLoan Parties, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Co-Collateral Agent, shall deliver to the Co-Collateral Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each 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) Annexed hereto as Schedule 2.18(b) is a list describing all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.
(c) Each Loan Party has or shall have:
(i) delivered to the Administrative Agent and the Canadian Agent, as applicable, notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit I which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors; and
(ii) entered into a blocked account agreement (each, a “Blocked Account Agreement”) in form and substance reasonably satisfactory to the Co-Collateral Agents or the Canadian Agent, as applicable, with any bank with which such Loan Party maintains deposit account(s) into which the DDA’s are swept (collectively, the “Blocked Accounts”), which as of the Effective Date are listed on Schedule 2.18(c)(ii) attached hereto.
(d) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash necessary for receipts (the “Cash Receipts”) (other than amounts not to exceed $25,000,000 in the aggregate which may be deposited into a segregated DDA (not to be located in the Province of Quebec, Canada) which the Lead Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Account”)) to the concentration account maintained by the Administrative Agent at Bank of America (the “Domestic Concentration Account”) or maintained by the Canadian Agent (the “Canadian Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds on account of any Prepayment Event;
(iv) each Blocked Account (including all cash deposited therein from each DDA (other than the Designated Account); and
(v) the cash proceeds of all credit card charges; provided that Cash Receipts of the Canadian Loan Parties shall be delivered only to a Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(e) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than (i) an amount of up to $25,000,000 that is on deposit in the Designated Account, which funds shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) de minimus cash or cash equivalents inadvertently misapplied by the Loan Parties to satisfy the current liabilities incurred by such Loan Parties and (iii) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of required by Applicable Law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), any Co-Collateral Agent (after consultation with the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (aother Co-Collateral Agent) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance Canadian Agent may require the applicable Refinanced Debt in accordance with clause 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.
(xif) of the first proviso in the definition of the term “Refinancing Indebtedness”The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, (v) cash proceeds of Refinancing Indebtedness subject to the extent that execution and delivery to the applicable Refinanced Debt consists Administrative Agent or the Canadian Agent, as applicable, of unused Revolving Commitments appropriate Blocked Account Agreements (unless expressly waived by the Co-Collateral Agents or Other Revolving Commitments that have been terminated in connection the Canadian Agent) consistent with the issuance provisions of such Refinancing Indebtednessthis SECTION 2.18 and otherwise reasonably satisfactory to the Co-Collateral Agents and, (vi) cash held in any Deposit if applicable, the Canadian Agent. The Loan Parties shall furnish the Co-Collateral Agents with prior written notice of their intention to open or close a Blocked Account relating and the Co-Collateral Agents shall promptly notify the Lead Borrower as to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance whether the Co-Collateral Agents shall require a Blocked Account Agreement with the applicable loan or letter of credit documents and (viii) cash held Person with whom such account will be maintained. Unless consented to in any Deposit Account of writing by the Co-Collateral Agents and, if applicable, the Canadian Agent, the Loan Parties which shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless, contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(g) The Loan Parties may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) The Domestic Concentration Account and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent or the Canadian Agent, as applicable. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from such Concentration Accounts, (ii) the funds on deposit in such Concentration Accounts shall at all times continue to be collateral security for all of the Obligations and the Other Liabilities, provided that funds in the Canadian Concentration Account shall be applied only to the Canadian Liabilities, and (iii) the funds on deposit in each such Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent or the Canadian Agent, as applicable, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the applicable Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Co-Collateral Agents or the Canadian Agent, as applicable.
(i) Any amounts received in the Domestic Concentration Account or the Canadian Concentration Account at any time when all of the Obligations or the Canadian Liabilities, as applicable, and Other Liabilities then due have been and remain fully repaid shall be remitted to the operating account of the Domestic Borrowers or the Canadian Borrower maintained with the Administrative Agent or the Canadian Agent, respectively.
(j) The Administrative Agent or the Canadian Agent, as applicable, shall promptly (but in any event within one (1) Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(k) 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 applicable Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Collateral Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(ii) Funds paid to the Administrative Agent has exclusive rights of withdrawal with respect or the Canadian Agent, as applicable, 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 Deposit Accounts. The Borrower payment is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(iii) If a deposit to a Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. (or, to the Canadian Agent, until after 2:00 p.m.) on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to a Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent or the Canadian Agent, as applicable, shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the applicable Loan Parties shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 3 contracts
Samples: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding(i) On or prior to the Closing Date, deliver to the Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b) to the Disclosure Letter, and (ii) unless previously delivered on or prior to the Closing Date, by the date set forth in Section 6.21, use commercially reasonable efforts to enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, the Borrower “Blocked Accounts”).
(b) [Reserved].
(c) The Loan Parties shall notACH or wire transfer no less frequently than (x) twice per week during the calendar months of November and December and (y) weekly during all other calendar months (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained) and all payments due from all Credit Card Issuers and Credit Card Processors.
(d) Each Blocked Account Agreement shall require, upon notice from Agent which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not permit there are then any Subsidiary outstanding Obligations) (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained) to the concentration account maintained by the Agent at Xxxxx Fargo (the “Concentration Account”), of all cash receipts and collections received by each Loan Party tofrom all sources, permit including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other assets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all cash payments received by a Loan Party from any Person or from any source or on hand account of any Disposition or other transaction or event;
(including iv) the then contents of each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank); and
(vi) the proceeds of any Revolving Loan and any Other Revolving Loansall credit card charges.
(e) in an aggregate amount in excess of $200,000,000 to accumulate and The Concentration Account shall at all times be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal with respect from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Account shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Concentration Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Agent.
(other than for any f) Upon the request of the purposes described Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 3 contracts
Samples: Credit Agreement (Five Below, Inc), Credit Agreement (Five Below, Inc), Credit Agreement (Five Below, Inc)
Cash Management. At (a) With respect to each US Loan Party’s DDAs (other than Excluded Accounts), within 120 days (or such later date as the Administrative Agent may agree in its reasonable discretion) of the Closing Date or, if opened following the Closing Date, within the later of (x) 120 days of the Closing Date or (y) 30 days of the opening of such DDA (or such later date as the Administrative Agent may agree in its reasonable discretion) or, if acquired or assumed through a Permitted Acquisition after the Closing Date, within 120 days (or such later date as the Administrative Agent may agree in its reasonable discretion), of the date any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Person that owns such DDA becomes a US Loan Party tohereunder, permit cash (i) each US Loan Party shall ensure that all payments received from any Account Debtor with respect to Accounts shall be deposited into DDAs, or into Excluded Accounts, (ii) each US Loan Party shall instruct (a “US DDA Instruction”) each bank or other depository institution that maintains a DDA (other than an Excluded Account) to cause all amounts on hand deposit and available at the close of each Business Day in such DDA (including the proceeds net of any Revolving required minimum balance) to be swept to a concentration deposit account maintained by any US Loan Party (each, a “US Concentration Account”) and any Other Revolving Loans(iii) each US Loan Party shall obtain from each bank or other depository institution that maintains a US Concentration Account a Deposit Account Control Agreement that provides for such bank or other depository institution, following its receipt of a Cash Dominion Notice (it being understood that the Administrative Agent shall reasonably promptly deliver a copy of such Cash Dominion Notice to the Lead Borrower), to transfer to the US Dominion Account, on a daily basis, all balances in an aggregate amount in excess of $200,000,000 such US Concentration Account for application, subject to accumulate and be maintained in the Deposit Accounts of clause (c) below, to the Loan Parties, Document Obligations then outstanding in accordance with Section 7.03 (the “US Sweep”); provided, that, for purposes hereoffollowing the termination of the Cash Dominion Period, “cash on hand” the Administrative Agent shall exclude promptly instruct such bank or other depository institution to terminate the following: US Sweep. From and after the dates required as set forth above, the US Borrowers shall ensure that the foregoing provisions of clauses (a)(i), (a)(ii) and (a)(iii) are satisfied in all material respects at all times.
(b) With respect to each German Borrower’s DDAs (other than Excluded Accounts), within 120 days (or such later date as the Administrative Agent may agree in its reasonable discretion) of the Closing Date or, if opened following the Closing Date, within the later of (x) 120 days of the Closing Date or (y) 30 days of the opening of such DDA (or such later date as the Administrative Agent may agree in its reasonable discretion) or, if acquired or assumed through a Permitted Acquisition after the Closing Date, within 120 days (or such later date as the Administrative Agent may agree in its reasonable discretion), of the date any Person that owns such DDA becomes a German Borrower hereunder, (i) “store” casheach German Borrower shall ensure that all payments received from any Account Debtor with respect to Accounts shall be deposited into DDAs, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Partiesor into Excluded Accounts, (ii) cash necessary each German Borrower shall instruct (a “German DDA Instruction”) each bank or other depository institution that maintains a DDA (other than an Excluded Account) to cause all amounts on deposit and available at the close of each Business Day in such DDA (net of any required minimum balance) to be swept to a concentration deposit account maintained by any German Borrower (each, a “German Concentration Account”) and (iii) each German Borrower shall obtain from each bank or other depository institution that maintains a German Concentration Account a Deposit Account Control Agreement that provides for such bank or other depository institution, following its receipt of a Cash Dominion Notice (it being understood that the Administrative Agent shall reasonably promptly deliver a copy of such Cash Dominion Notice to the Lead Borrower), to transfer to the German Dominion Account, on a daily basis, all balances in such German Concentration Account for application, subject to clause (c) below, to the Loan Document Obligations then outstanding in accordance with Section 7.03 (the “German Sweep”); provided, that, following the termination of the Cash Dominion Period, the Administrative Agent shall promptly instruct such bank or other depository institution to terminate the German Sweep. From and after the dates required as set forth above, the German Borrowers shall ensure that the foregoing provisions of clauses (b)(i), (b)(ii) and (b)(iii) are satisfied in all material respects at all times.
(c) For the avoidance of doubt, (i) so long as no Event of Default has occurred and is continuing and (ii) no Cash Dominion Period is then in effect, the Loan Parties to satisfy will have full and complete access to, and may direct the current liabilities incurred by such Loan Parties manner of disposition of, funds in the ordinary course of their businesses US Concentration Accounts and without acceleration of the satisfaction of such current liabilitiesGerman Concentration Accounts, as applicable.
(iiid) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to The Dominion Accounts shall be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has exclusive rights no right of withdrawal with respect from the Dominion Accounts, (ii) the funds on deposit in the Dominion Accounts shall at all times continue to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than be collateral security for any all of the purposes described applicable Secured Obligations and (iii) the funds on deposit in the Dominion Accounts shall be applied as provided in this Agreement and, to the extent such funds constitute Collateral, the Intercreditor Agreement. Without limiting the obligations set forth in clause (a) above, each Loan Party agrees that it will not, at any time prior to the Termination Date, revoke any US DDA Instruction or German DDA Instruction except to the extent in connection with the closure of a DDA (or such DDA becoming an Excluded Account) while a Cash Dominion Period is not in effect.
(e) In the event that for a period of five consecutive Business Days (i) the Dollar Equivalent of the net positive balance of the Cash Pooling Accounts is greater than $20,000,000 and (ii)) Specified Availability is less than 15.0% of the Line Cap, the Borrowers shall either (iv), (vA) use commercially reasonable efforts to promptly transfer cash of Loan Parties on deposit in Cash Pooling Accounts into accounts that are not Excluded Accounts such that the Dollar Equivalent of the net positive balance of the Cash Pooling Accounts is less than or equal to $20,000,000 or (viiB) above)increase Specified Availability such that Specified Availability is equal to or greater than 15.0% of the Line Cap.
Appears in 2 contracts
Samples: Abl Credit Agreement (Clarios International Inc.), Abl Credit Agreement (Clarios International Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Loan Parties party to the Borrower shall notExisting Albertson’s ABL Credit Agreement have, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash Parties that become party hereto on hand” the Restatement Effective Date shall exclude within 90 days after the following: Restatement Effective Date or such longer period as the Administrative Agent may reasonably agree:
(i) deliver to the Administrative Agent copies of notifications (each, a “store” cashCredit Card Notification”) which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agents with respect to each DDA maintained with any Blocked Account Bank (collectively, cash in transit between stores the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and local Deposit Accounts exclusively used for payroll, payroll taxes and cash receipts from sales in other employee wage and benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s salaried employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) any Store Account maintained at a bank at which the Net Proceeds received in respect Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Prepayment Event Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $50,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (a) or (biv) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment Section 6.12(a)(ii)) shall be sent by wire transfer or other tangible assets electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $150,000,000 (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is closed or sold by $50,000 and increased by $50,000 each time a store is opened or acquired pursuant to Section 2.11(cany Permitted Acquisition) or at any equivalent provision under any Additional Senior Debt Documentone time, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness except to the extent that from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable Refinanced Debt consists of unused Revolving Commitments depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except as the Administrative Agent may otherwise agree.
(c) On or Other Revolving Commitments that have been terminated in connection with prior to the issuance of such Refinancing IndebtednessRestatement Effective Date, (vi) cash held in any Deposit Account relating to any Securitization establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit other Third Party Payor in accordance with the applicable loan Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or letter Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of credit documents receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided, that (viiii) cash held in any Deposit Account of the Loan Parties shall authorize, direct and instruct the depository banks at which is such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in such Blocked Account.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Collection Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Collateral Agent.
(other than for any g) Upon the request of the purposes described Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (Safeway Stores 42, Inc.), Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingImmediately upon the occurrence of a Cash Dominion Event, the Borrower shall notLoan Parties, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Co-Collateral Agent, shall deliver to the Co-Collateral Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each 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) [Reserved.]
(c) Each Loan Party has or shall have:
(i) delivered to the Administrative Agent and the Canadian Agent, as applicable, notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit I which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors. Except as otherwise amended or supplemented by the Lead Borrower in writing to the Administrative Agent on or prior to the Effective Date, Schedule 2.18(b) to the Existing Credit Agreement sets forth all credit card processing agreements as of the First Amendment Effective Date;
(ii) entered into a blocked account agreement (each, a “Blocked Account Agreement”) in form and substance reasonably satisfactory to the Co-Collateral Agents or the Canadian Agent, as applicable, with any bank with which such Loan Party maintains deposit account(s) into which the DDA’s are swept (collectively, the “Blocked Accounts”). Except as otherwise amended or supplemented by the Lead Borrower in writing to the Administrative Agent on or prior to the Effective Date, Schedule 2.18(c)(ii) to the Existing Credit Agreement sets forth all Blocked Accounts as of the First Amendment Effective Date.
(d) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash necessary for receipts (the “Cash Receipts”) (other than amounts not to exceed $25,000,000 in the aggregate which may be deposited into a segregated DDA (not to be located in the Province of Quebec, Canada) which the Lead Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Account”)) to the concentration account maintained by the Administrative Agent at Bank of America (the “Domestic Concentration Account”) or maintained by the Canadian Agent (the “Canadian Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds on account of any Prepayment Event;
(iv) each Blocked Account (including all cash deposited therein from each DDA (other than the Designated Account); and
(v) the cash proceeds of all credit card charges; provided that Cash Receipts of the Canadian Loan Parties shall be delivered only to a Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(e) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than (i) an amount of up to $25,000,000 that is on deposit in the Designated Account, which funds shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) de minimus cash or cash equivalents inadvertently misapplied by the Loan Parties to satisfy the current liabilities incurred by such Loan Parties and (iii) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of required by Applicable Law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), any Co-Collateral Agent (after consultation with the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (aother Co-Collateral Agent) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance Canadian Agent may require the applicable Refinanced Debt in accordance with clause 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.
(xif) of the first proviso in the definition of the term “Refinancing Indebtedness”The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, (v) cash proceeds of Refinancing Indebtedness subject to the extent that execution and delivery to the applicable Refinanced Debt consists Administrative Agent or the Canadian Agent, as applicable, of unused Revolving Commitments appropriate Blocked Account Agreements (unless expressly waived by the Co-Collateral Agents or Other Revolving Commitments that have been terminated in connection the Canadian Agent) consistent with the issuance provisions of such Refinancing Indebtednessthis SECTION 2.18 and otherwise reasonably satisfactory to the Co-Collateral Agents and, (vi) cash held in any Deposit if applicable, the Canadian Agent. The Loan Parties shall furnish the Co-Collateral Agents with prior written notice of their intention to open or close a Blocked Account relating and the Co-Collateral Agents shall promptly notify the Lead Borrower as to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance whether the Co-Collateral Agents shall require a Blocked Account Agreement with the applicable loan or letter of credit documents and (viii) cash held Person with whom such account will be maintained. Unless consented to in any Deposit Account of writing by the Co-Collateral Agents and, if applicable, the Canadian Agent, the Loan Parties which shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless, contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(g) The Loan Parties may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) The Domestic Concentration Account and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent or the Canadian Agent, as applicable. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from such Concentration Accounts, (ii) the funds on deposit in such Concentration Accounts shall at all times continue to be collateral security for all of the Obligations and the Other Liabilities, provided that funds in the Canadian Concentration Account shall be applied only to the Canadian Liabilities, and (iii) the funds on deposit in each such Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent or the Canadian Agent, as applicable, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the applicable Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Co-Collateral Agents or the Canadian Agent, as applicable.
(i) Any amounts received in the Domestic Concentration Account or the Canadian Concentration Account at any time when all of the Obligations or the Canadian Liabilities, as applicable, and Other Liabilities then due have been and remain fully repaid shall be remitted to the operating account of the Domestic Borrowers or the Canadian Borrower maintained with the Administrative Agent or the Canadian Agent, respectively.
(j) The Administrative Agent or the Canadian Agent, as applicable, shall promptly (but in any event within one (1) Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(k) 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 applicable Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Collateral Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(ii) Funds paid to the Administrative Agent has exclusive rights of withdrawal with respect or the Canadian Agent, as applicable, 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 Deposit Accounts. The Borrower payment is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(iii) If a deposit to a Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. (or, to the Canadian Agent, until after 2:00 p.m.) on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to a Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent or the Canadian Agent, as applicable, shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the applicable Loan Parties shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 2 contracts
Samples: Credit Agreement (Toys R Us Inc), Credit Agreement (Toys R Us Inc)
Cash Management. At (a) Annexed hereto as Schedule 4.16, as the same may be modified from time to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Administrative Agent, each Qualified Loan Party shall (i) deliver to the Administrative Agent (A) notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any time any Revolving Loans DDA (including any Other Revolving Loansother than Excluded Accounts) are outstandingis maintained, in form reasonably satisfactory to the Borrower shall notAdministrative Agent of the Administrative Agent’s interest in such DDA and (B) Credit Card Notifications executed on behalf of each such Qualified Loan Party and delivered to each Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent, (ii) instruct each depository institution for a DDA (other than Excluded Accounts, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including subject to Subsection 4.16(g)) that the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and any bank with which such Qualified Loan Party maintains a Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Concentration Account maintained with such bank and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be maintained collected by the applicable bank and deposited in the Deposit applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent Borrower or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (i) any such amount to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $2,000,000 per account or $5,000,000 in the aggregate), if any, required by the bank at which such Blocked Account is maintained to an account maintained by the Administrative Agent at Citibank, N.A. (or another bank of recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) All collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, thatto pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, for purposes hereofthe Issuing Lenders and the Lenders under any of the Loan Documents; (4) fourth, “cash to repay (on hand” shall exclude a ratable basis) the following: outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash in transit between stores and local Deposit Accounts and cash receipts Cash Equivalents and/or Temporary Cash Investments from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the time to time inadvertently misapplied by any Qualified Loan PartiesParty, (ii) cash necessary for the Loan Parties cash, Cash Equivalents or Temporary Cash Investments deposited or to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesan Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets Collateral pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Security Document, including Excluded Assets and (iv) cash proceeds of Refinancing Indebtedness not yet applied cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds Account (as defined in the ABL/Term Loan Intercreditor Agreement, if any) are deposited to Refinance any bank account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Refinanced Debt Qualified Loan Party to close such bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts and/or open new DDAs or new Concentration Accounts, subject to, in accordance the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with clause the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (xiii) other arrangements reasonably satisfactory to the Administrative Agent; provided that as part of the first proviso Compliance Certificate to be delivered concurrently with the delivery of financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Borrower Representative will provide a list to the extent Administrative Agent of any newly opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that the applicable Refinanced Debt consists of unused Revolving Commitments a Qualified Loan Party acquires new demand deposit accounts or Other Revolving Commitments that have been terminated new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 120 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of Subsection 4.16(b) (including, with respect to any new Concentration Account, by entering into a Blocked Account Agreement) or letter shall enter into other arrangements consistent with the provisions of credit documents this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any new Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsAdministrative Agent. The Borrower Representative, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agreement, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has no right of withdrawal from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement and the ABL/Term Loan Intercreditor Agreement (and any other applicable intercreditor agreement). In the event that, notwithstanding the provisions of this Subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to Subsection 4.16(c), such proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the purposes described monetary obligations due and owing hereunder and under the other Loan Documents have been satisfied or (y) all Dominion Events have been cured or waived, shall (subject in the case of clause (iix) to the provisions of the applicable intercreditor agreement), be remitted to the operating bank account of the applicable Qualified Loan Party.
(iv)k) Notwithstanding anything herein to the contrary, (v) the Loan Parties shall be deemed to be in compliance with the requirements set forth in this Subsection 4.16 during the initial 90 day period commencing on the Closing Date to the extent that the arrangements described above are established and effective not later than the date that is 90 days following the Closing Date or (vii) above)such later date as the Administrative Agent, in its sole discretion, may agree.
Appears in 2 contracts
Samples: Abl Credit Agreement (Core & Main, Inc.), Abl Credit Agreement (Core & Main, Inc.)
Cash Management. At (a) Annexed hereto as Schedule 2.18(a) is a list describing, as of the Closing Date, all arrangements to which any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including is a party with respect to the payment to such Loan Party of the proceeds of any Revolving all credit card charges for sales by such Loan and any Other Revolving LoansParty.
(b) in an aggregate amount in excess On or prior to the Closing Date, each Loan Party shall:
(i) deliver to the Agents a schedule of $200,000,000 all DDAs that, to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (A) the name and address of such depository; (B) the account number(s) maintained with such depository; and (C) a contact person at such depository;
(ii) cash necessary for deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(a); and
(iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory in form and substance to the Agents, with any Blocked Account Bank with respect to each Blocked Account existing as of the Closing Date listed on Schedule 2.18(b) attached hereto (each a “Blocked Account”); provided that to the extent the Loan Parties shall have used commercially reasonable efforts to satisfy procure any such schedule of DDAs (or any portion thereof), Credit Card Notification or Blocked Account Agreement and yet are unable to provide such agreements on or prior to the current liabilities incurred Closing Date (as determined by such the Administrative Agent in its reasonable discretion), the Loan Parties shall have until sixty (60) days after the Closing Date to obtain such schedule of DDAs (or any portion thereof), Credit Card Notification or Blocked Account Agreement, which period may be extended by the Administrative Agent acting in its reasonable discretion.
(c) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at JPMorgan Chase Bank (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Financing Facility is repaid in full, a Prepayment Event arising in connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA); and
(v) the cash proceeds of all credit card charges.
(d) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than (i) any xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $3,000,000 or exceed $25,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), (ii) any payroll, trust and without acceleration tax withholding accounts funded in the ordinary course of the satisfaction of such current liabilities, business or required by Applicable Law and (iii) any Disbursement Account) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account subject to a Blocked Account Agreement), or if at any time a Blocked Account shall cease to be subject to a Blocked Account Agreement, the Net Proceeds received in respect applicable Loan Party shall promptly furnish the Collateral Agent with written notice thereof and the Collateral Agent may require such Loan Party to close such account and have any such funds transferred to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Cash Dominion Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the reasonable satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting, the Collateral Agent agrees to promptly remit to the agent under the Term Loan Financing Facility the proceeds of the Term Priority Collateral received by the Administrative Agent.
(e) The Loan Parties may close DDAs or Blocked Accounts, maintain existing DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements with respect to each Blocked Account (except with respect to (i) any xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $3,000,000 or exceed $25,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), (ii) any payroll, trust, and tax withholding accounts funded in the ordinary course of business or required by Applicable Law and (iii) unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of its intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Loan Parties shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent.
(f) The Loan Parties may also maintain one or more disbursement accounts which shall be used by the Loan Parties solely for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder (any account so used, a “Disbursement Account”).
(g) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if 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 2.18, 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 Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand 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 Collateral Agent.
(h) Any amounts remaining in the Concentration Account at any time when all of the Obligations (other than contingent obligations) then due have been and remain fully repaid shall be remitted to the operating account of the Loan Parties maintained with the Administrative Agent.
(i) The Collateral Agent shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Blocked Account is maintained when a Cash Dominion Event is no longer continuing for purposes of this Agreement.
(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, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 3:00 p.m., 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 by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 4:00 p.m., on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the purposes described in clause (ii), (iv), applicable Loan Account and the Loan Parties shall indemnify the Secured Parties against all reasonable documented out-of-pocket claims and losses resulting from such dishonor or return; and
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.03.
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Cash Management. At (a) The Loan Parties shall, within 90 days after the Effective Date with respect to any time DDA maintained on the Effective Date, within 90 days after the Second Restatement Effective Date (or such longer period as the Administrative Agent may reasonably agree) with respect to any Revolving Loans DDA maintained by any C&J Loan Party on such date, and within 90 days after the opening or acquisition of any new DDA or such longer period as the Administrative Agent may reasonably agree, enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agents with respect to each DDA maintained with any Blocked Account Bank (including any Other Revolving Loans) are outstandingcollectively, the Borrower shall not, and “Blocked Accounts”); provided that Blocked Accounts shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: include (i) “store” cashdeposit accounts specifically and exclusively used for payroll, cash in transit between stores payroll taxes and local Deposit Accounts employee wage, health and cash receipts from sales in other benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) accounts solely used for cash deposits pursuant to the Net Proceeds received definition of Permitted Encumbrances, (iv) any escrow account, trust and customer deposit account, (v) accounts solely used to deposit proceeds of the Designated Senior Indebtedness (including Permitted Refinancings thereof) Priority Collateral, and (vi) accounts not exceeding $2,000,000 in respect of a Prepayment Event described in the aggregate for all such accounts.
(b) Subject to clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted above, instruct all customers to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) deposit all cash proceeds from sales of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt Inventory or Frac Iron or performance of services in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness every form into a Blocked Account and to the extent that not so deposited directly by the applicable Refinanced Debt consists customers, deposit such amounts into a Blocked Account promptly, but in no event less frequently than once every three (3) Business Days.
(c) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of unused Revolving Commitments written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or Other Revolving Commitments that have been terminated wire transfer no less frequently than each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in connection with the issuance of such Refinancing Indebtedness, Blocked Account.
(vid) cash held in any Deposit The Collection Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(e) Upon the request of the Administrative Agent has exclusive rights after the occurrence and during the continuance of withdrawal a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(f) To the extent the Loan Parties elect to include any Eligible Cash in the Borrowing Base, the Loan Parties shall, subject to the proviso in the last sentence herein, at all times, maintain one or more Special Cash Collateral Accounts (but in no event more than two Special Cash Collateral Accounts) in an amount not less than the amounts specified as Eligible Cash in the most recently delivered Borrowing Base Certificate. All amounts on deposit from time to time in the Special Cash Collateral Account shall constitute part of the Collateral hereunder and shall not constitute payment of the Obligations. Any income received with respect to such Deposit Accountsamounts from time to time on deposit in the Special Cash Collateral Account, including any interest, shall be deposited in the Collection Account. The Borrower Administrative Agent shall at all times have control and complete dominion over the Special Cash Collateral Account and all amounts on deposit therein, provided, however, that the Loan Parties may, upon not less than three (3) Business Days prior written notice to the Administrative Agent, from time to time withdraw funds from such Special Cash Collateral Account, if (i) no Default or Event of Default shall have occurred and be continuing on the date of such withdrawal both before and after giving effect to such withdrawal and (ii) after giving effect to such withdrawal, the Total Outstandings shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if exceed the purpose of Loan Cap (after giving effect to such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) abovewithdrawal).
Appears in 2 contracts
Samples: Asset Based Revolving Credit Agreement (King Merger Sub II LLC), Asset Based Revolving Credit Agreement (Nextier Oilfield Solutions Inc.)
Cash Management. At any time any Revolving Loans (a) As soon as possible after the Closing Date, enter into an effective account control agreement (a “Deposit Account Control Agreement”) with each Approved Account Bank, in each case in form and substance reasonably satisfactory to the Administrative Agent, with respect to each Deposit Account (including any Other Revolving Loansthose existing as of the Closing Date and listed on Schedule 5.16(a) are outstandingattached hereto, and excluding Excluded Accounts); provided further that, if on or prior to sixty (60) days after the Closing Date (or such longer period following such date as the Administrative Agent may agree in its reasonable discretion), the Borrower shall not, and or any other Loan Party shall not permit have entered into a Deposit Account Control Agreement with respect to any Subsidiary Deposit Account required to be subject to a Deposit Account Control Agreement under this Section 5.16(a), such Deposit Account shall be closed and all funds therein transferred to a Deposit Account at the Administrative Agent, an Affiliate of the Administrative Agent, or another financial institution reasonably acceptable to the Administrative Agent that will execute a Deposit Account Control Agreement. Notwithstanding anything in this Section to the contrary, the provisions of this Section 5.16(a) shall not apply to any Deposit Account acquired by a Loan Party toin connection with a Permitted Acquisition prior to the date that is sixty (60) days (or such later date as the Administrative Agent may agree) following the consummation of such Permitted Acquisition.
(b) As soon as possible after the Closing Date, permit cash on hand enter into Securities Account Control Agreements with each Approved Securities Intermediary, with respect to each Securities Account (including those existing as of the proceeds Closing Date and listed on Schedule 5.16(b) attached hereto, other than Excluded Accounts); provided that, if on or prior to sixty (60) days after the Closing Date (or such longer period following such date as the Administrative Agent may agree in its reasonable discretion), the Borrower or any other Loan Party shall not have entered into a Securities Account Control Agreement with respect to any Securities Account required to be subject to a Securities Account Control Agreement under this Section 5.16(b), such Securities Account shall be closed and all securities therein transferred to a Securities Account at the Administrative Agent, an Affiliate of the Administrative Agent, or another financial institution reasonably acceptable to the Administrative Agent that will execute a Securities Account Control Agreement. Notwithstanding anything in this Section to the contrary, the provisions of this Section 5.16(b) shall not apply to any Revolving Securities Account acquired by a Loan and Party in connection with a Permitted Acquisition prior to the date that is sixty (60) days (or such later date as the Administrative Agent may agree) following the consummation of such Permitted Acquisition.
(c) Each Loan Party shall (i) instruct each Account Debtor or other Person obligated to make a payment to any Other Revolving Loansof them under any Account to make payment, or to continue to make payment, to an Approved Deposit Account (other than an Excluded Account), (ii) deposit in an aggregate amount Approved Deposit Account promptly upon receipt all Cash Receipts (as defined below) received by any Loan Party from any other Person (provided that any Cash Receipts may be deposited into an Excluded Account to the extent that such deposit would not cause such Excluded Account to cease to qualify as an Excluded Account), (iii) deliver to the Administrative Agent, within sixty (60) days following the Closing Date (or such longer period following such date as the Administrative Agent may agree) or, with respect to Credit Card Agreements acquired or entered into after the Closing Date, sixty (60) days after entering into or acquiring such Credit Card Agreements (or such longer period following such date as the Administrative Agent may agree), in excess each case, evidence that the Credit Card Notifications have been sent to each Credit Card Issuer and Credit Card Processor and (iv) instruct each depository institution for a Deposit Account to cause all amounts on deposit and available at the close of $200,000,000 each Business Day in such Deposit Account (other than any Excluded Account) to accumulate and be maintained in the Deposit Accounts swept to one of the Loan Parties’ concentration accounts no less frequently than on a daily basis, providedsuch instructions to be irrevocable unless otherwise agreed to by the Administrative Agent.
(d) Each Credit Card Notification and Deposit Account Control Agreement (and, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process case of inter-account transfersclause (iii) below, Securities Account Control Agreement) shall require (in each case as a result of the ordinary course operations case, without further consent of the Loan Parties), (ii) cash necessary for and the Loan Parties shall cause, after the occurrence and during the continuance of a Cash Dominion Period, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to satisfy the current liabilities incurred by such Loan Parties concentration account maintained by, in the ordinary course name of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Administrative Agent and identified by the Administrative Agent to the Borrower from time to time (the “Concentration Account”), of all cash receipts and collections, including the following (collectively, the “Cash Receipts”):
(i) all available cash receipts from the sale of Inventory and other Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for casualty insurance proceeds arising from any of the purposes described in clause foregoing;
(ii) all proceeds of collections of Accounts (including, without limitation, Credit Card Receivables);
(iii) the then contents of each Approved Deposit Account and each Approved Securities Account (in each case, net of any minimum balance as may be required to be kept in the subject Deposit Account or Securities Account, as the case may be, by the institution at which such Deposit Account or Securities Account, as applicable, is maintained); and
(iv) the cash proceeds of all credit card charges.
(e) The Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (iv)ii) the funds on deposit in the Concentration Account shall at all times 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, during the continuation of any Cash Dominion Period, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent.
(vf) So long as no Cash Dominion Period is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Approved Securities Accounts and Approved Deposit Accounts.
(g) The Loan Parties shall instruct their Credit Card Issuers and Credit Card Processors to make payments due to any Loan Party to an Approved Deposit Account and Collateral Agent agrees not to change such payment instructions unless a Cash Dominion Period is continuing.
(h) Any amounts received in the Concentration Account at any time when no Cash Dominion Period is continuing or all of the Obligations have been paid in full shall be remitted to the operating account of the Loan Parties maintained with the Administrative Agent or to an operating account otherwise designated by the Borrower.
(viii) above).The Administrative Agent shall promptly (but in any event within five (5) Business Days) furnish written notice to each Approved Account Bank and each Approved Securities Intermediary, as applicable, of any termination of a Cash Dominion Period
Appears in 2 contracts
Samples: Abl Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Borrowers shall (i) establish and maintain cash management services of a type and on terms satisfactory to the Borrower shall notAgent at one or more of the banks set forth on Schedule 2.07(a) (each a “Cash Management Bank”), and shall not permit request in writing and otherwise take such reasonable steps to ensure that all of its Credit Card Processors and other Account Debtors forward payment of the amounts owed by them directly to one of such Cash Management Banks, and (ii) deposit or cause to be deposited promptly, and in any Subsidiary Loan Party toevent no later than the first Business Day after the date of receipt thereof, permit cash on hand all Collections (including those sent directly by Account Debtors to a Cash Management Bank) into one of the proceeds DDAs set forth on Schedule 2.07(a) (a “Cash Management Account”) at one of the Cash Management Banks. If, notwithstanding the provisions of this Section 2.07, any Borrower receives or otherwise has dominion over or control of any Revolving Loan Collections, such Borrower shall hold such Collections in trust for the Agent and shall not commingle such Collections with any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan PartiesBorrowers’ other funds or deposit such Collections in any account of the Borrowers except as instructed by the Agent.
(b) The Borrowers shall establish and maintain Cash Management Agreements with the Agent and each Cash Management Bank. Each such Cash Management Agreement shall be a Control Agreement and provide, providedamong other things, that, for purposes hereof, “cash on hand” shall exclude the following: that (i) “store” cashupon notice from the Agent, cash in transit between stores and local Deposit Accounts and cash receipts from sales the Cash Management Bank will comply with instructions of the Agent directing the disposition of funds in the process of inter-account transfers, in each case as a result of Cash Management Account without further consent by the ordinary course operations of the Loan PartiesBorrowers, (ii) cash necessary the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Cash Management Account, other than for payment of its service fees and other charges directly related to the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction administration of such current liabilitiesCash Management Account and for returned checks or other items of payment, and (iii) it immediately will forward by daily sweep all amounts in the Net Proceeds applicable Cash Management Account to the Agent’s Account.
(c) The Borrowers shall establish and maintain Credit Card Agreements with the Agent and each Credit Card Processor. Each such Credit Card Agreement shall provide, among other things, that each such Credit Card Processor shall transfer all proceeds of credit card charges for sales by the Borrowers received by it (or other amounts payable by such Credit Card Processor) into a designated Cash Management Account on a daily basis. The Borrowers shall not attempt to change any direction or designation set forth in respect the Credit Card Agreements regarding payment of a Prepayment Event described in clause (a) or (b) charges without the prior written consent of the definition of “Prepayment Event” for Agent, which the Borrower is permitted consent, so long as such change shall be limited to apply directing such Net Proceeds as a reinvestment Credit Card Processor to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash transfer proceeds of Refinancing Indebtedness credit card charge sales payment to a different Cash Management Account, shall not yet applied be unreasonably withheld.
(d) So long as no Default or Event of Default has occurred and is continuing, Administrative Borrower may amend Schedule 2.07(a) to Refinance add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be satisfactory to the applicable Refinanced Debt Agent and the Agent shall have consented in accordance writing in advance to the opening of such Cash Management Account with clause the prospective Cash Management Bank, and (xiii) prior to the time of the first proviso in opening of such Cash Management Account, the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Borrowers and such prospective Cash Management Bank shall have executed and delivered to the extent that the applicable Refinanced Debt consists Agent a Cash Management Agreement. The Borrowers shall close any of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, their Cash Management Accounts (vi) and establish replacement cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit management accounts in accordance with the applicable loan or letter of credit documents foregoing sentence) promptly and (viii) cash held in any Deposit Account event within thirty (30) days of notice from the Agent that the creditworthiness of any Cash Management Bank is no longer acceptable in the Agent’s reasonable judgment, or as promptly as practicable and in any event within sixty (60) days of notice from the Agent that the operating performance, funds transfer, or availability procedures or performance of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal Cash Management Bank with respect to Cash Management Accounts or the Agent’s liability under any Cash Management Agreement with such Deposit Accounts. Cash Management Bank is no longer acceptable in the Agent’s reasonable judgment.
(e) The Borrower Cash Management Accounts shall not borrow any Revolving Loans or Other Revolving Loans be cash collateral accounts, with all cash, checks and similar items of payment in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any accounts securing payment of the purposes described Obligations, and in clause (ii), (iv), (v) or (vii) above)which the Borrowers are hereby deemed to have granted a Lien on each Cash Management Account to the Agent.
Appears in 2 contracts
Samples: Financing Agreement (Frederick's of Hollywood Group Inc /Ny/), Financing Agreement (Movie Star Inc /Ny/)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansi) are outstanding, the Each Borrower shall notenter into, and shall not permit any Subsidiary cause each other Loan Party toto enter into, permit control agreements (each, a “Blocked Account Agreement”) as soon as possible after the Closing Date and, in any event, shall have caused such Blocked Account Agreements to be entered into within 90 days after the Closing Date (or such later date approved by the Administrative Agent in its reasonable discretion), in form and substance reasonably satisfactory to the Administrative Agent, with the Administrative Agent and each other bank with which such Loan Party maintains any deposit account, securities account, commodities account or lockbox (other than any Excluded Account) (collectively, the “Blocked Accounts”); and (ii) within 90 days after the Closing Date (or such later date approved by the Administrative Agent in its reasonable discretion), MKS shall provide the Administrative Agent with a schedule of Blocked Accounts and a schedule of Excluded Accounts in each case certified by a Financial Officer of MKS.
(b) Each of the Borrowers agrees that it will cause all proceeds of the Current Asset Collateral to be deposited into a Blocked Account.
(c) Each Blocked Account Agreement (other than the Blocked Account Agreement with respect to the Investment Account) shall require (only during the continuance of a Cash Dominion Period and following delivery of notice of the commencement thereof from the Administrative Agent to MKS and the account bank party to such instrument or agreement) ACH or wire transfer no less frequently than once per Business Day (but without limit on frequency if the Maturity Date shall have actually occurred) of all available cash on hand (balances and cash receipts, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loanseach Blocked Account (other than the Investment Account) in an aggregate amount in excess (net of $200,000,000 (i) such minimum balance as may be required to accumulate and be maintained in the Deposit Accounts of subject Blocked Account by the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores bank at which such Blocked Account is maintained and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) with respect to any such Blocked Account in which any proceeds of a Revolving Borrowing or borrowing of “Incremental Term Loans” (under and as defined in the Term Credit Agreement) were deposited, solely during the two (2) Business Days immediately following the date on which such Revolving Borrowing or borrowing was made, the amount of such proceeds remaining on deposit in such Blocked Account at the time of such ACH or wire transfer), to one or more accounts designated by and under the sole control and dominion of the Administrative Agent (the “Payment Accounts”). Subject to the terms of the Intercreditor Agreement, (x) if an Event of Default has occurred and is continuing and after the exercise of remedies provided for in Section 8.02 (or the Loans have automatically become immediately due and payable under Section 8.01 and the L/C Obligations have been required to be Cash Collateralized), all amounts received in a Payment Account or such other account shall be applied (and allocated) by the Administrative Agent in accordance with Section 8.03 or (y) otherwise, all amounts received in a Payment Account or such other account shall be applied (and allocated) by the Administrative Agent in accordance with Section 2.09(b)(iv).
(d) If, at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash necessary for the or Cash Equivalents owned by any Loan Parties to satisfy the current liabilities incurred by such Loan Parties Party (excluding amounts in payroll, trust, employee benefits and tax withholding accounts funded in the ordinary course of their businesses business and required by applicable Law and excluding accounts the aggregate amount of deposit therein or credited thereto do not exceed $2,000,000 at any time (each such account, an “Excluded Account”)) are deposited to any account or lockbox or held pursuant to any other arrangement, otherwise than in a Blocked Account subject to a Blocked Account Agreement, the Administrative Agent shall be entitled to require the applicable Loan Party to terminate such account or other arrangement and have all funds therein or subject thereto transferred to a Blocked Account, and to cause all future deposits to be made to a Blocked Account.
(e) The Loan Parties may close Blocked Accounts and/or open new Blocked Accounts without acceleration of the satisfaction of such current liabilitiesAdministrative Agent’s consent, (iii) subject to the Net Proceeds received in respect prompt execution and delivery to the Administrative Agent of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted Blocked Account Agreement with respect to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness each new Blocked Account to the extent that required by the applicable Refinanced Debt consists provisions of unused Revolving Commitments this Section 6.11. The Loan Parties may open or Other Revolving Commitments that have been terminated close Excluded Accounts at any time, without requirement of delivery of a Blocked Account Agreement without consent of the Administrative Agent.
(f) So long as no Cash Dominion Period is in connection with the issuance of such Refinancing Indebtednesseffect, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under may direct, and shall have sole control over, the sole dominion manner of disposition of funds in their respective Blocked Accounts.
(g) (i) Any amounts received in the Payment Accounts (including all interest and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal other earnings with respect to such Deposit Accounts. The Borrower shall not borrow thereto, if any) at any Revolving Loans or Other Revolving Loans in an aggregate principal amount time after Discharge of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Senior Credit Obligations (other than for contingent indemnification obligations as to which no claim has been asserted) and (ii) any amounts that continue to be swept to the Payment Accounts after no Cash Dominion Event exists, shall, in each case, be remitted to the operating account of the purposes described in clause (ii), (iv), (v) or (vii) above)Borrowers as specified by MKS.
Appears in 2 contracts
Samples: Abl Credit Agreement (MKS Instruments Inc), Abl Credit Agreement (MKS Instruments Inc)
Cash Management. At any time any Revolving Loans The Obligors will:
(including any Other Revolving Loansa) are outstandingmaintain all Deposit Accounts, the Borrower shall notSecurities Accounts, Commodity Accounts and shall not permit any Subsidiary Loan Party to, permit cash on hand lockboxes (including the proceeds other than Excluded Accounts) with a bank or financial institution that has either (i) other than in respect of any Revolving Loan such account charged pursuant to the Irish Debenture, executed and any Other Revolving Loans) in delivered to the Administrative Agent an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, account control agreement (provided that, for purposes hereofgreater certainty, “cash on hand” shall exclude if under the following: (i) “store” cash, cash in transit between stores and local applicable laws of any Canadian jurisdiction control over Deposit Accounts is not available, then an account control agreement shall be deemed to constitute a springing blocked account or springing cash dominion agreement in respect of such Deposit Accounts) or (ii) in respect of any such account charged pursuant to the Irish Debenture, executed and cash receipts from sales in delivered to the process Administrative Agent an acknowledgment to the notice of inter-account transfersassignment delivered to such bank or financial institution by the relevant Irish Obligor pursuant to the Irish Debenture, in each case in form and substance reasonably acceptable to the Administrative Agent (each such Deposit Account, Securities Account, Commodity Account and lockbox, a “Controlled Account”);
(b) deposit promptly, and in any event no later than seven (7) Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments greater than $75,000 in the aggregate at any time made in respect of any and all accounts and other rights and interests into Controlled Accounts; and
(c) in order to segregate and to facilitate perfection of Administrative Agent’s security interest in funds received by any Obligor from any Federal Health Care Programs, the applicable Obligor shall, (i) within sixty (60) days after the Funding Date (or such later date as a result of the ordinary course operations of the Loan Partiesmay be agreed to by Administrative Agent), or (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to an Obligor’s future participation in any Federal Health Care Program, prior to such Deposit Obligor’s receipt of payments exceeding $50,000 in any month from Federal Health Care Programs, notify all Government Authorities making any payments under any Federal Health Care Program to make any such payments only to one or more Segregated Health Care Accounts. The Borrower No Obligor shall not borrow deposit any Revolving Loans funds to a Segregated Health Care Account or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over direct or permit any three consecutive Business Day period if the purpose of such Borrowings is other Person to accumulate cash on hand (deposit any funds to a Segregated Health Care Account, other than for any of payments received from Federal Health Care Programs. The Obligors shall have until the purposes described in clause date that is ninety (90) days following (i) the Funding Date (or such later date as may be agreed to by Administrative Agent), or (ii)) the date the applicable Obligor begins receiving payments from any Federal Health Care Program, (iv)to cause all amounts deposited into the Segregated Health Care Accounts to be automatically swept on a daily basis to a Controlled Account pursuant to a Sweep Agreement. Any such Sweep Agreement will require such depository bank to waive all of its existing and future rights of recoupment and set-off and banker’s lien against any Segregated Health Care Accounts, (v) or (vii) above)but shall permit such depository bank to maintain its existing and future rights of recoupment and set-off and banker’s lien against any Controlled Account.
Appears in 2 contracts
Samples: Credit Agreement and Guaranty (Trinity Biotech PLC), Credit Agreement (Trinity Biotech PLC)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and which shall on, or immediately after, the Borrower Closing Date be delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”), substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and which shall noton, or immediately after, the Closing Date be delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(iii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) Each Credit Card Notification and DDA Notification shall require (i) the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account (or a DDA approved in writing by the Administrative Agent) of all payments due from credit card processors, and (ii) each depository institution listed on Schedule 5.21(a) to cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account of all amounts on deposit in each DDA in excess of the minimum balance permitted in accordance with Section 6.13(c).
(c) Each Blocked Account Agreement shall require after the occurrence and during the continuance of a Cash Dominion Event the ACH or wire transfer no less frequently than daily (and whether or not permit there are then any Subsidiary outstanding Obligations) to the concentration account maintained by the Collateral Agent at Xxxxx Fargo Bank (the “Concentration Account”), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party tofrom any Person or from any source or on account of any sale or other transaction or event, permit cash on hand including, without limitation, any Prepayment Event;
(including iv) the then contents of each DDA (net of any minimum balance, not to exceed $10,000.00;
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $10,000.00; and
(vi) the proceeds of any Revolving Loan and any Other Revolving Loansall credit card charges.
(d) in an aggregate amount in excess of $200,000,000 to accumulate and [Intentionally Omitted].
(e) The Concentration Account shall at all times be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Account shall be applied as provided in Sections 2.05(f) or 8.03, as applicable, of this Agreement; provided that, upon the termination or expiration of a Cash Dominion Event, the Collateral Agent shall direct each Blocked Account Bank to cease transferring funds to the Concentration Account, and all funds on deposit in the Concentration Account (if any) shall be remitted to the Loan Parties for deposit in one or more Blocked Accounts as instructed by the Lead Borrower. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has exclusive rights dominion and control of withdrawal any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Collateral Agent.
(f) The Loan Parties may maintain one or more deposit accounts (the “Exempt Accounts”) in the ordinary course of business to be used by the Loan Parties for the sole purpose of funding payroll obligations and tax obligations and for holding funds owned by Persons other than Loan Parties and amounts on deposit constituting tax obligations, provided, however, at no time shall any other funds, cash, securities, property, revenue or other amounts be deposited or held in any such Deposit Exempt Accounts. The Borrower Notwithstanding anything in any Loan Document to the contrary, so long as no Event of Default has occurred and is continuing, no Exempt Accounts shall not borrow any Revolving Loans be subject to a Blocked Account Agreement or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if subject to the purpose of such Borrowings is to accumulate cash on hand (other than for any dominion and control of the purposes described Administrative Agent.
(g) Upon the request of the Administrative Agent during the existence of a Cash Dominion Event, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 2 contracts
Samples: Credit Agreement (A.C. Moore Arts & Crafts, Inc.), Credit Agreement (A.C. Moore Arts & Crafts, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan PartiesBorrower and its Subsidiaries, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties and their Subsidiaries to satisfy the current liabilities incurred by such Loan Parties and their Subsidiaries in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Cash Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Cash Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j2.05(n) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and documents, (viii) cash held in any Deposit Account of the Loan Parties which is (or, will be, following the date which is 60 days after the Closing Date) under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans Accounts and (ix) cash proceeds of Escrow Notes or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause Indebtedness incurred under clauses (ii), (ivvii), (vviii) or (viixviii) aboveof Section 6.01 in connection with a proposed or potential Business Acquisition or other Investment during the period commencing on the date of receipt thereof and ending on the date that is 45 days after the abandonment of such proposed or potential Business Acquisition or other Investment (it being understood that such cash proceeds may be held in a separate account and shall not constitute Collateral during such period prior to the earlier to occur of (x) the consummation of such proposed or potential Business Acquisition or other Investment and (y) the date that is 45 days after the abandonment of such proposed or potential Business Acquisition or other Investment).
Appears in 2 contracts
Samples: Credit Agreement (Rite Aid Corp), Credit Agreement (Rite Aid Corp)
Cash Management. At any time any Revolving Loans Borrower Deposit Account Control Agreement (including any Other Revolving Loans“DACA”) are outstanding• Borrower will open a “Waterfall Account” (“WA”) and a “Multi-Purpose Account” (“MPA”), which shall each be subject to a DACA and under the control of the Lenders for the purpose of perfecting a security interest therein. • All of Borrower’s subsidiaries will direct distributions into the MPA • With respect to the net proceeds of individual asset sales actually received by the Borrower, amounts below $5 million will be deposited into the MPA, and amounts equal to and greater than $5 million will be deposited into the WA whereby. In each case, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including will have the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 option to accumulate and exercise the Asset Sale Proceeds Sharing mechanism • Cash will be maintained in run through the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsWA quarterly. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans cause enough funds on deposit in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is MPA to accumulate cash on hand be run through the WA to pay the items listed in clauses (other than for any of the purposes described in clause (ii), (iv), i) through (v) or below. • Waterfall Account (WA) i. Administrative expenses of Borrower entity ii. All fees, costs, charges and expenses due to the Lenders and Administrative Agent iii. To the Lenders, TL Interest iv. To the Lenders, TL Mandatory Amortization v. To the Lenders, to satisfy all Mandatory Prepayments and Turbo Amortization vi. To the Lenders, any Optional Prepayments vii. To SEC, Minimum Parent Distributions (unless an Event of Default has occurred and is continuing) above)viii. To SEC, Additional Parent Distributions (unless an Event of Default has occurred and is continuing) [***] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
Appears in 2 contracts
Samples: First Supplemental Indenture (Sunnova Energy International Inc.), First Supplemental Indenture (Sunnova Energy International Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) On or prior to the Effective Date or such later date as the Co-Collateral Agents may agree:
(A) deliver to the Agent copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process form attached hereto as Exhibit E which have been executed on behalf of intersuch Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed in the Perfection Certificate (collectively, the “Credit Card Processors”); and
(B) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Co-account transfersCollateral Agents with each Blocked Account Bank covering the deposit accounts set forth on Schedule 6.01(m)(i)(B) (collectively, the “Blocked Accounts”); and
(C) deliver to the Agent copies of notifications (each, a “Third Party Payor Notification”) substantially in the form attached hereto as Exhibit I which have been executed on behalf of such Loan Party and addressed to such of each case Loan Party’s Third Party Payors relating to Eligible Pharmacy Receivables listed in the Perfection Certificate as a result of the ordinary course operations of the Loan Parties, any Co-Collateral Agent shall reasonably request.
(ii) cash necessary for The Loan Parties shall ACH or wire transfer daily (or with respect to DDAs that have historically not been swept daily (and other DDAs with the consent of the Co-Collateral Agents, not to be unreasonably withheld), periodically, consistent with past practices) (and whether or not there are then any outstanding Obligations and whether or not a Cash Dominion Event then exists) to a Blocked Account all amounts on deposit in each DDA of such Loan Party, other than DDAs that are Excluded Accounts; provided that such covenant shall not apply to (i) any minimum balance as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs with the consent of the Co-Collateral Agents, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with past practices). The Loan Parties shall ACH or wire transfer daily to a Blocked Account all payments due from credit card processors and without acceleration other proceeds of any of the satisfaction Collateral. All funds in each DDA and Blocked Account (other than Excluded Accounts) shall be conclusively presumed to be Collateral and proceeds of such current liabilitiesCollateral and the Agent, Co-Collateral Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA or Blocked Account.
(iii) Each Credit Card Notification and Third Party Payor Notification shall be held by the Net Proceeds received in respect Agent until the occurrence of a Prepayment Event described in clause (a) or (b) Cash Dominion Event. After the occurrence and during the continuance of a Cash Dominion Event, the definition of “Prepayment Event” for which Agent may deliver such Credit Card Notifications and Third Party Payor Notifications to the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, applicable Credit Card Processors and Third Party Payors.
(iv) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the Agent’s Account, of all cash receipts and collections held in each applicable Blocked Account (net of any minimum balance, not to exceed $25,000 (or such greater amount with the consent of the Co-Collateral Agents, not to be unreasonably withheld), as may be required to be kept in the subject Blocked Account by the Blocked Account Bank), including, without limitation, the following:
(A) all available cash receipts from the sale of Inventory and other Collateral;
(B) all proceeds of Refinancing Indebtedness not yet applied collections of Pharmacy Receivables and Credit Card Accounts Receivable;
(C) all proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any Collateral; and
(D) all Net Proceeds from any equity issuance by any Loan Party or its Subsidiaries. The Borrowers shall be deemed to Refinance have complied with the applicable Refinanced Debt in accordance with provisions of this clause (xiiv) if they cause the ACH or wire transfer daily of all funds which an Authorized Representative of the first proviso Borrowers in good faith believes to be the amount deposited in the definition Blocked Accounts in excess of the term “Refinancing Indebtedness”, $25,000 (or such greater amount as permitted above in this clause (iv)).
(v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent’s Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Co-Collateral Agent if Agents. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Agent’s Account, (ii) the funds on deposit in the Agent’s Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.01(m), during the continuance of a Cash Dominion Event, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Co-Collateral Agents, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Co-Collateral Agents. During the continuance of a Cash Dominion Event, the amounts deposited into the Agent’s Account shall be applied to the prepayment of the Obligations then outstanding; provided that upon payment in full of such outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Borrowers shall direct and the existence of a Cash Dominion Event (other than as the result of the occurrence of an Event of Default) shall not, in and of itself, impair the right of the Borrowers to Revolving Advances in accordance with the terms hereof.
(vi) Upon the request of the Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(vii) If the results of the initial commercial finance examination with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal the Loan Parties’ cash management (including without limitation the frequency of transfers from non-concentration DDAs to Blocked Accounts and the amount of more than $100,000,000 over any three consecutive Business Day period if funds retained by the purpose of such Borrowings is to accumulate cash on hand (Loan Parties in accounts other than for any of Blocked Accounts in the purposes ordinary course) after the Effective Date are not reasonably acceptable to the Co-Collateral Agents in their Permitted Discretion with respect to the matters described in clause (iithis Section 6.01(m), the Co-Collateral Agents and the Borrowers shall agree in good faith to make such modifications to the provisions of this Section as the Co-Collateral Agents may reasonably deem necessary in order to protect their interests in the Collateral (iv), (v) or (vii) aboveincluding the proceeds thereof).
Appears in 2 contracts
Samples: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Cash Management. At The Borrower shall, and shall cause its Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (x) zero-balance accounts for the purpose of managing local disbursements, payroll, withholding and other fiduciary accounts, all of which the Loan Parties may maintain without restriction (collectively, such accounts being “Zero-Balance Accounts”) and (y) accounts in existence on the Closing Date that have on deposit amounts for checks issued prior to or on the Closing Date that have not yet been deposited by the payee thereof, but only to the extent of such amounts) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which the Borrower and each of its Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected pursuant to Control Account Agreements;
(b) deposit promptly, and in any event no later than 10 Business Days after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $100,000 at any time or amounts for purposes of Zero-Balance Accounts; and
(c) at any Revolving Loans (including any Other Revolving Loans) are outstandingtime after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrower shall notwill, and shall not permit any Subsidiary will cause each other Loan Party to, permit cash on hand (including the cause all payments constituting proceeds of any Revolving Loan accounts or of other Collateral to be directed into lockbox accounts under agreements in form and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness substance satisfactory to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Administrative Agent.
Appears in 2 contracts
Samples: Credit Agreement (Tengasco Inc), Credit Agreement (Riley Exploration - Permian, LLC)
Cash Management. At any time any Revolving Loans The Credit Parties will establish and maintain the cash management systems described below:
(including any Other Revolving Loansa) are outstandingWithin 60 days after the Closing Date (or such later date as the Administrative Agent may reasonably agree in writing), the Borrower shall notwill, and will cause each of the Subsidiary Guarantors to, establish and maintain, at its sole expense, blocked accounts or lockboxes and related deposit accounts (in each case, “Blocked Accounts”) with such banks as are reasonably acceptable to Collateral Agent into which Borrower and the Subsidiary Guarantors shall promptly deposit and direct their respective Account Debtors to directly remit all payments on Accounts and all payments constituting proceeds of Inventory or other Collateral in the identical form in which such payments are made, whether by cash, check or other manner and shall be identified and segregated from all other funds of the Credit Parties. All proceeds of the Loans shall be deposited into a Blocked Account. The Borrower and the Subsidiary Guarantors shall deliver, or cause to be delivered, to Collateral Agent a Control Agreement duly authorized, executed and delivered by each bank where a Blocked Account for the benefit of the Borrower or any Subsidiary Guarantor is maintained. Except as permitted by Section 9.18(b)(iii), the Borrower and the Subsidiary Guarantors shall not permit establish any deposit accounts after the Closing Date, unless the Borrower or the Subsidiary Loan Party toGuarantor (as applicable) have complied in full with the provisions of this Section 9.18 with respect to such deposit accounts.
(b) At all times after the initial Blocked Accounts are established pursuant Section 9.18(a), permit the Borrower and each Subsidiary Guarantor shall maintain a cash on hand management system which is acceptable to the Administrative Agent and the Collateral Agent (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties“Cash Management System”). The Cash Management System shall contain, providedamong other things, that, for purposes hereof, “cash on hand” shall exclude the following: :
(i) “store” cashWith respect to the Blocked Accounts of Borrower and such Subsidiary Guarantors as the Collateral Agent shall determine in its sole discretion, cash the applicable bank maintaining such Blocked Accounts shall agree, pursuant to the applicable Control Agreement, to forward daily all amounts in transit between stores and local Deposit Accounts and cash receipts from sales each Blocked Account to one Blocked Account designated as concentration account in the process of inter-account transfers, in each case as a result name of the ordinary course operations of Borrower (the Loan Parties, (ii“Concentration Account”) cash necessary at the bank that shall be designated as the Concentration Account bank for the Loan Parties Borrower (the “Concentration Account Bank”). The Concentration Account Bank shall agree, pursuant to satisfy the current liabilities incurred applicable Control Agreement from and after the receipt of a notice (an “Activation Notice”) from the Collateral Agent (which Activation Notice may be given by Collateral Agent or the Administrative Agent at any time during the existence of a Cash Dominion Event) and so long as such Loan Parties Cash Dominion Event is continuing, to forward daily all amounts in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Concentration Account to the extent that account designated as collection account (the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi“Collection Account”) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to which shall be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole exclusive dominion and control of the Collateral Agent if and the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above).Administrative
Appears in 2 contracts
Samples: Revolving Credit Agreement (Goodman Global Group, Inc.), Revolving Credit Agreement (Goodman Sales CO)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) On or prior to the Effective Date:
(A) deliver to the Agent copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process form attached hereto as Exhibit E which have been executed on behalf of intersuch Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed in the Perfection Certificate (collectively, the “Credit Card Processors”); and
(B) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Co-account transfersCollateral Agents with each Blocked Account Bank covering the deposit accounts set forth on Schedule 6.01(m)(i)(B) (collectively, the “Blocked Accounts”); and
(C) deliver to the Agent copies of notifications (each, a “Third Party Payor Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and addressed to such of each case Loan Party’s Third Party Payors relating to Eligible Pharmacy Receivables listed in the Perfection Certificate as a result of the ordinary course operations of the Loan Parties, any Co-Collateral Agent shall reasonably request.
(ii) cash necessary for The Loan Parties shall ACH or wire transfer daily (or with respect to DDAs that have historically not been swept daily (and other DDAs with the consent of the Co-Collateral Agents, not to be unreasonably withheld), periodically, consistent with past practices) (and whether or not there are then any outstanding Obligations and whether or not a Cash Dominion Event then exists) to a Blocked Account all amounts on deposit in each DDA of such Loan Party, other than DDAs that are Excluded Accounts; provided that such covenant shall not apply to (i) any minimum balance as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs with the consent of the Co-Collateral Agents, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with past practices). The Loan Parties shall ACH or wire transfer daily to a Blocked Account all payments due from credit card processors and without acceleration other proceeds of any of the satisfaction Collateral. All funds in each DDA and Blocked Account (other than Excluded Accounts) shall be conclusively presumed to be Collateral and proceeds of such current liabilitiesCollateral and the Agent, Co-Collateral Agents and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA or Blocked Account.
(iii) Each Credit Card Notification and Third Party Payor Notification shall be held by the Net Proceeds received in respect Agent until the occurrence of a Prepayment Event described in clause (a) or (b) Cash Dominion Event. After the occurrence and during the continuance of a Cash Dominion Event, the definition of “Prepayment Event” for which Agent may deliver such Credit Card Notifications and Third Party Payor Notifications to the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, applicable Credit Card Processors and Third Party Payors.
(iv) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the Agent’s Account, of all cash receipts and collections held in each applicable Blocked Account (net of any minimum balance, not to exceed $25,000 (or such greater amount with the consent of the Co-Collateral Agents, not to be unreasonably withheld), as may be required to be kept in the subject Blocked Account by the Blocked Account Bank), including, without limitation, the following:
(A) all available cash receipts from the sale of Inventory and other Collateral;
(B) all proceeds of Refinancing Indebtedness not yet applied collections of Pharmacy Receivables and Credit Card Accounts Receivable;
(C) all proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any Collateral; and
(D) all Net Proceeds from any equity issuance by any Loan Party or its Subsidiaries. The Borrowers shall be deemed to Refinance have complied with the applicable Refinanced Debt in accordance with provisions of this clause (xiiv) if they cause the ACH or wire transfer daily of all funds which an Authorized Representative of the first proviso Borrowers in good faith believes to be the amount deposited in the definition Blocked Accounts in excess of the term “Refinancing Indebtedness”, $25,000 (or such greater amount as permitted above in this clause (iv)).
(v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent’s Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Co-Collateral Agent if Agents. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal with respect to from the Agent’s Account, (ii) the funds on deposit in the Agent’s Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.01(m), during the continuance of a Cash Dominion Event, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Co-Collateral Agents, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Co-Collateral Agents. During the continuance of a Cash Dominion Event, the amounts deposited into the Agent’s Account shall be applied to the prepayment of the Obligations then outstanding; provided that upon payment in full of such Borrowings is outstanding Obligations, any remaining amounts will be released and transferred to accumulate cash on hand a deposit account of the Loan Parties as the Borrowers shall direct and the existence of a Cash Dominion Event (other than for any as the result of the purposes described occurrence of an Event of Default) shall not, in clause and of itself, impair the right of the Borrowers to Revolving Advances in accordance with the terms hereof.
(ii)vi) Upon the request of the Agent, (iv)the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, (v) or (vii) accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 2 contracts
Samples: Credit Agreement (Sears Holdings Corp), Credit Agreement (Sears Holdings Corp)
Cash Management. At (a) Borrowers must maintain with a financial institution acceptable to Lender any time deposit accounts required by Lender, including Cash Concentration Accounts. Each deposit account must be subject to a lockbox agreement, a Control Agreement, or other control that is satisfactory to Lender in its sole discretion. Borrowers must instruct (and these instructions must be satisfactory to Lender in its discretion) all Account Debtors and other Persons obligated to any Revolving Loans Loan Party to make, and Borrowers must ensure that all Account Debtors do make, all payments to a Cash Concentration Account.
(including b) All funds in a Cash Concentration Account are Xxxxxx’s exclusive property and are subject to Xxxxxx’s sole control. Borrowers do not have control over or any Other Revolving Loansinterest in a Cash Concentration Account. All collections with respect to Collateral received by the Loan Parties: (1) are outstanding, the Borrower shall not, received in trust for Xxxxxx and shall as Xxxxxx’s fiduciary; (2) may not permit be commingled with any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties’ other funds or property and are held in trust for Xxxxxx and as Xxxxxx’s fiduciary; and (3) must on the day received be deposited into a Cash Concentration Account.
(c) Each Loan Party shall enter into, providedand cause each depository, thatsecurities intermediary or commodities intermediary to enter into, Control Agreements providing for purposes hereof“full” cash dominion with respect to each deposit, “cash on hand” shall exclude the following: securities, commodity or similar account maintained by such Person (other than (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Partiesany payroll account, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses withholding Tax and without acceleration of the satisfaction of such current liabilitiesfiduciary accounts, and (iii) the Net Proceeds received zero balance accounts). Loan Parties shall not maintain cash on deposit in respect of a Prepayment Event described disbursement accounts in clause (a) or (b) excess of the definition sum of “Prepayment Event” for which the Borrower is permitted (A) outstanding checks and wire transfers payable from such accounts plus (B) amounts necessary to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(cmeet minimum balance requirements.
(d) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to To the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating Person remits payments to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) an incorrect deposit account or otherwise to cash collateralize letters of credit makes payments not in accordance with the provisions of this Section 4.16 or an applicable loan 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 and if such redirection is not possible, such Loan Party shall deposit or letter cause to be deposited promptly, and in any event no later than the first Business Day after the date of credit documents receipt thereof, all such collections into a Cash Concentration Account, as applicable.
(e) Each Loan Party must pay to Lender on demand all fees and Expenses that Lender incurs in connection with (1) forwarding Advance proceeds and (viii2) cash held in any Deposit Account of establishing and maintaining the accounts required under the Loan Parties which Documents. Lender may (without making demand) charge all fees and Expenses any Loan Party is obligated to pay under the sole dominion Loan Documents to the Loan Account as a Revolving Loan and control of add them to the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Obligations.
Appears in 2 contracts
Samples: Credit and Security Agreement (1847 Holdings LLC), Credit and Security Agreement (1847 Holdings LLC)
Cash Management. At (a) Annexed hereto as Schedule 2.18(a) is a list describing, as of the Closing Date, all arrangements to which any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including is a party with respect to the payment to such Loan Party of the proceeds of any Revolving all credit card charges for sales by such Loan and any Other Revolving LoansParty.
(b) in an aggregate amount in excess On or prior to the Closing Date, each Loan Party shall:
(i) deliver to the Agents a schedule of $200,000,000 all DDAs that, to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (A) the name and address of such depository; (B) the account number(s) maintained with such depository; and (C) a contact person at such depository;
(ii) cash necessary for deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(a); and
(iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory in form and substance to the Agents, with any Blocked Account Bank with respect to each Blocked Account existing as of the Closing Date listed on Schedule 2.18(b) attached hereto (each a “Blocked Account”); provided that to the extent the Loan Parties shall have used commercially reasonable efforts to satisfy procure any such schedule of DDAs (or any portion thereof), Credit Card Notification or Blocked Account Agreement and yet are unable to provide such agreements on or prior to the current liabilities incurred Closing Date (as determined by such the Administrative Agent in its reasonable discretion), the Loan Parties shall have until sixty (60) days after the Closing Date to obtain such schedule of DDAs (or any portion thereof), Credit Card Notification or Blocked Account Agreement, which period may be extended by the Administrative Agent acting in its reasonable discretion.
(c) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at JPMorgan Chase Bank (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Financing Facility is repaid in full, a Prepayment Event arising in connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA); and
(v) the cash proceeds of all credit card charges.
(d) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than (i) any xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $3,000,000 or exceed $25,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), (ii) any payroll, trust and without acceleration tax withholding accounts funded in the ordinary course of the satisfaction of such current liabilities, business or required by Applicable Law and (iii) any Disbursement Account) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account subject to a Blocked Account Agreement), or if at any time a Blocked Account shall cease to be subject to a Blocked Account Agreement, the Net Proceeds received in respect applicable Loan Party shall promptly furnish the Collateral Agent with written notice thereof and the Collateral Agent may require such Loan Party to close such account and have any such funds transferred to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Cash Dominion Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which is under shall identify, to the sole dominion and control reasonable satisfaction of the Collateral Agent if Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting, the Collateral Agent has exclusive rights agrees to promptly remit to the agent under the Term Loan Financing Facility the proceeds of withdrawal the Term Priority Collateral received by the Administrative Agent.
(e) The Loan Parties may close DDAs or Blocked Accounts, maintain existing DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements with respect to such Deposit Accounts. The Borrower each Blocked Account (except with respect to (i) any xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over 3,000,000 or exceed $25,000 with respect to any three consecutive Business Day period if one account (or in each case, such greater amounts to which the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (iiAdministrative Agent may agree), (iv)ii) any payroll, trust, and tax withholding accounts funded in the ordinary course of business or required by Applicable Law and (viii) unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of its intention to open or (vii) above).close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be
Appears in 2 contracts
Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingWithin ninety (90) days after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall notLoan Parties shall, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including to the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in extent reasonably required by the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) deliver to the Collateral Agent notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process of inter-account transfers, in each case form attached hereto as a result Exhibit F which have been executed on behalf of the ordinary course operations of Borrower and addressed to the Loan Parties, Borrower’s credit card clearinghouses and processors listed in the Information Certificate; and
(ii) cash necessary for enter into a Blocked Account Agreement with each Blocked Account Bank with respect to each DDA (other than a DDA constituting an Excluded DDA) maintained with such Blocked Account Bank (such DDAs subject to Blocked Account Agreements, collectively, the “Blocked Accounts”). Such Blocked Account Agreement(s) may be entered into with Administrative Agent, Xxxxx Fargo Bank, National Association, any Lender, and/or another financial institution reasonably acceptable to the Agents. If any Loan Party is unable to obtain a Blocked Account Agreement as required herein, at the Collateral Agent’s option, such Loan Party shall be required to transfer to and maintain such account with the Collateral Agent or at another Blocked Account Bank.
(b) So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct the manner of disposition of funds in the DDAs and Blocked Accounts. Each Credit Card Notification shall require the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account or a Cash Dominion Event then is continuing) of all available cash receipts (the “Cash Receipts”) therein to satisfy a Blocked Account, and the current liabilities incurred by such Loan Parties shall cause the ACH or wire transfer of funds on deposit in DDAs (other than Excluded DDAs) to a Blocked Account (provided, that so long as no Cash Dominion Event is then continuing, the Loan Parties may transfer such funds in accordance with its customary practices in the ordinary course of their businesses business, such customary practices to include, without limitation, the amount of funds to be retained in each DDA and without acceleration not so transferred) (it being understood that, with respect to any transfers described in this sentence occurring during the period commencing on the Effective Date and ending on the date that is ninety (90) days following the Effective Date, the requirement shall be deemed to have been met if such transfers are made to any account that becomes a Blocked Account during such period in accordance with SECTION 2.18(a)(ii)). Any amounts held in the Bank of America Concentration Account (i) at any time when no Cash Dominion Event then exists and is continuing, or (ii) following Payment in Full, shall be remitted to a Blocked Account of the satisfaction Borrower as specified by the Borrower.
(c) Each Blocked Account Agreement (other than such agreement entered into with respect to the Bank of America Concentration Account) shall require, after the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the ACH or wire transfer on each Business Day (or such current liabilities, other frequency as the Administrative Agent may agree) (iiiand whether or not there is then an outstanding balance in the Loan Account) of all available Cash Receipts to the Bank of America Concentration Account from:
(A) the sale of Inventory;
(B) all proceeds of collections of Accounts (including without limitation, proceeds of credit card charges);
(C) all Net Proceeds received on account of any Prepayment Event; and
(D) the then contents of each Blocked Account (other than the Bank of America Concentration Account), provided that up to $3,500 may be maintained in respect overnight balances in any Blocked Account (other than the Bank of America Concentration Account).
(d) After the occurrence and during the continuance of a Prepayment Event described Cash Dominion Event, the Loan Parties shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If, at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents consisting of proceeds of Collateral (other than Trust Funds that have been deposited in a Trust Fund DDA in accordance with clause (ah) below, except to the extent any excess proceeds are required to be deposited in the Bank of America Concentration Account pursuant to such clause (h)) owned by any Loan Party are deposited to any account, or held or invested in any manner, other than in a Blocked Account (bor a DDA which is swept daily to a Blocked Account), the Collateral 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, provided that up to $500,000 in the aggregate as to all DDAs may be maintained in overnight balances in such DDAs.
(e) The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject, in the case of a Blocked Account, to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (it being understood and agreed that, with respect to any Blocked Account (x) acquired in connection with a Permitted Acquisition or an Investment permitted under clauses (p) and/or (q) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing IndebtednessPermitted Investment”, or (vy) cash proceeds of Refinancing Indebtedness to opened after the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessEffective Date, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which shall deliver to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent), duly executed by the applicable Loan Parties and Blocked Account Banks, within sixty (60) days (or such later date as the Administrative Agent may agree in its sole discretion) following the date of such Permitted Acquisition, such Investment or opening of such Blocked Account, as applicable). No Loan Party shall enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Collateral Agent.
(f) The Borrower may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(g) At all times after the occurrence and during the continuance of a Cash Dominion Event, the Bank of America Concentration Account shall be under the sole dominion and control of the Collateral Agent. Each Loan Party hereby acknowledges and agrees that, after the occurrence and during the continuance of a Cash Dominion Event, no Loan Party has any right of withdrawal from the Bank of America Concentration Account. The Blocked Account Agreement governing the Bank of America Concentration Account shall require, after the occurrence and during the continuance of a Cash Dominion Event and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available amounts to the Administrative Agent if for application to the Obligations as provided in this Agreement. All funds on deposit in the Bank of America Concentration Account shall at all times continue to be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections after the occurrence and during the continuance of a Cash Dominion Event, then except as otherwise provided under clause (d) above with respect to maintenance of up to $500,000 in the aggregate in overnight balances, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(h) Notwithstanding anything to the contrary contained in this Section 2.18, the Borrower may establish segregated DDAs into which Trust Funds may be deposited in the ordinary course of business and in accordance with the Borrower’s past practices (each such DDA, a “Trust Fund DDA”). The Trust Funds so deposited shall not be swept to the Bank of America Concentration Account or applied to the Obligations but rather will be available for the specific purposes required for such Trust Funds. Any amounts in the DDAs shall continue to constitute Collateral and, after the occurrence and during the continuance of a Cash Dominion Event, such excess proceeds shall be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(i) 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 Bank of America Concentration Account on the Business Day on which deposited, provided that notice of such deposit is available to the Collateral Agent has exclusive rights by 2:00 p.m. on that Business Day;
(ii) Funds paid to the Administrative Agent other than by deposit to the Bank of withdrawal with respect America Concentration Account, shall be deemed to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive have been received on the Business Day period if the purpose when they are good and collected funds, provided that notice of such Borrowings payment is available to accumulate cash the Administrative Agent by 2:00 p.m. on hand that Business Day;
(other than for any iii) If notice of a deposit to the Bank of America Concentration Account or payment is not available to the Administrative Agent until after 2:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) On each Business Day, the Administrative Agent shall apply the then collected balance of the purposes described Bank of America Concentration Account (net of monthly fees charged, and of such impressed balances as may be required by Bank of America) in clause (ii), (iv), accordance with this SECTION 2.18; and
(v) If any item deposited to the Bank of America Concentration Account and credited to the Loan Account is dishonored or (vii) above)returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Loan Parties shall indemnify the Credit Parties against all claims and losses resulting from such dishonor or return.
Appears in 2 contracts
Samples: Credit Agreement (Pier 1 Imports Inc/De), Credit Agreement (Pier 1 Imports Inc/De)
Cash Management. At (a) Within thirty (30) days of the occurrence of a Specified Default, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower Borrowers, upon the request of the Administrative Agent, shall notdeliver to the Administrative Agent a schedule of all DDAs, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including that to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Restatement Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card and debit card charges for the Loan Parties to satisfy the current liabilities incurred sales by such Loan Parties Party.
(c) On or prior to the Restatement Date, to the extent not previously delivered, each Loan Party shall:
(i) deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Administrative Agent, with any Blocked Account Bank, including, without limitation, with respect to the DDAs existing as of the Restatement Date and listed on Schedule 2.18(c) attached hereto (collectively, the “Blocked Accounts”). For the avoidance of doubt, no Blocked Account Agreements shall be required with respect to (x) the Designated Account, (y) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration required by Applicable Law, or (z) unless an Event of Default is then continuing, any xxxxx cash accounts funded in the satisfaction ordinary course of business, the deposits in which do not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such current liabilitiesgreater amounts to which the Administrative Agent (or if an Event of Default is continuing, the Required Lenders) may agree).
(d) Each Credit Card Notification and Blocked Account Agreement entered into by a US Loan Party shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA (not to be located in the Province of Quebec, Canada) which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account “)) to the collection account maintained by the Administrative Agent at Xxxxx Fargo (the “Collection Account”), from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event, but excluding, until the Term Loan Facility is repaid in full, any Term Priority Collateral);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) the all Net Proceeds received on account of any Prepayment Event (other than, until the Term Loan Facility is repaid in respect of full, a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated arising in connection with the issuance Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA); and
(v) the cash proceeds of all credit card and debit card charges. If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents owned by any US Loan Party (other than (i) amounts on deposit in the Designated Account, which funds, shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Refinancing IndebtednessCash Dominion Event continues, (viii) xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent (or if an Event of Default is continuing, the Required Lenders) may agree), and (iii) 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 is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral Agent may require the applicable US 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, the US Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Collection Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting, the Collateral Agent agrees to promptly remit to the agent under the Term Loan Facility the proceeds of the Term Priority Collateral received by the Administrative Agent. Notwithstanding anything in any Loan Document to the contrary, (i) so long as the Obligations have not been accelerated, no DDAs maintained by any Canadian Loan Party nor credit card or debit card processing accounts maintained by any Canadian Loan Party shall be subject to the dominion and control of the Administrative Agent, and (ii) all Canadian Loan Parties shall provide the Collateral Agent with a monthly accounting of the contents of, and a copy of the bank statement for, each Blocked Account maintained in Canada for the immediately preceding month.
(e) The provisions of this subsection (e) shall apply to Cash Receipts from Canadian operations and DDAs and Blocked Accounts maintained by the Canadian Loan Parties in Canada.
(i) All Cash Receipts relating to the Canadian Loan Parties’ operations in Canada shall be deposited into one or more DDAs established for the account of the applicable Canadian Loan Party in Canada.
(ii) So long as the Obligations have not been accelerated:
(A) the Canadian Loan Parties may direct, and shall have sole control over, the manner of disposition of their funds in the DDAs in Canada, the Blocked Accounts in Canada and each Disbursement Account in Canada; and
(B) the Loan Parties shall cause the wire transfer of all available and collected Cash Receipts in each such DDA in Canada to a Blocked Account in Canada not less frequently than once each week (or with such greater frequency as the Administrative Agent in its discretion may require).
(iii) On and after the date on which the Obligations have been accelerated:
(A) upon notice to a Canadian Blocked Account Bank (which the Agents agree not to give unless the Obligations have been accelerated), no Loan Party shall have any access to or right of withdrawal from the Canadian Blocked Accounts maintained with such Canadian Blocked Account Bank; and
(B) in the event that, notwithstanding the provisions of this SECTION 2.18(e), the Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
(f) The Loan Parties which may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust and tax withholding accounts or unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Blocked Account Agreement with respect to any DDA acquired by a Loan Party in connection with a Permitted Acquisition until the date that is thirty (30) days (or such later date as the Administrative Agent may agree in its discretion) after the consummation of such Permitted Acquisition). The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent.
(g) The Borrowers may also maintain one or more disbursement accounts (the “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.
(h) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent. Each Borrower hereby acknowledges and agrees that (i) such Borrower has no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, 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 Collateral 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 Collection Account or dealt with in such other fashion as such Borrower may be instructed by the Collateral Agent.
(i) Any amounts received in the Collection 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.
(j) The Collateral Agent shall 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.
(k) 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 Collection Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. Boston time, on that Business Day);
(ii) Funds paid to the Administrative Agent, other than by deposit to the Collection 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. Boston time, on that Business Day);
(iii) If a deposit to the Collection Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Collection Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return;
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.04.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand shall
(including i) deliver to the proceeds Administrative Agent a schedule of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be all DDAs maintained in the Deposit Accounts of by the Loan Parties, providedwhich schedule includes, thatwith respect to each depository (A) the name and address of such depository, (B) the account number(s) maintained with such depository and (C) a contact person at such depository; and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), satisfactory in form and substance to the Administrative Agent in its reasonable discretion, with respect to each Concentration Account existing as of the Closing Date (other than any Concentration Account maintained with the Collateral Agent); provided that to the extent that the Collateral Agent has been granted control, as determined by the Collateral Agent in its sole discretion, with respect to the Existing Accounts, the Loan Parties are not required to comply with the foregoing clause (a).
(b) Each Blocked Account Agreement or such other account control agreement, if applicable, for purposes hereofeach Concentration Account shall require, during the continuance of a Cash Control Trigger Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day of all available cash receipts held in the Concentration Account to a concentration account maintained by the Administrative Agent at Citibank, N.A. (the “cash on hand” shall exclude the following: Agent Concentration Account”).
(c) If (i) “store” cashat any time during the continuance of a Cash Control Trigger Event, any cash or Cash Equivalents owned by a Loan Party are deposited in transit between stores and local Deposit Accounts and cash receipts from sales any account (other than an Excluded Account), or held or invested in any manner (other than (x) in the process of inter-account transfersConcentration Account that is subject to the Blocked Account Agreement, (y) in each case as a result of Concentration Account that is maintained with the ordinary course operations of the Loan PartiesCollateral Agent or (z) a DDA which is swept daily to a Concentration Account subject to a Blocked Account Agreement), or (ii) cash necessary for at any time, a Concentration Account shall cease to be subject to a Blocked Account Agreement, the applicable Loan Party shall as soon as practicable furnish the Collateral Agent with written notice thereof and the Administrative Agent may require such Loan Party to close such account and have any such funds transferred to a Concentration Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Cash Control Trigger Event, the Loan Parties shall, upon the request of the Administrative Agent, provide such Agent with an accounting of the contents of the Concentration Accounts.
(d) A Loan Party may close DDAs or a Concentration Account, maintain existing DDAs or Concentration Accounts and/or open new DDAs or Concentration Accounts, subject to satisfy the current liabilities incurred by execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements with respect to each Concentration Account (except with respect to any Concentration Account maintained with the Collateral Agent) consistent with the provisions of this Section 2.17 and otherwise reasonably satisfactory to the Administrative Agent. The applicable Loan Party shall furnish the Administrative Agent with prior written notice of its intention to open or close a Concentration Account and the Administrative Agent shall promptly notify such Loan Party as to whether the Administrative Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained.
(e) The Loan Parties may also maintain one or more disbursement accounts which shall be used by the Loan Parties solely for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesbusiness or as otherwise permitted hereunder (any account so used, a “Disbursement Account”).
(iiif) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) it has no right of withdrawal from the Agent Concentration Account, (ii) the funds on deposit in the Agent Concentration Account shall at all times continue to be collateral security for all of the Secured Obligations, and (iii) the funds on deposit in the Agent Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 2.17, during the continuance of a Cash Control Trigger Event, a Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(g) [RESERVED.]
(h) The Collateral Agent if shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Concentration Account is maintained when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement.
(i) Subject to Section 2.17(c), any amounts received in the Collateral Agent has exclusive rights Concentration Account shall be applied to the payment (without a corresponding reduction of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans Commitments) of all of the Advances (whether then due or Other Revolving Loans in an aggregate principal amount not) and all of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand other Obligations under the Loan Documents (other than for any contingent obligations) (whether then due or not) in the order provided in Section 21(b) of the Revolving Facility Security Agreement (with all Advances deemed due for purposes described thereof).
(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 Agent Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in clause full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Administrative Agent, other than by deposit to the Agent 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 by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day); and
(iii) if a deposit to the Agent Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, (iv), (v) such deposit or (vii) above)payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Cash Management. At (i) Each Credit Party shall use commercially reasonable efforts to enter into control agreements (each, a “Blocked Account Agreement”) as soon as possible after the Closing Date and, in any time any Revolving Loans event, shall have actually entered into such Blocked Account Agreements within 120 days after the Closing Date (including any Other Revolving Loansor such later date approved by the Administrative Agent in its reasonable discretion), in a form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and each other bank with which such Credit Party maintains a DDA located in the United States (other than an Excluded Account) are outstanding(collectively, the “Blocked Accounts”); and (ii) upon delivery of such Blocked Account Agreements referred to in clause (i), the Borrowers shall provide a schedule of DDAs, indicating for each DDA if such DDA is required to be subject to a Blocked Account Agreement pursuant to the Credit Documents; provided that, if Blocked Account Agreements with respect to each Blocked Account are not delivered to the Administrative Agent within 90 days after the Closing Date, each Credit Party shall move any such Account to the Administrative Agent or another depositary, subject to a Blocked Account Agreement in favor of the Administrative Agent.
(b) The Borrowers agree that they will cause all proceeds of the ABL Priority Collateral (other than the Uncontrolled Cash and subject to clause (c) below) to be deposited into a Blocked Account.
(c) Each Blocked Account Agreement of a Credit Party shall require (only during the continuance of a Cash Dominion Period and following delivery of notice of the commencement thereof from the Administrative Agent to the Lead Borrower shall not, and the account bank party to such instrument or agreement; provided that such notice shall not permit any Subsidiary Loan Party tobe delivered earlier than two (2) Business Days following the start of a Cash Dominion Period), permit the ACH or wire transfer no less frequently than once per Business Day (but without limit on frequency if the Maturity Date shall have actually occurred), of all available cash on hand (balances and cash receipts, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess each Blocked Account (net of $200,000,000 such minimum balance as may be required to accumulate and be maintained in the Deposit Accounts subject Blocked Account by the bank at which such Blocked Account is maintained and other than any Uncontrolled Cash), to one or more accounts maintained by the Administrative Agent (the “Payment Accounts”). Subject to the terms of the Loan PartiesABL Intercreditor Agreement, provided, that, for purposes hereof, “cash on hand” all amounts received in a Payment Account or such other account shall exclude be applied (and allocated) by the following: Administrative Agent in accordance with Section 11.13 (except (A) pursuant to clause (i) thereof and (B) to Secured Cash Management Obligations and Secured Hedge Obligations).
(d) If, at any time after the occurrence and during the continuance of a Cash Dominion Period, any cash or Cash Equivalents owned by any Credit Party (other than (i) with respect to a Cash Dominion Period, an amount equal to the aggregate amount of cash and Cash Equivalents collected in Blocked Accounts during the first two (2) Business Days of such Cash Dominion Period and that is on deposit in a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “storeuncontrolled cash account” cash(each such account, cash in transit between stores a “Designated Disbursement Account” and local Deposit Accounts and cash receipts collectively, the “Designated Disbursement Accounts”), which funds shall not thereafter be funded from, or when withdrawn from sales in the process of inter-account transfersDesignated Disbursement Accounts, in each case as a result shall not be replenished by, funds constituting proceeds of the ordinary course operations of the Loan PartiesABL Priority Collateral so long as such Cash Dominion Period continues, (ii) cash necessary de minimis Permitted Investments from time to time inadvertently misapplied by any Credit Party, (iii) segregated accounts that are subject to Liens permitted pursuant to clauses (i) through (iv) of the definition of Permitted Liens and to the extent that, and for so long as, a grant of a security interest therein would violate or invalidate the Loan Parties agreement giving rise to satisfy the current liabilities incurred by such Loan Parties permitted lien and (iv) payroll, trust, disbursement and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of the satisfaction of required by applicable Law and (each such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event account described in clause clauses (ai) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), through (iv), an “Excluded Account”) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (vor a DDA which swept daily to a Blocked Account) or a lockbox, the Administrative Agent shall be entitled to require the applicable Credit Party to close such account and have all funds therein transferred to a Blocked Account, and to cause all future deposits to be made to a Blocked Account.
(viie) above)The Credit Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts without the Administrative Agent’s consent, subject to the prompt execution and delivery to the Administrative Agent of a Blocked Account Agreement to the extent required by the provisions of this Section 9.16. The Credit Parties may open or close Excluded Accounts at any time, without requirement of delivery of a Blocked Account Agreement without consent of the Administrative Agent.
(f) So long as no Cash Dominion Period is in effect, the Credit Parties may direct, and shall have sole control over, the manner of disposition of funds in their respective Blocked Accounts.
(g) (i) Any amounts received in the Payment Accounts (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 and Secured Cash Management Obligations and Secured Hedge Obligations) and termination of the aggregate Commitments hereunder and (ii) any amounts that continue to be swept to the Payment Accounts after no Cash Dominion Period exists, shall, in each case, be remitted to the operating account of the Borrowers as specified by the Lead Borrower.
Appears in 1 contract
Samples: Abl Credit Agreement (Bountiful Co)
Cash Management. At (a) Each Loan Party shall, within 120 days after the Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion (such consent not to be unreasonably withheld, delayed or conditioned)), (i) in the case of any time US Loan Party, require that all cash payments in respect of Accounts owed to such US Loan Party be remitted to a lockbox maintained by any Revolving Loans US Loan Party (the “US Lockbox”) or a Material Account of any US Loan Party, (ii) [reserved], (iii) in the case of any European Loan Party, require that all cash payments of Accounts owed to any European Loan Party be remitted to a lockbox maintained by any European Loan Party (the “European Lockbox” and, together with the US Lockbox, the “Lockboxes”) or a Material Account of any European Loan Party, (iv) instruct the financial institution that maintains any US Lockbox to cause all amounts on deposit and available at the close of each Business Day in such Lockbox (net of any Required Minimum Balance), to be swept to a concentration deposit account maintained by any US Loan Party (each, a “US Concentration Account”) not less frequently than on a daily basis, (v) [reserved], (vi) instruct the financial institution that maintains such European Lockbox to cause all amounts on deposit and available at the close of each Business Day in such Lockbox (net of any Required Minimum Balance), to be swept to a concentration deposit account maintained by any European Loan Party (each, a “European Concentration Account” and, together with the US Concentration Account, the “Concentration Accounts”) not less frequently than on a daily basis; (vii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the applicable Loan Party, the Administrative Agent and any financial institution with which such Loan Party maintains a Concentration Account or Material Account (collectively, the “Blocked Accounts”) and (viii) deposit (or cause to be deposited) promptly (and in any event no later than the first Business Day after receipt thereof) all collections on Accounts (including any Other Revolving Loansthose sent directly by an Account Debtor) are outstandinginto a Blocked Account covered by a Blocked Account Agreement. From and after the 120th day after the Closing Date (or such longer period as the Administrative Agent may agree in its reasonable discretion (such consent not to be unreasonably withheld, the Borrower shall notdelayed or conditioned)), and shall not permit any Subsidiary each Loan Party toshall ensure that this Section 5.16(a) is satisfied at all times.
(b) Each Blocked Account Agreement relating to any Blocked Account shall require, permit cash on hand after the delivery of notice of a Cash Dominion Period by the Administrative Agent to the Lead Borrower and the other parties to such instrument or agreement (which the Administrative Agent may, or upon the request of the Required Lenders shall, provide upon its becoming aware of such a Cash Dominion Period), by ACH or wire transfer no less frequently than once per Business Day (unless the Termination Date has occurred), of all available Cash balances, Cash receipts and Cash Equivalents, including the proceeds ledger balance of any Revolving Loan and any Other Revolving Loans) each Blocked Account (net of such minimum balance, not to exceed $250,000 per account or $2,000,000 in an the aggregate amount in excess of $200,000,000 for all such accounts, as may be required to accumulate and be maintained in the Deposit Accounts of subject Blocked Account by the Loan Partiesbank at which such Blocked Account is maintained (the “Required Minimum Balances”)), provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-to an account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is maintained under the sole dominion and control of the Collateral Administrative Agent (the “Administrative Agent Account”). All amounts received in the Administrative Agent Account shall be applied (and allocated) by the Administrative Agent in accordance with Section 2.11(a)(iii)); provided that if the circumstances described in Sections 2.18(b) or (c) are applicable, such amounts shall be applied in accordance with such Sections 2.18(b) and (c). In such event, each Loan Party agrees that it will not otherwise direct the proceeds of any Blocked Account.
(c) Provided that no Event of Default exists, the Loan Parties may close any then-existing Deposit Account or Securities Account. The Loan Parties may open any new Deposit Account or Securities Account, subject, unless such Deposit Account or Securities Account constitutes an Excluded Account or otherwise constitutes an Excluded Asset (provided that upon such Deposit Account or Securities Account ceasing to constitute an Excluded Account and an Excluded Asset, such Deposit Account or Securities Account shall be subject to this Section 5.16), to the execution and delivery to the Administrative Agent of a Blocked Account Agreement in respect of such newly opened Deposit Account or Securities Account consistent with the provisions of this Section 5.16 and otherwise reasonably satisfactory to the Administrative Agent and the Collateral Agents within 90 days of the opening thereof (or such longer period as the Administrative Agent has exclusive rights may reasonably agree); it being understood and agreed that, (x) notwithstanding the foregoing, in the event such newly opened Deposit Account or Securities Account constitutes a Concentration Account such Concentration Account shall be subject to a Blocked Account Agreement consistent with the provisions of withdrawal this Section 5.16 and otherwise reasonably satisfactory to the Administrative Agent and the Collateral Agents from and after the date of opening thereof (or such longer period as the Administrative Agent may reasonably agree) and (y) in the event that any Loan Party acquires any Deposit Account or Securities Account in connection with any Subject Transaction, such Loan Party shall be required to enter into a Blocked Account Agreement with respect to such acquired Deposit Accounts. The Borrower shall not borrow any Revolving Loans Account or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if Securities Account within 120 days following the purpose date of such Borrowings Subject Transaction (or such longer period as the Administrative Agent may reasonably agree) unless such Loan Party has closed such Deposit Account or Securities Account (or such Deposit Account or Securities Account constitutes an Excluded Account or otherwise constitutes an Excluded Asset) prior to such time.
(d) The Administrative Agent Account shall at all times be under the sole dominion and control of the Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from the Administrative Agent Account (except as provided in Section 2.11(a)(iii) or Sections 2.18(b) and (c)), (ii) the funds on deposit in the Administrative Agent Account shall at all times continue to be collateral security for all of the applicable Secured Obligations, and (iii) the funds on deposit in the Administrative Agent Account shall be applied as provided in this Agreement and, to the extent such funds constitute US Collateral, the ABL Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 5.16, any Loan Party receives or otherwise has dominion and/or control of any amount required to be transferred to the Administrative Agent Account pursuant to Section 5.16(b), such amount shall be held in trust by such Loan Party for the Administrative Agent, and shall promptly be deposited into the Administrative Agent Account or otherwise transferred in such manner as the Administrative Agent may request.
(e) Upon the commencement of a Cash Dominion Period and for so long as the same is continuing, upon delivery of notice by the Administrative Agent to accumulate cash the Lead Borrower (which the Administrative Agent may, or upon the request of the Required Lenders shall, provide upon its becoming aware of such a Cash Dominion Period), the Administrative Agent may direct that all amounts in the Blocked Accounts be paid to the Administrative Agent Account. So long as no Cash Dominion Period is continuing in respect of which the Administrative Agent has delivered the notice contemplated by this Section 5.16, each relevant Loan Party may direct, and shall have sole control over, the disposition of funds in the Blocked Accounts.
(f) Any amount held or received in the Administrative Agent Account (including all interest and other earnings with respect thereto, if any) at any time (i) when the Termination Date has occurred or (ii) all Events of Default have been cured and no Cash Dominion Period exists, shall (subject, in the case of clause (i), to the provisions of any Acceptable Intercreditor Agreement) be remitted to an account of the applicable Loan Party (or if requested by any Loan Party, to the Lead Borrower on hand its behalf).
(g) Following the commencement of any Cash Dominion Period (other than by reason of an Event of Default pursuant to Section 7.01(a), 7.01(f) or 7.01(g), except to the extent necessary for one or more officers or directors of Holdings, the Lead Borrower or any of the purposes described in clause (iiits subsidiaries to avoid personal or criminal liability under applicable Requirements of Law), in the event that any Blocked Account or the Administrative Agent Account contains identifiable Tax and Trust Funds, the Lead Borrower (ivacting in good faith) may, within 30 days after such Tax and Trust Funds are received in such Blocked Account or Administrative Agent Account, deliver to the Administrative Agent a Trust Fund Certificate. Notwithstanding anything to the contrary herein or in any other Loan Document, within five Business Days following receipt of a Trust Fund Certificate, the Administrative Agent shall remit from such Blocked Account or Administrative Agent Account (in each case excluding amounts previously deposited to cash collateralize Letters of Credit hereunder), as applicable, the lesser of (va) the amount of Tax and Trust Funds specified in the Trust Fund Certificate, (b) the Availability on the date of such remittance and (c) the amount on deposit in such Blocked Account or Administrative Account on the date of delivery of such Trust Fund Certificate, at the option of the Administrative Agent, (x) to the applicable Loan Party or (y) on behalf of the applicable Loan Party directly to the Person entitled to such Tax and Trust Funds; provided that in no event shall the Administrative Agent be required to remit any amount pursuant to this Section 5.16(g) to the extent that such amount was previously distributed in accordance with Section 2.11(a)(iii) (or otherwise applied in accordance with Section 2.18(b) or (viic) aboveas applicable). If any such amount is remitted to any Loan Party, such Loan Party shall apply such amount solely for the purpose set forth in the applicable Trust Fund Certificate on or prior to the date due; it being understood that the Administrative Agent shall not apply any amount consisting of identifiable Tax and Trust Funds pursuant to Section 2.11(a)(iii) (or otherwise applied in accordance with Section 2.18(b) or (c) as applicable) following its receipt of a Trust Fund Certificate.
Appears in 1 contract
Samples: Abl Credit Agreement (Ecovyst Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transferssuch Loan Party with respect to each depository institution listed on Schedule 5.21(a);
(ii) on or prior to the Closing Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date, a fully executed Blocked Account Agreement with respect to the Concentration Account designated on Schedule 5.21(a); and
(iv) on or prior to the Closing Date, fully executed Blocked Account Agreements or Securities Account Control Agreements satisfactory in form and substance to the Agents with each Blocked Account Bank designated on Schedule 5.21(a) and applicable securities intermediary designated on Schedule 5.21(a) (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts”). Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Cash Dominion Trigger Event. After the occurrence and during the continuance of a Cash Dominion Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each case such DDA (provided, that such covenant shall not apply to (i) minimum balances as a result of may be required to be kept in the ordinary course operations of subject DDA by the Loan Partiesdepository institution at which such DDA is maintained, (ii) cash necessary for if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilitiespast practice, or (iii) any amounts held in Excluded Accounts) and all payments due from credit card processors.
(c) During any Cash Dominion Trigger Period, each Blocked Account Agreement and Securities Account Control Agreement shall require the transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to one of the concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the proceeds of all credit card charges;
(v) the then contents of each DDA (net of any minimum balance, not to exceed the Maximum DDA Balance, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(d) During any Buy-Back Standstill Period with respect to any Loan Party, so long as no Buy-Back Trigger Period has occurred and is continuing, (i) no Ordinary Blocked Account Agreement shall require any transfer of any cash receipts or collections, and (ii) each Loan Party covenants and agrees to transfer to a Prepayment Event described Concentration Account by ACH or wire transfer no less frequently than daily all amounts on deposit in clause each such Blocked Account in excess of amounts that such Loan Party reasonably deems to be necessary to satisfy projected buy-back obligations under the Permitted Buy-Back Program at each Store. In addition to inspection rights permitted under Section 6.10, the Administrative Agent shall have the right, upon reasonable prior notice to the Lead Borrower, to audit and or evaluate, or to cause professionals retained by the Administrative Agent to audit and/or evaluate, the Loan Parties’ compliance with this Section 6.13(d), and the Loan Parties shall pay the reasonable and documented expenses of the Administrative Agent or such professionals for such audits and evaluations.
(ae) or If the Borrowers fail to maintain Availability of at least thirteen and a half percent (b13.5%) of the definition Loan Cap at any time, then the Borrowers covenant and agree that the Loan Parties will establish one or more special operating accounts (“Buy-Back Trigger Period Accounts”) that can only be funded with Borrowings of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt Committed Loans in accordance with clause (xig) of this Section 6.13.
(f) During any Buy-Back Trigger Period, each Ordinary Blocked Account Agreement shall require the first proviso in transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Concentration Account of all cash receipts and collections, including, without limitation, the definition following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Disposition giving rise to a mandatory prepayment under Section 2.05(e);
(iv) the term “Refinancing Indebtedness”, proceeds of all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(g) During any Buy-Back Trigger Period, Borrowings of Committed Loans may be deposited pursuant in Buy-Back Trigger Period Accounts and the amounts on deposit in such Buy-Back Trigger Period Accounts may only be applied to Section 2.05(j) fund Permitted Buy-Back Programs or, upon the expiration of the applicable Permitted Buy-Back Programs or otherwise the occurrence of an Event of Default, to cash collateralize letters the prepayment of credit the Obligations then outstanding under and in accordance with the applicable loan or letter Credit Agreement; provided, that, except as otherwise provided in Section 8.03, upon payment in full of credit documents such outstanding Obligations, any remaining amounts will be released and (viii) cash held in any Deposit Account transferred to a deposit account of the Loan Parties which is as the Lead Borrower shall direct.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured 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 6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent. During the continuation of a Cash Dominion Trigger Event, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that except as otherwise provided in Section 8.03, upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes a Cash Dominion Trigger Event described in clause (ii)b) of the definition thereof shall not, in and of itself, impair the right of the Borrowers to Committed Loans in accordance with the terms hereof.
(iv)i) Upon the request of the Administrative Agent, (v) or (vii) the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At any time any Revolving Loans Subject to the terms of the Intercreditor Agreement:
(including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”) satisfactory in form and substance to the Agents (it being agreed that, prior to the Discharge of ABL Obligations, the Borrower form agreed by the ABL Agent (other than with respect to Term Loan Priority Account) shall notbe deemed to be reasonably acceptable to the Agents so long as the Collateral Agent is a party thereto and such agreement provides for the same rights in favor of the Collateral Agent as provided to the ABL Agent, subject to the Intercreditor Agreement), with each Blocked Account Bank, other than with respect to any Excluded Accounts (collectively, the “Blocked Accounts”). The Administrative Agent hereby acknowledges and agrees that, upon delivery of the Credit Card Notifications and Blocked Account Agreements described on Schedule 6.13, the requirements of this Section 6.13(a), and the requirements set forth below in each of Sections 6.13(b) and 6.13(c), shall be deemed to have been satisfied.
(i) Each Credit Card Notification shall require the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account of all payments due from Credit Card Issuers and Credit Card Processors, and (ii) the Borrowers shall cause each depository institution listed on Schedule 5.21(a) to cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account of all amounts on deposit in each DDA.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an ABL Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to each concentration account maintained by the Collateral Agent at Xxxxx Fargo or its Affiliates (each, a “Concentration Account”), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts, subject to the Intercreditor Agreement, (x) from the sale of Inventory and (y) from the sale of other assets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank); and
(vi) the proceeds of all credit card charges. Prior to the exercise of remedies provided for in Section 8.02 (or before the Term Loan has automatically become immediately due and payable as set forth in the proviso to Section 8.02), all amounts received in a Concentration Account from any source, including the Blocked Account Banks, shall be applied by the Administrative Agent as provided in Section 2.06.
(d) The Loan Parties shall provide the Collateral Agent (i) with written notice of any Restricted Payment or other intercompany transfer to be made to any Loan Party by any Subsidiary located outside of the United States or Canada, in each case as otherwise permitted pursuant to Sections 7.06 or 7.18, respectively, of this Agreement, no less than five (5) days prior to the receipt thereof and (ii) with written confirmation (which shall include a fed reference number, if applicable) on the date of the receipt of any such Restricted Payment or other intercompany transfer.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(f) Upon Administrative Agent’s reasonable request, all net proceeds of Term Priority Collateral shall be remitted to the Term Loan Priority Account. The Term Loan Priority Account shall be subject to a Blocked Account Agreement in form and substance reasonably satisfactory to the Agents.
(g) After the Discharge of ABL Obligations, all collections and proceeds of the Collateral shall be deposited in the Term Loan Priority Account or as otherwise agreed to by the Administrative Agent.
(h) The Loan Parties shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) or cash equivalents in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: 75,000,000 (other than (i) “store” cash, operating cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses business the current liabilities incurred by them in the ordinary course of their business and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso accumulate and be maintained in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments deposit or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account investment accounts of the Loan Parties which is under and their Subsidiaries (it being understood and agreed that all such excess amounts shall be remitted to the sole dominion and control of ABL Agent for application to the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower ABL Obligations then outstanding); provided, however, that (x) this Section 6.13(h) shall not borrow any Revolving Loans or Other Revolving Loans restrict amounts maintained in an aggregate principal amount deposit accounts of more than $100,000,000 over any three consecutive Business Day period Subsidiaries, which accounts and Subsidiaries are located in and organized in Asia, so long as such amounts are permitted to be maintained in such accounts and Subsidiaries pursuant to the terms of this Agreement, and (y) the Loan Parties’ obligations under this Section 6.13(h) shall be suspended if the purpose of such Borrowings is to accumulate cash on hand (other than and for any of the purposes described in clause (ii), (iv), (v) or (vii) above)so long as there are no ABL Obligations outstanding.
Appears in 1 contract
Cash Management. At (a) Within 30 days of the occurrence of a Specified Default that is continuing, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower Borrowers, upon the request of the Administrative Agent, shall notdeliver to the Administrative Agent a schedule of all DDAs that, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository, (ii) cash necessary the account number(s) maintained with such depository and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Third RestatementFirst Amendment Effective Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card and debit card charges for sales by such Loan Party.
(c) To the extent not previously delivered, each Loan Party shall:
(i) on or prior to the 30th day after the Third RestatementFirst Amendment Effective Date or such later date as the Administrative Agent shall agree in writing, deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) on or prior to the 90th day after the Third RestatementFirst Amendment Effective Date or such later date as the Administrative Agent shall agree in writing, enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Administrative Agent, with any Blocked Account Bank, including, without limitation, with respect to the DDAs in which material amounts (as reasonably determined by the Administrative Agent in its Permitted Discretion) of funds of any of the Loan Parties to satisfy from one or more DDAs are concentrated (excluding, for the current liabilities incurred by such Loan Parties avoidance of doubt, (x) the Designated Account, (y) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration required by Applicable Law, and (z) unless an Event of Default is then continuing, any xxxxx cash accounts funded in the ordinary course of business, the deposits in which do not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree)) (including those DDAs existing on the Third RestatementFirst Amendment Effective Date and listed on Schedule 2.18(c) attached hereto, collectively, the “Material DDAs” and, to the extent, subject to a Blocked Account Agreement, collectively, the “Blocked Accounts”).
(d) Each Credit Card Notification and Blocked Account Agreement entered into by a Loan Party shall require (after delivery of notice to the Blocked Account Bank from the Collateral Agent (which notice may (or shall at the direction of the satisfaction Required Lenders) only be given by the Collateral Agent during the continuance of such current liabilitiesa Cash Dominion Event)) the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account”)) to the collection account maintained by the Administrative Agent at Xxxxx Fargo (the “Collection Account”), from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event, but excluding, until the Term Loan Facility is repaid in full, any Term Priority Collateral);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) the all Net Proceeds received on account of any Prepayment Event (other than, until the Term Loan Facility is repaid in respect of full, a Prepayment Event described arising in clause connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA, net of any minimum balance not to exceed $5,000 per account (or such greater amount as the Administrative Agent may agree in its Permitted Discretion) as may be required to be kept in such DDA by the institution at which such DDA is maintained to the extent set forth in the applicable Blocked Account Agreement); and
(v) the cash proceeds of all credit card and debit card charges. If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents owned by any Loan Party (other than (i) amounts on deposit in the Designated Account, which funds, shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree) and (iii) 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 (or a DDA which is swept daily to a Blocked Account), then (a) the Borrowers shall cause all funds in such accounts or so held or so invested to be transferred with such frequency as may be reasonably required by the Administrative Agent to a Blocked Account (or a DDA which is swept daily to a Blocked Account) or (b) the Collateral 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. In addition to the foregoing, during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Collateral Agent with an accounting of the definition contents of “Prepayment Event” for the Blocked Accounts, which shall identify, to the Borrower is permitted reasonable satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to apply the Collection Account. Upon the receipt of (x) the contents of the Blocked Accounts and (y) such Net Proceeds as a reinvestment accounting, the Collateral Agent agrees to acquire real property, equipment or other tangible assets pursuant promptly remit to Section 2.11(c) or any equivalent provision the agent under any Additional Senior Debt Document, (iv) cash the Term Loan Facility the proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause Term Priority Collateral received by the Administrative Agent.
(xie) of the first proviso in the definition of the term “Refinancing Indebtedness”[Reserved].
(f) The Loan Parties may close Material DDAs or Blocked Accounts and/or open new Material DDAs or Blocked Accounts, (v) cash proceeds of Refinancing Indebtedness subject to the extent that execution and delivery to the applicable Refinanced Debt consists Collateral Agent of unused Revolving Commitments or Other Revolving Commitments that have been terminated appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Blocked Account Agreement with respect to any Material DDA acquired by a Loan Party in connection with a Permitted Acquisition or other Permitted Investment until the issuance date that is 90 days (or such later date as the Administrative Agent may agree in its discretion) after the consummation of such Refinancing IndebtednessPermitted Acquisition or other Permitted Investment). The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account, (vi) cash held and in any Deposit the case of the opening of a new account, the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance Agreement with the applicable loan Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or letter of credit documents debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent (viii) cash held in any Deposit Account of provided that, the Loan Parties shall not be required to deliver a Credit Card Notification with respect to the credit card or debit card processors of any Loan Party acquired in a Permitted Acquisition or other Permitted Investment until the date that is 90 days (or such later date as the Administrative Agent may agree in its discretion) after the consummation of such Permitted Acquisition or other Permitted Investment).
(g) The Borrowers may also maintain one or more disbursement accounts, which is shall not be subject to Blocked Account Agreements, to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent. Each Borrower hereby acknowledges and agrees that (i) such Borrower has no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, 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 Collateral 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 Collection Account or dealt with in such other fashion as such Borrower may be instructed by the Collateral Agent.
(i) Any amounts received in the Collection 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.
(j) The Collateral Agent shall 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.
(k) The following shall apply to deposits and payments under and pursuant to this Agreement, subject to SECTION 2.18(i):
(i) funds shall be deemed to have been deposited to the Collection Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that, if the Collateral Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Administrative Agent, other than by deposit to the Collection 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that, if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(iii) if a deposit to the Collection Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the next Business Day;
(iv) if any item deposited to the Collection Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return; and
(v) or (vii) above)all amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.04.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingImmediately upon the occurrence of a Cash Dominion Event, the Borrower shall notLoan Parties, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Co-Collateral Agent, shall deliver to the Co-Collateral Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each 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) [Reserved.]
(c) Each Loan Party has or shall have:
(i) delivered to the Administrative Agent and the Canadian Agent, as applicable, notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit I which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors. Except as otherwise amended or supplemented by the Lead Borrower in writing to the Administrative Agent on or prior to the Effective Date, Schedule 2.18(b) to the Existing Credit Agreement sets forth all credit card processing agreements as of the Effective Date;
(ii) entered into a blocked account agreement (each, a “Blocked Account Agreement”) in form and substance reasonably satisfactory to the Co-Collateral Agents or the Canadian Agent, as applicable, with any bank with which such Loan Party maintains deposit account(s) into which the DDA’s are swept (collectively, the “Blocked Accounts”). Except as otherwise amended or supplemented by the Lead Borrower in writing to the Administrative Agent on or prior to the Effective Date, Schedule 2.18(c)(ii) to the Existing Credit Agreement sets forth all Blocked Accounts as of the Effective Date.
(d) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash necessary for receipts (the “Cash Receipts”) (other than amounts not to exceed $25,000,000 in the aggregate which may be deposited into a segregated DDA (not to be located in the Province of Quebec, Canada) which the Lead Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Account”)) to the concentration account maintained by the Administrative Agent at Bank of America (the “Domestic Concentration Account”) or maintained by the Canadian Agent (the “Canadian Concentration Account”), from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds on account of any Prepayment Event;
(iv) each Blocked Account (including all cash deposited therein from each DDA (other than the Designated Account); and
(v) the cash proceeds of all credit card charges; provided that Cash Receipts of the Canadian Loan Parties shall be delivered only to a Blocked Account established by the Canadian Borrower or as the Canadian Agent may otherwise direct.
(e) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than (i) an amount of up to $25,000,000 that is on deposit in the Designated Account, which funds shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) de minimus cash or cash equivalents inadvertently misapplied by the Loan Parties to satisfy the current liabilities incurred by such Loan Parties and (iii) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of required by Applicable Law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), any Co-Collateral Agent (after consultation with the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (aother Co-Collateral Agent) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance Canadian Agent may require the applicable Refinanced Debt in accordance with clause 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.
(xif) of the first proviso in the definition of the term “Refinancing Indebtedness”The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, (v) cash proceeds of Refinancing Indebtedness subject to the extent that execution and delivery to the applicable Refinanced Debt consists Administrative Agent or the Canadian Agent, as applicable, of unused Revolving Commitments appropriate Blocked Account Agreements (unless expressly waived by the Co-Collateral Agents or Other Revolving Commitments that have been terminated in connection the Canadian Agent) consistent with the issuance provisions of such Refinancing Indebtednessthis SECTION 2.18 and otherwise reasonably satisfactory to the Co-Collateral Agents and, (vi) cash held in any Deposit if applicable, the Canadian Agent. The Loan Parties shall furnish the Co-Collateral Agents with prior written notice of their intention to open or close a Blocked Account relating and the Co-Collateral Agents shall promptly notify the Lead Borrower as to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance whether the Co-Collateral Agents shall require a Blocked Account Agreement with the applicable loan or letter of credit documents and (viii) cash held Person with whom such account will be maintained. Unless consented to in any Deposit Account of writing by the Co-Collateral Agents and, if applicable, the Canadian Agent, the Loan Parties which shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless, contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Administrative Agent or the Canadian Agent, as applicable.
(g) The Loan Parties may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) The Domestic Concentration Account and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent or the Canadian Agent, as applicable. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from such Concentration Accounts, (ii) the funds on deposit in such Concentration Accounts shall at all times continue to be collateral security for all of the Obligations and the Other Liabilities, provided that funds in the Canadian Concentration Account shall be applied only to the Canadian Liabilities, and (iii) the funds on deposit in each such Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent or the Canadian Agent, as applicable, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the applicable Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Co-Collateral Agents or the Canadian Agent, as applicable.
(i) Any amounts received in the Domestic Concentration Account or the Canadian Concentration Account at any time when all of the Obligations or the Canadian Liabilities, as applicable, and Other Liabilities then due have been and remain fully repaid shall be remitted to the operating account of the Domestic Borrowers or the Canadian Borrower maintained with the Administrative Agent or the Canadian Agent, respectively.
(j) The Administrative Agent or the Canadian Agent, as applicable, shall promptly (but in any event within one (1) Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(k) 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 applicable Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Collateral Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(ii) Funds paid to the Administrative Agent has exclusive rights of withdrawal with respect or the Canadian Agent, as applicable, 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 Deposit Accounts. The Borrower payment is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m. on that Business Day (except that, if the Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. on that Business Day);
(iii) If a deposit to a Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. (or, to the Canadian Agent, until after 2:00 p.m.) on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to a Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent or the Canadian Agent, as applicable, shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the applicable Loan Parties shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 1 contract
Samples: Credit Agreement (Toys R Us Inc)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date, deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Processors listed on Schedule 5.21(b).
(b) The Loan Parties shall comply with the cash management provisions of the ABL Loan Agreement, including, but not limited to the provisions contained in Section 6.13 of the ABL Loan Agreement.
(c) [Reserved].
(d) [Reserved].
(e) [Reserved]
(f) Upon the written request of the Administrative Agent, the Borrower Loan Parties shall notcause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(g) The parties hereto hereby acknowledge, confirm and shall agree that the implementation of the cash management arrangements contemplated herein is a contractual right provided to the Administrative Agent and the Lenders hereunder in order for the Administrative Agent and the Lenders to manage and monitor their collateral position and not permit any Subsidiary Loan Party a proceeding for enforcement or recovery of a claim, or pursuant to, permit or an enforcement of, any security or remedies whatsoever, the cash management arrangements contemplated herein are critical to the structure of the lending arrangements contemplated herein, the Administrative Agent and Lenders are relying on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties’ acknowledgement, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores confirmation and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal agreement with respect to such Deposit Accounts. The Borrower cash management arrangements in making accommodations of credit available to them and in particular that any accommodations of credit are being provided by the Administrative Agent and Lenders strictly on the basis of a borrowing base calculation to fully support and collateralize any such accommodations of credit hereunder and the Loan Parties hereby further acknowledge, confirm and agree that subject to the Intercreditor Agreement the Administrative Agent and Lenders shall not borrow have the contractual right to continue to apply the contemplated cash management arrangements contemplated herein notwithstanding any Revolving Loans default, termination or Other Revolving Loans in an aggregate principal amount non-renewal of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for this Agreement or any of the purposes described credit facilities contemplated herein or any stay of proceedings or filing in clause (ii)connection with any proceeding under any Debtor Relief Laws as a matter of, (iv)and shall be considered and deemed to be a matter of, (v) replacing and monitoring the Administrative Agent’s and Lenders’ Collateral and not as an enforcement of any of their security or (vii) above)Liens.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Destination Maternity Corp)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand shall
(including i) deliver to the proceeds Administrative Agent a schedule of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be all DDAs maintained in the Deposit Accounts of by the Loan Parties, providedwhich schedule includes, thatwith respect to each depository (A) the name and address of such depository, (B) the account number(s) maintained with such depository and (C) a contact person at such depository; and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), satisfactory in form and substance to the Administrative Agent in its reasonable discretion, with respect to each Concentration Account existing as of the Closing Date (other than any Concentration Account maintained with the Collateral Agent); provided that to the extent that the Collateral Agent has been granted control, as determined by the Collateral Agent in its sole discretion, with respect to the Existing Accounts, the Loan Parties are not required to comply with the foregoing clause (a).
(b) Each Blocked Account Agreement or such other account control agreement, if applicable, for purposes hereofeach Concentration Account shall require, during the continuance of a Cash Control Trigger Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day of all available cash receipts held in the Concentration Account to a concentration account maintained by the Administrative Agent at Citibank, N.A. (the “cash on hand” shall exclude the following: Agent Concentration Account”).
(c) If (i) “store” cashat any time during the continuance of a Cash Control Trigger Event, any cash or Cash Equivalents owned by a Loan Party are deposited in transit between stores and local Deposit Accounts and cash receipts from sales any account (other than an Excluded Account), or held or invested in any manner (other than (x) in the process of inter-account transfersConcentration Account that is subject to the Blocked Account Agreement, (y) in each case as a result of Concentration Account that is maintained with the ordinary course operations of the Loan PartiesCollateral Agent or (z) a DDA which is swept daily to a Concentration Account subject to a Blocked Account Agreement), or (ii) cash necessary for at any time, a Concentration Account shall cease to be subject to a Blocked Account Agreement, the applicable Loan Party shall as soon as practicable furnish the Collateral Agent with written notice thereof and the Administrative Agent may require such Loan Party to close such account and have any such funds transferred to a Concentration Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Cash Control Trigger Event, the Loan Parties shall, upon the request of the Administrative Agent, provide such Agent with an accounting of the contents of the Concentration Accounts, which shall identify, to satisfy the current liabilities incurred by extent practicable, any proceeds from Term Facility Collateral which were deposited into any Loan Party Concentration Account and swept to the Agent Concentration Account. Upon the receipt of (x) the contents of such Loan Party Concentration Accounts and (y) such accounting, the Administrative Agent agrees to promptly remit to the Collateral Agent such proceeds of Term Facility Collateral received by the Administrative Agent for application in accordance with the Intercreditor Agreement.
(d) A Loan Party may close DDAs or a Concentration Account, maintain existing DDAs or Concentration Accounts and/or open new DDAs or Concentration Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements with respect to each Concentration Account (except with respect to any Concentration Account maintained with the Collateral Agent) consistent with the provisions of this Section 2.17 and otherwise reasonably satisfactory to the Administrative Agent. The applicable Loan Party shall furnish the Administrative Agent with prior written notice of its intention to open or close a Concentration Account and the Administrative Agent shall promptly notify such Loan Party as to whether the Administrative Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained.
(e) The Loan Parties may also maintain one or more disbursement accounts which shall be used by the Loan Parties solely for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesbusiness or as otherwise permitted hereunder (any account so used, a “Disbursement Account”).
(iiif) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) it has no right of withdrawal from the Agent Concentration Account, (ii) the funds on deposit in the Agent Concentration Account shall at all times continue to be collateral security for all of the Secured Obligations, and (iii) the funds on deposit in the Agent Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 2.17, during the continuance of a Cash Control Trigger Event, a Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(g) Any amounts remaining in the Agent Concentration Account at any time when all of the Advances (whether then due or not) and all of the other Obligations under the Loan Documents then due have been and remain fully repaid shall, subject to the requirements under the Term Facility Loan Documents, be remitted to the primary Concentration Account of the Borrower maintained with the Administrative Agent.
(h) The Collateral Agent if shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Concentration Account is maintained when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement.
(i) Subject to Section 2.17(c), any amounts received in the Collateral Agent has exclusive rights Concentration Account shall be applied to the payment (without a corresponding reduction of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans Commitments) of all of the Advances (whether then due or Other Revolving Loans in an aggregate principal amount not) and all of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand other Obligations under the Loan Documents (other than for any contingent obligations) (whether then due or not) in the order provided in Section 21(b) of the Revolving Facility Security Agreement (with all Advances deemed due for purposes described thereof).
(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 Agent Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in clause full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Administrative Agent, other than by deposit to the Agent 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 by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day); and
(iii) if a deposit to the Agent Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, (iv), (v) such deposit or (vii) above)payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day.
Appears in 1 contract
Samples: Revolving Credit and Guaranty Agreement (Dana Holding Corp)
Cash Management. At (a) Within thirty (30) days of the occurrence of Specified Default, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower shall notBorrowers, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Agent, shall deliver to the Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Effective Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for the Loan Parties to satisfy the current liabilities incurred sales by such Loan Parties Party.
(c) On or prior to the Effective Date, to the extent not previously delivered, each Loan Party shall:
(i) deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Agents, with any Blocked Account Bank, including, without limitation, with respect to the deposit accounts existing as of the Effective Date listed on Schedule 2.18(c) attached hereto (collectively, the “Blocked Accounts”).
(d) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Financing Facility is repaid in full, a Prepayment Event arising in connection with the Term Loan Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA; and
(v) the cash proceeds of all credit card charges.
(e) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $3,000,000 or exceed $10,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), and without acceleration 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 is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral 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, the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the satisfaction of such current liabilitiesthe Collateral Agent, the proceeds from the Term Loan Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (iiix) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) contents of the definition of “Prepayment Event” for which Blocked Accounts, and (y) such accounting, the Borrower is permitted Collateral Agent agrees to apply such Net Proceeds as a reinvestment promptly remit to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision the agent under any Additional Senior Debt Document, (iv) cash the Term Loan Financing Facility the proceeds of Refinancing Indebtedness the Term Loan Priority Collateral received by the Administrative Agent.
(f) 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 Collateral Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust and tax withholding accounts or unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not yet applied enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to Refinance the applicable Refinanced Debt in accordance with clause Collateral Agent.
(xig) of The Borrowers may also maintain one or more disbursement accounts (the first proviso “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the definition ordinary course of the term “Refinancing Indebtedness”, business or as otherwise permitted hereunder.
(vh) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral 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 2.18, 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 Collateral 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 Collateral Agent.
(i) 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.
(j) The Collateral Agent shall 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.
(k) 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, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Obligations or are being paid in full, by 2:00 p.m. on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return;
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.03.
Appears in 1 contract
Samples: Credit Agreement (Burlington Coat Factory Investments Holdings, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, the Borrower Each Credit Party shall not, establish and shall not permit any Subsidiary Loan Party to, permit maintain cash management services of a type and on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 terms satisfactory to accumulate and be maintained in the Deposit Accounts Agent at one or more of the Loan Partiesbanks set forth on Schedule 5.17 (each, provideda “Cash Management Bank”), thatand, for purposes hereofin connection therewith, establish and maintain at such Cash Management Banks pursuant to the terms hereof one or more accounts designated (either in Schedule 5.17 or pursuant to Section 2.7(h)) as concentration accounts (the “cash on hand” shall exclude the following: Concentration Accounts”) and additional accounts designated (either in Schedule 5.17 or pursuant to Section 2.7(h)) as (i) consolidated store deposit accounts (the “store” cash, cash in transit between stores and local Consolidated Store Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan PartiesAccounts”), (ii) cash necessary for individual store deposit accounts (the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses “Individual Store Accounts”) and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause home office deposit account (a) or the “Home Office Account” and together with the Concentration Accounts, the Consolidated Store Deposit Accounts and the Individual Store Accounts, the “Cash Management Accounts”).
(b) Except as otherwise specifically permitted in this Section 2.7, each Credit Party shall (1) request in writing and otherwise take such reasonable steps to ensure that all of its Account Debtors forward payment of the definition amounts owed by them directly to a Cash Management Bank for deposit into a Concentration Account, (2) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of “Prepayment Event” for which receipt thereof (and subject to Section 2.7(g) with respect to payments from Credit Card Processors), all such available Collections from Account Debtors (including those sent directly to a Cash Management Bank) into a Concentration Account, and (3) deposit or cause to be deposited promptly, and in any event no later than the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real propertyfirst Business Day after the date of receipt thereof, equipment all other available Collections (including cash, checks, drafts and all other forms of daily store receipts or other tangible assets pursuant to Section 2.11(csimilar items of payment) received by or any equivalent provision otherwise under any Additional Senior Debt Documentits control into a Cash Management Account provided, so long as no Triggering Period shall have occurred and be continuing, (ivi) cash proceeds the Credit Parties may maintain Collections in other Deposit Accounts as permitted under this Section 2.7, and (ii) the Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account. For purposes of Refinancing Indebtedness clarification, funds that need not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness be swept to the extent that specifically provided in this Section 2.7 and after funds are swept pursuant to any provision of this Section 2.7 to the applicable Refinanced Debt consists Designated Account, they may be used by the Borrower for its general corporate purposes.
(c) Each Credit Party further agrees to cause each of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any its stores which utilize a Consolidated Store Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required cause all Collections for such store to be deposited into a Consolidated Store Deposit Account and each Credit Party agrees that with respect to each Consolidated Store Deposit Account, it shall, at all times require each applicable Cash Management Bank to forward, by automatic periodic transfers on a daily basis, if practicable, and otherwise, once every three (3) Business Days, all available amounts in each such Consolidated Store Deposit Account into a Concentration Account; provided, (i) immediately after giving effect to each such transfer from any Consolidated Store Deposit Account into a Concentration Account, each Credit Party may maintain an amount not to exceed (x) $50,000 of available funds in any such Consolidated Store Deposit Account and (y) $5,000,000 in available funds in the aggregate in all such Consolidated Store Deposit Accounts, (ii) so long as no Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(d) Each Credit Party further agrees that with respect to each store which utilizes an Individual Store Account, such store shall cause all Collections for such store to be deposited into such Individual Store Account and each Credit Party agrees that with respect to each Individual Store Account it shall, at all times require each applicable Cash Management Bank to forward, by automatic periodic transfers on a regular basis, but in no event less frequently than once in any ten (10) day period, all available amounts in each such Individual Store Account into a Concentration Account; provided, however, that (i) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $5,000, (ii) immediately after giving effect to each such transfer from such Individual Store Account into a Concentration Account, the Credit Parties may maintain an available amount not to exceed $5,000 in such Individual Store Account, and (iii) so long as no Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(e) Each Credit Party further agrees that with respect to the Home Office Account, it shall, at all times require the applicable Cash Management Bank to forward, by automatic periodic transfers on a regular basis, but in no event less frequently than once in any ten (10) day period, all available amounts in the Home Office Account into (either directly or indirectly) a Concentration Account or another account under the control of WFRF or any of its Affiliates; provided, however, that (x) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $100,000, (y) immediately after giving effect to each such transfer from the Home Office Account into a Concentration Account or such other account under the control of WFRF or any of its Affiliates, the Credit Parties may maintain an available amount not to exceed $100,000 in such Home Office Account, and (z) so long as no Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(f) Each Credit Party further agrees that with respect to the Group Concentration Account, it shall, at all times require the applicable Cash Management Bank to forward, by automatic periodic transfers on a daily basis, all available amounts in the Group Concentration Account into (either directly or indirectly) a Concentration Account; provided, however, that (x) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $5,000,000, (y) immediately after giving effect to each such transfer from the Group Concentration Account into a Concentration Account, the Credit Parties may maintain an available amount not to exceed $5,000,000 in such Group Concentration Account, and (z) so long as no Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(g) With respect to each Concentration Account, each Cash Management Bank shall establish and maintain Cash Management Agreements with Agent and the applicable Credit Party, in form and substance acceptable to Agent in its Permitted Discretion; provided; however, that, with respect to Consolidated Store Deposit Accounts, Individual Store Accounts and the Home Office Account no Credit Party shall be obligated to establish a Cash Management Agreement. Each Cash Management Agreement shall provide, among other things, that (i) all items of payment deposited in such Concentration Account and proceeds thereof are subject to the control of Agent, (ii) the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Concentration Account other than for payment of its service fees and other charges directly related to the administration of such Concentration Account and for returned checks or other items of payment, and (iii) from and after the date that it receives written notification from Agent (a “Control Exercise Notice”), it immediately will forward by daily sweep all amounts in the applicable Concentration Account to the Agent’s Account or as otherwise directed by Agent to prepay the Obligations in such order as set forth in Section 2.4(b); provided, that any such prepayments of the Loans pursuant to this Section 2.05(j2.7(f) may be reborrowed subject to Section 3.3. Anything contained herein or in any other Loan Document to the contrary notwithstanding, Agent agrees that it shall not provide a Control Exercise Notice to the Cash Management Banks except during a Triggering Period. At any time during a Triggering Period but only during a Triggering Period, Agent shall be free to exercise its right to issue a Control Exercise Notice. Agent shall deliver to Borrower and the applicable Credit Party a copy of any such Control Exercise Notice promptly after delivery thereof to the applicable Cash Management Bank; provided, however that a non-willful failure to so do shall not affect the validity of any such Control Exercise Notice or otherwise limit Agent’s right to cash collateralize letters send any other Control Exercise Notice. Upon the subsequent termination of such Triggering Period, Agent shall withdraw such Control Exercise Notice and permit funds to be transferred as set forth above, including permitting each Credit Party access to funds in any Concentration Account (and daily sweeps thereof into any Designated Account), but subject in all events to the right of Agent to deliver a Control Exercise Notice during any subsequent Triggering Period.
(h) Each Credit Party may establish and maintain Credit Card Agreements with Agent and each Credit Card Processor. Each such Credit Card Agreement shall provide, among other things, that each such Credit Card Processor shall transfer all proceeds of credit card charges for sales by each Credit Party received by it (or other amounts payable by such Credit Card Processor) into a designated Concentration Account on a daily basis or such other periodic basis as Agent may otherwise direct. No Credit Party shall change any direction or designation set forth in the Credit Card Agreements regarding payment of charges without the prior written consent of Agent.
(i) So long as no Event of Default has occurred and is continuing, Borrower may amend Schedule 5.17 to add or replace a Cash Management Bank or Cash Management Account; provided, however, that in the case of any Concentration Account, (i) such prospective Cash Management Bank shall be reasonably satisfactory to Agent and Agent shall have consented in writing in advance to the opening of such Concentration Account with the prospective Cash Management Bank (which consent shall not be required with respect to any additional Concentration Account at an existing Cash Management Bank and otherwise shall not be unreasonably withheld), and (ii) prior to the time of the opening of any Concentration Account, the applicable Credit Party and such prospective Cash Management Bank shall have executed and delivered to Agent a Cash Management Agreement. Each Credit Party shall close any of its Concentration Accounts (and establish replacement cash management accounts in accordance with the applicable loan or letter of credit documents foregoing sentence) promptly and (viii) cash held in any Deposit Account event within 45 days of notice from Agent (or such longer period as such Credit Party and Agent may agree) that the creditworthiness of any Cash Management Bank is no longer acceptable in Agent’s reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Agent (or such longer period as such Credit Party and Agent may agree) that the operating performance, funds transfer, or availability procedures or performance of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal Cash Management Bank with respect to Concentration Accounts or Agent’s liability under any Cash Management Agreement with such Deposit AccountsCash Management Bank is no longer acceptable in Agent’s reasonable judgment. The Borrower Cash Management Accounts shall not borrow any Revolving Loans or Other Revolving Loans be cash collateral accounts, with all cash, checks and similar items of payment in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any accounts securing payment of the purposes described Obligations, and in clause (ii), (iv), (v) or (vii) above)which each Credit Party hereby grants a Lien to Agent.
Appears in 1 contract
Samples: Loan and Guaranty Agreement (Payless Shoesource Inc /De/)
Cash Management. At (a) Within 90 days after the Closing Date (or such longer period as the Administrative Agent may reasonably agree) the ABL Administrative Borrower and each other Loan Party shall:
(i) enter into blocked account agreements (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and any time bank with which any Revolving Loans Loan Party maintains any DDA (including any Other Revolving Loans) are outstandingother than Excluded Accounts, zero balance accounts, the Borrower shall notDesignated Disbursement Account and DDAs with balances not exceeding for a period of at least five consecutive Business Days $100,000 individually or $5,000,000 in the aggregate) (each, a “Blocked Account”) covering each such Blocked Account maintained with such bank; and
(ii) ensure that all cash, checks, proceeds of collections of Accounts and shall not permit other amounts received by or on behalf of any Subsidiary Loan Party to, permit cash on hand (including the constituting proceeds of any Revolving Loan and any Other Revolving Loans) sales of Inventory are deposited promptly upon receipt in an aggregate amount in excess of $200,000,000 to accumulate and be accordance with historical practices into a DDA maintained in the Deposit Accounts name of such Loan Party; provided that the Loan PartiesParties may maintain credit balances (including cash and Cash Equivalents) in DDAs or other deposit or securities accounts that are Excluded Accounts and in the Designated Disbursement Account;
(b) Notwithstanding anything herein to the contrary, provided, the provisions of this Section 5.17 will not apply to any deposit account that is acquired by a Loan Party in connection with a Permitted Acquisition or other Investment permitted under this Agreement prior to the date that is 90 days (or such later date as the Administrative Agent may reasonably agree) following the date of such Permitted Acquisition or other Investment; provided that, for purposes hereof, “cash on hand” shall exclude with respect to the following: foregoing Sections 5.17(a) and (b):
(i) “store” cashEach Blocked Account Agreement will require, during a Cash Dominion Period and upon receipt by the ABL Administrative Borrower of written notice thereof by the Administrative Agent, wire transfer at the end of each Business Day of all available cash in transit between stores and local Deposit Accounts balances and cash receipts from sales in of each Blocked Account, net of any minimum balance, if any, required by the process of inter-bank at which such Blocked Account is maintained to an account transfersestablished with, in each case as a result of and subject to the ordinary course operations of control of, the Loan Parties, Administrative Agent (the “Dominion Account”); and
(ii) All collected amounts received in the Dominion Account during a Cash Dominion Period and upon receipt by the ABL Administrative Borrower of written notice thereof by the Administrative Agent shall be distributed and applied on a daily basis to the repayment of all Loans outstanding under this Agreement and to the payment of all other Obligations then due and owing pursuant to the waterfall set forth in Section 2.21(b) (provided that amounts applied pursuant to subclause (4) and (7) thereof will be applied first to ABR Loans and second to Eurodollar Loans), with any excess, unless an Event of Default shall have occurred and be continuing, to be remitted to the Borrowers; provided that the foregoing provisions of this Section 5.17 will not apply to cash necessary for or Cash Equivalents constituting Term Priority Collateral; provided, further, that the foregoing will not apply to cash or Cash Equivalents deposited, held or invested in any of the following:
(A) any Excluded Account;
(B) an amount not to exceed $10,000,000 in the aggregate that is on deposit in a segregated DDA that the ABL Administrative Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Disbursement Account”), which funds will not be funded from, or when withdrawn from the Designated Disbursement Account, will not be replenished by, funds constituting Collateral (or proceeds of Collateral) so long as such Cash Dominion Period continues; or
(C) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party or any Restricted Subsidiary.
(iii) The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to reasonably prompt execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with the provisions of this Section 5.17; provided, that the Loan Parties to satisfy may close DDAs or open new DDAs that are Excluded Accounts without the current liabilities incurred by such Loan Parties in consent of the ordinary course of their businesses Administrative Agent and without acceleration of the satisfaction of executing or delivering any such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, Blocked Account Agreement.
(iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Dominion Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to will at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent.
(v) So long as no Cash Dominion Period is then in effect or the Administrative Agent if is not otherwise exercising its secured creditor remedies, the Collateral Agent has exclusive rights Loan Parties will have full and complete access to, and may direct the manner of withdrawal disposition of, funds in the Blocked Accounts.
(vi) Any amounts held or received in the Dominion Account (including all interest and other earnings with respect to such Deposit Accounts. The Borrower shall not borrow thereto, if any) at any time (i) after this Agreement has been terminated, the Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if Credit Commitments have been terminated and the purpose of such Borrowings is to accumulate cash on hand Obligations (other than Obligations in respect of (x) Specified Hedge Agreements and Cash Management Obligations and (y) contingent indemnification and reimbursement obligations for any which no claim has been asserted) have been paid in full and all Letters of Credit have expired, terminated or been cash collateralized in a manner consistent with Section 2.8(k) or otherwise backstopped by another letter of credit in a manner reasonably satisfactory to the purposes described in clause applicable Issuing Bank (ii), (iv), (vor other arrangements with respect thereto reasonably satisfactory to the applicable Issuing Bank have been made) or (viiii) above)when all Events of Default have been cured and no Cash Dominion Period is then in effect will be remitted to the Loan Parties as the ABL Administrative Borrower may direct.
Appears in 1 contract
Cash Management. At (a) Each Borrower shall use commercially reasonable efforts to enter into a control agreement (which may in the form of an amendment to, or amendment and restatement of, any time existing control agreements, each, a “Blocked Account Agreement”) as soon as possible after the Closing Date and, in any Revolving Loans event, shall have actually entered into such Blocked Account Agreements within 90 days after the Closing Date (including or such later date approved by the Administrative Agent in its reasonable discretion), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and any Other Revolving Loansbank with which such Borrower maintains a primary concentration Deposit Account in the US or Canada (other than an Excluded Account, a “Concentration Account”) are outstanding(collectively, the “Blocked Accounts”). In the event that (x) any US Borrower acquires or establishes any Concentration Account after the Closing Date or (y) any US subsidiary or Canadian subsidiary becomes a Borrower and as of such date such Borrower maintains any Concentration Account in the US or Canada, such Borrower shall notenter into a Blocked Account Agreement with respect to such Concentration Account within 90 days following the date such Deposit Account is acquired or such US or Canadian subsidiary became a Borrower, as applicable (or such longer period as the Administrative Agent may reasonably agree).
(b) Each Borrower agrees that it will cause all cash payments of Accounts owed to any Borrower (other than any Cash deposited in a Designated Disbursement Account) to be deposited into a Blocked Account (or accounts that are swept at least weekly to Blocked Accounts).
(c) Each Blocked Account Agreement shall require, after the delivery of notice of a Cash Dominion Period from the Administrative Agent to the Borrower Representative and the other parties to such Blocked Account Agreement (which the Administrative Agent may, or upon the request of the Required Lenders shall, provide upon its becoming aware of such Cash Dominion Period), the ACH or wire transfer no less frequently than once per Business Day (unless the Termination Date shall not permit any Subsidiary Loan Party tohave actually occurred), permit cash on hand (of all available Cash balances, Cash receipts and Cash Equivalents, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loans) each Blocked Account (net of such minimum balance, not to exceed $500,000 per account or $4,000,000 in an the aggregate amount in excess of $200,000,000 for all such accounts, as may be required to accumulate and be maintained in the Deposit Accounts of subject Blocked Account by the Loan Partiesbank at which such Blocked Account is maintained and other than any Cash deposited in a Designated Disbursement Account), provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-to an account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is maintained under the sole dominion and control of the Collateral Administrative Agent (the “Administrative Agent Account”). All amounts received in the Administrative Agent Account shall be applied (and allocated) by the Administrative Agent in accordance with Section 2.11(a)(iii)); provided, that if the Collateral Agent has exclusive rights circumstances described in Sections 2.18(b) are applicable, all such amounts shall be applied in accordance with such Sections 2.18(b). Each Borrower agrees that it will not cause any proceeds of withdrawal with respect any Blocked Account to such Deposit Accounts. The be otherwise redirected.
(d) If, at any time after the occurrence and during the continuance of a Cash Dominion Period, any Cash or Cash Equivalents owned by any Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than (i) an amount not to exceed $5,000,000 in the aggregate that is on deposit in a segregated Deposit Account which the Borrower Representative designates in writing to the Administrative Agent as being the “uncontrolled cash account,” (each such account, a “Designated Disbursement Account” and collectively, the “Designated Disbursement Accounts”), which funds shall not be funded from, or when withdrawn from the Designated Disbursement Accounts, shall not be replenished by, funds constituting cash payments of Accounts owed to any Borrower so long as such Cash Dominion Period continues, (ii) de minimis Cash or Cash Equivalents from time to time inadvertently misapplied by any Borrower, (iii) payroll, trust and tax withholding accounts funded in the ordinary course of business and required by applicable Requirements of Law and (iv) accounts that are swept at least weekly to Blocked Accounts (solely to the extent amounts on deposit in such accounts do not exceed $5,000,000 in the aggregate)) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement or a lockbox, the Administrative Agent shall be entitled to require the applicable Borrower to close such account and have all funds therein transferred to a Blocked Account, and to cause all future deposits to be made to a Blocked Account.
(e) The Borrowers may close any then-existing Deposit Accounts and/or open new Deposit Accounts without the Administrative Agent’s consent, subject in the case of opening new Concentration Accounts by such Borrowers, to the execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with the provisions of this Section 5.13 and otherwise reasonably satisfactory to the Administrative Agent within 90 days of the opening thereof (or such longer period as the Administrative Agent may reasonably agree).
(f) The Administrative Agent 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 Administrative Agent Account, (ii) the funds on deposit in the Administrative Agent Account shall at all times be collateral security for all of the applicable Secured Obligations and (iii) the funds on deposit in the Administrative Agent Account shall be applied as provided in this Agreement and, to the extent such funds constitute Collateral, an Acceptable Intercreditor Agreement (if any). In the event that, notwithstanding the provisions of this Section 5.13, any Borrower receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Administrative Agent Account pursuant to Section 5.13(c), such proceeds and collections shall be held in trust by such Borrower for the Administrative Agent, and shall promptly be deposited into the Administrative Agent Account or dealt with in such other fashion as such Borrower may be instructed by the Administrative Agent.
(g) Upon the commencement of a Cash Dominion Period and for so long as the same is continuing, upon delivery of notice thereof to the Borrower Representative from the Administrative Agent, the Administrative Agent may direct that all amounts in the Blocked Accounts be paid to the Administrative Agent Account. So long as no Cash Dominion Period has commenced and is continuing in respect of which the Administrative Agent has delivered a notice thereof as contemplated by this Section 5.13, the Borrower Representative may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts. Upon the termination of any Cash Dominion Period, the Administrative Agent shall permit the Borrower Representative to direct, and have sole control over, the manner of disposition of funds in the Blocked Accounts.
(h) Any amounts held or received in the Administrative Agent Account (including all interest and other earnings with respect thereto, if any) at any time (i) when the Termination Date has occurred or (ii) no Cash Dominion Period exists, shall (subject, in the case of clause (i), to the provisions of any Acceptable Intercreditor Agreement) be remitted to an account of the applicable Borrower.
(i) Following the commencement of a Cash Dominion Period (other than by reason of an Event of Default pursuant to Section 7.01(a), 7.01(f) or 7.01(g), except to the extent necessary for one or more officers or directors of Holdings, the Borrower Representative or any of its subsidiaries to avoid personal or criminal liability under applicable law as certified in the applicable Trust Fund Certificate), in the event that a Blocked Account or the Administrative Agent Account contains identifiable Tax and Trust Funds (other than payroll and employee benefit payments, in each case, in the nature of discretionary contributions), the Borrower Representative (acting in good faith) may, within 30 days after such Tax and Trust Funds are received in such Blocked Account or Administrative Agent Account, deliver to the Administrative Agent a Trust Fund Certificate. Notwithstanding anything to the contrary herein or in any other Loan Document, within five Business Days following receipt of a Trust Fund Certificate, the Administrative Agent shall remit from such Blocked Account or Administrative Agent Account (in each case excluding, for the avoidance of doubt, amounts previously deposited to cash collateralize Letters of Credit hereunder), as applicable, the lowest of (a) such Tax and Trust Funds specified in the Trust Fund Certificate, (b) the Excess Availability on the date of such remittance and (c) the amount on deposit in such Blocked Account or Administrative Agent Account on the date of delivery of such Trust Fund Certificate, as applicable, at the option of the Administrative Agent, (x) to the applicable Borrower or (y) on behalf of the applicable Borrower directly to the Person entitled to such Tax and Trust Funds as specified in the Trust Fund Certificate; provided that in no event shall the Administrative Agent be required to remit any amounts pursuant to this Section 5.13(i) to the extent that such amounts were previously distributed in accordance with Section 2.11(a)(iii) (or otherwise applied in accordance with Section 2.18(b)). If any such amounts are remitted to a Borrower, such Borrower shall apply all such funds solely for the purposes described set forth in clause the applicable Trust Fund Certificate; provided, further, that the Administrative Agent shall not apply any such amounts consisting of identifiable Tax and Trust Funds pursuant to Section 2.11(a)(iii) (iior otherwise applied in accordance with Section 2.18(b), (iv), (v) or (vii) above)following its receipt of a Trust Fund Certificate.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingBorrower Parties shall (i) establish and maintain cash management services of a type and on terms satisfactory to Agents at one or more of the banks set forth on Schedule 2.6(a) (each, the Borrower shall nota “Cash Management Bank”), and shall not permit request in writing and otherwise take such reasonable steps to ensure that all of their Account Debtors forward payment of the amounts owed by them directly to such Cash Management Bank, and (ii) deposit or cause to be deposited promptly, and in any Subsidiary Loan Party toevent no later than the first Business Day after the date of receipt thereof, permit cash on hand all of their Collections (including those sent directly by their Account Debtors to a Cash Management Bank) into a bank account (a “Cash Management Account”) at one of the Cash Management Banks.
(b) Each Cash Management Bank of a Borrower Party shall establish and maintain Control Agreements with Collateral Agent and Borrowers, in form and substance acceptable to the Agents, to the extent required by Section 7.12. Each Borrower Party agrees that it will not transfer assets out of any of their Deposit Accounts or Securities Accounts which are required to be subject to a Control Agreement either pursuant to this Section 2.6 or Section 7.12; provided, however, that so long as no Event of Default has occurred and is continuing or would result therefrom, such Borrower Party may use such assets (and the proceeds thereof) to the extent not prohibited by this Agreement or the other Loan Documents and, if the transfer is to another bank or securities intermediary, so long as such Borrower Party, Collateral Agent, and the substitute bank or securities intermediary have entered into a Control Agreement. Each Borrower agrees that it will take any or all reasonable steps that Agents request in order for Collateral Agent to obtain control in accordance with the Code with respect to any of its or their Securities Accounts and Deposit Accounts as set forth herein. No arrangement contemplated hereby or by any Control Agreement in respect of any Revolving Loan Deposit Account or Securities Accounts shall be modified by any Borrower Party without the prior written consent of Agents. Upon the occurrence and during the continuance of an Event of Default, Collateral Agent (at the direction of Administrative Agent) may notify any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 bank or securities intermediary which is party to accumulate a Control Agreement to liquidate the applicable Deposit Account or Securities Account maintained or held thereby and be maintained in remit the Deposit Accounts of proceeds thereof to the Loan PartiesAgent’s Account. Each United States domestic Control Agreement shall provide, providedamong other things, that, for purposes hereof, “cash on hand” shall exclude the following: that (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process case of inter-a Deposit Account, the Cash Management Bank will comply with all instructions originated by Collateral Agent directing the disposition of funds in the deposit account transferswithout further consent by any Borrower Party and, in each the case as of a result Securities Account, the securities intermediary will comply with all entitlement orders originated by Collateral Agent directing the disposition of funds in the ordinary course operations of the Loan PartiesSecurities Account without further consent by any Borrower Party, (ii) cash necessary the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Cash Management Account, other than for payment of its service fees and other charges directly related to the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction administration of such current liabilitiesCash Management Account and for returned checks or other items of payment, and (iii) upon notice from Collateral Agent that an Event of Default has occurred, it immediately will forward by daily sweep all amounts in the Net Proceeds received applicable Cash Management Account to the Agent’s Account.
(c) So long as no Default or Event of Default has occurred and is continuing, Administrative Borrower may amend Schedule 2.6(a) to add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be reasonably satisfactory to Agents and Agents shall have consented in respect writing in advance to the opening of a Prepayment Event described in clause such Cash Management Account with the prospective Cash Management Bank, and (aii) or (b) prior to the time of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance opening of such Refinancing IndebtednessCash Management Account, Borrower Parties and such prospective Cash Management Bank shall have executed and delivered to Collateral Agent a Control Agreement. Borrower Parties shall close any of their Cash Management Accounts (vi) and establish replacement cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit management accounts in accordance with the applicable loan or letter of credit documents foregoing sentence) promptly and (viii) cash held in any Deposit Account event within 60 days of notice from any Agent or Required Lenders that the creditworthiness of any Cash Management Bank is no longer acceptable in such Agent’s or Required Lenders’ reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from any Agent that the operating performance, funds transfer, or availability procedures or performance of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal Cash Management Bank with respect to Cash Management Accounts or Collateral Agent’s liability under any Control Agreement with such Deposit Accounts. Cash Management Bank is no longer acceptable in such Agent’s reasonable judgment.
(d) The Borrower Cash Management Accounts shall not borrow any Revolving Loans or Other Revolving Loans be cash collateral accounts, with all cash, checks and similar items of payment in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any accounts securing payment of the purposes described Obligations, and in clause (ii), (iv), (v) or (vii) above)which Borrower Parties hereby xxxxx x Xxxx to Collateral Agent.
Appears in 1 contract
Samples: Loan Agreement (Foster Wheeler LTD)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn the date which is 30 days after the Closing Date (or such later date as the Agent may reasonably agree, such agreement not to be unreasonably withheld, delayed, conditioned or denied), the Loan Parties shall, at all times, maintain cash management arrangements and procedures reasonably satisfactory to Agent; provided that from and after the Closing Date, the Borrower shall not, and shall not permit any Subsidiary the other Loan Party to, permit cash on hand Parties will maintain their primary concentration and collection accounts and their primary disbursement and operating accounts with the ABL Agent or its affiliates and maintain all (to the extent practicable to do so) depository accounts (including local store depository accounts, except for local store deposit accounts in locations where the proceeds of any Revolving Loan ABL Agent and any Other Revolving Loansits Affiliates do not have branches) in an aggregate amount in excess of $200,000,000 and other cash management relationships (including controlled disbursement accounts and ACH transactions) with the ABL Agent or its Affiliates.
(b) On or prior to accumulate and be maintained in the Deposit Accounts Closing Date, each of the Loan PartiesParties shall:
(i) deliver to the Agent copies of notifications (each, provideda “Credit Card Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to each of such Loan Party’s Credit Card Processors which Credit Card Processors are listed on Schedule 5.24(b); and
(ii) enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Agent with each bank at which one or more Blocked Accounts or Securities Accounts are maintained (each, a “Blocked Account Bank”) covering such Blocked Accounts and Securities Accounts; provided that, such Blocked Account Agreements may be put in place within sixty (60) days following the Closing Date (or such longer period as the Agent may agree in its Permitted Discretion).
(c) The Loan Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account subject to a Blocked Account Agreement all of the following (other than, in each case, amounts maintained in any Excluded DDA or proceeds from the sale of Inventory in the Loan Parties’ retail stores on deposit in one or more Retail DDAs):
(1) all proceeds of collections of Accounts;
(2) all net proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event;
(3) all available cash receipts from the sale of Inventory (including without limitation, proceeds of credit card charges) and other assets (whether or not constituting Collateral); and
(4) the then contents of each DDA (other than any Excluded DDA or Retail DDA) (net of any minimum balance, not to exceed $300,000 in the aggregate for purposes hereofall DDAs (other than any Excluded DDA or Retail DDA) at any time).
(d) The Loan Parties shall promptly (and, “cash in any event, within two (2) Business Days) ACH or wire transfer (and whether or not there are then any outstanding Obligations) to a Blocked Account subject to a Blocked Account Agreement all amounts on hand” shall exclude deposit in each of the followingRetail DDAs to the extent that those amounts exceed: (i) “store” cash$50,000 on deposit in any individual Retail DDA, cash or (ii) $3,000,000 on deposit in transit between stores and local Deposit Accounts and cash receipts from sales all Retail DDAs in the process aggregate.
(e) Upon the reasonable request of inter-account transfersthe Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(f) At least three (3) Business Days prior to the receipt of Net Cash Proceeds in connection with any Disposition of, or Recovery Event with respect to, any Term Priority Collateral, in each case as a result to the extent the proceeds of such Disposition are required to be retained in the ordinary course operations of the Term Loan PartiesPriority Account pursuant to Section 2.06(a) or (e), (ii) cash necessary for the Loan Parties to satisfy shall have established the current liabilities incurred by such Term Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Priority Account.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstandingCash not required by the Company to pay its daily --------------- disbursements or to pay when due the principal of and interest on, the Company's borrowings from AWCC other than Short-Term Loans will be used by AWCC first to reduce the outstanding principal balance of the Company's Short-Term Loans owing to AWCC and any excess will be deemed to be invested with AWCC and will earn a daily rate of interest that is equal to the interest income earned by AWCC on those funds. Upon the request of that Company, AWCC shall execute one or more promissory notes in favor of the Company, in form and substance substantially similar to the Promissory Note attached as Exhibit A to the Agreement as evidence of such investment. EXHIBIT A PROMISSORY NOTE FOR SHORT-TERM LOANS -------------------- $___________________ _______________, 2000 FOR VALUE RECEIVED, [NAME OF COMPANY], a _____________________ corporation (herein "Borrower") hereby promises to pay ON DEMAND to the order of American Water Capital Corp., a Delaware corporation ("Lender"), in same day funds at its offices at Voorhees, New Jersey or such other place as Lender may from time to time designate, the principal sum of __________________ dollars ($___________) (the "Maximum Principal Sum"), or such lesser amount as shall equal the aggregate unpaid principal amount of the loans made by Lender to Borrower (other than loans evidenced by a promissory note under which the principal amount is due and payable in one or more scheduled installments more than one year after the date of its issue), together with interest thereon from the date hereof until paid in full. Interest will be charged on the unpaid outstanding principal balance of this Note at a rate per annum equal to Lender's actual cost of funds to make such loan, such rate to change as Lender's actual cost of funds changes. Interest on borrowings shall be due and payable on the first business day of each month, commencing with the first business day of the month after the month in which this Note is executed. In the absence of manifest error, the records maintained by Lender of the amount and term, if any, of borrowings hereunder shall be deemed conclusive. Borrower may borrow, repay and reborrow hereunder in amounts which do not, and shall not permit in the aggregate outstanding at any Subsidiary Loan Party totime, permit cash on hand (including exceed the proceeds Maximum Principal Sum. The occurrence of one or more of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” following shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process constitute an event of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause default hereunder:
(a) Borrower shall fail to make any payment of principal and/or interest due hereunder or under any other promissory note between Lender and Borrower within five business days after the same shall become due and payable, whether at maturity or by acceleration or otherwise;
(b) Borrower shall apply for or consent to the appointment of a receiver, trustee or liquidator of itself or any of its property, admit in writing its inability to pay its debts as they mature, make a general assignment for the benefit of creditors, be adjudicated a bankrupt or insolvent or file a voluntary petition in bankruptcy or a petition or an answer seeking reorganization or an arrangement with creditors or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation of law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law, or if action shall be taken by Borrower for the purposes of effecting any of the definition foregoing; or
(c) Any order, judgment or decree shall be entered by any court of “Prepayment Event” for which competent jurisdiction, approving a petition seeking reorganization of Borrower or all or a substantial part of the assets of Borrower, or appointing a receiver, trustee or liquidator of Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real or any of its property, equipment and such order, judgment or decree shall continue unstayed and in effect for any period of sixty (60) days. Upon the occurrence of any event of default, the entire unpaid principal sum hereunder plus all interest accrued thereon plus all other sums due and payable to Lender hereunder shall, at the option of Lender, become due and payable immediately. In addition to the foregoing, upon the occurrence of any event of default, Lender may forthwith exercise singly, concurrently, successively or otherwise any and all rights and remedies available to Lender by law, equity, statute or otherwise. Borrower hereby waivers presentment, demand, notice of nonpayment, protest, notice of protest or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds notice of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated dishonor in connection with any default in the issuance payment of, or any enforcement of such Refinancing Indebtednessthe payment of, (vi) cash held in any Deposit Account relating all amounts due hereunder. To the extent permitted by law, Borrower waives the right to any Securitization stay of execution and the benefit of all exemption laws now or Factoring Transactionhereafter in effect. Following the occurrence of any event of default, Borrower will pay upon demand all costs and expenses (vii) cash collateral required including all amounts paid to be deposited pursuant to Section 2.05(j) attorneys, accountants, and other advisors employed by Lender), incurred by Lender in the exercise of any of it rights, remedies or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal powers hereunder with respect to such Deposit Accountsevent of default, and any amount thereof not paid promptly following demand therefor shall be added to the principal sum hereunder and will bear interest at the contract rate set forth herein from the date of such demand until paid in full. The In connection with and as part of the foregoing, in the event that this Note is placed in the hands of an attorney for the collection of any sum payable hereunder, Borrower agrees to pay reasonable attorneys' fees for the collection of the amount being claimed hereunder, as well as all costs, disbursements and allowances provided by law. If for any reason one or more of the provisions of this Note or their application to any entity or circumstances shall be held to be invalid, illegal or unenforceable in any respect or to any extent, such provisions shall nevertheless remain valid, legal and enforceable in all such other respects and to such extent as may be permissible. In addition, any such invalidity, illegality or unenforceability shall not borrow affect any Revolving Loans other provisions of this Note, but this Note shall be construed as if such invalid, illegal or Other Revolving Loans in an aggregate principal amount unenforceable provision had never been contained herein. This Note inures to the benefit of more than $100,000,000 over any three consecutive Business Day period if Lender and binds Borrower and Lender's and Borrower's respective successors and assigns, and the purpose of words "Lender" and "Borrower" whenever occurring herein shall be deemed and construed to include such Borrowings respective successors and assigns. This Promissory Note is to accumulate cash on hand (other than for any one of the purposes described promissory notes referred to in clause (ii)the Financial Services Agreement dated _______________________________, (iv), (v) or (vii) above)2000 between Borrower and Lender to which reference is made for a statement of additional rights and obligations of the parties hereto.
Appears in 1 contract
Samples: 364 Day Credit Agreement (American Water Works Co Inc)
Cash Management. (a) Borrower shall deposit, and shall cause Manager to deposit, all Operating Revenues into a Depository Account in which Borrower has granted to Agent a perfected security interest pursuant to a Blocked Account Agreement. On or before Closing (and thereafter as needed), Borrower and Manager shall give irrevocable notices to all current Credit Card Issuers or any other account debtors doing business with Borrower or any of the Borrowing Base Assets to make or wire all payments to a Depository Account in which Borrower has granted to Agent a perfected security interest. Within thirty (30) days after (i) the Closing with respect to the initial Borrowing Base Assets or (ii) the date of submission as a Borrowing Base Asset with respect to all subsequently added Borrowing Base Assets, Borrower shall deliver to Agent such notices signed by Borrower and will endeavor to have them countersigned by each Credit Card Issuer. Borrower and Manager shall give the same irrevocable notice to all future Credit Card Issuers and other account debtors concurrently with entering into agreements with such parties and, in the case of future Credit Card Issuers, shall deliver to Agent all such notices signed by Borrower and will endeavor to have them countersigned by each future Credit Card Issuer within thirty (30) days thereafter. Each reference to Borrower in this Section 1.14 shall also include the TRS Lessee for each Hotel Asset, and Borrower shall cause each TRS Lessee to comply with this Section 1.14.
(b) During any Sweep Period, commencing upon the written request of Agent:
(i) Upon notice from Agent, the financial institution who is a party to the Blocked Account Agreement shall transfer all funds then on deposit, and thereafter deposited, in its Depository Account to an account maintained by Agent in Agent’s name (or such other account name as Agent may elect) at Western Alliance Bank or another bank selected by Agent in its sole discretion (the “Agent Account”). Such transfers to the Agent Account shall continue until a Sweep Period no longer exists.
(ii) Upon Agent’s determination that a Sweep Period no longer exists, Agent shall transfer all funds then on deposit in the Agent Account to the Depository Account and shall notify the applicable financial institution to cease transferring funds to the Agent Account.
(iii) Borrower acknowledges that more than one Sweep Period may occur during the term of the Loan.
(c) The Agent Account, and all funds at any time on deposit therein, shall be subject to the following:
(i) At any time any Revolving Loans on or after the first day of each month, Agent shall withdraw from the Agent Account an amount equal in the aggregate to all debt service, reserve amounts (including any Other Revolving Loans) are outstandingTax & Assessment Impositions in accordance with Section 4.24), the Borrower shall notfees, costs, expenses and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 other amounts then owing to accumulate and be maintained in the Deposit Accounts of Secured Parties under the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, Documents.
(ii) cash necessary Borrower shall submit to Agent a monthly a disbursement request containing detailed description of Operating Expenses then owing, together with invoices, bills of sale and such other evidence as Agent may request to confirm the amount and nature of each such Operating Expense. Each such disbursement request shall reflect Operating Expenses shown on the then-current operating budget for such Borrowing Base Asset or be accompanied by a detailed explanation for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, variance.
(iii) the Net Proceeds received in respect After payment of a Prepayment Event all amounts described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to under Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above).1.14
Appears in 1 contract
Samples: Loan Agreement (Lightstone Value Plus Real Estate Investment Trust III, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstandingLoan Parties shall maintain cash management systems pursuant to arrangements reasonably acceptable to Agent, including, without limitation, the Borrower cash management systems described below.
8.5.1 Each Loan Party authorizes and directs each bank or other depository to deliver to the Agent Payment Account during a Cash Dominion Period, on a daily basis, all balances in each Controlled Account maintained by such Loan Party with such depository for application to the Obligations then outstanding. Each Loan Party irrevocably appoints Agent as such Loan Party’s attorney-in-fact to collect such balances to the extent any such delivery is not so made.
8.5.2 Schedule 8.5 sets forth all Deposit Accounts, disbursement, operating, securities, commodity or similar accounts owned and established by Loan Parties. Each Loan Party shall not, be the sole account holder of each account and shall not permit allow any Subsidiary other Person (other than Agent) to have control over an account or any Property deposited therein.
8.5.3 On or prior to the Closing Date, Borrowers and Guarantors shall have (a) opened Deposit Accounts, disbursement accounts and operating accounts with RBS or its Affiliates, which accounts (other than accounts specifically and exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of Loan Party toParties’ salaried employees) shall be subject to Control Agreements and (b) established lock boxes (“Lock Boxes”) maintained with RBS or its Affiliates and subject to Control Agreements.
8.5.4 Promptly after the Closing Date, permit cash on hand Borrowers shall (including a) request in writing and otherwise take such steps reasonably necessary to ensure that all Account Debtors forward payment directly to such Lock Boxes, and (b) deposit and cause Loan Parties to deposit or cause to be deposited promptly, and in any event no later than the proceeds first Business Day after the date of receipt thereof, all cash, checks, drafts or other similar items of payment relating to or constituting payments made in respect of any Revolving and all Collateral (whether or not otherwise delivered to a Lock Box) into one or more Controlled Accounts.
8.5.5 Loan and Parties shall not be required to obtain Control Agreements with respect to any Other Revolving Loans) in an aggregate amount deposit accounts maintained, as of the Closing Date, with Bank of America; provided, that, the Loan Parties shall not maintain at any time a daily balance in excess of $200,000,000 2,500,000 in the aggregate in any deposit accounts that are not subject to Control Agreements.
8.5.6 Each Control Agreement shall provide, among other things, that (a) all items of payment deposited in such account and proceeds thereof deposited in the applicable account are held by such bank as agent or bailee-in-possession for Agent, on behalf of itself and Secured Parties, (b) 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 (c) that such bank agrees, from and after the receipt of a notice (an “Activation Notice”) from Agent (which Activation Notice may be given by Agent at any time at which (A) an Event of Default has occurred and is continuing or (B) Liquidity is less than $15,000,000 (any of the foregoing being referred to herein as an “Activation Event”)), to forward immediately all amounts in each account to Agent Payment Account. An Activation Event shall terminate at the time at which Liquidity exceeds $15,000,000 for thirty (30) consecutive days or such Event of Default has been waived or cured in accordance with this Agreement (any such period, a “Cash Dominion Period”). During any Cash Dominion Period, no Loan Party shall, or shall cause or permit any Subsidiary thereof to, accumulate or maintain cash in disbursement accounts or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements. Upon the termination (or waiver) of any Cash Dominion Period, Agent shall terminate such Activation Notice unless and until a subsequent Activation Event shall occur.
8.5.7 Agent shall invest Cash Collateral in such investments which are cash or Cash Equivalents as may be directed by Borrowers in writing (so long as no Default or Event of Default shall have occurred and be maintained continuing); provided, however, that Agent shall not be liable for any losses relating to the investment or reinvestment of the Cash Collateral, or any liquidation of such investment or reinvestment, made in accordance with the terms of this Agreement, including, without limitation, any liability for any delays in the Deposit Accounts investment or reinvestment of the Loan PartiesCash Collateral, providedany loss of interest incident to any such delays, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case or any loss or penalty as a result of the ordinary course operations liquidation of any investment before its stated maturity date. Each Loan Party hereby grants to Agent, for the Loan benefit of Secured Parties, (ii) cash necessary a security interest in all Cash Collateral held from time to time and all proceeds thereof, as security for the Loan Parties to satisfy the current liabilities incurred by Obligations, whether such Loan Parties Cash Collateral is held in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) Cash Collateral Account or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to elsewhere. Agent may apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Cash Collateral to the extent that the applicable Refinanced Debt consists payment of unused Revolving Commitments or Other Revolving Commitments that have been terminated any Obligations, in connection with the issuance of such Refinancing Indebtednessorder as Agent may elect, (vi) cash held in any Deposit as they become due and payable. The Cash Collateral Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to and all Cash Collateral shall be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of Agent. No Loan Party or other Person claiming through or on behalf of any Loan Party shall have any right to any Cash Collateral, until Full Payment of all Obligations or the Collateral termination or cancellation of such Obligations that are Cash Collateralized.
8.5.8 Upon the written request of Administrative Borrower, Agent if shall release Borrowing Base Cash (a “Borrowing Base Cash Release”) from the Collateral Borrowing Base Cash Accounts; provided, that (a) no Default or Event of Default shall have occurred and be continuing, (b) each Borrowing Base Cash Release shall be in a minimum amount of $1,000,000, (c) no more than one Borrowing Base Cash Release per month (or more frequently as may be agreed to by Agent has exclusive rights in its discretion) shall be permitted under this Section 8.5.8, (d) Borrowers shall have provided to Agent an updated Borrowing Base Certificate showing pro forma Availability of withdrawal with respect not less than $0 after giving effect to such Deposit Accounts. The Borrower shall not borrow Borrowing Base Cash Release and (e) after giving effect to any Revolving Loans or Other Revolving Loans in an Borrowing Base Cash Release, the aggregate outstanding principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose Revolving Loans shall not exceed the lesser of such Borrowings is to accumulate cash on hand (other than for any of i) the purposes described in clause Borrowing Base and (ii), ) (iv), A) the Revolving Loan Commitments minus (vB) or (vii) above)the Revolving Loan Commitment Reserve.
Appears in 1 contract
Samples: Loan Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Cash Management. At (a) Within thirty (30) days of the occurrence of a Specified Default that is continuing, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower Borrowers, upon the request of the Administrative Agent, shall notdeliver to the Administrative Agent a schedule of all DDAs, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including that to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Closing Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card and debit card charges for sales by such Loan Party.
(c) To the extent not previously delivered, each Loan Party shall:
(i) on or prior to the thirty (30) day anniversary of the Closing Date or such later date as the Administrative Agent shall agree in writing, deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) on or prior to the ninety (90) day anniversary of the Closing Date or such later date as the Administrative Agent shall agree in writing, in its sole discretion (such date, the “Blocked Account Date”), enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Administrative Agent, with any Blocked Account Bank with respect to the DDAs in which material amounts (as reasonably determined by the Administrative Agent) of funds of any of the Loan Parties from one or more DDAs are concentrated (excluding, for the avoidance of doubt, the Designated Account (as defined below) and xxxxx cash, payroll, trust and tax withholding accounts subject to satisfy the current liabilities incurred by limitations set forth in clause (d) below) (including those existing as of the Closing Date and listed on Schedule 2.18(c) attached hereto) (collectively, the “Material DDAs” and, to the extent, subject to a Blocked Account Agreement, collectively, the “Blocked Accounts”); provided that in the event that any DDA listed on Schedule 2.18(c) is not subject to a Blocked Account Agreement on or prior to Blocked Account Date, then not later than sixty (60) days after the Blocked Account Date or such later date as the Administrative Agent shall agree in writing, in its sole discretion, the Loan Parties shall cause any DDA which is not a Blocked Account to be closed and have all funds therein transferred to a Blocked Account, and all future deposits made to, a Blocked Account with the Collateral Agent or another Lender.
(d) Each Credit Card Notification and Blocked Account Agreement entered into by a Loan Party shall require (after delivery of notice to the Blocked Account Bank from the Collateral Agent (which notice may (or shall at the direction of the Required Revolving Lenders) be given by the Collateral Agent during the continuance of a Cash Dominion Event)) the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account”)) to the concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral ([whether or not constituting a Prepayment Event, ]but excluding, until the Term Loan Facility is repaid in full, any Term Priority Collateral);
(ii) all proceeds of collections of Accounts[ (whether or not constituting a Prepayment Event); ];
(iii) all Net Proceeds on account of any [Prepayment]Specified Event (other than, until the Term Loan Facility or any Permitted Refinancing thereof is repaid in full, a [Prepayment]Specified Event arising in connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA, net of any minimum balance as may be required to be kept in such DDA by the institution at which such DDA is maintained to the extent set forth in the applicable Blocked Account Agreement); and
(v) the cash proceeds of all credit card and debit card charges. If any cash or Cash Equivalents owned by any Loan Party (other than (i) amounts on deposit in the Designated Account, which funds, shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as [such]any Cash Dominion Event continues, (ii) xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $10,000,000 or exceed $2,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree in its sole discretion), and without acceleration of the satisfaction of such current liabilities, (iii) payroll, trust and tax withholding accounts funded in the Net Proceeds received ordinary course of business and required by Applicable Law) are deposited to any account, or held or invested in respect of any manner, otherwise than in a Prepayment Event described in clause Blocked Account (or a DDA which is swept daily to a Blocked Account), then (a) the Borrowers shall cause all funds in such accounts or so held or so invested to be transferred with such frequency as may be reasonably required by the Administrative Agent to a Blocked Account (or a DDA which is swept daily to a Blocked Account) and (b) the Collateral 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. In addition to the foregoing, during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Collateral Agent with an accounting of the definition contents of “Prepayment Event” for the Blocked Accounts, which shall identify, to the Borrower is permitted reasonable satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to apply the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such Net Proceeds as a reinvestment accounting, the Collateral Agent agrees to acquire real property, equipment or other tangible assets pursuant promptly remit to Section 2.11(c) the agent under the Term Loan Facility or any equivalent provision under any Additional Senior Debt Document, (iv) cash Permitted Refinancing thereof the proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause Term Priority Collateral received by the Administrative Agent.
(xie) of the first proviso in the definition of the term “Refinancing Indebtedness”[Reserved].
(f) The Loan Parties may close Material DDAs or Blocked Accounts and/or open new Material DDAs or Blocked Accounts, (v) cash proceeds of Refinancing Indebtedness subject to the extent that execution and delivery to the applicable Refinanced Debt consists Collateral Agent of unused Revolving Commitments or Other Revolving Commitments that have been terminated appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Blocked Account Agreement with respect to any Material DDA acquired by a Loan Party in connection with a Permitted Acquisition until the issuance date that is ninety (90) days (or such later date as the Administrative Agent may agree) after the consummation of such Refinancing IndebtednessPermitted Acquisition). The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Material DDA and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent. The Borrowers may also maintain one or more disbursement accounts (vithe “Disbursement Accounts”) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(jused by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and permitted hereunder.
(viiig) cash held in any Deposit Account of the The Loan Parties which is shall establish and maintain cash management arrangements and procedures, including Blocked Accounts, reasonably satisfactory to the Administrative Agent.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 2.18, 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 Collateral 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 Collateral Agent.
(i) Any amounts received in the Concentration Account at any time when all of the Revolving Obligations then due have been and remain fully repaid shall be remitted to the operating account of the Borrowers maintained with the Administrative Agent.
(j) The Collateral Agent shall 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.
(k) The following shall apply to deposits and payments under and pursuant to this Agreement, subject to clause (i) hereof:
(i) Funds shall be deemed to have been deposited to the Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Revolving Obligations are being paid in full, by 2:00 p.m. Boston 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Revolving Obligations are being paid in full, by 2:00 p.m. Boston time, on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return;
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.04.
Appears in 1 contract
Samples: Credit Agreement (Gymboree Corp)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn the date which is 30 days after the Closing Date (or such later date as the Agent may reasonably agree, such agreement not to be unreasonably withheld, delayed, conditioned or denied), the Loan Parties shall, at all times, maintain cash management arrangements and procedures reasonably satisfactory to Agent; provided that from and after the Closing Date, the Borrower shall not, and shall not permit any Subsidiary the other Loan Party to, permit cash on hand Parties will maintain their primary concentration and collection accounts and their primary disbursement and operating accounts with the Agent or its affiliates and maintain all (to the extent practicable to do so) depository accounts (including local store depository accounts, except for local store deposit accounts in locations where the proceeds of any Revolving Loan Agent and any Other Revolving Loansits Affiliates do not have branches) in an aggregate amount in excess of $200,000,000 and other cash management relationships (including controlled disbursement accounts and ACH transactions) with the Agent or its Affiliates.
(b) On or prior to accumulate and be maintained in the Deposit Accounts Closing Date, each of the Loan PartiesParties shall:
(i) deliver to the Agent copies of notifications (each, provideda “Credit Card Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to each of such Loan Party’s Credit Card Processors which Credit Card Processors are listed on Schedule 5.24(b); and
(ii) enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Agent with each bank at which one or more Blocked Accounts or Securities Accounts are maintained (each, a “Blocked Account Bank”) covering such Blocked Accounts and Securities Accounts; provided that, such Blocked Account Agreements may be put in place within sixty (60) days following the Closing Date (or such longer period as the Agent may agree in its Permitted Discretion).
(c) The Loan Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account subject to a Blocked Account Agreement all of the following (other than, in each case, amounts maintained in any Excluded DDA or proceeds from the sale of Inventory in the Loan Parties’ retail stores on deposit in one or more Retail DDAs):
(i) all proceeds of collections of Accounts;
(ii) all net proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event;
(iii) all available cash receipts from the sale of Inventory (including without limitation, proceeds of credit card charges) and other assets (whether or not constituting Collateral); and
(iv) the then contents of each DDA (other than any Excluded DDA or Retail DDA) (net of any minimum balance, not to exceed $300,000 in the aggregate for purposes hereofall DDAs (other than any Excluded DDA or Retail DDA) at any time).
(d) The Loan Parties shall promptly (and, “cash in any event, within two (2) Business Days) ACH or wire transfer (and whether or not there are then any outstanding Obligations) to a Blocked Account subject to a Blocked Account Agreement all amounts on hand” shall exclude deposit in each of the followingRetail DDAs to the extent that those amounts exceed: (i) “store” cash$50,000 on deposit in any individual Retail DDA, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, or (ii) cash necessary for $3,000,000 on deposit in all Retail DDAs in the aggregate.
(e) Upon the occurrence and during the continuance of a Cash Dominion Event and receipt of notice from the Agent (and whether or not there are then any outstanding Obligations), in addition to the requirements set forth in clause (c) above:
(i) the Loan Parties shall ACH or wire transfer no less frequently than daily to satisfy a concentration account maintained by the current liabilities incurred by such Agent at Citizens Bank (the “Collection Account”) the then contents of each DDA (other than any Excluded DDA) (net of any minimum balance, not to exceed $300,000 in the aggregate for all DDAs (other than any Excluded DDA) at any time);
(ii) the Loan Parties shall, and shall cause each Blocked Account Bank to, ACH or wire transfer no less frequently than daily to the Collection Account the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500 for each Blocked Account, as may be required to be kept in the ordinary course of their businesses and without acceleration of subject Blocked Account by the satisfaction of such current liabilities, Blocked Account Bank); and
(iii) the Net Proceeds received in respect of a Prepayment Event such transferred amounts described in the foregoing clause (ai) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with and clause (xiii) shall be applied by Agent to repay outstanding Loans, L/C Obligations, other amounts then due and payable hereunder, and to Cash Collateralize outstanding Letters of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Credit. The Loan Parties shall undertake all action which is may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for the Obligations, and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Cash Dominion Event exists, such proceeds and collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent. Notwithstanding the foregoing, to the extent that no Obligations are outstanding, any amounts deposited in the Collection Account shall be disbursed by the Agent to such Deposit Accountsdepository accounts as may be designated by the Borrower. The For the avoidance of doubt, Eligible Cash on Hand in a Qualified Account may only be withdrawn by the Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described as set forth in clause (ii)d) of the definition of “Borrowing Base.”
(g) Upon the reasonable request of the Agent, (iv)the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, (v) or (vii) accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, a “DDA Notification”) substantially in the Borrower shall not, and shall not permit any Subsidiary form attached hereto as Exhibit G which have been executed on behalf of such Loan Party toand delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent copies of notifications (each, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loansa “Credit Card Notification”) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained substantially in the Deposit Accounts form attached hereto as Exhibit H which have been executed on behalf of the such Loan Parties, Party and delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); provided, that, for purposes hereofLead Borrower may amend Schedule 5.21(b) to add additional Credit Card Issuers and Credit Card Processors, so long as such amendment occurs by written notice delivered to Administrative Agent promptly after the date on which the applicable Loan Party enters into a new Credit Card Agreement after the Closing Date, accompanied by a copy of the Credit Card Notification delivered to each new Credit Card Issuer and/or Credit Card Processor which is identified in such amendment; and
(iii) enter into a Blocked Account Agreement satisfactory in form and substance to the Administrative Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or wire transfer no less frequently than weekly (or, upon the occurrence and during the continuance of a Cash Dominion Event, daily), and whether or not there are then any outstanding Obligations, to a Blocked Account all amounts on deposit in each such DDA and all payments due from Credit Card Processors and Credit Card Issuers; provided, however, that the Loan Parties may leave up to $5,000 on deposit in each DDA.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Cash Dominion Event, that such bank transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Xxxxx Fargo (the “Concentration Account”), all cash on hand” shall exclude receipts and collections, including, without limitation, the following: :
(i) “store” cash, cash in transit between stores and local Deposit Accounts and all available cash receipts from sales in the process sale of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, Inventory and other assets (whether or not constituting Collateral);
(ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course all proceeds of their businesses and without acceleration collections of the satisfaction of such current liabilities, Accounts;
(iii) the all Net Proceeds Proceeds, and all other cash payments received in respect by a Loan Party from any Person or from any source or on account of a Prepayment Event described in clause (a) any sale or (b) of the definition of “other transaction or event, including, without limitation, any Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, ;
(iv) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso exceed $2,500.00, as may be required to be kept in the definition of subject DDA by the term “Refinancing Indebtedness”, depository institution at which such DDA is maintained);
(v) cash proceeds the then entire ledger balance of Refinancing Indebtedness each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the extent that subject Blocked Account by the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, Blocked Account Bank); and
(vi) cash held in any Deposit the proceeds of all credit card charges.
(d) The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times 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.
(e) All funds received in the Agent Payment Account shall be applied to the Obligations as provided in accordance with respect Section 8.03 of this Agreement and without regard to whether the Administrative Agent is exercising remedies provided for in Section 8.02 following the occurrence and during the continuance of an Event of Default. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Concentration Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Administrative Agent.
(other than for any f) Upon the request of the purposes described Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause each Blocked Account to ensure the proper transfer of funds as set forth above.
(iig) Without limiting the generality of Sections 6.13(a) through 6.13(f) above, upon the occurrence and during the continuance of a Cash Dominion Event (and not prior thereto), Administrative Agent shall have the right to direct (i) each depository institution listed on Schedule 5.21(a), (ivii) each bank that is party to a Blocked Account Agreement (subject to the terms of such Blocked Account Agreement), and (viii) each Credit Card Processor and Credit Card Issuer which then acts as a credit card clearinghouse and/or processor for any Loan Party to, in each case, remit to the Concentration Account (or such other account as Administrative Agent may direct), all monies on deposit in the applicable bank accounts, no less frequently than daily, and all payments payable to a Loan Party by such Credit Card Processor or Credit Card Issuer, as and when payable to such Loan Party.
(viih) aboveNotwithstanding the foregoing, Net Proceeds of Term Loan Priority Collateral shall be applied to the Obligations, except, that, in the event that an Event of Default (as such term is defined in the Term Loan Agreement) then exists, the Net Proceeds of Term Loan Priority Collateral shall be paid towards the Term Loan Obligations under the Term Loan Agreement (and shall be applied to the Term Loan Obligations as required under the Term Loan Agreement).
Appears in 1 contract
Samples: Credit Agreement (Stein Mart Inc)
Cash Management. At any (a) Annexed hereto as Schedule 4.16, as the same may be modified from time any Revolving Loans to time by notice to the Administrative Agent, is a schedule of all DDAs, Securities Accounts and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository or securities intermediary, as applicable, (including any Other Revolving Loansi) are outstandingthe name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository or securities intermediary, the Borrower shall notas applicable, and shall not permit any Subsidiary (iii) a contact person at such depository or securities intermediary, as applicable.
(b) Each Qualified Loan Party toshall (i) deliver to the Collateral Agent notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any DDA (other than Excluded Accounts) is maintained, permit cash on hand in form reasonably satisfactory to the Collateral Agent of the Collateral Agent’s interest in such DDA, (including ii) instruct each depository institution for a DDA (other than Excluded Accounts) that the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of the minimum balance (not to exceed $200,000,000 to accumulate and be maintained 1.0 million per account or $2.0 million in the Deposit aggregate) of any required by the bank at which such account is maintained and available at the close of each Business Day in such DDA should be swept to one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a once every Business Day, such instructions to be irrevocable unless otherwise agreed to by the Collateral Agent, (iii) enter into a blocked account agreement or securities account control agreement, as applicable, (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Collateral Agent, with the Administrative Agent or the Collateral Agent and any securities intermediary or bank with which such Qualified Loan Party maintains a Securities Account or Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Securities Account or Concentration Account maintained with such securities intermediary or bank, as applicable, and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent Borrower or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than any such amount (i) to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances, cash receipts and other assets, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $1.0 million per account or $2.0 million in the aggregate), if any, required by the bank or securities intermediary at which such Blocked Account is maintained to an account maintained by the Collateral Agent at a bank of recognized standing reasonably selected by the Collateral Agent with the reasonable consent of the Parent Borrower (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) Subject to subsection 10.15, all collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Collateral Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document or any Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto the extent all amounts referred to in preceding clause (1) have been paid in full, thatto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, for purposes hereofto the extent all amounts referred to in preceding clauses (1) and (2) have been paid in full, “cash to pay (on hand” shall exclude a ratable basis) all accrued and unpaid interest actually due and payable on the following: Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, the Issuing Lenders and the Lenders under any of the ABL Loan Documents; (4) fourth, to the extent all amounts referred to in preceding clauses (1) through (3), inclusive, have been paid in full, to repay (on a ratable basis) the outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to the extent all amounts referred to in preceding clauses (1) through (4), inclusive, have been paid in full, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to the extent all amounts referred to in preceding clauses (1) through (5), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to subsections 2.6 and 2.8, as applicable, in accordance with subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent or the Collateral Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash Cash Equivalents and/or Temporary Cash Investments from time to time inadvertently misapplied by any Qualified Loan Party, (ii) cash, Cash Equivalents or Temporary Cash Investments deposited or to be deposited in transit between stores an Excluded Account in accordance with this subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Collateral pursuant to any Security Document, including Excluded Assets and local Deposit (iv) cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds Account (as defined in the Base Intercreditor Agreement), if any) are deposited to any securities account or bank account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Collateral Agent shall be entitled to require the applicable Qualified Loan Party to close such securities account or bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such securities account or bank account to be made to a Blocked Account.
(f) (a) The Qualified Loan Parties respectively may open new Securities Accounts, new DDAs or new Concentration Accounts (subject to, in the case of any new Securities Account or Concentration Account, either (i) the contemporaneous execution and delivery to the Collateral Agent of a Blocked Account Agreement consistent with the provisions of this subsection 4.16 with respect to each such new Securities Account or Concentration Account or (ii) compliance with other arrangements reasonably satisfactory to the Collateral Agent) and/or close Securities Accounts, DDAs or Concentration Accounts and cash receipts from sales (b) as part of the Compliance Certificate to be delivered concurrently with the delivery of financial statements and reports referred to in subsections 7.1(a) and 7.1(b) the process Parent Borrower will provide a list to the Agents of inter-account transfersany new opened or acquired Securities Accounts, DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that a Qualified Loan Party acquires any new Securities Account, Concentration Account or DDA in each case connection with an acquisition or as a result of an account ceasing to be an “Excluded Account”, the ordinary course operations Parent Borrower will procure that such Qualified Loan Party shall within 90 days of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction date of such current liabilities, (iii) the Net Proceeds received in respect acquisition or 10 days of a Prepayment Event described in clause (a) or (b) of the definition such cessation of “Prepayment EventExcluded Account” for which status (or, in each case, such longer period as may be agreed by the Borrower is permitted Administrative Agent) cause such new Securities Accounts, DDAs or Concentration Accounts to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of subsection 4.16(b) (including, with respect to any new Securities Accounts or letter Concentration Account, by entering into a Blocked Account Agreement) or shall enter into other arrangements consistent with the provisions of credit documents this subsection 4.16 and otherwise reasonably satisfactory to the Collateral Agent with respect to any new Securities Account, Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Parent Borrower, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agent Agreement or any Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has exclusive rights no right of withdrawal with respect from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement (and any applicable Intercreditor Agreement). In the event that, notwithstanding the provisions of this subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to subsection 4.16(c), such Deposit Accounts. The Borrower proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts. During the continuance of a Dominion Event, the Blocked Accounts shall at all times be under the sole dominion and control of the purposes described Collateral Agent. The Parent Borrower, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that during the continuance of a Dominion Event and except to the extent otherwise provided in the Guarantee and Collateral Agreement or any Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has no right of withdrawal from the Blocked Accounts, (y) the funds or other assets on deposit in, or credited to, as applicable, the Blocked Accounts shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds or other assets on deposit in, or credited to, as applicable, the Blocked Accounts shall be applied as provided in this Agreement (and any applicable Intercreditor Agreement).
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the monetary obligations due and owing hereunder and under the other ABL Loan Documents have been satisfied or (y) all Dominion Events have been cured, shall (subject in the case of clause (ii)x) to the provisions of the applicable intercreditor agreement) be remitted to the operating bank account of the applicable Qualified Loan Party.
(k) Notwithstanding anything herein to the contrary, (iv)the Loan Parties shall be deemed to be in compliance with the requirements set forth in this subsection 4.16 during the initial 90 day period commencing on the Closing Date to the extent that the arrangements described above are established and effective not later than the date that is 90 days following the Closing Date or such later date as the Administrative Agent, (v) or (vii) above)in its sole discretion, may agree.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, a “DDA Notification”) substantially in the Borrower shall not, and shall not permit any Subsidiary form attached hereto as Exhibit H which have been executed on behalf of such Loan Party toand delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent copies of notifications (each, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loansa “Credit Card Notification”) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained substantially in the Deposit Accounts form attached hereto as Exhibit I which have been executed on behalf of the such Loan Parties, Party and delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); provided, that, for purposes hereofLead Borrower may amend Schedule 5.21(b) to add additional Credit Card Issuers and Credit Card Processors, so long as such amendment occurs by written notice delivered to Agent promptly after the date on which the applicable Loan Party enters into a new Credit Card Agreement after the Closing Date, accompanied by a copy of the Credit Card Notification delivered to each new Credit Card Issuer and/or Credit Card Processor which is identified in such amendment; and
(iii) enter into a Blocked Account Agreement satisfactory in form and substance to the Administrative Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA and all payments due from Credit Card Processors and Credit Card Issuers; provided, however, that the Loan Parties may leave up to $5,000 on deposit in each DDA.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Cash Dominion Event, that such bank transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Xxxxx Fargo (the “Concentration Account”), all cash on hand” shall exclude receipts and collections, including, without limitation, the following: :
(i) “store” cash, cash in transit between stores and local Deposit Accounts and all available cash receipts from sales in the process sale of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, Inventory and other assets (whether or not constituting Collateral);
(ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course all proceeds of their businesses and without acceleration collections of the satisfaction of such current liabilities, Accounts;
(iii) the all Net Proceeds Proceeds, and all other cash payments received in respect by a Loan Party from any Person or from any source or on account of a Prepayment Event described in clause (a) any sale or (b) of the definition of “other transaction or event, including, without limitation, any Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, ;
(iv) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso exceed $2,500.00, as may be required to be kept in the definition of subject DDA by the term “Refinancing Indebtedness”, depository institution at which such DDA is maintained);
(v) cash proceeds the then entire ledger balance of Refinancing Indebtedness each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the extent that subject Blocked Account by the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, Blocked Account Bank); and
(vi) cash held in any Deposit the proceeds of all credit card charges.
(d) The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Administrative Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times 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.
(e) All funds received in the Agent Payment Account shall be applied to the Obligations as provided in accordance with respect Section 8.03 of this Agreement and without regard to whether the Administrative Agent is exercising remedies provided for in Section 8.02 following the occurrence and during the continuance of an Event of Default. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Concentration Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Administrative Agent.
(other than for any f) Upon the request of the purposes described Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause each Blocked Account to ensure the proper transfer of funds as set forth above.
(iig) Without limiting the generality of Sections 6.13(a) through 6.13(f) above, upon the occurrence and during the continuance of a Cash Dominion Event (and not prior thereto), Administrative Agent shall have the right to direct (i) each depository institution listed on Schedule 5.21(a), (ivii) each bank that is party to a Blocked Account Agreement (subject to the terms of such Blocked Account Agreement), and (viii) each Credit Card Processor and Credit Card Issuer which then acts as a credit card clearinghouse and/or processor for any Loan Party to, in each case, remit to the Concentration Account (or (vii) abovesuch other account as Administrative Agent may direct), all monies on deposit in the applicable bank accounts, no less frequently than daily, and all payments payable to a Loan Party by such Credit Card Processor or Credit Card Issuer, as and when payable to such Loan Party.
Appears in 1 contract
Samples: Credit Agreement (Stein Mart Inc)
Cash Management. At (a) Within thirty (30) days of the occurrence of Specified Default, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower shall notBorrowers, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Agent, shall deliver to the Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Closing Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for the Loan Parties to satisfy the current liabilities incurred sales by such Loan Parties Party.
(c) On or prior to the Closing Date, each Loan Party shall:
(i) deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Agents, with any Blocked Account Bank, including, without limitation, with respect to the deposit accounts existing as of the Closing Date listed on Schedule 2.18(c) attached hereto (collectively, the “Blocked Accounts”).
(d) Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Financing Facility is repaid in full, a Prepayment Event arising in connection with the Term Loan Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA; and
(v) the cash proceeds of all credit card charges.
(e) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $3,000,000 or exceed $10,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), and without acceleration 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 is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral 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, the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the satisfaction of such current liabilitiesthe Collateral Agent, the proceeds from the Term Loan Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (iiix) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) contents of the definition of “Prepayment Event” for which Blocked Accounts, and (y) such accounting, the Borrower is permitted Collateral Agent agrees to apply such Net Proceeds as a reinvestment promptly remit to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision the agent under any Additional Senior Debt Document, (iv) cash the Term Loan Financing Facility the proceeds of Refinancing Indebtedness the Term Loan Priority Collateral received by the Administrative Agent.
(f) 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 Collateral Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust, and tax withholding accounts or unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of its intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not yet applied enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to Refinance the applicable Refinanced Debt in accordance with clause Collateral Agent.
(xig) of The Borrowers may also maintain one or more disbursement accounts (the first proviso “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the definition ordinary course of the term “Refinancing Indebtedness”, business or as otherwise permitted hereunder.
(vh) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral 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 2.18, 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 Collateral 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 Collateral Agent.
(i) 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.
(j) The Collateral Agent shall 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.
(k) 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, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. Boston 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Obligations or are being paid in full, by 2:00 p.m. Boston time, on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return;
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.03.
Appears in 1 contract
Samples: Credit Agreement (COHOES FASHIONS of CRANSTON, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the FirstSecond Amendment Effective Date (to the extent not delivered to the Administrative Agent prior to such date):
(i) deliver to the Administrative Agent originals of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party, which shall be delivered by the Administrative Agent to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the Borrower “Blocked Accounts”).
(b) The Loan Parties shall notACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA and all payments due from Credit Card Issuers and Credit Card Processors.
(c) Each Blocked Account Agreement shall require upon notice from the Collateral Agent (it being understood that the Collateral Agent shall not deliver any such notice prior to the occurrence of a Cash Dominion Event) the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Xxxxx Fargo (the “Collection Account”), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts (x) from the sale of Inventory, and shall (y) subject to the ABL Intercreditor Agreement, from the sale of other assets (whether or not permit any Subsidiary constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Cash Proceeds, and all other cash payments received by a Loan Party tofrom any Person or from any source or on account of any sale or other transaction or event, permit cash on hand including, without limitation, any Prepayment Event;
(including iv) the then current contents of each DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(v) the then current entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank); and
(vi) the proceeds of any Revolving Loan and any Other Revolving Loansall credit card charges.
(d) in an aggregate amount in excess of $200,000,000 to accumulate and The Collection Account shall at all times be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal with respect to from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(f) At the request of the Administrative Agent, the Loan Parties shall deliver to the Administrative Agent copies of notifications (each, a “DDA Notification”), in form and substance reasonably satisfactory to the Administrative Agent, which have been executed on behalf of such Borrowings is Loan Party and delivered to accumulate cash each depository institution listed on hand Schedule 5.21(a).
(g) The Loan Parties shall cause to be maintained, with Xxxxx Fargo or any Affiliate thereof, the Loan Parties’ primary Cash Management Services (including, without limitation, the Loan Parties’ concentration accounts, master depository accounts and similar accounts (which, for clarity, shall include the Blocked Accounts)) and primary operating accounts, other than such accounts as the Administrative Agent may agree in its Permitted Discretion.
(h) Notwithstanding anything contained in this Section 6.13 to the contrary, prior to the Discharge of ABL Term Obligations, all Net Cash Proceeds (as defined, solely for any the purposes of this Section 6.13(h), in the ABL Term Credit Agreement as in effect as of the purposes described Second Amendment Effective Date) of ABL Term Priority Collateral shall, to the extent required under the ABL Term Credit Agreement (as in clause (iieffect as of the Second Amendment Effective Date), (iv)be deposited, (v) or (vii) above)as and when received, into the ABL Term Loan Priority Account.
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Cash Management. At any (a) On or prior to the date which is sixty (60) days following the Closing Date (as such time any Revolving Loans (including any Other Revolving Loans) are outstandingperiod may be extended by the Agent in its sole discretion), the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales deliver to the Agent copies of notifications in the process form of inter-account transfersExhibit H hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in each case as a result of form and substance to the ordinary course operations of Agent which have been executed by the applicable Loan PartiesParties and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed in the Perfection Certificate, (ii) cash necessary for open the UK Collection Account (as defined below) and (iii) enter into a Blocked Account Agreement with each Blocked Account Bank set forth on Schedule 6.12.
(b) ACH or wire transfer no less frequently than daily, or, so long as no Cash Dominion Event has occurred and is continuing, as to the DDAs identified as “Inlet Accounts” on the Perfection Certificate, monthly (provided that the Loan Parties shall not maintain an amount greater than $1,000,000 in the aggregate with respect to satisfy such Inlet Accounts at any time outstanding), and as to additional DDAs that are not Blocked Accounts, weekly (provided that the current liabilities incurred by such Loan Parties shall not maintain an amount greater than $50,000 in the ordinary course aggregate at any time in such additional DDAs that are not Blocked Accounts) (and in each case, whether or not there are then any outstanding Loan Agreement Obligations) to a Blocked Account all amounts on deposit in each DDA (other than, so long as the Term Facility is in effect, Term Loan Priority Accounts (as defined in the Intercreditor Agreement)) (net of their businesses any minimum balance as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained) and all payments received from all Credit Card Issuers and Credit Card Processors and from SHC and its Subsidiaries pursuant to the Separation Agreements.
(c) After the occurrence and during the continuance of a Cash Dominion Event, subject to the Intercreditor Agreement with respect to Term Loan Priority Accounts (as defined therein) cause the ACH or wire transfer to the collection account maintained by the Agent at Bank of America or with another financial institution acceptable to the Agent in its sole discretion (the “Domestic Collection Account”) (in the case of any Domestic Loan Party) or maintained by the Agent at Bank of America (the “UK Collection Account”) (in the case of any UK Loan Party), no less frequently than daily (and whether or not there are then any outstanding Loan Agreement Obligations), all cash receipts and collections from all sources, including, without acceleration limitation, the following:
(i) all available cash receipts from the sale of the satisfaction Inventory (including without limitation, proceeds of such current liabilities, credit card charges) and other assets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) the Net Proceeds all net proceeds received in respect by a Loan Party from any Person or from any source or on account of a Prepayment Event described in clause (a) or (b) any Disposition of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, ABL Priority Collateral;
(iv) cash proceeds the then contents of Refinancing Indebtedness each DDA (other than, so long as the Term Facility is in effect, Term Loan Priority Accounts) (net of any minimum balance, not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso exceed $2,500.00, as may be required to be kept in the definition of subject DDA by the term “Refinancing Indebtedness”, depository institution at which such DDA is maintained); and
(v) cash proceeds the then entire ledger balance of Refinancing Indebtedness each Blocked Account (net of any minimum balance, not to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtednessexceed $50,000.00, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be deposited pursuant kept in the subject Blocked Account by the Blocked Account Bank); All funds in each DDA and each Blocked Account shall be conclusively presumed to Section 2.05(j) or otherwise be Collateral and proceeds of Collateral and the Agent and the Lenders shall have no duty to cash collateralize letters inquire as to the source of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held amounts on deposit in any Deposit DDA or Blocked Account.
(d) Each Collection Account and each UK Blocked Account shall at all times during the continuance of the Loan Parties which is a Cash Dominion Event be under the sole dominion and control of the Collateral Agent Agent. The Loan Parties hereby acknowledge and agree that (i) during the continuance of a Cash Dominion Event, the Loan Parties have no right of withdrawal from the Collection Accounts or the UK Blocked Accounts, (ii) the funds on deposit in the Domestic Collection Account shall at all times be collateral security for all of the Obligations, (iii) the funds on deposit in the UK Collection Account shall at all times be collateral security for all of the UK Liabilities, and (iv) during the continuance of a Cash Dominion Event, (A) unless the Loan Agreement Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in the Collection Account shall be applied to the Loan Agreement Obligations as provided in Section 2.05(g) and (h) hereof, and (B) if the Collateral Agent Loan Agreement Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in the Collection Accounts shall be applied to the Obligations as provided in Section 8.03 hereof. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has exclusive rights dominion and control of withdrawal with respect to any such Deposit Accounts. The Borrower cash receipts or collections while a Cash Dominion Event exists, such receipts and collections shall be held in trust by such Loan Party for the Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor, the Loan Parties shall deliver to the Agent a Credit Card Notification as set forth in Section 6.12(a) hereof.
(f) The Agent agrees that (1) it shall not direct any Credit Card Issuer or Credit Card Processor to transfer any proceeds pursuant to any Credit Card Notification unless a Cash Dominion Event has occurred and is continuing and (2) if any Loan Party shall so request, unless a Cash Dominion Event has occurred and is continuing, the purpose of Agent shall countersign any notification, request, order or direction from such Borrowings Loan Party to any Credit Card Issuer or Credit Card Processor directing payments from such Credit Card Issuer or Credit Card Processor to be made to a new or different DDA, provided such DDA is to accumulate cash on hand a Blocked Account.
(other than for any g) Upon the request of the purposes described Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Abl Credit Agreement (Lands End Inc)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, On or prior to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Closing Date:
(i) deliver to the Lender copies of notifications (each, a “store” cashCredit Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement satisfactory in form and substance to the Lender with each Blocked Account Bank (collectively, cash the “Blocked Accounts”); and
(iii) at the request of the Lender, deliver to the Lender copies of notifications (each, a “DDA Notification”) substantially in transit between stores the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and local Deposit Accounts delivered to each depository institution listed on Schedule 5.21(a).
(b) From and after the Closing Date, the Loan Parties shall ACH or wire transfer no less frequently than each Business Day (or, in the case of subclause (iii) below, on Monday, Wednesday and Friday of each week (to the extent such Monday, Wednesday or Friday is a Business Day and, if such day is not a Business Day, on the next succeeding Business Day) so long as a Cash Dominion Event has not occurred and is continuing and on each Business Day if a Cash Dominion Event has occurred and is continuing) and whether or not there are then any outstanding Obligations, to a Blocked Account all of the following:
(i) all amounts on deposit in each DDA (net of any minimum balance, not to exceed $5,000.00, as may be kept in the subject DDA under the Borrowers’ policies as in effect on the Closing Date);
(ii) all payments from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash receipts from sales the Disposition of Inventory and other assets (whether or not constituting Collateral) (other than cash kept in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties Stores in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilities, (iii) Borrowers’ policies as in effect on the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, Closing Date;
(iv) cash all proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, Accounts; and
(v) all Net Proceeds, and all other cash proceeds payments received by a Loan Party from any Person or from any source or on account of Refinancing Indebtedness any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(c) Each Blocked Account Agreement shall require upon notice from Lender, which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the extent that concentration account maintained by the applicable Refinanced Debt consists Lender at Xxxxx Fargo (the “Concentration Account”), of unused Revolving Commitments or Other Revolving Commitments that have been terminated all cash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), including, without limitation, the following:
(i) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as may be kept in connection with the issuance of such Refinancing Indebtedness, subject Blocked Account under the Borrowers’ policies as in effect on the Closing Date);
(viii) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral all amounts required to be deposited into the Blocked Accounts pursuant to Section 2.05(jclause (b) above; and
(iii) any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or otherwise to cash collateralize letters of credit event; provided, however, the Lender may, in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of its sole discretion, permit the Loan Parties to have one or more “intermediate” Blocked Account Agreements, whereby such agreements would provide, upon notice from the Lender, which is notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) of all Receipts and Collections to another Blocked Account, as opposed to the Concentration Account.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if Lender. The Lender shall cause all funds on deposit in the Collateral Agent has exclusive rights Concentration Account to be applied to the Obligations, which amounts shall be applied to the Obligations in the order proscribed in either Section 2.04(e) or Section 8.03 of this Agreement, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal with respect to from the Concentration Account, and (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the Lender, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Concentration Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Lender.
(other than for any e) Upon the request of the purposes described Lender, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Lender not less often than monthly, accurately setting forth all amounts deposited in clause each Blocked Account to ensure the proper transfer of funds as set forth above.
(ii), (iv), (vf) or (viiIf the Lender does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a)(iii) above, then the Loan Parties shall, upon the request of the Lender at any time after the Closing Date, deliver to the Lender copies of DDA Notifications, which have been executed on behalf of the applicable Loan Party and delivered to each depository institution listed on Schedule 5.21(a).
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingWithin ninety (90) days after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall notLoan Parties shall, to the extent not delivered prior to the Effective Date and shall not permit any Subsidiary Loan Party to, permit cash on hand (including as reasonably required by the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) deliver to the Collateral Agent notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process of inter-account transfers, in each case form attached hereto as a result Exhibit F which have been executed on behalf of the ordinary course operations of Borrower and addressed to the Loan Parties, Borrower’s credit card clearinghouses and processors listed in the Information Certificate; and
(ii) cash necessary for enter into a Blocked Account Agreement with each Blocked Account Bank with respect to each DDA (other than a DDA constituting an Excluded DDA) maintained with such Blocked Account Bank (such DDAs subject to Blocked Account Agreements, collectively, the “Blocked Accounts”). Such Blocked Account Agreement(s) may be entered into with Administrative Agent, Wxxxx Fargo Bank, National Association, any Lender, and/or another financial institution reasonably acceptable to the Agents. If any Loan Party is unable to obtain a Blocked Account Agreement as required herein, at the Collateral Agent’s option, such Loan Party shall be required to transfer to and maintain such account with the Collateral Agent or at another Blocked Account Bank.
(b) So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct the manner of disposition of funds in the DDAs and Blocked Accounts. Each Credit Card Notification shall require the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account or a Cash Dominion Event then is continuing) of all available cash receipts (the “Cash Receipts”) therein to satisfy a Blocked Account, and the current liabilities incurred by such Loan Parties shall cause the ACH or wire transfer of funds on deposit in DDAs (other than Excluded DDAs) to a Blocked Account (provided, that so long as no Cash Dominion Event is then continuing, the Loan Parties may transfer such funds in accordance with its customary practices in the ordinary course of their businesses business, such customary practices to include, without limitation, the amount of funds to be retained in each DDA and without acceleration not so transferred) (it being understood that, with respect to any transfers described in this sentence occurring during the period commencing on the Effective Date and ending on the date that is ninety (90) days following the Effective Date, the requirement shall be deemed to have been met if such transfers are made to any account that becomes a Blocked Account during such period in accordance with SECTION 2.18(a)(ii)). Any amounts held in the Bank of America Concentration Account (i) at any time when no Cash Dominion Event then exists and is continuing, or (ii) following Payment in Full, shall be remitted to a Blocked Account of the satisfaction Borrower as specified by the Borrower.
(c) Each Blocked Account Agreement (other than such agreement entered into with respect to the Bank of America Concentration Account) shall require, after the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the ACH or wire transfer on each Business Day (or such current liabilities, other frequency as the Administrative Agent may agree) (iiiand whether or not there is then an outstanding balance in the Loan Account) of all available Cash Receipts to the Bank of America Concentration Account from:
(A) the sale of Inventory;
(B) all proceeds of collections of Accounts (including without limitation, proceeds of credit card charges);
(C) all Net Proceeds received on account of any Prepayment Event; and
(D) the then contents of each Blocked Account (other than the Bank of America Concentration Account), provided that up to $3,500 may be maintained in respect overnight balances in any Blocked Account (other than the Bank of America Concentration Account).
(d) After the occurrence and during the continuance of a Prepayment Event described Cash Dominion Event, the Loan Parties shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If, at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents consisting of proceeds of ABL Priority Collateral (other than Trust Funds that have been deposited in a Trust Fund DDA in accordance with clause (ah) below, except to the extent any excess proceeds are required to be deposited in the Bank of America Concentration Account pursuant to such clause (h)) owned by any Loan Party are deposited to any account, or held or invested in any manner, other than in a Blocked Account (bor a DDA which is swept daily to a Blocked Account), the Collateral 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, provided that up to $500,000 in the aggregate as to all DDAs may be maintained in overnight balances in such DDAs.
(e) The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject, in the case of a Blocked Account, to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (it being understood and agreed that, with respect to any Blocked Account (x) acquired in connection with a Permitted Acquisition or an Investment permitted under clauses (p) and/or (q) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing IndebtednessPermitted Investment”, or (vy) cash proceeds of Refinancing Indebtedness to opened after the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessEffective Date, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which shall deliver to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent), duly executed by the applicable Loan Parties and Blocked Account Banks, within sixty (60) days (or such later date as the Administrative Agent may agree in its sole discretion) following the date of such Permitted Acquisition, such Investment or opening of such Blocked Account, as applicable). No Loan Party shall enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Collateral Agent.
(f) The Borrower may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(g) At all times after the occurrence and during the continuance of a Cash Dominion Event, the Bank of America Concentration Account shall be under the sole dominion and control of the Collateral Agent. Each Loan Party hereby acknowledges and agrees that, after the occurrence and during the continuance of a Cash Dominion Event, no Loan Party has any right of withdrawal from the Bank of America Concentration Account. The Blocked Account Agreement governing the Bank of America Concentration Account shall require, after the occurrence and during the continuance of a Cash Dominion Event and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available amounts to the Administrative Agent for application to the Obligations in accordance with SECTION 2.17(d) or SECTION 2.17(e) or, if an Event of Default shall have occurred and be continuing, SECTION [7.03.]7.03 or SECTION 7.04, as applicable. All funds on deposit in the Bank of America Concentration Account shall at all times continue to be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections after the occurrence and during the continuance of a Cash Dominion Event, then except as otherwise provided under clause (d) above with respect to maintenance of up to $500,000 in the aggregate in overnight balances, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(h) Notwithstanding anything to the contrary contained in this Section 2.18, the Borrower (i) may establish segregated DDAs into which Trust Funds may be deposited in the ordinary course of business and in accordance with the Borrower’s past practices (each such DDA, a “Trust Fund DDA”), and (ii) shall establish the Term Loan Priority Account (as defined in the Intercreditor Agreement) into which shall be deposited proceeds of the Term Priority Collateral in accordance with the Intercreditor Agreement. The Trust Funds so deposited shall not be swept to the Bank of America Concentration Account or applied to the Obligations but rather will be available for the specific purposes required for such Trust Funds. The proceeds of the Term Priority Collateral so deposited into the Term Loan Priority Account shall not be swept to the Bank of America Concentration Account or applied to the Obligations except to the extent provided in the Intercreditor Agreement. Any amounts in the Trust Fund DDAs and the Term Loan Priority Account shall continue to constitute Collateral. After the occurrence and during the continuance of a Cash Dominion Event, the excess proceeds deposited in the Trust Fund DDAs shall be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent. To the extent any proceeds of the Term Priority Collateral are received by the Administrative Agent, the same shall be applied in accordance with the Intercreditor Agreement.
(i) 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 Bank of America Concentration Account on the Business Day on which deposited, provided that notice of such deposit is available to the Collateral Agent has exclusive rights by 2:00 p.m. on that Business Day;
(ii) Funds paid to the Administrative Agent other than by deposit to the Bank of withdrawal with respect America Concentration Account, shall be deemed to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive have been received on the Business Day period if the purpose when they are good and collected funds, provided that notice of such Borrowings payment is available to accumulate cash the Administrative Agent by 2:00 p.m. on hand that Business Day;
(other than for any iii) If notice of a deposit to the Bank of America Concentration Account or payment is not available to the Administrative Agent until after 2:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) On each Business Day, the Administrative Agent shall apply the then collected balance of the purposes described Bank of America Concentration Account (net of monthly fees charged, and of such impressed balances as may be required by Bank of America) in clause (ii), (iv), accordance with this SECTION 2.18; and
(v) If any item deposited to the Bank of America Concentration Account and credited to the Loan Account is dishonored or (vii) above)returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Loan Parties shall indemnify the Credit Parties against all claims and losses resulting from such dishonor or return.
Appears in 1 contract
Cash Management. At any (a) Annexed hereto as Schedule 4.16, as the same may be modified from time any Revolving Loans to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository (including any Other Revolving Loansi) are outstandingthe name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Administrative Agent, the Borrower shall not, and shall not permit any Subsidiary each Qualified Loan Party toshall (i) deliver to the Administrative Agent (A) notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any DDA (other than Excluded Accounts) is maintained, permit cash in form reasonably satisfactory to the Administrative Agent of the Administrative Agent’s interest in such DDA and (B) Credit Card Notifications executed on hand behalf of each such Qualified Loan Party and delivered to each Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent, (including ii) instruct each depository institution for a DDA (other than Excluded Accounts) that the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and any bank with which such Qualified Loan Party maintains a Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Concentration Account maintained with such bank and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be maintained collected by the applicable bank and deposited in the Deposit applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (i) any such amount to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $1,000,000 per account or $3,000,000 in the aggregate), if any, required by the bank at which such Blocked Account is maintained to an account maintained by the Administrative Agent at Wxxxx Fargo Bank, National Association (or another bank of recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) All collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, thatto pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, for purposes hereofthe Issuing Lenders and the Lenders under any of the Loan Documents; (4) fourth, “cash to repay (on hand” shall exclude a ratable basis) the following: outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash in transit between stores and local Deposit Accounts and cash receipts Cash Equivalents and/or Temporary Cash Investments from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the time to time inadvertently misapplied by any Qualified Loan PartiesParty, (ii) cash necessary for the Loan Parties cash, Cash Equivalents or Temporary Cash Investments deposited or to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesan Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Net Collateral pursuant to any Security Document, including Excluded Assets and (iv) cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds received Account (as defined in respect of the ABL/Term Loan Intercreditor Agreement, if any) are deposited to any bank account, or held or invested in any manner, otherwise than in a Prepayment Event described in clause Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Qualified Loan Party to close such bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) (a) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts and/or open new DDAs or new Concentration Accounts, subject to, in the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (ii) other arrangements reasonably satisfactory to the Administrative Agent and (b) as part of the definition Compliance Certificate to be delivered concurrently with the delivery of “Prepayment Event” for which financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the Borrower is permitted to apply such Net Proceeds as Representative will provide a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness list to the extent Administrative Agent of any new opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that the applicable Refinanced Debt consists of unused Revolving Commitments a Qualified Loan Party acquires new demand deposit accounts or Other Revolving Commitments that have been terminated new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 90 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of Subsection 4.16(b) (including, with respect to any new Concentration Account, by entering into a Blocked Account Agreement) or letter shall enter into other arrangements consistent with the provisions of credit documents this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any new Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsAdministrative Agent. The Borrower Representative, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agreement, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has no right of withdrawal from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement and the ABL/Term Loan Intercreditor Agreement (and any other applicable intercreditor agreement). In the event that, notwithstanding the provisions of this Subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to Subsection 4.16(c), such proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the purposes described monetary obligations due and owing hereunder and under the other Loan Documents have been satisfied or (y) all Dominion Events have been cured or waived, shall (subject in the case of clause (iix) to the provisions of the applicable intercreditor agreement), (iv), (v) or (vii) above)be remitted to the operating bank account of the applicable Qualified Loan Party.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan PartiesBorrower and its Subsidiaries, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties and their Subsidiaries to satisfy the current liabilities incurred by such Loan Parties and their Subsidiaries in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Cash Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Cash Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j2.05(n) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and documents, (viii) cash held in any Deposit Account of the Loan Parties which is (or, will be, following the date which is 60 days after the Closing Date) under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans Accounts and (ix) cash proceeds of Escrow Notes or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause Indebtedness incurred under clauses (ii), (ivvii), (vviii) or (viixviii) aboveof Section 6.01 in connection with a proposed Business Acquisition during the period commencing on the date of receipt thereof and ending on the date that is 45 days after the abandonment of such proposed Business Acquisition (it being understood that such cash proceeds may be held in a separate account and shall not constitute Collateral during such period prior to the earlier to occur of (x) the consummation of such proposed Business Acquisition and (y) the date that is 45 days after the abandonment of such proposed Business Acquisition).
Appears in 1 contract
Samples: Credit Agreement (Rite Aid Corp)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date, the Borrower shall not, and shall not permit any Subsidiary have provided to the Administrative Agent a list of all DDAs that are maintained by the Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Parties as of the Loan PartiesClosing Date, providedwhich schedule shall include, that, for purposes hereof, “cash on hand” shall exclude the following: with respect to each depository (i) “store” cash, cash in transit between stores the name and local Deposit Accounts and cash receipts from sales in the process address of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Partiessuch depository, (ii) cash necessary the account number(s) maintained with such depository and (iii) a contact person at such depository.
(b) On or prior to the Closing Date, the Borrower shall have provided to the Administrative Agent a list describing all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party as of the Closing Date.
(c) On or prior to the Closing Date, the Borrower shall have provided to the Administrative Agent a list describing all payors of the third party insurance provider accounts from which a Loan Party receives payments of Eligible Third Party Insurance Provider Account Receivables as of the Closing Date.
(d) Within ten (10) Business Days after the Closing Date (or such longer time as the Administrative Agent may agree in writing in its Permitted Discretion), each Loan Party shall:
(i) deliver to the Administrative Agent notifications, substantially in the form of Exhibit L (each, a “Credit Card Notification”), which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors to the extent included in the Revolving Borrowing Base; and
(ii) deliver to the Administrative Agent notifications, substantially in the form of Exhibit M (each, an “Insurance Provider Notification”), which have been executed on behalf of such Loan Party and addressed to such Loan Party’s payors of third party insurance providers accounts to the extent included in the Revolving Borrowing Base.
(e) At the request of the Administrative Agent, each Loan Party shall deliver to the Administrative Agent notifications, substantially in the form of Exhibit N (each, a “DDA Notification”), which have been executed on behalf of each Loan Party to each depository institution with which any DDA is maintained.
(f) The Loan Parties shall enter into an Account Control Agreement with the banks with which such Loan Party maintains DDAs and securities accounts (other than with respect to any Excluded Accounts) (collectively, the “Controlled Accounts”). In addition, the Loan Parties shall cause the ACH or wire transfer on each Business Day of all available cash receipts (other than receipts on deposit in an Excluded Account or Disbursement Account) (the “Cash Receipts”) to satisfy be transferred to a concentration account maintained by the current liabilities incurred Borrower at JPMorgan Chase Bank, N.A. subject to an Account Control Agreement (the “Primary Concentration Account”) from:
(i) the sale or other Disposition of, or Recovery Event with respect to, ABL Priority Collateral;
(ii) all proceeds of collections of Accounts constituting ABL Priority Collateral;
(iii) the then contents of each Controlled Account; and
(iv) the proceeds of all credit card charges constituting ABL Priority Collateral.
(g) During the continuation of a Cash Dominion Triggering Event, the Borrower shall accurately report to the Administrative Agent all amounts deposited in the Controlled Accounts (other than the Disbursement Accounts) to ensure the proper transfer of funds as set forth above. If, at any time any cash or cash equivalents owned by any Loan Party that constitutes ABL Priority Collateral are deposited to any DDA or securities account, or held or invested in any manner, other than in a Controlled Account that is subject to an Account Control Agreement (or an Excluded Account), the Administrative Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Controlled Account, and all future deposits made to a Controlled Account which is subject to an Account Control Agreement (other than with respect to cash on deposit in an Excluded Account or Disbursement Account).
(h) The Loan Parties may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the Administrative Agent of appropriate Account Control Agreements consistent with the provisions of this Section 7.13 and otherwise reasonably satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent (such consent not to be unreasonably withheld or delayed), the Loan Parties shall not (x) enter into any agreements with credit card processors other than the ones expressly contemplated herein unless, within ten (10) Business Days thereafter, a Credit Card Notification is executed and delivered to the Administrative Agent or (y) include any third party insurance provider accounts receivable in the Revolving Borrowing Base unless, within ten (10) Business Days after including such third party insurance provider accounts receivable in the Revolving Borrowing Base, an Insurance Provider Notification is executed and delivered to the Administrative Agent.
(i) The Loan Parties may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Loan Parties for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration business or as otherwise permitted hereunder.
(j) During the continuation of the satisfaction of such current liabilitiesa Cash Dominion Triggering Event, (iiii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Primary Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Administrative Agent and (ii) each Loan Party hereby acknowledges and agrees that (A) such Loan Party shall not, without the consent of the Administrative Agent, make withdrawals from the Primary Concentration Account, (B) the funds on deposit in the Primary Concentration Account shall at all times continue to be collateral security for all of the Obligations and (C) the funds on deposit in the Primary Concentration Account shall be applied as provided in Section 4.03(b) of this Agreement. In the event that, notwithstanding the provisions of this Section 7.13 any Loan Party receives or otherwise has dominion and control of any such proceeds or collections of ABL Priority Collateral Agent if during the Collateral Agent has exclusive rights continuation of withdrawal with respect to a Cash Dominion Triggering Event, such Deposit Accounts. The Borrower proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose Primary Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(k) Any amounts received in the Primary Concentration Account during the continuation of such Borrowings is to accumulate cash on hand a Cash Dominion Triggering Event, at any time when all of the Obligations (other than for contingent indemnification obligations not then due and owing) have been and remain fully repaid shall be remitted to the Borrower, if and as the Borrower may request.
(l) 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 Primary Concentration Account on the Business Day on which deposited;
(ii) Funds paid to the Administrative Agent other than by deposit to the Primary Concentration Account, shall be deemed to have been received on the Business Day when they are good and collected funds; and
(iii) If notice of a deposit to a Primary Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m., Chicago time, on a Business Day, such deposit or payment shall be deemed to have been made at 8:00 a.m., Chicago time, on the then next Business Day.
(m) Promptly following the written request from any Lender, the Administrative Agent shall furnish to such Lender a copy of the purposes described in clause lists delivered to the Administrative Agent pursuant to clauses (iia), (iv), (vb) or (viic) above).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Roundy's, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary No Loan Party to, permit cash on hand shall establish or maintain any Deposit Account or Securities Account (including the proceeds of any Revolving Loan and any Other Revolving Loansother than Excluded Accounts) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: unless (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in at a financial institution that is reasonably satisfactory to the process of inter-account transfers, in each case as a result agent (at the direction of the ordinary course operations of Required Lenders), provided that each bank and financial institution utilized by Borrower and its Subsidiaries on the Loan PartiesClosing Date and listed on Schedule 6.18 are deemed to be reasonably satisfactory to the Agent and the Required Lenders, and (ii) such financial institution shall have duly executed and delivered to the Agent a Control Agreement with respect to such Deposit Account or Securities Account within thirty (30) days of: (y) the establishment of any Deposit Account or Securities Account or (z) a Subsidiary becoming a Loan Party. Except for cash necessary for on deposit in an Excluded Account, the Loan Parties shall deposit all other cash at the dispensaries, cultivation facilities, production facilities or from other operations in Deposit Accounts with banks in the state in which such operations occur (if any) promptly after receipt thereof (and in any event cause such receipts to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses business), provided that, for the avoidance of doubt, it shall not be a violation of this Section 6.18 by a Loan Party if such Loan Party is prohibited or limited from transferring cash that would otherwise be required to be transferred to a Deposit Account if such transfer is not permitted pursuant to Applicable Law or the bank or other financial institution where the applicable Loan Party has established and without acceleration maintains a Deposit Account. The Loan Parties shall provide prior written notice to Agent of each new Deposit Account or Securities Account that it opens on or after the Closing Date, in each case providing the current balance, the anticipated average daily balance, and the name and address of the satisfaction of depositary bank for each such current liabilitiesaccount. Notwithstanding the foregoing, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated Loan Parties cease to be required to maintain the FVC Reserve Amounts in connection with the issuance of Deposit Accounts at FVCBank, any such Refinancing Indebtedness, FVC Reserve Amounts must be promptly (vi) cash held but in any Deposit event, within three (3) Business Days) transferred to a Controlled Account relating to and any Securitization or Factoring Transaction, accounts must be closed within thirty (vii30) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account days of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to date such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)requirement ceases.
Appears in 1 contract
Cash Management. At (i) Each Credit Party shall use commercially reasonable efforts to enter into control agreements (each, a “Blocked Account Agreement”) as soon as possible after the Restatement Effective Date and, in any time any Revolving Loans event, shall have actually entered into such Blocked Account Agreements within 120 days after the Restatement Effective Date (including any Other Revolving Loansor such later date approved by the Administrative Agent in its reasonable discretion), in a form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and each other bank with which such Credit Party maintains a DDA located in the United States (other than an Excluded Account) are outstanding(collectively, the “Blocked Accounts”); and (ii) upon delivery of such Blocked Account Agreements referred to in clause (i), the Borrower shall notprovide a schedule of DDAs, indicating for each DDA if such DDA is required to be subject to a Blocked Account Agreement pursuant to the Credit Documents; provided that, if Blocked Account Agreements with respect to each Blocked Account are not delivered to the Administrative Agent within 120 days after the Restatement Effective Date, each Credit Party shall move any such Account to the Administrative Agent or another depositary, subject to a Blocked Account Agreement in favor of the Administrative Agent.
(b) The Borrower agrees that it will cause all proceeds of the ABL Priority Collateral (other than the Uncontrolled Cash and subject to clause (c) below) to be deposited into a Blocked Account.
(c) Each Blocked Account Agreement of a Credit Party shall require (only during the continuance of a Cash Dominion Period and following delivery of notice of the commencement thereof from the Administrative Agent to the Borrower and the account bank party to such instrument or agreement; provided that such notice shall not permit any Subsidiary Loan Party tobe delivered earlier than two Business Days following the start of a Cash Dominion Period), permit the ACH or wire transfer no less frequently than once per Business Day (but without limit on frequency if the Maturity Date shall have actually occurred), of all available cash on hand (balances and cash receipts, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess each Blocked Account (net of $200,000,000 such minimum balance as may be required to accumulate and be maintained in the Deposit Accounts subject Blocked Account by the bank at which such Blocked Account is maintained and other than any Uncontrolled Cash), to one or more accounts maintained by the Administrative Agent (the “Payment Accounts”). Subject to the terms of the Loan PartiesABL Intercreditor Agreement, provided, that, for purposes hereof, “cash on hand” all amounts received in a Payment Account or such other account shall exclude be applied (and allocated) by the following: Administrative Agent in accordance with Section 11.13 (except (A) pursuant to clause (i) thereof and (B) to Secured Cash Management Obligations and Secured Hedge Obligations).
(d) If, at any time after the occurrence and during the continuance of a Cash Dominion Period, any cash or Cash Equivalents owned by any Credit Party (other than (i) with respect to a Cash Dominion Period, an amount equal to the aggregate amount of cash and Cash Equivalents collected in Blocked Accounts during the first two Business Days of such Cash Dominion Period and that is on deposit in a segregated DDA which the Borrower designates in writing to the Administrative Agent as being the “storeuncontrolled cash account” cash(each such account, cash in transit between stores a “Designated Disbursement Account” and local Deposit Accounts and cash receipts collectively, the “Designated Disbursement Accounts”), which funds shall not thereafter be funded from, or when withdrawn from sales in the process of inter-account transfersDesignated Disbursement Accounts, in each case as a result shall not be replenished by, funds constituting proceeds of the ordinary course operations of the Loan PartiesABL Priority Collateral so long as such Cash Dominion Period continues, (ii) cash necessary de minimis Permitted Investments from time to time inadvertently misapplied by any Credit Party, (iii) segregated accounts that are subject to Liens permitted pursuant to clauses (i) through (iv) of the definition of Permitted Liens and to the extent that, and for so long as, a grant of a security interest therein would violate or invalidate the Loan Parties agreement giving rise to satisfy the current liabilities incurred by such Loan Parties permitted lien and (iv) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of the satisfaction of required by applicable Law and (each such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event account described in clause clauses (ai) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), through (iv), an “Excluded Account”) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (vor a DDA which swept daily to a Blocked Account) or a lockbox, the Administrative Agent shall be entitled to require the applicable Credit Party to close such account and have all funds therein transferred to a Blocked Account, and to cause all future deposits to be made to a Blocked Account.
(viie) above)The Credit Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts without the Administrative Agent’s consent, subject to the prompt execution and delivery to the Administrative Agent of a Blocked Account Agreement to the extent required by the provisions of this Section 9.17. The Credit Parties may open or close Excluded Accounts at any time, without requirement of delivery of a Blocked Account Agreement without consent of the Administrative Agent.
(f) So long as no Cash Dominion Period is in effect, the Credit Parties may direct, and shall have sole control over, the manner of disposition of funds in their respective Blocked Accounts.
(g) (i) Any amounts received in the Payment Accounts (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 and Secured Cash Management Obligations and Secured Hedge Obligations) and termination of the aggregate Commitments hereunder and (ii) any amounts that continue to be swept to the Payment Accounts after no Cash Dominion Period exists, shall, in each case, be remitted to the operating account of the Borrower as specified by the Borrower.
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Loan Parties party to the Borrower shall notExisting Credit Agreement have, and any Loan Parties that become party hereto on or after the Fourth Restatement Effective Date shall not permit any Subsidiary within 90 days after the date such Loan Party to, permit cash on hand (including Parties become party hereto or such longer period as the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent may reasonably agree:
(i) deliver to the Administrative Agent copies of notifications (each, a “store” cashCredit Card Notification”) which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Collateral Agent with respect to each DDA maintained with any Blocked Account Bank (collectively, cash in transit between stores the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and local Deposit Accounts exclusively used for payroll, payroll taxes and cash receipts from sales in other employee wage and benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s salaried employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) any Store Account maintained at a bank at which the Net Proceeds received in respect Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Prepayment Event Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $50,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (a) or (biii) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment Section 6.12(a)(ii)) shall be sent by wire transfer or other tangible assets electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $200,000,000) (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is closed or sold by $50,000 and increased by $50,000 each time a store is opened or acquired pursuant to Section 2.11(cany Permitted Acquisition) or at any equivalent provision under any Additional Senior Debt Documentone time, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness except to the extent that from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable Refinanced Debt consists of unused Revolving Commitments depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except as the Administrative Agent may otherwise agree.
(c) Establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit other Third Party Payor in accordance with the applicable loan Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or letter Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of credit documents receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided, that (viiii) cash held in any Deposit Account of the Loan Parties shall authorize, direct and instruct the depository banks at which is such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in such Blocked Account.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Collection Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Collateral Agent.
(other than for any g) Upon the request of the purposes described Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. At any (a) Annexed hereto as Schedule 4.16, as the same may be modified from time any Revolving Loans to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository: (including any Other Revolving Loansi) are outstandingthe name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s), if applicable) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Borrower shall notAdministrative Agent, and shall not permit any Subsidiary each Qualified Loan Party toshall (i) deliver to the Administrative Agent notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any DDA (other than Excluded Accounts) is maintained, permit cash on hand in form reasonably satisfactory to the Administrative Agent of the Administrative Agent’s interest (including as the proceeds of any Revolving Loan and any Other Revolving LoansCollateral Agent’s agent, sub-agent or designee, as applicable) in an aggregate such DDA, (ii) instruct each depository institution for a DDA (other than Excluded Accounts) that the amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate and one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) (A) for each Concentration Account maintained by a Qualified Loan Party with a bank located in the Deposit Accounts U.S. and into which DDAs (other than Excluded Accounts) are swept (each such Concentration Account, a “U.S. Blocked Account” and collectively, the “U.S. Blocked Accounts”), enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and the bank with which such Qualified Loan Party maintains such Concentration Account, covering each such Concentration Account maintained with such bank and (B) for each Concentration Account maintained by a Qualified Loan Party with a bank or other financial institution located outside the U.S. and into which DDAs (other than Excluded Accounts) are swept (each such Concentration Account, a “Non-U.S. Blocked Account”; collectively, the “Non-U.S. Blocked Accounts”; and collectively with the U.S. Blocked Accounts, the “Blocked Accounts”), take reasonable steps (including the entry into control agreements if applicable) with respect to such Concentration Account to perfect the Collateral Agent’s security interest in such Concentration Account as required by and in accordance with applicable local law and (iv) (A) instruct all Affiliate Lessees of such Qualified Loan Party that remit Affiliate Rental Payments of such Affiliate Lessees regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be collected by the applicable bank and deposited in the applicable DDA or Concentration Account or (B) cause the checks of any such Affiliate Lessees to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan PartiesParty. All amounts received by the Parent Borrower or any of its Subsidiaries that is a Loan Party in respect of any Affiliate Rental Payments, providedin addition to all other cash received from any other source, that, for purposes hereof, “shall upon receipt of such amount or cash on hand” shall exclude the following: (other than (i) “store” cash, cash any such amount to be deposited in transit between stores and local Deposit Excluded Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, or (ii) cash necessary for excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Parties Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to satisfy be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the current liabilities incurred by occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each U.S. Blocked Account net of such Loan Parties minimum balance (not to exceed the Dollar Equivalent of $500,000 per account or $1,000,000 in the ordinary course aggregate), if any, required by the bank at which such U.S. Blocked Account is maintained to an account maintained by the Administrative Agent at Xxxxxx Xxxxxxx Bank, N.A. (or another bank of their businesses and without acceleration recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the satisfaction Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of such current liabilities, any U.S. Blocked Account to be otherwise redirected.
(iiid) the Net Proceeds All collected amounts received in respect of the Core Concentration Account shall be distributed and applied on a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso daily basis in the definition of the term “Refinancing Indebtedness”following order (in each case, (v) cash proceeds of Refinancing Indebtedness to the extent that the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document or applicable Refinanced Debt consists Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of unused any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan Documents and to repay or prepay outstanding Revolving Commitments Credit Loans advanced by the Administrative Agent; (2) second, to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent and the Lenders under any of the Loan Documents; (3) third, to repay (on a ratable basis) the outstanding principal of Revolving Credit Loans (whether or Other Revolving Commitments not then due and payable); (4) fourth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (5) fifth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) de minimis cash, Cash Equivalents or Temporary Cash Investments from time to time inadvertently misapplied by any Qualified Loan Party, (ii) cash, Cash Equivalents or Temporary Cash Investments deposited or to be deposited in an Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Collateral pursuant to any Security Document, including Excluded Assets, and (iv) cash, Cash Equivalents or Temporary Cash Investments in an “Asset Sales Proceeds Account” or similar (as defined in any applicable Intercreditor Agreement then in effect)) are deposited to any bank account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Qualified Loan Party to close such bank account and have been terminated all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) (a) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts or open new DDAs or new Concentration Accounts, subject to, in the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (ii) other arrangements reasonably satisfactory to the Administrative Agent and (b) as part of the Compliance Certificate to be delivered concurrently with the delivery of financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the Borrower Representative will provide a list to the Administrative Agent of any newly opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that a Qualified Loan Party acquires new demand deposit accounts or new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 90 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of Subsection 4.16(b) (including, with respect to any new Concentration Account, by entering into a Blocked Account Agreement, if applicable) or letter shall enter into other arrangements consistent with the provisions of credit documents this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any new Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsAdministrative Agent. The Borrower Representative, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agreement or any applicable Intercreditor Agreement, (x) such Qualified Loan Party has no right of withdrawal from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement and any applicable Intercreditor Agreement. In the event that, notwithstanding the provisions of this Subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to Subsection 4.16(c), such proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the purposes described monetary obligations due and owing hereunder and under the other Loan Documents have been satisfied or (y) all Dominion Events have been cured or waived, shall (subject in the case of clause (ii)x) to the provisions of any applicable Intercreditor Agreement) be remitted to the operating bank account of the applicable Qualified Loan Party.
(k) Notwithstanding anything herein to the contrary, (iv)the Loan Parties shall be deemed to be in compliance with the requirements set forth in this Subsection 4.16 during the initial 90 day period commencing on the Closing Date to the extent that the arrangements described above are established and effective not later than the date that is 90 days following the Closing Date or such later date as the Administrative Agent, (v) or (vii) above)in its sole discretion, may agree.
Appears in 1 contract
Samples: Credit Agreement (CHC Group Ltd.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, the Borrower Each Credit Party shall not, establish and shall not permit any Subsidiary Loan Party to, permit maintain cash management services of a type and on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 terms satisfactory to accumulate and be maintained in the Deposit Accounts Agent at one or more of the Loan Partiesbanks set forth on Schedule 5.17 to the Closing Compliance Certificate (each, provideda “Cash Management Bank”), thatand, for purposes hereofin connection therewith, establish and maintain at such Cash Management Banks pursuant to the terms hereof one or more accounts designated (either in Schedule 5.17 to the Closing Compliance Certificate or pursuant to Section 2.7(h)) as concentration accounts (the “cash on hand” shall exclude Concentration Accounts”) and additional accounts designated (either in Schedule 5.17 to the following: Closing Compliance Certificate or pursuant to Section 2.7(h)) as (i) consolidated store deposit accounts (the “store” cash, cash in transit between stores and local Consolidated Store Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan PartiesAccounts”), (ii) cash necessary for individual store deposit accounts (the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses “Individual Store Accounts”) and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause home office deposit account (a) or the “Home Office Account” and together with the Concentration Accounts, the Consolidated Store Deposit Accounts and the Individual Store Accounts, the “Cash Management Accounts”).
(b) Except as otherwise specifically permitted in this Section 2.7, each Credit Party shall (1) request in writing and otherwise take such reasonable steps to ensure that all of its Account Debtors forward payment of the definition amounts owed by them directly to a Cash Management Bank for deposit into a Concentration Account, (2) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of “Prepayment Event” for which receipt thereof (and subject to Section 2.7(g) with respect to payments from Credit Card Processors), all such available Collections from Account Debtors (including those sent directly to a Cash Management Bank) into a Concentration Account, and (3) deposit or cause to be deposited promptly, and in any event no later than the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real propertyfirst Business Day after the date of receipt thereof, equipment all other available Collections (including cash, checks, drafts and all other forms of daily store receipts or other tangible assets pursuant to Section 2.11(csimilar items of payment) received by or any equivalent provision otherwise under any Additional Senior Debt Documentits control into a Cash Management Account provided, so long as no Dominion Triggering Period shall have occurred and be continuing, (ivi) cash proceeds the Credit Parties may maintain Collections in other Deposit Accounts as permitted under this Section 2.7, and (ii) the Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account. For purposes of Refinancing Indebtedness clarification, funds that need not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness be swept to the extent that specifically provided in this Section 2.7 and after funds are swept pursuant to any provision of this Section 2.7 to the applicable Refinanced Debt consists Designated Account, they may be used by the Borrower for its general corporate purposes.
(c) Each Credit Party further agrees to cause each of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any its stores which utilize a Consolidated Store Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required cause all Collections for such store to be deposited into a Consolidated Store Deposit Account and each Credit Party agrees that with respect to each Consolidated Store Deposit Account, it shall, at all times require each applicable Cash Management Bank to forward, by automatic periodic transfers on a daily basis, if practicable, and otherwise, once every three (3) Business Days, all available amounts in each such Consolidated Store Deposit Account into a Concentration Account; provided, (i) immediately after giving effect to each such transfer from any Consolidated Store Deposit Account into a Concentration Account, each Credit Party may maintain an amount not to exceed (x) $100,000 of available funds in any such Consolidated Store Deposit Account and (y) $5,000,000 in available funds in the aggregate in all such Consolidated Store Deposit Accounts, (ii) so long as no Dominion Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(d) Each Credit Party further agrees that with respect to each store which utilizes an Individual Store Account, such store shall cause all Collections for such store to be deposited into such Individual Store Account and each Credit Party agrees that with respect to each Individual Store Account it shall, at all times require each applicable Cash Management Bank to forward, by automatic periodic transfers on a regular basis, but in no event less frequently than once in any ten (10) day period, all available amounts in each such Individual Store Account into a Concentration Account; provided, however, that (i) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $5,000, (ii) immediately after giving effect to each such transfer from such Individual Store Account into a Concentration Account, the Credit Parties may maintain an available amount not to exceed $5,000 in such Individual Store Account, and (iii) so long as no Dominion Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(e) Each Credit Party further agrees that with respect to the Home Office Account, it shall, at all times require the applicable Cash Management Bank to forward, by automatic periodic transfers on a regular basis, but in no event less frequently than once in any ten (10) day period, all available amounts in the Home Office Account into (either directly or indirectly) a Concentration Account or another account under the control of Xxxxx Fargo or any of its Affiliates; provided, however, that (x) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $100,000, (y) immediately after giving effect to each such transfer from the Home Office Account into a Concentration Account or such other account under the control of Xxxxx Fargo or any of its Affiliates, the Credit Parties may maintain an available amount not to exceed $100,000 in such Home Office Account, and (z) so long as no Dominion Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(f) Each Credit Party further agrees that with respect to the Group Concentration Account, it shall, at all times require the applicable Cash Management Bank to forward, by automatic periodic transfers on a daily basis, all available amounts in the Group Concentration Account into (either directly or indirectly) a Concentration Account; provided, however, that (x) such automatic transfers of funds therein shall be required only at any time the available balance thereof should exceed $5,000,000, (y) immediately after giving effect to each such transfer from the Group Concentration Account into a Concentration Account, the Credit Parties may maintain an available amount not to exceed $5,000,000 in such Group Concentration Account, and (z) so long as no Dominion Triggering Period shall have occurred and be continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Designated Account.
(g) With respect to each Concentration Account, each Cash Management Bank shall establish and maintain Cash Management Agreements with Agent and the applicable Credit Party, in form and substance acceptable to Agent in its Permitted Discretion; provided; however, that, with respect to Consolidated Store Deposit Accounts, Individual Store Accounts and the Home Office Account no Credit Party shall be obligated to establish a Cash Management Agreement. Each Cash Management Agreement shall provide, among other things, that (i) all items of payment deposited in such Concentration Account and proceeds thereof are subject to the control of Agent, (ii) the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Concentration Account other than for payment of its service fees and other charges directly related to the administration of such Concentration Account and for returned checks or other items of payment, and (iii) from and after the date that it receives written notification from Agent (a “Control Exercise Notice”), it immediately will forward by daily sweep all amounts in the applicable Concentration Account to the Agent’s Account or as otherwise directed by Agent to prepay the Obligations in such order as set forth in Section 2.4(b); provided, that any such prepayments of the Loans pursuant to this Section 2.05(j2.7(g) may be reborrowed subject to Section 3.3. Anything contained herein or in any other Loan Document to the contrary notwithstanding, Agent agrees that it shall not provide a Control Exercise Notice to the Cash Management Banks except during a Dominion Triggering Period. At any time during a Dominion Triggering Period but only during a Dominion Triggering Period, Agent shall be free to exercise its right to issue a Control Exercise Notice. Agent shall deliver to Borrower and the applicable Credit Party a copy of any such Control Exercise Notice promptly after delivery thereof to the applicable Cash Management Bank; provided, however that a non-willful failure to so do shall not affect the validity of any such Control Exercise Notice or otherwise limit Agent’s right to cash collateralize letters send any other Control Exercise Notice. Upon the subsequent termination of such Dominion Triggering Period, Agent shall withdraw such Control Exercise Notice and permit funds to be transferred as set forth above, including permitting each Credit Party access to funds in any Concentration Account (and daily sweeps thereof into any Designated Account), but subject in all events to the right of Agent to deliver a Control Exercise Notice during any subsequent Dominion Triggering Period.
(h) Each Credit Party may establish and maintain Credit Card Agreements with Agent and each Credit Card Processor. Each such Credit Card Agreement shall provide, among other things, that each such Credit Card Processor shall transfer all proceeds of credit card charges for sales by each Credit Party received by it (or other amounts payable by such Credit Card Processor) into a designated Concentration Account on a daily basis or such other periodic basis as Agent may otherwise direct. No Credit Party shall change any direction or designation set forth in the Credit Card Agreements regarding payment of charges without the prior written consent of Agent.
(i) So long as no Event of Default has occurred and is continuing, Borrower may amend Schedule 5.17 to the Closing Compliance Certificate to add or replace a Cash Management Bank or Cash Management Account; provided, however, that in the case of any Concentration Account, (i) such prospective Cash Management Bank shall be reasonably satisfactory to Agent and Agent shall have consented in writing in advance to the opening of such Concentration Account with the prospective Cash Management Bank (which consent shall not be required with respect to any additional Concentration Account at an existing Cash Management Bank and otherwise shall not be unreasonably withheld), and (ii) prior to the time of the opening of any Concentration Account, the applicable Credit Party and such prospective Cash Management Bank shall have executed and delivered to Agent a Cash Management Agreement. Each Credit Party shall close any of its Concentration Accounts (and establish replacement cash management accounts in accordance with the applicable loan or letter of credit documents foregoing sentence) promptly and (viii) cash held in any Deposit Account event within 45 days of notice from Agent (or such longer period as such Credit Party and Agent may agree) that the creditworthiness of any Cash Management Bank is no longer acceptable in Agent’s reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Agent (or such longer period as such Credit Party and Agent may agree) that the operating performance, funds transfer, or availability procedures or performance of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal Cash Management Bank with respect to Concentration Accounts or Agent’s liability under any Cash Management Agreement with such Deposit AccountsCash Management Bank is no longer acceptable in Agent’s reasonable judgment. The Borrower Cash Management Accounts shall not borrow any Revolving Loans or Other Revolving Loans be cash collateral accounts, with all cash, checks and similar items of payment in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any accounts securing payment of the purposes described Obligations, and in clause (ii), (iv), (v) or (vii) above)which each Credit Party hereby grants a Lien to Agent.
Appears in 1 contract
Samples: Loan and Guaranty Agreement (Collective Brands, Inc.)
Cash Management. At (a) Within sixty (60) days after the Initial Closing Date (or such later date as the Agent may specify in its sole discretion), and at all times thereafter, the Loan Parties shall enter into and maintain Control Agreements, with respect to each Concentration Account.
(b) Each Control Agreement for each Concentration Account shall require, during the continuance of a Cash Control Trigger Event (and delivery of notice thereof from the Agent), the ACH or wire transfer on each Business Day of all ledgers or available, as applicable, cash receipts held in the Concentration Account to a concentration account maintained by the Agent (an “Agent Sweep Account”) located in the United States.
(c) If (i) at any time during the continuance of a Cash Control Trigger Event, any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary cash or Cash Equivalents owned by a Loan Party toare deposited in any account (other than an Excluded Account), permit cash on hand or held or invested in any manner (including the proceeds of any Revolving Loan and any Other Revolving Loansother than (w) in an aggregate amount Excluded Account, (x) in excess of $200,000,000 a Concentration Account that is subject to accumulate and be maintained the Control Agreement, or (y) in the a Deposit Accounts of the Loan PartiesAccount which is swept daily to a Concentration Account subject to a Control Agreement), provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, or (ii) cash necessary for at any time, a Concentration Account shall cease to be subject to a Control Agreement, the applicable Loan Parties to satisfy Party shall immediately furnish the current liabilities incurred by Agent with written notice thereof and the Agent may require such Loan Parties in the ordinary course of their businesses Party to close such account and without acceleration of the satisfaction of have any such current liabilities, (iii) the Net Proceeds received in respect of funds transferred to a Prepayment Event described in clause (a) Concentration Account which is subject to a Control Agreement or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection maintained with the issuance of such Refinancing Indebtedness, Agent.
(vid) cash held in A Loan Party may close any Deposit Account relating or a Concentration Account, maintain existing Deposit Accounts or Concentration Accounts and/or open new Deposit Accounts or Concentration Accounts, subject to the execution and delivery to the Agent of appropriate Control Agreements with respect to each Concentration Account (except with respect to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance Concentration Account maintained with the Agent) consistent with the provisions of this Section 2.18 and otherwise reasonably satisfactory to the Agent. The applicable loan Loan Party shall furnish the Agent with prior written notice of its intention to open or letter of credit documents close a Concentration Account and the Agent shall promptly notify such Loan Party as to whether the Agent shall require a Control Agreement with the Person with whom such account will be maintained.
(viiie) cash held in any Deposit Each Agent Sweep Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent Agent. Each Loan Party hereby acknowledges and agrees that (i) it has exclusive rights no right of withdrawal with respect from the Agent Sweep Account until the applicable Cash Control Trigger Event is no longer continuing as set forth in subclause (f), (ii) the funds on deposit in an Agent Sweep Account shall at all times continue to be collateral security for all of the Secured Obligations, and (iii) the funds on deposit in an Agent Sweep Account, shall be applied as provided in Section 2.18(h) of this Agreement and in the Security Agreement. In the event that, notwithstanding the provisions of this Section 2.18, during the continuance of a Cash Control Trigger Event, a Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Agent, shall not borrow be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent (except for (i) funds required to be deposited into an Excluded Account and (ii) funds necessary to fund working capital needs of the Company and its Subsidiaries, which funds will be deposited in an account subject to a Control Agreement in the case of this subclause (ii)).
(f) Any amounts remaining in an Agent Sweep Account (i) at any time when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement or (ii) after application of amounts received in such Agent Sweep Account as set forth in subsection (h) below, shall be remitted to the primary Concentration Account of the Company maintained with the Agent.
(g) The Agent shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Concentration Account is maintained when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement.
(i) Any amounts received in an Agent Sweep Account in the United States shall be applied to the payment (without a corresponding reduction of Commitments) of all of the Revolving Loans made to the Borrower (whether then due or Other Revolving Loans in an aggregate principal amount not) and to the payment of more than $100,000,000 over any three consecutive Business Day period if all of the purpose other Obligations under the Loan Documents of such Borrowings is to accumulate cash on hand the Loan Parties (other than contingent obligations) (whether then due or not) in accordance with Section 6.04 (with all Revolving Loans deemed due for any purposes thereof); (ii) all payments to be made in accordance with this subsection (h) in respect of Eurodollar Rate Revolving Loans shall be made on the last day of the purposes described applicable Interest Period therefor, and shall be held in clause the applicable Agent Sweep Account pending such payment and (iii) any remaining amounts shall be available for use by the Company and its Subsidiaries for additional working capital needs.
(i) The following shall apply to deposits and payments under and pursuant to this Agreement:
(i) funds shall be deemed to have been deposited to an Agent Sweep Account on the Business Day on which deposited, provided, that, such deposit is available to the Agent by 2:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Agent, other than by deposit to an Agent Sweep 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 Agent by 2:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day); and
(iii) if a deposit to an Agent Sweep Account or payment is not available to the Agent until after 2:00 p.m. on a Business Day, (iv), (v) such deposit or (vii) above)payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Cash Management. At any time any when Minimum Payment Guaranty Loans and/or Revolving Loans (including any Other Revolving Loans) are outstanding, JCC shall immediately apply any and all balances of Cash and Cash Equivalents (as such terms are defined in the Borrower shall not, Revolving Credit Agreement) it holds (net of amounts required to be deposited into the Net Cash Proceeds Account pursuant to (and shall not permit any Subsidiary Loan Party to, permit cash on hand (including as defined in) the proceeds of any Indenture and the Revolving Loan and any Other Revolving LoansCredit Agreement) in an aggregate amount that are in excess of $200,000,000 the amount (the "Retention Amount") equal to accumulate and be maintained in the Deposit Accounts sum of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash$2,875,000 plus (ii) the amount required to be retained by JCC pursuant to applicable Gaming Regulations (as defined in the Revolving Credit Agreement) at such time plus (iii) the cash portion of the House Bank (as defined in the Casino Management Agreement), first, to prepay any and all outstanding Minimum Payment Guaranty Loans, in the order in which loans were incurred, until such Minimum Payment Guaranty Loans are paid in full, and second, to prepay any and all outstanding Revolving Loans under (and as defined in) the Revolving Credit Agreement until such Revolving Loans are paid in full. JCC agrees that to the extent it does not have cash in transit between stores excess of the Retention Amount that is sufficient to pay any Minimum Payment due and local Deposit Accounts owing (after giving effect to the application of such excess cash in accordance with the preceding sentence), it will make such Minimum Payments from proceeds of Revolving Loans under the Revolving Loan Agreement. If at any time (i) JCC does not have cash in excess of the Retention Amount that is sufficient to pay any Minimum Payment due and owing (after giving effect to the application of such excess cash receipts from sales in accordance with the process first sentence of inter-account transfers, in each case this Section 4(e)) and (ii) JCC is not permitted to borrow sufficient Revolving Loans under the terms of the Revolving Loan Agreement to make such Minimum Payment (as a result of outstanding and proposed Revolving Loans exceeding $35,000,000, the ordinary course operations existence of an "Event of Default" thereunder or otherwise), then the Loan Parties, (ii) cash necessary for Guarantors may elect to make Minimum Payments even if no demand has been made by the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) State or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets LGCB pursuant to Section 2.11(cthe Guaranty and such amounts advanced by the Guarantors (together with interest thereon) or any equivalent provision shall be Minimum Payment Guaranty Loans for all purposes under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)this Agreement.
Appears in 1 contract
Samples: Het/JCC Agreement (JCC Holding Co)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingOn or prior to the Closing Date: (i) deliver to the Lender copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b); and (ii) enter into a Blocked Account Agreement satisfactory in form and substance to the Lender with each Blocked Account Bank (collectively, the Borrower shall not“Blocked Accounts”); and (iii) at the request of the Lender, and shall not permit any Subsidiary deliver to the Lender copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party toand delivered to each depository institution listed on Schedule 5.21(a). (b) From and after the Closing Date, permit cash on hand the Loan Parties shall ACH or wire transfer no less frequently than each Business Day (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained or, in the Deposit Accounts case of subclause (iii) below, on Monday, Wednesday and Friday of each week (to the Loan Partiesextent such Monday, providedWednesday or Friday is a Business Day and, thatif such day is not a Business Day, for purposes hereofon the next succeeding Business Day) so long as a Cash Dominion Event has not occurred and is continuing and on each Business Day if a Cash Dominion Event has occurred and is continuing) and whether or not there are then any outstanding Obligations, “cash on hand” shall exclude to a Blocked Account all of the following: (i) “store” cashall amounts on deposit in each DDA (net of any minimum balance, cash not to exceed $5,000.00, as may be kept in transit between stores the subject DDA under the Borrowers’ policies as in effect on the Second Amendment Effective Date); (ii) all payments from Credit Card Processors and local Deposit Accounts Credit Card Issuers and proceeds of all credit card charges; (iii) all cash receipts from sales the Disposition of Inventory and other assets (whether or not constituting Collateral) (other than cash kept in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties Stores in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilities, (iii) Borrowers’ policies as in effect on the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, Second Amendment Effective Date; (iv) cash all proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents Accounts; and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above).-79-
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingImmediately upon the occurrence of a Cash Dominion Event, the Borrower shall notCredit Parties, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts request of the Loan Collateral Agent, shall deliver to the Collateral Agent a schedule of all DDAs, that to the knowledge of the Responsible Officers of the Credit Parties, providedare maintained by the Credit Parties, thatwhich Schedule includes, for purposes hereofwith respect to each depository, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores the name and local Deposit Accounts and cash receipts from sales in the process address of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Partiessuch depository, (ii) cash necessary for the account number(s) maintained with such depository, and (iii) a contact person at such depository.
(b) Within 90 days after the Closing Date (or such later date as may be acceptable to the Administrative Agent in its sole discretion), each Credit Party shall have entered into a blocked account agreement (each, a “Blocked Account Agreement”) in form and substance reasonably satisfactory to the Administrative Agent with any bank with which such Credit Party maintains a DDA (other than Excluded Accounts) (collectively, the “Blocked Accounts”), which as of the Closing Date are listed on Schedule 2.22(b) attached hereto.
(c) Each Blocked Account Agreement shall require, during the continuance of a Cash Dominion Trigger Period (and delivery of notice thereof from the Administrative Agent), the wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than amounts not to exceed $10,000,000 in the aggregate which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “uncontrolled cash account” (the “Designated Account”)) to the concentration account maintained by 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;
(iii) all Net Proceeds on account of any Prepayment Event; and
(iv) each Blocked Account (including all cash deposited therein from each DDA (other than the Designated Account)).
(d) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Credit Party (other than (i) an amount of up to $10,000,000 that is on deposit in the Designated Account, which funds shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) de minimis cash or cash equivalents inadvertently misapplied by the Credit Parties to satisfy the current liabilities incurred by such Loan Parties and (iii) payroll, trust and tax withholding accounts funded in the ordinary course of their businesses business and without acceleration of the satisfaction of such current liabilitiesrequired by applicable law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (iii) the Net Proceeds received in respect of or a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for DDA which the Borrower is permitted swept daily to apply such Net Proceeds as a reinvestment to acquire real propertyBlocked Account), equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance Credit Party shall close such account and have all funds therein and all future deposits thereto transferred to a Blocked Account which is subject to a Blocked Account Agreement.
(e) The Credit 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 consistent with clause the provisions of this Section 2.22 and otherwise reasonably satisfactory to the Administrative Agent. The Credit Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained.
(xif) of The Credit Parties may also maintain one or more disbursement accounts (the first proviso “Disbursement Accounts”) to be used by the Credit Parties for disbursements and payments (including payroll) in the definition ordinary course of the term “Refinancing Indebtedness”, business.
(vg) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Administrative Agent. Each Credit Party hereby acknowledges and agrees that (i) such Credit Party 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 2.22, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Administrative Agent shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall promptly be deposited into the Concentration Account or dealt with in such other fashion as such Credit Party may be instructed by the Administrative Agent.
(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 shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Trigger Period.
(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, provided that such deposit is available to the Administrative Agent by 1:00 p.m. (New York City time) on that Business Day (except that, if the Collateral 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 has exclusive rights of withdrawal with respect by 1:00 p.m. (New York City time) on that Business Day;
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 1:00 p.m. (New York City time) on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. (New York City time) on the then next Business Day; and
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the applicable Credit Parties shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, the Borrower Borrowers shall not, and shall not permit any Subsidiary Loan Party to, permit cause each of their Subsidiaries to establish and maintain cash management services of a type and on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 terms satisfactory to accumulate and be maintained in the Deposit Accounts Lender at one or more of the Loan Parties, provided, that, for purposes hereof, “cash banks or securities intermediaries set forth on hand” Schedule 2.7(a) (each a "Cash Management Bank"). Borrowers shall exclude the following: and shall cause each of their Subsidiaries to (i) “store” cash, cash request in transit between stores writing and local Deposit Accounts otherwise take such reasonable steps to ensure that all of their and cash receipts from sales in the process of inter-account transfers, in each case as a result their Subsidiaries' Account Debtors forward payment of the ordinary course operations amounts owed by them directly to a Cash Management Account with respect to which the applicable Borrower or Subsidiary has delivered to Lender a Control Agreement or an account with respect to which Lender is the customer of the Loan Partiesdepository bank (each a "Lender Deposit Account"), and (ii) cash necessary for deposit or cause to be deposited promptly, and in any event no later than the Loan Parties to satisfy first Business Day after the current liabilities incurred by such Loan Parties in the ordinary course date of receipt thereof, all of their businesses Collections (including those sent directly by their Account Debtors to Borrowers or their Subsidiaries) into a Cash Management Account with respect to which the applicable Borrower or Subsidiary has delivered a Control Agreement or a Lender Deposit Account; provided, however, that foreign Account Debtors of CryoLife Europa Ltd. may make payments directly to an Excluded Account and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds any Collections received by CryoLife Europa Ltd. in respect of a Prepayment Event described in clause (a) or its foreign Account Debtors may be deposited into an Excluded Account.
(b) Each Cash Management Bank shall establish and maintain Control Agreements with Lender and a Borrower or Subsidiary of the definition of “Prepayment Event” for which the Borrower is permitted a Borrower, as applicable, in form and substance acceptable to apply such Net Proceeds as Lender; provided, however, that Borrowers and their Subsidiaries shall not be required to deliver a reinvestment Control Agreement with respect to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating or Securities Account so long as the aggregate balance in all such accounts not subject to Control Agreements does not exceed in the aggregate $5,000,000 at any Securitization time (or, if either (i) Parent has not received at least $15,000,000 in net proceeds from an offering of Stock on or Factoring Transactionbefore March 31, 2005 or (viiii) cash collateral required at any time after March 31, 2005, the collected balance in Cash Management Accounts subject to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which Control Agreements is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more less than $100,000,000 over any three consecutive Business Day period if 10,000,000 in the purpose aggregate, such $5,000,000 limit shall be reduced to $2,000,000 from and after March 31, 2005 or, in the case of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), from and after the date such collected balance in Cash Management Accounts subject to Control Agreements is less than $10,000,000 in the aggregate) (ivcollectively, such accounts with respect to which a Control Agreement is not required, the "Excluded Accounts" and each an "Excluded Account"). Each such Control Agreement shall provide, among other things, that (i) the Cash Management Bank will comply with any instructions originated by Lender directing the disposition of the funds in such Deposit Account (or, in the case of a Securities Account, entitlement orders originated by Lender) without further consent by Borrowers or their Subsidiaries, as applicable, (vii) the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Deposit Account or Securities Account, other than for payment of its service fees and other charges directly related to the administration of such account and, in the case of a Deposit Account, for returned checks or other items of payment, and (viiiii) above)upon written notice by Lender without further consent by Borrower or their Subsidiaries, it will forward by daily sweep all amounts in the applicable Deposit Account or Securities Account to the Lender's Account. Notwithstanding the foregoing, Lender agrees that it shall not send any such notice or otherwise direct the disposition of funds in any such Cash Management Account unless and until an Event of Default has occurred or Excess Availability first drops below $7,500,000 after the Closing Date.
(c) So long as no Default or Event of Default has occurred and is continuing, Administrative Borrower may amend Schedule 2.7(a) to add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be reasonably satisfactory to Lender, and (ii) unless such account is an Excluded Account, prior to the time of the opening of such Cash Management Account, a Borrower or its Subsidiary, as applicable, and such prospective Cash Management Bank shall have executed and delivered to Lender a Control Agreement. Borrowers (or their Subsidiaries, as applicable) shall close any of their Cash Management Accounts (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event within 30 days of notice from Lender that such Cash Management Bank no longer has an issuer credit rating of A2 or A or better from Xxxxx'x or S&P, respectively, and is no longer acceptable to Lender in Lender's reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Lender that the operating performance, funds transfer, or availability procedures or performance of such Cash Management Bank with respect to such accounts or Lender's liability under any Control Agreement with such Cash Management Bank is no longer acceptable in Lender's reasonable judgment.
(d) Except for the Excluded Accounts, all Cash Management Accounts shall be cash collateral accounts subject to Control Agreements.
Appears in 1 contract
Samples: Credit Agreement (Cryolife Inc)
Cash Management. At (i) Each Credit Party shall use commercially reasonable efforts to enter into control agreements (each, a “Blocked Account Agreement”) as soon as possible after the Restatement Effective Date and, in any time any Revolving Loans event, shall have actually entered into such Blocked Account Agreements within 120 days after the Restatement Effective Date (including any Other Revolving Loansor such later date approved by the Administrative Agent in its reasonable discretion), in a form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and each other bank with which such Credit Party maintains a DDA located in the United States (other than an Excluded Account) are outstanding(collectively, the “Blocked Accounts”); and (ii) upon delivery of such Blocked Account Agreements referred to in clause (i), the Borrower shall notprovide a schedule of DDAs, indicating for each DDA if such DDA is required to be subject to a Blocked Account Agreement pursuant to the Credit Documents; provided that, if Blocked Account Agreements with respect to each Blocked Account are not delivered to the Administrative Agent within 120 days after the Restatement Effective Date, each Credit Party shall move any such Account to the Administrative Agent or another depositary, subject to a Blocked Account Agreement in favor of the Administrative Agent.
(b) The Borrower agrees that it will cause all proceeds of the ABL Priority Collateral (other than the Uncontrolled Cash and subject to clause (c) below) to be deposited into a Blocked Account.
(c) Each Blocked Account Agreement of a Credit Party shall require (only during the continuance of a Cash Dominion Period and following delivery of notice of the commencement thereof from the Administrative Agent to the Borrower and the account bank party to such instrument or agreement; provided that such notice shall not permit any Subsidiary Loan Party tobe delivered earlier than two Business Days following the start of a Cash Dominion Period), permit the ACH or wire transfer no less frequently than once per Business Day (but without limit on frequency if the Maturity Date shall have actually occurred), of all available cash on hand (balances and cash receipts, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess each Blocked Account (net of $200,000,000 such minimum balance as may be required to accumulate and be maintained in the Deposit Accounts subject Blocked Account by the bank at which such Blocked Account is maintained and other than any Uncontrolled Cash), to one or more accounts maintained by the Administrative Agent (the “Payment Accounts”). Subject to the terms of the Loan PartiesABL Intercreditor Agreement, provided, that, for purposes hereof, “cash on hand” all amounts received in a Payment Account or such other account shall exclude be applied (and allocated) by the following: Administrative Agent in accordance with Section 11.13 (except (A) pursuant to clause (i) “store” cashthereof and (B) to Secured Cash Management Obligations and Secured Hedge Obligations).
(e) The Credit Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts without the Administrative Agent’s consent, cash subject to the prompt execution and delivery to the Administrative Agent of a Blocked Account Agreement to the extent required by the provisions of this Section 9.16. The Credit Parties may open or close Excluded Accounts at any time, without requirement of delivery of a Blocked Account Agreement without consent of the Administrative Agent.
(f) So long as no Cash Dominion Period is in transit between stores effect, the Credit Parties may direct, and local Deposit Accounts and cash receipts from sales shall have sole control over, the manner of disposition of funds in their respective Blocked Accounts. (g)
(i) Any amounts received in the process Payment Accounts (including all interest and other earnings with respect thereto, if any) at any time after the payment in full of inter-account transfersall Obligations (other than contingent indemnification obligations as to which no claim has been asserted and Secured Cash Management Obligations and Secured Hedge Obligations) and termination of the aggregate Commitments hereunder and (ii) any amounts that continue to be swept to the Payment Accounts after no Cash Dominion Period exists, shall, in each case as a result case, be remitted to the operating account of the ordinary course operations of Borrower as specified by the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Borrower.
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Cash Management. At (a) The Borrowers and their Significant Subsidiaries (other than KACL and Anglesey) shall establish and maintain cash management services of a type and on terms reasonably satisfactory to the Administrative Agent at JPMorgan Chase or any time any Revolving Loans Affiliate thereof on the Closing Date (including any Other Revolving Loanseach, a “Cash Management Bank”) are outstanding, the Borrower or as promptly as practicable. All Cash Management Accounts shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained solely at JPMorgan Chase or any Affiliate thereof (JPMorgan Chase agrees that such cash management services will be provided at reasonably competitive market rates), except for those accounts listed on Part I of Schedule 10.01, each of which is subject to a control agreement in form and substance acceptable to the Deposit Administrative Agent. The Borrowers shall take such reasonable steps to enforce, collect, receive and cause all amounts owing on the Accounts of the Loan PartiesBorrowers to be remitted directly to a Cash Management Account (other than any payroll, providedoperating, thatchecking or disbursement or pxxxx cash account) or the Administrative Agent’s Account, for purposes hereofand deposit or cause to be deposited promptly, “and in any event no later than the first Business Day after the date of receipt thereof, all cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received proceeds in respect of any Collateral and all collections and other amounts received by any Borrower (including payments made by the Account Debtors directly to any Borrower) into a Prepayment Event described in clause (a) or Cash Management Account. All deposit and securities accounts of KACL and Anglesey as of the Closing Date are listed on Part II of Schedule 10.01.
(b) Each Cash Management Bank shall, from and after the Closing Date, at the election of the definition of “Prepayment Event” for which Administrative Agent in its sole discretion, forward all cash deposited into the Borrower is permitted Cash Management Accounts covered thereby by electronic funds transfer (including, but not limited to, ACH transfers) on each Business Day to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit designated Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect Administrative Agent; provided, however that except during a Dominion Trigger Event all such cash deposited to such Deposit Accounts. The Borrower Account shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if be deposited into the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Borrowers’ designated operating account.
Appears in 1 contract
Samples: Senior Secured Revolving Credit Agreement (Kaiser Aluminum Corp)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, Administrative Agent (to the extent not previously delivered pursuant to the Existing Agreement and shall not permit any Subsidiary Loan Party to, permit cash on hand (including remaining in effect as of and after the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Restatement Effective Date):
(i) on or prior to the Restatement Effective Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transferssuch Loan Party with respect to each depository institution listed on Schedule 5.21(a);
(ii) on or prior to the Restatement Effective Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Restatement Effective Date, a fully executed Blocked Account Agreement with respect to the Concentration Account designated on Schedule 5.21(a); and
(iv) on or prior to the Restatement Effective Date, fully executed Blocked Account Agreements or Securities Account Control Agreements satisfactory in form and substance to the Agents with each Blocked Account Bank designated on Schedule 5.21(a) and applicable securities intermediary designated on Schedule 5.21(a) (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts” and each a “Blocked Account”). Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Cash Dominion Trigger Event. After the occurrence and during the continuance of a Cash Dominion Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor. The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each case such DDA (provided, that such covenant shall not apply to (i) minimum balances as a result of may be required to be kept in the ordinary course operations of subject DDA by the Loan Partiesdepository institution at which such DDA is maintained, (ii) cash necessary for if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilitiespast practice, or (iii) the Net Proceeds received any amounts held in respect of a Prepayment Event described in clause (aExcluded Accounts) or and all payments due from credit card processors.
(b) Except with respect to amounts constituting Excluded Cash or as may otherwise be agreed to by the Administrative Agent in writing, during any Cash Dominion Trigger Period each Loan Party covenants that it shall cause, and each Blocked Account Agreement and Securities Account Control Agreement shall require the transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to one of the definition concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts” and each a “Concentration Account”), of “Prepayment Event” for which all cash receipts and collections, including, without limitation, the Borrower is permitted to apply such following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds as Proceeds, and all other cash payments and payment items (including checks) received by a reinvestment to acquire real property, equipment Loan Party from any Person or from any source or on account of any sale or other tangible assets pursuant transaction or event, including, without limitation, any sale, Disposition, transaction or other event giving rise to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, a required prepayment hereunder;
(iv) cash the proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be deposited pursuant kept in the subject DDA by the depository institution at which such DDA is maintained); provided, however, with respect to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is Parties’ Store collections accounts (i.e., accounts maintained for in-store cash collections by individual Stores) (each such account, a “Specified Store Collection Account”), the Loan parties shall transfer by ACH or wire transfer no less frequently than once every two (2) weeks (or more frequently as shall be required to ensure that amounts on deposit therein do not at any time exceed $500,000 in the aggregate among all such Specified Store Collection Accounts) all cash on deposit in such Specified Store Collection Accounts to a Concentration Account.
(c) [Reserved].
(d) [Reserved].
(e) [Reserved].
(f) [Reserved].
(g) The Concentration Accounts shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal with respect to from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured Obligations and (iii) the funds on deposit in the Concentration Account shall be applied as otherwise provided in this Agreement. In the event that, if notwithstanding the provisions of this Section 6.13, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower shall not borrow any Revolving Loans proceeds or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand collections (other than as expressly permitted by this Section 6.13), such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the purposes Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent. During the continuation of a Cash Dominion Trigger Event and subject to the terms of any applicable intercreditor agreement, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that except as otherwise provided in Section 8.03, upon payment in full of such outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall direct and the existence of a Cash Dominion Trigger Event described in clause (ii)b) of the definition thereof shall not, in and of itself, impair the right of the Borrowers to Revolving Loans in accordance with the terms hereof.
(iv)h) Upon the request of the Administrative Agent, (v) or (vii) the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At (a) Immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingFull Cash Dominion Period, the Borrower Borrowers, upon the request of the Administrative Agent or Collateral Agent, shall notdeliver to the Administrative Agent and the Collateral Agent a schedule of all DDAs, and shall not permit any Subsidiary Loan Party toother deposit accounts, permit cash on hand (including securities accounts or commodities accounts, that to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Authorized Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary for the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Each Borrower shall, and shall cause each other Loan Party to:
(i) on or prior to the thirty (30) day anniversary of the Closing Date or such later date as the Administrative Agent or Collateral Agent shall agree in writing, deliver to the Collateral Agent notifications (each, a “Credit Card Notification”), in form and substance satisfactory to the Collateral Agent, which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on the Perfection Certificate; and
(ii) on or prior to the ninety (90) day anniversary of the Closing Date, or such later date as Administrative Agent or Collateral Agent shall agree in writing in its reasonable discretion (such date, the “Blocked Account Date”), enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form and substance reasonably satisfactory to the Collateral Agent, with each depository bank, securities intermediary and commodities intermediary, as applicable, with respect to the DDAs, other deposit accounts, securities accounts or commodities account in which material amounts (as reasonably determined by the Collateral Agent) of funds of any of the Loan Parties are received, maintained or concentrated (excluding, for the avoidance of doubt, Excluded Accounts (as defined below)) (collectively, the “Material Accounts” and, to satisfy the current liabilities incurred by such extent, subject to a Blocked Account Agreement, collectively, the “Blocked Accounts”); provided that in the event that any Material Account listed on the Perfection Certificate is not subject to a Blocked Account Agreement on or prior to Blocked Account Date, then not later than fifteen (15) days after the Blocked Account Date, the Loan Parties shall cause such Material Account which is not a Blocked Account to be closed and have all funds therein transferred to a Blocked Account, and all future deposits made to, a Blocked Account.
(c) The Blocked Account Agreements entered into by the Loan Parties shall require (after delivery of notice to the Blocked Account Bank from the Collateral Agent or the Administrative Agent, as applicable (which notice may (or shall at the direction of the Required Lenders) be given by the Collateral Agent or the Administrative Agent, as applicable, only during the continuance of a Full Cash Dominion Period)) the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance under the Facility) of all available cash receipts (the “Cash Receipts”) to the collection account maintained by the Collateral Agent at Bank of America (the “Collection Account”) from:
(i) the sale of Inventory and other Collateral (but excluding, until the Term Facility is repaid in full, any Term Loan Priority Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Cash Proceeds on account of any event which requires a mandatory prepayment pursuant to Section 2.11(b)(i) or (ii) of this Agreement (other than, until the Term Facility or any permitted refinancing thereof is repaid in full, a mandatory prepayment arising in connection with the Term Loan Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA or other deposit account, net of any minimum balance as may be required to be kept in such DDA or other deposit account by the institution at which such DDA is maintained to the extent set forth in the applicable Blocked Account Agreement); and
(v) the cash proceeds of all credit card and debit card charges.
(i) xxxxx cash accounts or other store depository accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $25,000,000 or exceed $2,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent or Collateral Agent may agree in its sole discretion), (ii) payroll, trust and without acceleration tax withholding accounts funded in the ordinary course of the satisfaction of such current liabilitiesbusiness, (iii) one or more zero balance disbursement accounts (the Net Proceeds received “Disbursement Accounts”) to be used by the Loan Parties solely for disbursements and payments (including payroll) in respect the ordinary course of a Prepayment Event business or as otherwise permitted hereunder and (iv) deposit accounts subject to Cash Pooling Arrangements permitted hereunder that solely holds funds supporting Cash Pooling Arrangements (such accounts described in this clause (y) shall be referred to herein as, the “Excluded Accounts”, provided that following deposit accounts shall not constitute “Excluded Accounts”: (I) deposit accounts that are concentration accounts, (II) deposit accounts into which the proceeds of credit card or debit card receivables are deposited or (III) deposit accounts that are lock-box accounts), then (a) the Loan Parties shall cause all funds in such accounts or so held or so invested to be transferred with such frequency as may be reasonably required by the Administrative Agent or Collateral Agent to a Blocked Account and (b) the Collateral 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. In addition to the foregoing, during the continuance of a Full Cash Dominion Period, the Loan Parties shall provide the Collateral Agent with an accounting of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) contents of the first proviso in Blocked 115 Accounts, which shall identify, to the definition reasonable satisfaction of the term “Refinancing Indebtedness”Collateral Agent, (v) cash the proceeds of Refinancing Indebtedness from the Term Loan Priority Collateral which were deposited into a Blocked Account and swept to the extent that Collection Account.
(d) The Loan Parties may close Material Accounts or Blocked Accounts and/or open new Material Accounts or Blocked Accounts, subject to the applicable Refinanced Debt consists execution and delivery to the Collateral Agent of unused Revolving Commitments or Other Revolving Commitments that have been terminated appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this Section 5.13 and otherwise reasonably satisfactory to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Blocked Account Agreement with respect to any Material Account acquired by a Loan Party in connection with a Permitted Acquisition until the issuance date that is thirty (30) days (or such later date as the Administrative Agent or Collateral Agent may agree) after the consummation of such Refinancing Indebtedness, (vi) cash held in any Deposit Permitted Acquisition). The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Material Account relating and the Collateral Agent shall promptly notify the Borrower Representative as to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance whether the Collateral Agent shall require a Blocked Account Agreement with the applicable loan Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or letter of credit documents debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent.
(viiie) cash held in any Deposit [Reserved].
(f) The Collection Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Secured Obligations, and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.13, during the continuation of a Full Cash Dominion Period, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(g) Subject to Section 2.10(b), any amounts received in the Collection Account at any time when all of the Secured Obligations then due have been and remain fully repaid shall be remitted to the operating account of the Borrowers maintained with the Administrative Agent or Collateral Agent or financial institution reasonable acceptable to the Administrative Agent or Collateral Agent.
(h) The Collateral Agent shall promptly furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Full Cash Dominion Period.
(i) 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 Collection Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. New York City time, on that Business Day); 116
(ii) Funds paid to the Administrative Agent, other than by deposit to the Collection 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 has exclusive rights of withdrawal with respect 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 deposit to the Collection Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall not borrow be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any Revolving item deposited to the Collection Account and credited to the Loans or Other Revolving Loans in an aggregate principal any other Secured Obligation is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of such Borrowings is to accumulate cash on hand (applicable Loan or other than for any of the purposes described in clause (ii), (iv), Secured Obligations;
(v) All amounts received under this Section 5.13 shall be applied in the manner set forth in Section 2.18(b) or (vii) above2.10(b), as applicable.
Appears in 1 contract
Samples: Term Loan Credit Agreement
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Loan Parties party to the Borrower shall notExisting Albertson’s ABL Credit Agreement have, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash Parties that become party hereto on hand” the Restatement Effective Date shall exclude within 90 days after the following: Restatement Effective Date or such longer period as the Administrative Agent may reasonably agree:
(i) deliver to the Administrative Agent copies of notifications (each, a “store” cashCredit Card Notification”) which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agents with respect to each DDA maintained with any Blocked Account Bank (collectively, cash in transit between stores the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and local Deposit Accounts exclusively used for payroll, payroll taxes and cash receipts from sales in other employee wage and benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s salaried employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) any Store Account maintained at a bank at which the Net Proceeds received in respect Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Prepayment Event Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $50,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (a) or (biv) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment Section 6.12(a)(ii)) shall be sent by wire transfer or other tangible assets electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $150,000,000 (or, following the Rite Aid Acquisition Closing Date, $200,000,000) (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is closed or sold by $50,000 and increased by $50,000 each time a store is opened or acquired pursuant to Section 2.11(c) any Permitted Acquisition; provided, further, for the avoidance of doubt no such decrease or increase shall result from the Rite Aid Acquisition or from any equivalent provision under any Additional Senior Debt Document, disposition by Rite Aid and its Subsidiaries pursuant to the WBA Asset Purchase Agreement (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso as defined in the definition of the term “Refinancing Indebtedness”Rite Aid Acquisition Agreement)) at any one time, (v) cash proceeds of Refinancing Indebtedness except to the extent that from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable Refinanced Debt consists of unused Revolving Commitments depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except as the Administrative Agent may otherwise agree.
(c) On or Other Revolving Commitments that have been terminated in connection with prior to the issuance of such Refinancing IndebtednessRestatement Effective Date, (vi) cash held in any Deposit Account relating to any Securitization establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit other Third Party Payor in accordance with the applicable loan Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or letter Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of credit documents receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided, that (viiii) cash held in any Deposit Account of the Loan Parties shall authorize, direct and instruct the depository banks at which is such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in such Blocked Account.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Collection Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Collateral Agent.
(other than for any g) Upon the request of the purposes described Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) On or prior to the Effective Date or such later date as the Agent may agree:
(A) deliver to the Agent copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process form attached hereto as Exhibit E which have been executed on behalf of inter-such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed in the Perfection Certificate (collectively, the “Credit Card Processors”); and
(B) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with each Blocked Account Bank covering the deposit accounts set forth on Schedule 5.01(m)(i)(B) and any additional deposit account transfers, in each case as a result of the ordinary course operations of now or hereafter maintained by the Loan PartiesParties (or any one or more of them) (collectively, the “Blocked Accounts”).
(ii) cash necessary for The Loan Parties shall ACH or wire transfer daily (or with respect to DDAs that have historically not been swept daily (and other DDAs with the consent of the Agent, not to be unreasonably withheld), periodically, consistent with past practices) (and whether or not there are then any outstanding Obligations and whether or not a Cash Dominion Event then exists) to a Blocked Account all amounts on deposit in each DDA of such Loan Party, other than DDAs that are Excluded Accounts; provided that such covenant shall not apply to (i) any minimum balance as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs with the consent of the Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with past practices). The Loan Parties shall ACH or wire transfer daily to a Blocked Account all payments due from credit card processors and without acceleration other proceeds of any of the satisfaction Collateral. All funds in each DDA and Blocked Account (other than Excluded Accounts) shall be conclusively presumed to be Collateral and proceeds of such current liabilities, Collateral and the Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA or Blocked Account.
(iii) Each Credit Card Notification shall be held by the Net Proceeds received in respect Agent until the occurrence of a Prepayment Event described in clause (a) or (b) Cash Dominion Event. Subject to the terms of the definition Intercreditor Agreement, after the occurrence and during the continuance of “Prepayment a Cash Dominion Event” for which , the Borrower is permitted Agent may deliver such Credit Card Notifications to apply the applicable Credit Card Processors. Subject to the terms of the Intercreditor Agreement, each Credit Card Notification shall instruct the applicable Credit Card Processor to follow the instructions of the Agent with respect to all amounts as may become due from time to time from such Net Proceeds as a reinvestment Credit Card Processor to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, the applicable Loan Party.
(iv) Each Blocked Account Agreement shall permit the Agent, after the occurrence and during the continuance of a Cash Dominion Event, subject to the terms of the Intercreditor Agreement, to require or cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the Agent’s Account, of all cash receipts and collections held in each applicable Blocked Account (net of any minimum balance, not to exceed CAN$10,000 (or such greater amount with the consent of the Agent, not to be unreasonably withheld), as may be required to be kept in the subject Blocked Account by the Blocked Account Bank), including, without limitation, the following:
(A) all available cash receipts from the sale of Inventory and other Collateral;
(B) all proceeds of Refinancing Indebtedness not yet applied collections of Credit Card Accounts Receivable;
(C) all proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any Collateral; and
(D) all Net Proceeds from any equity issuance by any Loan Party or its Subsidiaries. The Borrower shall be deemed to Refinance have complied with the applicable Refinanced Debt in accordance with provisions of this clause (xiiv) if they cause the ACH or wire transfer daily of all funds which an Authorized Officer of the first proviso Borrower in good faith believes to be the amount deposited in the definition Blocked Accounts in excess of the term “Refinancing Indebtedness”, CAN$10,000 (or such greater amount as permitted above in this clause (iv)).
(v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent’s Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Agent’s Account, (ii) the funds on deposit in the Agent’s Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.01(m), during the continuance of a Cash Dominion Event, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent. During the continuance of an Event of Default, subject to the terms of the Intercreditor Agreement, the amounts deposited into the Agent’s Account shall be applied to the prepayment of the Obligations then outstanding; provided that upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if direct.
(vi) Upon the purpose of such Borrowings is to accumulate cash on hand (other than for any request of the purposes described Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Credit Agreement (Sears Canada Inc.)
Cash Management. At any time any Revolving Loans In each case subject to the timing contemplated in Sections 3.1 and 3.2 with respect to the Cash Management Agreements referenced in such Sections:
(including any Other Revolving Loansa) are outstandingBorrower shall and shall cause each of its Subsidiaries to establish and maintain cash management services of a type and on terms satisfactory to Agent at one or more of the banks set forth on Schedule 2.7(a) (each, a “Cash Management Bank”), and, in connection therewith, establish and maintain at such Cash Management Banks pursuant to the terms hereof (i) one or more accounts designated (either in Schedule 2.7(a) or pursuant to Section 2.7(e)) as concentration accounts (the “Concentration Accounts”) and (ii) additional accounts designated (either in Schedule 2.7(a) or pursuant to Section 2.7(e)) as collection accounts (the “Collection Accounts”, and together with the Concentration Accounts, the “Cash Management Accounts”).
(b) Borrower shall notshall, and shall not permit any Subsidiary Loan Party cause each of its Subsidiaries to, permit cash on hand (1) request in writing and otherwise take such reasonable steps to ensure that all of its and its Subsidiaries’ Account Debtors forward payment of the amounts owed by them directly to a Cash Management Bank for deposit into a Concentration Account, (2) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof (and subject to Section 2.7(d) with respect to payments from Credit Card Processors), all such Collections from Account Debtors (including those sent directly to a Cash Management Bank) into a Concentration Account, or, with respect to checks, into the proceeds Collection Account designated (in Schedule 2.7(a) or pursuant to Section 2.7(e)) as the Check Clearance Collection Account (the “Check Clearance Collection Account”), or, with respect to receivables denominated in a foreign currency, into the Collection Account designated (either in Schedule 2.7(a) or pursuant to Section 2.7(e)) as the Multicurrency Collection Account (the “Multicurrency Collection Account”), and (3) deposit or cause to be deposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all other Collections (including cash, checks, drafts and all other forms of daily store receipts or other similar items of payment) received by or otherwise under its control into a Cash Management Account. Borrower further agrees that with respect to each Collection Account, it shall, and shall cause each of its Subsidiaries to, at all times require each applicable Cash Management Bank to forward, by automatic periodic transfers not less frequently than once in any Revolving Loan period of three (3) Business Days, all amounts in each such Collection Account into a Concentration Account; provided, however, that (w) with respect to the Check Clearance Collection Account, so long as all funds in such Check Clearance Collection Account represent checks received by Borrower or its Subsidiaries, such automatic transfers of funds therein shall be required only at any time the balance thereof should exceed $400,000, but in no event less frequently than once in any ten (10) day period, (x) immediately after giving effect to each such transfer from such Check Clearance Collection Account into a Concentration Account, Borrower may maintain an amount not to exceed $200,000 in such Check Clearance Collection Account, (y) immediately after giving effect to each such transfer from any Collection Account (other than the Check Clearance Collection Account) into a Concentration Account, Borrower may maintain an amount not to exceed $1,000 in any such Collection Account, and any Other Revolving Loans(z) in an aggregate amount in excess of $200,000,000 to accumulate so long as no Triggering Period shall have occurred and be maintained continuing, Agent shall permit all funds in any Concentration Account to be forwarded, by daily sweeps, to the Deposit Accounts of the Loan PartiesDesignated Account.
(c) With respect to each Cash Management Account, each Cash Management Bank shall establish and maintain Cash Management Agreements with Agent and Borrower, in form and substance acceptable to Agent in its Permitted Discretion; provided; however, that, for purposes hereofwith respect to Store Accounts only, “cash on hand” Borrower’s obligations hereunder with respect to establishing any such Cash Management Agreement shall exclude be limited to use of reasonable best efforts to deliver the following: form of Cash Management Agreement to each such Cash Management Bank. Each Cash Management Agreement shall provide, among other things, that (i) “store” cash, cash all items of payment deposited in transit between stores such Cash Management Account and local Deposit Accounts and cash receipts from sales in proceeds thereof are subject to the process control of inter-account transfers, in each case as a result of the ordinary course operations of the Loan PartiesAgent, (ii) cash necessary the Cash Management Bank has no rights of setoff or recoupment or any other claim against the applicable Cash Management Account other than for payment of its service fees and other charges directly related to the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction administration of such current liabilitiesCash Management Account and for returned checks or other items of payment, and (iii) from and after the Net Proceeds date that it receives written notification from Agent (a “Control Exercise Notice”), it immediately will forward by daily sweep all amounts in the applicable Cash Management Account to the Agent’s Account or as otherwise directed by Agent. Anything contained herein into the contrary notwithstanding, Agent agrees that it shall not provide a Control Exercise Notice to the Cash Management Banks except during a Triggering Period. At any time during a Triggering Period, Agent shall be free to exercise its right to issue a Control Exercise Notice and such Control Exercise Notice will be deemed to have been delivered within five (5) days of any Triggering Period unless Agent otherwise elects. Agent shall deliver to Borrower a copy of any such Control Exercise Notice promptly after delivery thereof to the applicable Cash Management Bank; provided, however that a non-willful failure to so do shall not affect the validity of any such Control Exercise Notice or otherwise limit Agent’s right to send any other Control Exercise Notice. Upon the subsequent termination of such Triggering Period, Agent shall withdraw such Control Exercise Notice and permit funds to be transferred as set forth in Section 2.7(b) above, including as to Borrower access to funds in any Concentration Account (and daily sweeps thereof into the Designated Account), but subject in all events to the right of Agent to deliver a Control Exercise Notice during any subsequent Triggering Period.
(d) Borrower shall establish and maintain Credit Card Agreements with Agent and each Credit Card Processor. Each such Credit Card Agreement shall provide, among other things, that each such Credit Card Processor shall transfer all proceeds of credit card charges for sales by Borrower received by it (or other amounts payable by such Credit Card Processor) into a designated Concentration Account on a daily basis or such other periodic basis as Agent may otherwise direct. Borrower shall not change any direction or designation set forth in the Credit Card Agreements regarding payment of charges without the prior written consent of Agent.
(e) So long as no Event of Default has occurred and is continuing, Borrower may amend Schedule 2.7(a) to add or replace a Cash Management Bank or Cash Management Account; provided, however, that (i) such prospective Cash Management Bank shall be reasonably satisfactory to Agent and Agent shall have consented in writing in advance to the opening of such Cash Management Account with the prospective Cash Management Bank (which consent shall not be required with respect of a Prepayment Event described in clause to any additional Cash Management Account at an existing Cash Management Bank and otherwise shall not be unreasonably withheld), and (aii) or (b) subject to Section 2.7(c), prior to the time of the definition opening of “Prepayment Event” for which the any Cash Management Account, Borrower is permitted (or its Subsidiary, as applicable) and such prospective Cash Management Bank shall have executed and delivered to apply such Net Proceeds Agent a Cash Management Agreement. Borrower (or its Subsidiaries, as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(capplicable) or shall close any equivalent provision under any Additional Senior Debt Document, of its Cash Management Accounts (iv) and establish replacement cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit management accounts in accordance with the applicable loan or letter of credit documents foregoing sentence) promptly and (viii) cash held in any Deposit Account event within 45 days of notice from Agent (or such longer period as Borrower and Agent may agree) that the creditworthiness of any Cash Management Bank is no longer acceptable in Agent’s reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Agent (or such longer period as Borrower and Agent may agree) that the operating performance, funds transfer, or availability procedures or performance of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal Cash Management Bank with respect to Cash Management Accounts or Agent’s liability under any Cash Management Agreement with such Deposit Accounts. Cash Management Bank is no longer acceptable in Agent’s reasonable judgment.
(f) The Borrower Cash Management Accounts shall not borrow any Revolving Loans or Other Revolving Loans be cash collateral accounts, with all cash, checks and similar items of payment in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any accounts securing payment of the purposes described Obligations, and in clause (ii), (iv), (v) or (vii) above)which Borrower hereby grants a Lien to Agent.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transferssuch Loan Party with respect to each depository institution listed on Schedule 5.21(a);
(ii) on or prior to the Closing Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date, a fully executed Blocked Account Agreement with respect to the Concentration Account designated on Schedule 5.21(a); and
(iv) on or prior to the Closing Date, fully executed Blocked Account Agreements or Securities Account Control Agreements satisfactory in form and substance to the Agents with each Blocked Account Bank designated on Schedule 5.21(a) and applicable securities intermediary designated on Schedule 5.21(a) (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts”).; Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Cash Dominion Trigger Event. After the occurrence and during the continuance of a Cash Dominion Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each case such DDA (provided, that such covenant shall not apply to (i) minimum balances as a result of may be required to be kept in the ordinary course operations of subject DDA by the Loan Partiesdepository institution at which such DDA is maintained, (ii) cash necessary for if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilitiespast practice, or (iii) any amounts held in Excluded Accounts) and all payments due from credit card processors.
(c) DuringExcept with respect to amounts constituting Excluded Cash or as may otherwise be agreed to by the Net Proceeds received Administrative Agent in respect of a Prepayment Event described in clause writing, during any Cash Dominion Trigger Period, each Loan Party covenants that it shall cause, and each Blocked Account Agreement and Securities Account Control Agreement shall require the transfer by ACH or wire transfer no less frequently than daily (aand whether or not there are then any outstanding Secured Obligations) or (b) to one of the definition concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of “all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, ;
(iv) cash the proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be deposited pursuant kept in the subject DDA by the depository institution at which such DDA is maintained).;
(d) During any Buy-Back Standstill Period with respect to Section 2.05(jany Loan Party, so long as no Buy-Back Trigger Period has occurred and is continuing, (i) no Ordinary Blocked Account Agreement shall require any transfer of any cash receipts or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents collections, and (viiiii) cash held each Loan Party covenants and agrees to transfer to a Concentration Account by ACH or wire transfer no less frequently than daily all amounts on deposit in any Deposit each such Blocked Account in excess of amounts that such Loan Party reasonably deems to be necessary to satisfy projected buy-back obligations under the Permitted Buy-Back Program at each Store. In addition to inspection rights permitted under Section 6.10, the Administrative Agent shall have the right, upon reasonable prior notice to the Lead Borrower, to audit and or evaluate, or to cause professionals retained by the Administrative Agent to audit and/or evaluate, the Loan Parties’ compliance with this Section 6.13(d), and the Loan Parties which is under shall pay the sole dominion reasonable and control documented expenses of the Collateral Administrative Agent if the Collateral Agent has exclusive rights of withdrawal with respect to or such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of professionals for such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)audits and evaluations.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date (or such later date, not later than 90 days after the Closing Date, as the Administrative Agent, in its sole discretion, may agree in writing prior to the Closing Date), copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit K which have been executed on behalf of inter-account transfers, in such Loan Party with respect to each case as a result of the ordinary course operations of the Loan Parties, depository institution listed on Schedule 5.21(a);
(ii) cash necessary for on or prior to the Closing Date (or such later date, not later than 90 days after the Closing Date, as the Administrative Agent, in its sole discretion, may agree in writing prior to the Closing Date), copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit L which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date (or such later date, not later than 90 days after the Closing Date, as the Administrative Agent, in its sole discretion, may agree in writing prior to the Closing Date), a fully executed Blocked Account Agreement with respect to the Concentration Account identified as of the Closing Date; and
(iv) on or prior to the date that occurs 90 days after the Closing Date, fully executed Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”) identified by the Agents. Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Trigger Event. After the occurrence and during the continuance of a Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each such DDA (provided that such covenant shall not apply to (i) minimum balances as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with the past practice) and without acceleration all payments due from credit card processors.
(c) During any Trigger Period, with respect to Blocked Accounts of any Loan Party other than the BNCB Loan Parties, each Blocked Account Agreement (other than with respect to any BNCB Blocked Account) shall require the transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to one of the satisfaction concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of such current liabilitiesall cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the Net Proceeds received proceeds of all credit card charges;
(v) the then contents of each DDA (net of any minimum balance, not to exceed the Maximum DDA Balance, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(d) During any BNCB Standstill Period with respect to any BNCB Party, (i) the Blocked Account Agreement with respect to each applicable BNCB Blocked Account shall not require any transfer of any cash receipts or collections, and (ii) each BNCB Loan Party covenants and agrees to transfer to a Prepayment Event described Concentration Account by ACH or wire transfer no less frequently than daily all amounts on deposit in clause each such BNCB Blocked Account in excess of amounts that BNCB reasonably deems to be necessary to satisfy projected buy-back obligations under the Permitted Buy-Back Program at each Store. In addition to inspection rights permitted under Section 6.10, the Administrative Agent shall have the right, upon reasonable prior notice to the Lead Borrower, to audit and or evaluate, or to cause professionals retained by the Administrative Agent to audit and/or evaluate, BNCB’s compliance with this Section 6.13(d), and the Loan Parties shall pay the reasonable and documented expenses of the Administrative Agent or such professionals for such audits and evaluations.
(ae) or If the Borrowers fail to maintain Availability of at least sixteen percent (b16.0%) of the definition Loan Cap at any time, then the Borrowers covenant and agree that the BNCB Loan Parties will establish one or more special operating accounts (“BNCB Trigger Period Accounts”) that can only be funded with Borrowings of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt Committed Loans in accordance with clause (xig) of this Section 6.13.
(f) During any BNCB Trigger Period, each BNCB Blocked Account Agreement shall require the first proviso in transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Concentration Account of all cash receipts and collections, including, without limitation, the definition following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the term “Refinancing Indebtedness”, proceeds of all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(g) During any BNCB Trigger Period, Borrowings of Committed Loans may be deposited pursuant in BNCB Trigger Period Accounts and the amounts on deposit in such BNCB Trigger Period Accounts may only be applied to Section 2.05(j) fund Permitted Buy-Back Programs or, upon the expiration of the applicable Permitted Buy-Back Programs or otherwise the occurrence of an Event of Default, to cash collateralize letters the prepayment of credit the Obligations then outstanding under and in accordance with the applicable loan or letter Credit Agreement; provided, that, except as otherwise provided in Section 8.03, upon payment in full of credit documents such outstanding Obligations, any remaining amounts will be released and (viii) cash held in any Deposit Account transferred to a deposit account of the BNCB Loan Parties which is as the Lead Borrower shall direct.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured 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 6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent. During the continuation of a Trigger Event, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that, except as otherwise provided in Section 8.03, upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand a Trigger Event (other than for any as a result of the purposes described occurrence of an Event of Default) shall not, in clause and of itself, impair the right of the Borrowers to Committed Loans in accordance with the terms hereof.
(ii)i) Upon the request of the Administrative Agent, (iv)the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, (v) or (vii) accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Loan Parties party to the Borrower shall notExisting Credit Agreement have, and any Loan Parties that become party hereto on the Restatement Effective Date shall not permit any Subsidiary Loan Party to, permit cash on hand (including within 90 days after the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in Restatement Effective Date or such longer period as the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent may reasonably agree:
(i) deliver to the Administrative Agent copies of notifications (each, a “store” cashCredit Card Notification”) which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Collateral Agent with respect to each DDA maintained with any Blocked Account Bank (collectively, cash in transit between stores the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and local Deposit Accounts exclusively used for payroll, payroll taxes and cash receipts from sales in other employee wage and benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s salaried employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) any Store Account maintained at a bank at which the Net Proceeds received in respect Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Prepayment Event Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $50,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (a) or (biii) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment Section 6.12(a)(ii)) shall be sent by wire transfer or other tangible assets electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $150,000,000) (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is closed or sold by $50,000 and increased by $50,000 each time a store is opened or acquired pursuant to Section 2.11(cany Permitted Acquisition) or at any equivalent provision under any Additional Senior Debt Documentone time, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness except to the extent that from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable Refinanced Debt consists of unused Revolving Commitments depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except as the Administrative Agent may otherwise agree.
(c) On or Other Revolving Commitments that have been terminated in connection with prior to the issuance of such Refinancing IndebtednessRestatement Effective Date, (vi) cash held in any Deposit Account relating to any Securitization establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit other Third Party Payor in accordance with the applicable loan Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or letter Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of credit documents receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided, that (viiii) cash held in any Deposit Account of the Loan Parties shall authorize, direct and instruct the depository banks at which is such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in such Blocked Account.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Collection Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Collateral Agent.
(other than for any g) Upon the request of the purposes described Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. At Within thirty (30) days of the occurrence of Specified Default, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower shall notBorrowers, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Agent, shall deliver to the Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which Schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository. Annexed hereto as Schedule 2.18(b) is a list describing, as of the Effective Date (or such later date as agreed between the Lead Borrower and the Administrative Agent upon any update to such Schedule made in connection with the First Amendment or the Second Amendment), all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for the Loan Parties to satisfy the current liabilities incurred sales by such Loan Parties Party. On or prior to the Effective Date (or such later date as agreed between the Lead Borrower and the Administrative Agent upon any updates to Schedules 2.18(b) or 2.18(c) made in connection with the First Amendment or the Second Amendment), to the extent not previously delivered, each Loan Party shall: deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(b); and enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Agents, with any Blocked Account Bank, including, without limitation, with respect to the deposit accounts listed on Schedule 2.18(c) attached hereto (collectively, the “Blocked Accounts”). Each Credit Card Notification and Blocked Account Agreement shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), from: the sale of Inventory and other Collateral (other than, until the Term Loan Financing Facility is repaid in full, Term Loan Priority Collateral) (whether or not constituting a Prepayment Event); all proceeds of collections of Accounts (whether or not constituting a Prepayment Event); all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Financing Facility is repaid in full, a Prepayment Event arising in connection with the Term Loan Priority Collateral); each Blocked Account (including all cash deposited therein from each DDA; and DB1/ 98023701.7 the cash proceeds of all credit card charges. If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than pxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $3,000,000 or exceed $10,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), and without acceleration 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 is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral 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, the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the satisfaction of such current liabilitiesthe Collateral Agent, the proceeds from the Term Loan Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (iiix) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) contents of the definition of “Prepayment Event” for which Blocked Accounts, and (y) such accounting, the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real propertyCollateral Agent agrees, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that required by the applicable Refinanced Debt consists Intercreditor Agreement, to promptly remit to the agent under the Term Loan Financing Facility the proceeds of unused Revolving Commitments the Term Loan Priority Collateral received by the Administrative Agent. The Loan Parties may close DDAs or Other Revolving Commitments that have been terminated in connection Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust and tax withholding accounts or unless expressly waived by the Collateral Agent) consistent with the issuance provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such Refinancing Indebtednessaccount will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent. The Borrowers may also maintain one or more disbursement accounts (vithe “Disbursement Accounts”) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(jused by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise to cash collateralize letters permitted hereunder. During the continuance of credit in accordance with a Cash Dominion Event, the applicable loan or letter of credit documents and (viii) cash held in any Deposit Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent. Each Borrower hereby acknowledges and agrees that during the continuance of a Cash Dominion Event, (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 2.18,2.18, 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 DB1/ 98023701.7 collections shall be held in trust by such Borrower for the Collateral 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 Collateral Agent. 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. The Collateral Agent shall 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. The following shall apply to deposits and payments under and pursuant to this Agreement: Funds shall be deemed to have been deposited to the Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. on that Business Day); 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Obligations or are being paid in full, by 2:00 p.m. on that Business Day); If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day; If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of dishonor or return; All amounts received under this SECTION 2.18 shall be applied in the purposes described manner set forth in clause (ii), (iv), (vSECTIONSection 2.17(f) or (vii) above)and in the priority set forth in SECTION 7.03.Section 7.03.
Appears in 1 contract
Cash Management. At (a) Immediately upon the occurrence of any time any Revolving Loans Trigger Event (including any Other Revolving Loans) are outstandingCash Dominion), the Borrower Borrowers, upon the request of the Administrative Agent, shall notdeliver to the Administrative Agent a schedule of all DDAs, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including that to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository, (ii) the account name and number(s) maintained with such depository and (iii) a contact person at such depository.
(b) Within 90 days after the Third Restatement Effective Date (or, so long as no Trigger Event (Cash Dominion) has occurred, such longer period as the Administrative Agent may agree), each Loan Party shall enter into a blocked account agreement with any Blocked Account Bank (each, a “Blocked Account Agreement”) with respect to the DDAs of such Loan Parties existing as of the Third Restatement Effective Date that are not currently subject to a Blocked Account Agreement in favor of the Administrative Agent (except with respect to any payroll, trust and tax withholding accounts or any Permitted Receivables DDA or unless expressly waived by the Administrative Agent), including such accounts listed on Schedule 2.19(b) attached hereto (collectively, the “Blocked Accounts”), which Blocked Account Agreement shall be reasonably satisfactory to the Administrative Agent (but in any event giving the Administrative Agent control (as such term is used in Article 9 of the Uniform Commercial Code) over such DDAs), with any Blocked Account Bank; provided that, if a Trigger Event (Cash Dominion) has occurred, then each Loan Party shall use commercially reasonable efforts to enter into such Blocked Account Agreements within 10 Business Days after the commencement of such event (or such longer period as the Administrative Agent may agree).
(c) Each Blocked Account Agreement entered into by a Loan Party shall require, during the continuance of a Trigger Event (Cash Dominion) (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash necessary receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account”)) to the Concentration Account, from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) all Net Cash Proceeds on account of any Prepayment Event;
(iv) each Blocked Account (including all cash deposited therein from each DDA) (including any Designated Funds which are on deposit in any Blocked Account). If, at any time during the continuance of a Trigger Event (Cash Dominion), except with respect to deposit accounts which are and have been used exclusively for payroll, trust and tax withholding purposes, any cash or Cash Equivalents owned by any Loan Party (other than Uncontrolled Cash) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral 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 Trigger Event (Cash Dominion), the Loan Parties to satisfy shall provide the current liabilities incurred by such Collateral Agent with an accounting of the contents of the Blocked Accounts.
(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 any Permitted Receivables DDA or unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.19 and otherwise reasonably satisfactory to the Administrative Agent. The Loan Parties 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 Lead Borrower as to whether the Administrative Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained.
(e) The Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, business or as otherwise permitted hereunder.
(iiif) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent Agent. Each Borrower hereby acknowledges and agrees that (i) such Borrower has exclusive rights no right of withdrawal with respect 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 2.19, during the continuation of a Trigger Event (Cash Dominion), any Borrower receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower shall not borrow any Revolving Loans proceeds or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand collections (other than Uncontrolled Cash), such proceeds and collections shall be held in trust by such Borrower for the Collateral 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 Collateral Agent.
(g) 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.
(h) The Collateral Agent shall promptly (but in any event within five Business Days) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Trigger Event (Cash Dominion).
(i) 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, provided that such deposit is available to the Administrative Agent 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, New York 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 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, New York time, on that Business Day);
(iii) if a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) if any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such dishonor or return;
(v) all amounts received under this Section 2.19 shall be applied in the manner set forth in Section 8.04.
(j) During any Trigger Event Cure Period, unless and until the Lead Borrower has demonstrated that Consolidated Fixed Charge Coverage Ratio is at least 1.00 to 1.00 (determined on a consolidated twelve-month (or four-quarter, if applicable) basis as of the purposes described fiscal month end immediately preceding the commencement of such Trigger Event Cure Period for which financial statements are available (but in clause any event as of the most recent fiscal month ending at least 30 days prior to the commencement of such Trigger Event Cure Period)) by delivery to the Administrative Agent of the monthly financial statements required by Section 6.01(f) for the fiscal month specified above and the related Compliance Certificate, (i) the Borrowers shall not be permitted to request any Loans or the issuance of any Letters of Credit and (ii) Holdings, the Borrowers and their respective Restricted Subsidiaries shall not be permitted to (A) declare any Restricted Payment in the form of a dividend under Sections 7.06(h), (ivj), or (k), (vB) consummate any transaction described under Sections 7.02(d)(v), 7.02(j), 7.02(n), .06(h), 7.06(j), 7.06(k) or 7.12(a)(vi) (viiother than the payment of dividends which were not declared in violation of the preceding clause (A)), or (C) abovewithout the consent of the Administrative Agent, any transaction described under Section 7.05(f), 7.05(j) or 7.05(n).
Appears in 1 contract
Cash Management. At (a) Within sixty (60) days after the Initial Closing Date (or such later date as the Agent may specify in its sole discretion), and at all times thereafter, the Loan Parties shall enter into and maintain Control Agreements, with respect to each Concentration Account.
(b) Each Control Agreement for each Concentration Account shall require, during the continuance of a Cash Control Trigger Event (and delivery of notice thereof from the Agent), the ACH or wire transfer on each Business Day of all ledgers or available, as applicable, cash receipts held in the Concentration Account to a concentration account maintained by the Agent (an “Agent Sweep Account”) located in the United States.
(c) If (i) at any time during the continuance of a Cash Control Trigger Event, any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary cash or Cash Equivalents owned by a Loan Party toare deposited in any account (other than an Excluded Account), permit cash on hand or held or invested in any manner (including the proceeds of any Revolving Loan and any Other Revolving Loansother than (w) in an aggregate amount Excluded Account, (x) in excess of $200,000,000 a Concentration Account that is subject to accumulate and be maintained the Control Agreement, or (y) in the a Deposit Accounts of the Loan PartiesAccount which is swept daily to a Concentration Account subject to a Control Agreement), provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, or (ii) cash necessary for at any time, a Concentration Account shall cease to be subject to a Control Agreement, the applicable Loan Parties to satisfy Party shall immediately furnish the current liabilities incurred by Agent with written notice thereof and the Agent may require such Loan Parties in the ordinary course of their businesses Party to close such account and without acceleration of the satisfaction of have any such current liabilities, (iii) the Net Proceeds received in respect of funds transferred to a Prepayment Event described in clause (a) Concentration Account which is subject to a Control Agreement or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection maintained with the issuance of such Refinancing Indebtedness, Agent.
(vid) cash held in A Loan Party may close any Deposit Account relating or a Concentration Account, maintain existing Deposit Accounts or Concentration Accounts and/or open new Deposit Accounts or Concentration Accounts, subject to the execution and delivery to the Agent of appropriate Control Agreements with respect to each Concentration Account (except with respect to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance Concentration Account maintained with the Agent) consistent with the provisions of this Section 2.18 and otherwise reasonably satisfactory to the Agent. The applicable loan Loan Party shall furnish the Agent with prior written notice of its intention to open or letter of credit documents close a Concentration Account and the Agent shall promptly notify such Loan Party as to whether the Agent shall require a Control Agreement with the Person with whom such account will be maintained.
(viiie) cash held in any Deposit Each Agent Sweep Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent Agent. Each Loan Party hereby acknowledges and agrees that (i) it has exclusive rights no right of withdrawal with respect from the Agent Sweep Account until the applicable Cash Control Trigger Event is no longer continuing as set forth in subclause (f), (ii) the funds on deposit in an Agent Sweep Account shall at all times continue to be collateral security for all of the Secured Obligations, and (iii) the funds on deposit in an Agent Sweep Account, shall be applied as provided in Section 2.18(h) of this Agreement and in the Security Agreement. In the event that, notwithstanding the provisions of this Section 2.18, during the continuance of a Cash Control Trigger Event, a Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Agent, shall not borrow be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall promptly be deposited into a Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent (except for (i) funds required to be deposited into an Excluded Account and (ii) funds necessary to fund working capital needs of the Company and its Subsidiaries, which funds will be deposited in an account subject to a Control Agreement in the case of this subclause (ii)).
(f) Any amounts remaining in an Agent Sweep Account (i) at any time when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement or (ii) after application of amounts received in such Agent Sweep Account as set forth in subsection (h) below, shall be remitted to the primary Concentration Account of the Company maintained with the Agent.
(g) The Agent shall promptly (but in any event within two (2) Business Days) furnish written notice to each Person with whom a Concentration Account is maintained when a Cash Control Trigger Event is no longer continuing for purposes of this Agreement.
(i) Any amounts received in an Agent Sweep Account in the United States shall be applied to the payment (without a corresponding reduction of Commitments) of all of the Revolving Loans made to the Borrower (whether then due or Other Revolving Loans in an aggregate principal amount not) and to the payment of more than $100,000,000 over any three consecutive Business Day period if all of the purpose other Obligations under the Loan Documents of such Borrowings is to accumulate cash on hand the Loan Parties (other than contingent obligations) (whether then due or not) in accordance with Section 6.04 (with all Revolving Loans deemed due for any purposes thereof); (ii) all payments to be made in accordance with this subsection (h) in respect of Term SOFR Revolving Loans shall be made on the last day of the purposes described applicable Interest Period therefor, and shall be held in clause the applicable Agent Sweep Account pending such payment and (iii) any remaining amounts shall be available for use by the Company and its Subsidiaries for additional working capital needs.
(i) The following shall apply to deposits and payments under and pursuant to this Agreement:
(i) funds shall be deemed to have been deposited to an Agent Sweep Account on the Business Day on which deposited, provided, that, such deposit is available to the Agent by 2:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Agent, other than by deposit to an Agent Sweep 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 Agent by 2:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day); and
(iii) if a deposit to an Agent Sweep Account or payment is not available to the Agent until after 2:00 p.m. on a Business Day, (iv), (v) such deposit or (vii) above)payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day.
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Deliver to the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) on or prior to the Closing Date, copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales DDA Notification”) substantially in the process form attached hereto as Exhibit J which have been executed on behalf of inter-account transfers, in such Loan Party with respect to each case as a result of the ordinary course operations of the Loan Parties, depository institution listed on Schedule 5.21(a);
(ii) cash necessary for on or prior to the Closing Date, copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit K which have been executed on behalf of such Loan Party with respect to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b);
(iii) on or prior to the Closing Date, a fully executed Blocked Account Agreement with respect to the Concentration Account identified as of the Closing Date; and
(iv) on or prior to the Closing Date, fully executed Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, and together with any DDAs or Securities Accounts subject to a Blocked Account Agreement or Securities Account Control Agreement pursuant to Section 3.2(b) of the Security Agreement, the “Blocked Accounts”) identified by the Agents. Each DDA Notification and Credit Card Notification shall be held by the Administrative Agent until the occurrence of a Trigger Event. After the occurrence and during the continuance of a Trigger Event, the Administrative Agent may (and, at the request of the Required Lenders, shall) deliver each such DDA Notification and Credit Card Notification to the applicable depository institution and credit card processor.
(b) The Loan Parties shall transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Blocked Account all amounts on deposit in each such DDA (provided that such covenant shall not apply to (i) minimum balances as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs, with the consent of the Collateral Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with the past practice) and without acceleration all payments due from credit card processors.
(c) During any Trigger Period, with respect to Blocked Accounts of any Loan Party other than the BNCB Loan Parties, each Blocked Account Agreement (other than with respect to any BNCB Blocked Account) shall require the transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to one of the satisfaction concentration accounts designated by the Administrative Agent (collectively, the “Concentration Accounts”), of such current liabilitiesall cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the Net Proceeds received proceeds of all credit card charges;
(v) the then contents of each DDA (net of any minimum balance, not to exceed the Maximum DDA Balance, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(d) During any BNCB Standstill Period with respect to any BNCB Loan Party, (i) the Blocked Account Agreement with respect to each applicable BNCB Blocked Account shall not require any transfer of any cash receipts or collections, and (ii) each BNCB Loan Party covenants and agrees to transfer to a Prepayment Event described Concentration Account by ACH or wire transfer no less frequently than daily all amounts on deposit in clause each such BNCB Blocked Account in excess of amounts that BNCB reasonably deems to be necessary to satisfy projected buy-back obligations under the Permitted Buy-Back Program at each Store. In addition to inspection rights permitted under Section 6.10, the Administrative Agent shall have the right, upon reasonable prior notice to the Lead Borrower, to audit and or evaluate, or to cause professionals retained by the Administrative Agent to audit and/or evaluate, BNCB’s compliance with this Section 6.13(d), and the Loan Parties shall pay the reasonable and documented expenses of the Administrative Agent or such professionals for such audits and evaluations.
(ae) or If the Borrowers fail to maintain Availability of at least sixteen percent (b16.0%) of the definition Loan Cap at any time, then the Borrowers covenant and agree that the BNCB Loan Parties will establish one or more special operating accounts (“BNCB Trigger Period Accounts”) that can only be funded with Borrowings of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt Committed Loans in accordance with clause (xig) of this Section 6.13.
(f) During any BNCB Trigger Period, each BNCB Blocked Account Agreement shall require the first proviso in transfer by ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Secured Obligations) to a Concentration Account of all cash receipts and collections, including, without limitation, the definition following:
(i) all available cash receipts from the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any Person or from any source or on account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the term “Refinancing Indebtedness”, proceeds of all credit card charges;
(v) cash proceeds the then contents of Refinancing Indebtedness each DDA (net of any minimum balance, not to exceed the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessMaximum DDA Balance, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained).
(g) During any BNCB Trigger Period, Borrowings of Committed Loans may be deposited pursuant in BNCB Trigger Period Accounts and the amounts on deposit in such BNCB Trigger Period Accounts may only be applied to Section 2.05(j) fund Permitted Buy-Back Programs or, upon the expiration of the applicable Permitted Buy-Back Programs or otherwise the occurrence of an Event of Default, to cash collateralize letters the prepayment of credit the Obligations then outstanding under and in accordance with the applicable loan or letter Credit Agreement; provided, that, except as otherwise provided in Section 8.03, upon payment in full of credit documents such outstanding Obligations, any remaining amounts will be released and (viii) cash held in any Deposit Account transferred to a deposit account of the BNCB Loan Parties which is as the Lead Borrower shall direct.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Secured 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 6.13, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party 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 Loan Party may be instructed by the Administrative Agent. During the continuation of a Trigger Event, the amounts deposited into the Concentration Account shall be applied to the prepayment of the Obligations then outstanding; provided, that, except as otherwise provided in Section 8.03, upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Lead Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand a Trigger Event (other than for any as a result of the purposes described occurrence of an Event of Default) shall not, in clause and of itself, impair the right of the Borrowers to Committed Loans in accordance with the terms hereof.
(ii)i) Upon the request of the Administrative Agent, (iv)the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, (v) or (vii) accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, The Loan Parties party to the Borrower shall notExisting Credit Agreement have, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan PartiesParties that become party hereto and the date hereof shall within 90 days after the Restatement Effective Date or such longer period as the Administrative Agent may reasonably agree, provided, that, for purposes hereof, “cash on hand” shall exclude the following: shall:
(i) deliver to the Administrative Agent copies of notifications (each, a “store” cashCredit Card Notification”) which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agents with respect to each DDA maintained with any Blocked Account Bank (collectively, cash in transit between stores the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and local Deposit Accounts exclusively used for payroll, payroll taxes and cash receipts from sales in other employee wage and benefit payments to or for the process benefit of inter-account transfers, in each case as a result of the ordinary course operations of the any Loan PartiesParty’s salaried employees, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesany zero balance account, (iii) any Store Account maintained at a bank at which the Net Proceeds received in respect Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Prepayment Event Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $50,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (a) or (biv) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment Section 6.12(a)(ii)) shall be sent by wire transfer or other tangible assets electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $100,000,000 (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is closed or sold by $50,000 and increased by $50,000 each time a store is opened or acquired pursuant to Section 2.11(cany Permitted Acquisition) or at any equivalent provision under any Additional Senior Debt Documentone time, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness except to the extent that from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable Refinanced Debt consists of unused Revolving Commitments depository bank is closed, which additional amounts are to be, and shall be, transferred on the next Business Day to the Blocked Accounts) and except as the Administrative Agent may otherwise agree.
(c) On or Other Revolving Commitments that have been terminated in connection with prior to the issuance of such Refinancing IndebtednessRestatement Effective Date, (vi) cash held in any Deposit Account relating to any Securitization establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit other Third Party Payor in accordance with the applicable loan Medicare and Medicaid regulations to directly remit, all payments in respect of any Medicare Accounts or letter Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of credit documents receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided, that (viiii) cash held in any Deposit Account of the Loan Parties shall authorize, direct and instruct the depository banks at which is such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall require that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent given after the occurrence and during the continuance of a Dominion Trigger Event, the Blocked Account Bank shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (the “Collection Account”) of all funds in such Blocked Account.
(f) The Collection Account shall at all times be under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied pursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Collection Account or dealt with in such Borrowings is to accumulate cash on hand other fashion as such Loan Party may be instructed by the Collateral Agent.
(other than for any g) Upon the request of the purposes described Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. At (a) Annexed hereto as Schedule 4.16, as the same may be modified from time to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Administrative Agent, each Qualified Loan Party shall (i) deliver to the Administrative Agent (A) notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any time any Revolving Loans DDA (including any Other Revolving Loansother than Excluded Accounts) are outstandingis maintained, in form reasonably satisfactory to the Borrower shall notAdministrative Agent of the Administrative Agent’s interest in such DDA and (B) Credit Card Notifications executed on behalf of each such Qualified Loan Party and delivered to each Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent, (ii) instruct each depository institution for a DDA (other than Excluded Accounts, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including subject to Subsection 4.16(g)) that the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and any bank with which such Qualified Loan Party maintains a Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Concentration Account maintained with such bank and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be maintained collected by the applicable bank and deposited in the Deposit applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent Borrower or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (i) any such amount to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $1,000,0002,000,000 per account or $3,000,0005,000,000 in the aggregate), if any, required by the bank at which such Blocked Account is maintained to an account maintained by the Administrative Agent at Citibank, N.A. (or another bank of recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) All collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, thatto pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, for purposes hereofthe Issuing Lenders and the Lenders under any of the Loan Documents; (4) fourth, “cash to repay (on hand” shall exclude a ratable basis) the following: outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash in transit between stores and local Deposit Accounts and cash receipts Cash Equivalents and/or Temporary Cash Investments from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the time to time inadvertently misapplied by any Qualified Loan PartiesParty, (ii) cash necessary for the Loan Parties cash, Cash Equivalents or Temporary Cash Investments deposited or to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesan Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets Collateral pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Security Document, including Excluded Assets and (iv) cash proceeds of Refinancing Indebtedness not yet applied cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds Account (as defined in the ABL/Term Loan Intercreditor Agreement, if any) are deposited to Refinance any bank account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Refinanced Debt Qualified Loan Party to close such bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts and/or open new DDAs or new Concentration Accounts, subject to, in accordance the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with clause the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (xiii) other arrangements reasonably satisfactory to the Administrative Agent; provided that as part of the first proviso Compliance Certificate to be delivered concurrently with the delivery of financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Borrower Representative will provide a list to the extent Administrative Agent of any newly opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that the applicable Refinanced Debt consists of unused Revolving Commitments a Qualified Loan Party acquires new demand deposit accounts or Other Revolving Commitments that have been terminated new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 90120 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan or letter requirements of credit documents and Subsection 4.16(b) (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal including, with respect to such Deposit Accounts. The Borrower any new Concentration Account, by entering into a Blocked Account Agreement) or shall not borrow enter into other arrangements consistent with the provisions of this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any Revolving Loans new Concentration Account or Other Revolving Loans DDA that, in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings either case, is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)become a Blocked Account.
Appears in 1 contract
Cash Management. At (a) No Loan Party shall establish or maintain a Deposit Account or a Securities Account that is not subject to a Control Agreement; provided, that no Excluded Account shall be required to be subject to a Control Agreement; provided, further, that the Loan Parties shall have forty (40) days after the date hereof (other than the Sears Top Parent and Buddy’s Top Parent and their respective Subsidiaries, which will have twenty days after the date hereof) (or, in each case, with respect to Deposit Accounts or Securities Accounts opened or acquired after the Closing Date, sixty (60) days after the date of such opening or acquisition) (or, in each case, such later date to which Collateral Agent may otherwise agree) to cause a Deposit Account or Securities Account to become subject to a Control Agreement so long as no Cash or securities being held in a Deposit Account or Securities Account subject to a Control Agreement is transferred to any time such new Deposit Account or Securities Account prior to such new Deposit Account or Securities Account becoming subject to a Control Agreement. The Loan Parties shall transfer no less frequently than daily (other than days that are not business days for the applicable bank) (or, solely with respect to AF Top Parent and its Subsidiaries, weekly) to a Deposit Account subject to a Control Agreement all payments received from all Credit Card Issuers and Credit Card Processors (other than to the extent such payments are received directly into a Deposit Account subject to a Control Agreement).
(b) [Reserved].
(c) Subject to the Intercreditor Agreement, each Control Agreement shall provide that the applicable depositary bank or securities intermediary will comply with any Revolving Loans (including any Other Revolving Loans) are outstandinginstructions originated by the ABL Agent or the Collateral Agent directing the disposition of funds in the applicable deposit account or securities account without further consent by the Loan Party; provided that the Collateral Agent shall not issue such instructions except during the continuance of an Event of Default; provided, further, that notwithstanding the foregoing, the Borrower shall not, and Collateral Agent shall not permit issue such instructions under any Subsidiary Loan Party toControl Agreement in respect of a Deposit Account or Securities Account owned or maintained by Global Parent or Liberty Top Parent except during the continuance of an Specified Event of Default; (provided that, permit cash on hand unless Collateral Agent otherwise agrees, such Control Agreements shall provide that the Collateral Agent’s instructions shall automatically be deemed to have been issued upon an Event of Default under Sections 8.01(f) or (including g)).
(d) To the proceeds extent not previously delivered prior to the Closing Date, deliver to Collateral Agent within twenty (20) calendar days after the Closing Date (or such longer period as agreed to by Collateral Agent) copies of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained notifications in the Deposit Accounts form of Exhibit H hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and substance to Collateral Agent which have been executed by the applicable Loan Parties and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed in Schedule 6.17 with respect to which the Loan Parties have established credit card processing arrangements; provided that, notwithstanding the foregoing, with respect to any multi-party credit card processing arrangements or credit card processing arrangements entered into by any predecessors in interest to the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties shall be required to satisfy use commercially reasonable efforts to ensure the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction delivery of such current liabilitiesCredit Card Notifications as promptly as reasonably practicable following the Closing Date.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the shall deliver to Collateral Agent if the a Credit Card Notification as set forth in Section 6.17(d) hereof.
(f) Collateral Agent agrees that (1) it shall not direct any Credit Card Issuer or Credit Card Processor to transfer any proceeds pursuant to any Credit Card Notification unless an Event of Default has exclusive rights occurred and is continuing and (2) if any Loan Party shall so request, unless an Event of withdrawal with respect Default has occurred and is continuing, Collateral Agent shall countersign any notification, request, order or direction from such Loan Party to any Credit Card Issuer or Credit Card Processor directing payments from such Credit Card Issuer or Credit Card Processor to be made to a new or different Deposit Account, provided such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings Account is subject to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)a Control Agreement.
Appears in 1 contract
Cash Management. At (i) Borrowers shall maintain, at their sole expense, the following accounts and facilities, which Borrowers hereby represent are in existence as of the Closing Date:
(A) deposit accounts set forth on Schedule 7.12(a), and, upon request of the Administrative Agent, certain other lockbox facilities, into which all payments and collections of all Accounts of each Borrower received by direct electronic funds transfer, check, credit card, draft or other similar means from any time Account Debtor (including but not limited to Medicaid, Medicare or TRICARE) or any other Person, shall be directed (collectively, “Facility Lockbox Accounts” and the banks at which such Facility Lockbox Accounts are maintained, “Facility Depository Banks”). Any payment or collection on the Accounts of any Borrower not deposited in a Facility Lockbox Account shall be held in trust for the benefit of Lenders and deposited immediately by the Borrower receiving such payment into a Facility Lockbox Account. To the extent Account Debtors do not already deposit accounts receivable therein, each Borrower shall direct its respective Account Debtors to make payment on its Accounts into a Facility Lockbox Account. The funds on deposit in each such Facility Lockbox Account shall be transferred on each Business Day, to a Concentration Account pursuant to a standing order with the Facility Depository Bank. No standing orders may be modified or terminated without 30 days prior written notice from Borrowers to Administrative Agent. No Facility Lockbox Account shall be moved or closed without the consent of Administrative Agent. Each Facility Lockbox Account, the Facility Depository Bank in which such Lockbox Account is held, its address and the respective contact person together with the account name and number is identified on Schedule 7.11.
(B) those certain Controlled Deposit Accounts (as designated on Schedule 7.12(a), collectively, the “Concentration Account,” and the bank at which the Concentration Account is maintained, the “Concentration Account Collecting Bank”) into which (i) collections of Accounts paid to Facility Lockbox Accounts are concentrated and/or deposited by automatic electronic funds transfer on each Business Day, from each and every Facility Lockbox Account, and (ii) any Net Cash Proceeds shall be deposited. The Concentration Account shall not be moved or closed without the consent of Administrative Agent. The Concentration Account, the Concentration Account Collecting Bank, its address and the respective contact person together with the account name and number is specifically identified on Schedule 7.11.
(C) those certain Controlled Deposit Accounts (as designated on Schedule 7.12(a), collectively, the “Disbursement Operating Account,” and the bank at which the Disbursement Operating Account is maintained, the “Disbursement Operating Account Collecting Bank”) into which amounts may be deposited from the Concentration Account. The Disbursement Operating Account shall not be moved or closed without the consent of Administrative Agent. The Disbursement Operating Account, the Disbursement Operating Account Collecting Bank, its address and the respective contact person together with the account name and number is specifically identified on Schedule 7.11.
(D) that certain Operator Designated Account into which, pursuant to the applicable Notice of Borrowing, Revolving Loans (including any Other Revolving Loans) are outstandingmay be deposited. The Operator Designated Account shall not be moved or closed without the consent of Administrative Agent. The Operator Designated Account, the Operator Designated Account Bank, its address and the respective contact person together with the account name and number is specifically identified on Schedule 7.11.
(ii) No credit support shall be provided to any Person. No Borrower shall not(A) have any interest in a deposit account that is shared with any other Person that is not a Borrower or (B) provide credit support to any Person that is not a Borrower. Borrowers shall ensure that no payment or collections of any amounts due to any Person other than a Borrower are deposited into any of the foregoing deposit accounts, or if so deposited, is forwarded to such other Person as soon as reasonably practicable and shall not comingle any such funds with the funds of the Borrowers. Notwithstanding the foregoing, as it relates to the Xxxxx Fargo Account, the requirements of this Section 7.12(ii) shall be subject to Section 7.9 in all respects.
(iii) Borrowers shall not permit any Subsidiary Facility Depository Bank or a Concentration Account Collecting Bank to be a Lender hereunder unless such bank shall waive or subordinate any and all of its rights to offset (unless otherwise prohibited by the CMS Bulletin (as defined below), such waiver or subordination of its rights to offset shall exclude its right to offset, (A) in respect of customary offsets for returned items and ordinary course fees and charges by such bank in accordance with its standard schedule of such fees and charges in effect from time to time for all deposit accounts (which customary fees and charges shall in no event include overdraft protection, credit or debit cards or other similar treasury services) and (B) in respect of the Obligations (excluding Cash Management Obligations) for all deposit accounts other than Government Receivables Deposit Accounts) against each deposit account pursuant to a Control Agreement (or other similar agreement) acceptable to Administrative Agent in its sole discretion. Each Lender that is a Facility Depository Bank or a Concentration Account Collecting Bank, hereby waives all of its right to offset the Obligations (other than in respect of customary offsets for returned items and ordinary course fees and charges by such bank in accordance with its standard schedule of fees and charges in effect from time to time to the extent permitted by the CMS Bulletin) against each Government Receivables Deposit Account of a Borrower maintained by such Lender to the extent necessary to comply with the requirements of the CMS Bulletin.
(iv) Borrowers shall ensure that (A) each Facility Depository Bank and the Concentration Account Collecting Bank complies with all requirements of the Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) Manual System Pub. 100-4 Transmittal 213 (including change request 3079) and any replacement, change or update thereto (the “CMS Bulletin”), and (B) no funds other than proceeds from Medicaid, Medicare, TRICARE and other state or federal healthcare payor programs are deposited in Government Receivables Deposit Accounts designated for the purpose of receiving such proceeds. No Loan Party to, permit cash shall withdraw or otherwise transfer funds from any Facility Lockbox Account or Government Receivables Deposit Account other than pursuant to the standing sweep instructions transferring such funds to the Concentration Account.
(v) Borrowers shall ensure that the funds on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained deposit in the Deposit Accounts Operator Designated Account at any time shall be less than 110% of the Loan Parties“Current Impositions” (as defined in the Master Lease Intercreditor Agreements).
(vi) On or before the Closing Date (or, providedif not required by Administrative Agent on the Closing Date, thatat the time appointed therefor after the Closing Date, for purposes hereofincluding upon the formation or acquisition of a new entity that is to become a Borrower pursuant to the requirements of Section 7.10), “cash on hand” each Borrower shall exclude have executed the following: :
(iA) “store” cashA Control Agreement (1) with each Facility Depository Bank, cash in transit between stores with respect to each Facility Lockbox Account that is not a Government Receivables Deposit Account, (2) with each Concentration Account Collecting Bank, with respect to each Concentration Account, and local Deposit Accounts and cash receipts from sales in (3) with the process of inter-account transfersDisbursement Operating Account Collecting Bank, with respect to each Disbursement Operating Account, in each case as a result of the ordinary course operations of the Loan Partiescase, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness which Borrowers shall have access to the extent funds in such Facility Lockbox Account, the Concentration Account and the Disbursement Operating Account, provided that immediately upon the applicable Refinanced Debt consists occurrence and during continuance of unused Revolving Commitments or Other Revolving Commitments any Sweep Event, at the option of Administrative Agent, no Borrower shall have access to the funds in such Facility Lockbox Account, the Concentration Account and the Disbursement Operating Account and all funds shall be transferred on a daily basis from such Facility Lockbox Account, the Concentration Account and the Disbursement Operating Account to the Agent Collection Account (as defined below). No Control Agreement may be modified without Administrative Agent’s prior written consent.
(B) An agreement (each a “Facility Lockbox Agreement”) with each Facility Depository Bank with respect to each Facility Lockbox Account that have been terminated in connection with the issuance of such Refinancing Indebtednessis a Government Receivables Deposit Account, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise which such bank agrees to cash collateralize letters of credit provide certain information to Administrative Agent regarding each such Facility Lockbox Account and to maintain each such Facility Lockbox Account in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal requirements thereof, including with respect to each such Deposit Facility Lockbox Account the transfer by electronic funds transfer no more than daily, funds on deposit therein to the Concentration Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)No Facility Lockbox Agreement may be modified without Administrative Agent’s prior written consent.
Appears in 1 contract
Samples: Revolving Credit Agreement (Genesis Healthcare, Inc.)
Cash Management. At (a) Within thirty (30) days of the occurrence of a Specified Default, or immediately upon the occurrence of any time any Revolving Loans (including any Other Revolving Loans) are outstandingother Cash Dominion Event, the Borrower shall notBorrowers, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including upon the proceeds request of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess Agent, shall deliver to the Agents a schedule of $200,000,000 all DDAs, that to accumulate and be maintained in the Deposit Accounts knowledge of the Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository; (ii) cash necessary the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 2.18(b) is a list describing, as of the Closing Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card and debit card charges for the Loan Parties to satisfy the current liabilities incurred sales by such Loan Parties Party.
(c) Within ninety (90) days after the Closing Date (or such longer period as the Agents may agree), each Loan Party shall:
(i) deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Agents, with any Blocked Account Bank, including, without limitation, with respect to the DDAs existing as of the Closing Date listed on Schedule 2.18(c) attached hereto (collectively, the “Blocked Accounts”).
(d) Each Credit Card Notification and Blocked Account Agreement entered into by a US Loan Party shall require, during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA (not to be located in the Province of Quebec, Canada) which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account”(the “Designated Account”)) to the concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event, but excluding, until the Term Loan Facility is repaid in full, any Term Priority Collateral);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) all Net Proceeds on account of any Prepayment Event (other than, until the Term Loan Facility is repaid in full, a Prepayment Event arising in connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA); and
(v) the cash proceeds of all credit card and debit card charges. If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents owned by any US Loan Party (other than (i) amounts on deposit in the Designated Account, which funds, shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) xxxxx cash accounts funded in the ordinary course of their businesses business, the deposits in which shall not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree), and without acceleration (iii) 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 is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral Agent may require the applicable US 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, the US Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such current liabilitiesaccounting, the Collateral Agent agrees to promptly remit to the agent under the Term Loan Facility the proceeds of the Term Priority Collateral received by the Administrative Agent. Notwithstanding anything in any Loan Document to the contrary, (i) so long as the Obligations have not been accelerated, no DDAs maintained by any Canadian Loan Party nor credit card or debit card processing accounts maintained by any Canadian Loan Party shall be subject to the dominion and control of the Administrative Agent, and (ii) all Canadian Loan Parties shall provide the Collateral Agent with a monthly accounting of the contents of, and a copy of the bank statement for, each Blocked Account maintained in Canada for the immediately preceding month.
(e) The provisions of this subsection (e) shall apply to Cash Receipts from Canadian operations and DDAs and Blocked Accounts maintained by the Canadian Loan Parties in Canada.
(i) All Cash Receipts relating to the Canadian Loan Parties’ operations in Canada shall be deposited into one or more DDAs established for the account of the applicable Canadian Loan Party in Canada.
(ii) So long as the Obligations have not been accelerated:
(A) the Canadian Loan Parties may direct, and shall have sole control over, the manner of disposition of their funds in the DDAs in Canada, the Blocked Accounts in Canada and each Disbursement Account in Canada; and
(B) the Loan Parties shall cause the wire transfer of all available and collected Cash Receipts in each such DDA in Canada to a Blocked Account in Canada not less frequently than once each week (or with such greater frequency as the Administrative Agent in its discretion may require).
(iii) On and after the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for date on which the Borrower is permitted Obligations have been accelerated:
(A) upon notice to apply a Canadian Blocked Account Bank (which the Agents agree not to give unless the Obligations have been accelerated), no Loan Party shall have any access to or right of withdrawal from the Canadian Blocked Accounts maintained with such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(cCanadian Blocked Account Bank; and
(B) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition event that, notwithstanding the provisions of this SECTION 2.18(e), the term “Refinancing Indebtedness”Loan Parties receive or otherwise have dominion and control of any such proceeds or collections, (v) cash such proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash and collections shall be held in trust by the Loan Parties for the Administrative Agent and shall not be commingled with any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties’ other funds or deposited in any account of any Loan Party other than as instructed by the Administrative Agent.
(f) The Loan Parties which may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (except with respect to any payroll, trust, and tax withholding accounts or unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of its intention to open or close a Blocked Account and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent.
(g) The Borrowers may also maintain one or more disbursement accounts (the “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.
(h) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 2.18, 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 Collateral 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 Collateral Agent.
(i) 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.
(j) The Collateral Agent shall 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.
(k) 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, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Collateral Obligations are being paid in full, by 2:00 p.m. Boston 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 has exclusive rights of withdrawal with respect by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. Boston time, on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such Deposit Accounts. The Borrower deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not borrow any Revolving Loans such return is rightful or Other Revolving Loans in an aggregate principal timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), dishonor or return;
(v) or (vii) above)All amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.04.
Appears in 1 contract
Cash Management. At (a) From and after the 90th day after the Closing Date (or such longer period agreed by the Co-Collateral Agents, without any time requirement for Lender consent), (A) each Borrowing Base Credit Party shall establish and maintain one or more Collection Accounts and shall take reasonable steps to ensure that all of such Borrowing Base Credit Party’s Account Debtors forward payment of the amounts owed by them directly to a Collection Account and (B) each Borrowing Base Credit Party shall otherwise deposit or cause to be deposited promptly, and in any Revolving Loans event no later than the third Business Day after the date of receipt thereof, all of such Borrowing Base Credit Party’s Collections (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any those sent directly by such Borrowing Base Credit Party’s Account Debtors to another Credit Party or a Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude Borrower) into the following: applicable Collection Account (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result case, other than Accounts or payments of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event type described in clause (acc) or (bdd) of the definition of “Prepayment EventEligible Accounts” for and any Collection with respect thereto). Each Borrowing Base Credit Party shall maintain a separate Controlled Account into which only the Borrower is permitted payments made to apply the Collections Account by Account Debtors of such Net Proceeds Credit Parties shall be forwarded, which Controlled Account shall not also operate as a reinvestment disbursement account (each, a “Concentration Account”). So long as the other provisions of this Section 5.13 are satisfied upon such closure (and any new Deposit Account or Securities Account opened to acquire real propertyreplace such closed Deposit Account or Securities Account has already become a Controlled Account subject to Control Agreements that satisfy the requirements of this Section 5.13 at the time of such closure), equipment nothing herein shall prevent any Credit Party from closing Deposit Accounts or Securities Accounts (other tangible assets than any Collection Account) after the Closing Date to the extent not prohibited by this Agreement.
(b) From and after the 90th day after the Closing Date (or, in the case of any Credit Party acquired or formed after the Closing Date, any Person that is required after the Closing Date to become a Credit Party pursuant to Section 2.11(c) 5.10, or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating or Securities Account that is not an Excluded Account is acquired or opened after the Closing Date, within 60 days of the date that such Person becomes a Credit Party or the date such Deposit Account or Securities Account is opened or acquired, as applicable) (or such longer period agreed by the Co-Collateral Agents, without any requirement for Lender consent), each Credit Party (i) shall establish and maintain Control Agreements with the Collateral Agent and the applicable account bank with respect to each Credit Party’s Deposit Accounts and Securities Accounts (other than Excluded Accounts) in form and substance reasonably acceptable to the Collateral Agent (each such account subject to a Control Agreement, a “Controlled Account”). Each such Control Agreement in respect of a Collection Account or Concentration Account shall provide, among other things, that (A) the applicable account bank will comply with any Securitization or Factoring Transactioninstructions originated by the Collateral Agent directing the disposition of the funds in such Controlled Account without further consent by the applicable Credit Party, (viiB) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan account bank waives, subordinates, or letter agrees not to exercise any rights of credit documents setoff or recoupment or any other claim against the applicable Controlled Account other than for payment of its service fees and other charges directly related to the administration of such Deposit Account or Securities Account (as applicable) and for returned checks or other items of payment, and (viiiC) cash held in any Deposit Account of upon the Loan Parties which is under the sole dominion and control instruction of the Collateral Agent if (an “Activation Instruction”), the applicable account bank will forward by daily (or such other frequency as may be specified by the Collateral Agent has exclusive rights of withdrawal with respect Agent) sweep all amounts in the applicable Deposit Account or Securities Account to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Collateral Agent’s account.
Appears in 1 contract
Cash Management. At As of the Agreement Date, all bank accounts, securities accounts, commodities accounts, and other investment accounts of the Credit Parties are listed on Schedule 6.15 and such Schedule designates which such accounts are deposit accounts. No Credit Party may maintain any bank accounts (other than Excluded Accounts) unless such bank accounts are at all times subject to a Controlled Account Agreement (such bank accounts, “Controlled Deposit Accounts”); provided that with respect to any such bank account opened or acquired by a Credit Party after the Agreement Date, the Credit Parties shall have a period of ninety (90) days (or such longer period as the Administrative Agent shall permit in writing in its sole discretion) after opening or acquiring such bank account to execute and deliver any such required Controlled Account Agreement; provided further, that bank accounts used solely for investments (and excluding, for the avoidance of doubt, any disbursement or operating accounts) shall not be subject to such requirement until, following the date that is fifteen (15) days after such account ceased to be an Excluded Account, the earlier of such time as (x) any Loans are outstanding or (y) Excess Availability is less than $300,000,000. The Credit Parties shall: establish and thereafter maintain one or more Controlled Deposit Accounts wherein collections, deposits, and other payments on or with respect to Collateral are to be transferred, received or made (each, a “Collections Account”); at all times direct all of their Account Debtors and Credit Card Processors that make payments via wire transfer to direct all wire transfers to a Collections Account; and in the event that any Credit Party shall at any time directly receive any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds remittances of any Revolving Loan and Accounts (including, without limitation, any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Partieschecks, provideddrafts, thator other instruments), for purposes hereofcredit or merchant card collections, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received or other payments in respect of a Prepayment Event described in clause (a) any Collateral or (b) shall receive any other funds representing proceeds of the definition of “Prepayment Event” for which Collateral, promptly deposit the Borrower is permitted same into a Collections Account. During a Cash Dominion Period: The Administrative Agent shall have the right to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or notify any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal depositary bank with respect to any Collections Account or other Controlled Deposit Account that the Administrative Agent is exercising exclusive control with respect thereto and no Credit Party shall have any right to withdraw such amounts from any such Collections Account or Controlled Deposit AccountsAccount. The Borrower shall not borrow any Revolving Loans Each Credit Party hereby grants its power of attorney to Truist Bank (and each of its Affiliates providing the services described in this Section 6.15(d)) to indorse in such Credit Party’s name all tangible items of payment directed for deposit in a Controlled Deposit Account, Collections Account, or Other Revolving Loans a lockbox and to submit such items for collection, with it being acknowledged and agreed that such power of attorney, being coupled with an interest, is irrevocable until the full and final payment in an aggregate principal amount cash and performance of more than $100,000,000 over any three consecutive all Obligations and the termination of the Commitments; and 110 NAI-1536628076v4 On each Business Day period if the purpose Administrative Agent may, without further consent of such Borrowings is to accumulate cash on hand (other than any Credit Party, withdraw all immediately available funds in the Collections Accounts and apply the same against the Obligations in the manner provided for any of the purposes described in clause (ii), (iv), (v) or (vii) above)Section 2.11.
Appears in 1 contract
Cash Management. At any (a) Annexed hereto as Schedule 4.16, as the same may be modified from time any Revolving Loans to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository (including any Other Revolving Loansi) are outstandingthe name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Administrative Agent, the Borrower shall not, and shall not permit any Subsidiary each Qualified Loan Party toshall (i) deliver to the Administrative Agent (A) notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any DDA (other than Excluded Accounts) is maintained, permit cash in form reasonably satisfactory to the Administrative Agent of the Administrative Agent’s interest in such DDA and (B) Credit Card Notifications executed on hand behalf of each such Qualified Loan Party and delivered to each Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent, (including ii) instruct each depository institution for a DDA (other than Excluded Accounts) that the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and any bank with which such Qualified Loan Party maintains a Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Concentration Account maintained with such bank and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be maintained collected by the applicable bank and deposited in the Deposit applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent Borrower or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (i) any such amount to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $1,000,000 per account or $3,000,000 in the aggregate), if any, required by the bank at which such Blocked Account is maintained to an account maintained by the Administrative Agent at Citibank, N.A. (or another bank of recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) All collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, thatto pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, for purposes hereofthe Issuing Lenders and the Lenders under any of the Loan Documents; (4) fourth, “cash to repay (on hand” shall exclude a ratable basis) the following: outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash in transit between stores and local Deposit Accounts and cash receipts Cash Equivalents and/or Temporary Cash Investments from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the time to time inadvertently misapplied by any Qualified Loan PartiesParty, (ii) cash necessary for the Loan Parties cash, Cash Equivalents or Temporary Cash Investments deposited or to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesan Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets Collateral pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Security Document, including Excluded Assets and (iv) cash proceeds of Refinancing Indebtedness not yet applied cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds Account (as defined in the ABL/Term Loan Intercreditor Agreement, if any) are deposited to Refinance any bank account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Refinanced Debt Qualified Loan Party to close such bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts and/or open new DDAs or new Concentration Accounts, subject to, in accordance the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with clause the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (xiii) other arrangements reasonably satisfactory to the Administrative Agent; provided that as part of the first proviso Compliance Certificate to be delivered concurrently with the delivery of financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness Borrower Representative will provide a list to the extent Administrative Agent of any newly opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that the applicable Refinanced Debt consists of unused Revolving Commitments a Qualified Loan Party acquires new demand deposit accounts or Other Revolving Commitments that have been terminated new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 90 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of Subsection 4.16(b) (including, with respect to any new Concentration Account, by entering into a Blocked Account Agreement) or letter shall enter into other arrangements consistent with the provisions of credit documents this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any new Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsAdministrative Agent. The Borrower Representative, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agreement, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has no right of withdrawal from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement and the ABL/Term Loan Intercreditor Agreement (and any other applicable intercreditor agreement). In the event that, notwithstanding the provisions of this Subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to Subsection 4.16(c), such proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the purposes described monetary obligations due and owing hereunder and under the other Loan Documents have been satisfied or (y) all Dominion Events have been cured or waived, shall (subject in the case of clause (iix) to the provisions of the applicable intercreditor agreement), be remitted to the operating bank account of the applicable Qualified Loan Party.
(iv)k) Notwithstanding anything herein to the contrary, (v) the Loan Parties shall be deemed to be in compliance with the requirements set forth in this Subsection 4.16 during the initial 90 day period commencing on the Closing Date to the extent that the arrangements described above are established and effective not later than the date that is 90 days following the Closing Date or (vii) above)such later date as the Administrative Agent, in its sole discretion, may agree.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) Annexed hereto as Schedule 5.14(a) is a schedule of all DDAs that are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of by the Loan Parties, providedwhich schedule shall include, that, for purposes hereof, “cash on hand” shall exclude the following: with respect to each depository (i) “store” cashthe name and address of such depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as Schedule 5.14(b) is a list describing all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.
(c) Annexed hereto as Schedule 5.14(c) is a list describing all payors of the third party insurance provider accounts from which a Loan Party receives payments of Eligible Third Party Insurance Provider Account Receivables.
(d) Within ninety (90) days after the Effective Date (or such longer time as the Administrative Agent may, cash in transit between stores and local Deposit Accounts and cash receipts from sales its sole discretion, agree in writing), each Loan Party shall:
(i) deliver to the Administrative Agent notifications (each, a "Credit Card Notification") substantially in the process form attached hereto as Exhibit K which have been executed on behalf of inter-account transferssuch Loan Party and addressed to such Loan Party's credit card clearinghouses and processors;
(ii) deliver to the Administrative Agent notifications, (each, an "Insurance Provider Notification") substantially in each case the form attached as Exhibit L which have been executed on behalf of such Loan Party and addressed to such Loan Party's payors of third party insurance providers accounts;
(iii) enter into a result of Blocked Account Agreement substantially in the ordinary course operations form attached as Exhibit M (or in such other form reasonably acceptable to the Administrative Agent) with the banks with which such Borrower maintains accounts into which the DDAs are concentrated (collectively, the "Blocked Accounts") listed on Schedule 5.14(d)(iii) attached hereto; and
(iv) deliver to the Administrative Agent a notification, (the "Coinstar Notification") substantially in the form attached as Exhibit N which has been executed on behalf of the Loan PartiesParties and addressed to Coinstar, Inc.
(e) At the request of the Administrative Agent (which request shall not be made prior to the date that is forty-five (45) days after the Effective Date), each Loan Party shall deliver to the Administrative Agent notifications (each, a "DDA Notification") substantially in the form attached as Exhibit O which have been executed on behalf of each Loan Party to each depository institution with which any DDA is maintained.
(f) Each DDA Notification, Credit Card Notification, Insurance Provider Notification and Blocked Account Agreement and the Coinstar Notification shall require, after the occurrence and during the continuance of a Triggering Event, the Loan Parties shall promptly and in any event within two Business Days, cause the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the "Cash Receipts") to the concentration account maintained by the Administrative Agent at Bank of America (the "Agent's Account") from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash necessary for payments received by a Loan Party from any Person or from any source or on account of any Prepayment Event or other transaction or event;
(iv) the then contents of each DDA;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the proceeds of all credit card charges.
(g) Upon the occurrence of a Triggering Event, the Borrowers shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If, at any time after the occurrence of a Triggering Event, any cash or cash equivalents owned by any Loan Party that constitutes Collateral are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a 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.
(h) 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 consistent with the provisions of this Section 5.14 and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Loan Parties shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to satisfy the current liabilities incurred Administrative Agent.
(i) The Borrowers may also maintain one or more disbursement accounts (the "Disbursement Accounts") to be used by such Loan Parties the Borrowers for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration business or as otherwise permitted hereunder. The only Disbursement Accounts as of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event Restatement Effective Date are those described in clause Schedule 5.14(i).
(aj) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent's Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has exclusive rights no right of withdrawal with respect from the Agent's Account, (ii) the funds on deposit in the Agent's Account shall at all times continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent's Account shall be applied as provided in Section 2.11(m) or Section 7.03 of this Agreement, as applicable. In the event that, notwithstanding the provisions of this Section 5.14, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party's other funds or Other Revolving Loans deposited in an aggregate principal any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent's Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(k) Any amounts received in the Agent's Account at any time when all of the Obligations have been and remain fully repaid shall be remitted to the Borrowers, if and as the Company may request.
(l) 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 Agent's Account on the Business Day on which deposited, provided that notice of such deposit is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;
(ii) Funds paid to the Administrative Agent other than by deposit to the Agent's Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that notice of such payment is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;
(iii) If notice of a deposit to a Agent's Account or payment is not available to the Administrative Agent until after 12:00 noon, Boston, Massachusetts time, on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m., Boston, Massachusetts time, on the then next Business Day;
(iv) If any item deposited to the Agent's Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of Loan Account and the Borrowers shall indemnify the Administrative Agent and the Lenders against all claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Cash Management. At any (a) Annexed hereto as Schedule 4.16, as the same may be modified from time any Revolving Loans to time by notice to the Administrative Agent, is a schedule of all DDAs and Concentration Accounts that are maintained by the Qualified Loan Parties, which schedule includes, with respect to each depository (including any Other Revolving Loansi) are outstandingthe name and address of such depository; (ii) the account number(s) (and account name(s) of such bank account(s)) maintained with such depository; and (iii) a contact person at such depository.
(b) Except as otherwise agreed by the Administrative Agent, the Borrower shall not, and shall not permit any Subsidiary each Qualified Loan Party toshall (i) deliver to the Administrative Agent (A) notifications executed on behalf of each such Qualified Loan Party to each depository institution with which any DDA (other than Excluded Accounts) is maintained, permit cash in form reasonably satisfactory to the Administrative Agent of the Administrative Agent’s interest in such DDA, (B) Credit Card Notifications executed on hand behalf of each such Qualified Loan Party and delivered to each Credit Card Issuer and Credit Card Processor, in form reasonably satisfactory to the Administrative Agent and (including C) the proceeds Deere Revolving Plan Notification executed on behalf of any Revolving each such Qualified Loan Party and any Other Revolving Loansdelivered to Deere Financial, in form reasonably satisfactory to the Administrative Agent, (ii) in an aggregate instruct each depository institution for a DDA (other than Excluded Accounts) that the amount in excess of $200,000,000 the Target Amount and available at the close of each Business Day in such DDA should be swept to accumulate one of the Qualified Loan Parties’ Concentration Accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form reasonably satisfactory to the Administrative Agent, with the Administrative Agent or the Collateral Agent and any bank with which such Qualified Loan Party maintains a Concentration Account into which the DDAs (other than Excluded Accounts) are swept (each such account, a “Blocked Account” and collectively, the “Blocked Accounts”), covering each such Concentration Account maintained with such bank and (iv) (A) instruct all Account Debtors of such Qualified Loan Party that remit payments of Accounts of such Account Debtor regularly by check pursuant to arrangements with such Qualified Loan Party to remit all such payments to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable DDA or Concentration Account, which remittances shall be maintained collected by the applicable bank and deposited in the Deposit applicable DDA or Concentration Account or (B) cause the checks of any such Account Debtors to be deposited in the applicable DDA or Concentration Account within two Business Days after such check is received by such Qualified Loan Party. All amounts received by the Parent Borrower or any of its Domestic Subsidiaries that is a Loan Party in respect of any Account, in addition to all other cash received from any other source, shall upon receipt of such amount or cash (other than (i) any such amount to be deposited in Excluded Accounts or (ii) cash excluded from the Collateral pursuant to any Security Document) be deposited into a DDA (other than an Excluded Account) or Concentration Account. Each Qualified Loan Party agrees that it will not cause proceeds of such DDAs (other than Excluded Accounts) to be otherwise redirected.
(c) Each Blocked Account Agreement shall require, after the occurrence and during the continuance of a Dominion Event, the ACH or wire transfer no less frequently than once per Business Day (unless the Commitments have been terminated and the monetary obligations then due and owing hereunder and under the other Loan Documents have been paid in full and all Letters of Credit have either been terminated or expired (unless cash collateralized or otherwise provided for in a manner reasonably satisfactory to the Administrative Agent)), of all available cash balances and cash receipts, including the then contents or then entire available ledger balance of each Blocked Account net of such minimum balance (not to exceed $500,000 per account or $1,500,000 in the aggregate), if any, required by the bank at which such Blocked Account is maintained to an account maintained by the Administrative Agent at UBS AG, Stamford Branch (or another bank of recognized standing reasonably selected by the Administrative Agent with the reasonable consent of the Borrower Representative) (the “Core Concentration Account”). Each Qualified Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(d) All collected amounts received in the Core Concentration Account shall be distributed and applied on a daily basis in the following order (in each case, to the extent the Administrative Agent has actual knowledge of the amounts owing or outstanding as described below and after giving effect to the application of any such amounts constituting proceeds from any Collateral otherwise required to be applied pursuant to the terms of the respective Security Document, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable): (1) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent or the Collateral Agent under any of the Loan PartiesDocuments and to repay or prepay outstanding Revolving Credit Loans advanced by the Administrative Agent; (2) second, providedto pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Lender under any of the Loan Documents and to repay all outstanding Unpaid Drawings and all interest thereon; (3) third, thatto pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, for purposes hereofthe Issuing Lenders and the Lenders under any of the Loan Documents; (4) fourth, “cash to repay (on hand” shall exclude a ratable basis) the following: outstanding principal of Revolving Credit Loans (whether or not then due and payable); (5) fifth, to pay (on a ratable basis) all outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under this Agreement; and (6) sixth, to pay (on a ratable basis) all other outstanding obligations of the Borrowers then due and payable to the Administrative Agent, the Collateral Agent, and the Lenders under any of the other Loan Documents. This Subsection 4.16(d) may be amended (and the Lenders hereby irrevocably authorize the Administrative Agent to enter into such amendments) to the extent necessary to reflect differing amounts payable, and priorities of payments, to Lenders participating in any new classes or tranches of loans added pursuant to Subsections 2.6, 2.7 and 2.8, as applicable, in accordance with Subsection 11.1(d).
(e) If, at any time after the occurrence and during the continuance of a Dominion Event as to which the Administrative Agent has notified the Borrower Representative, any cash, Cash Equivalents or Temporary Cash Investments owned by any Qualified Loan Party (other than (i) “store” de minimis cash, cash in transit between stores and local Deposit Accounts and cash receipts Cash Equivalents and/or Temporary Cash Investments from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the time to time inadvertently misapplied by any Qualified Loan PartiesParty, (ii) cash necessary for the Loan Parties cash, Cash Equivalents or Temporary Cash Investments deposited or to satisfy the current liabilities incurred by such Loan Parties be deposited in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesan Excluded Account in accordance with this Subsection 4.16, (iii) cash, Cash Equivalents or Temporary Cash Investments that are (or are in any bank account that is) excluded from the Net Collateral pursuant to any Security Document, including Excluded Assets and (iv) cash, Cash Equivalents or Temporary Cash Investments in the Asset Sales Proceeds received Account (as defined in respect of the ABL/Term Loan Intercreditor Agreement, if any) are deposited to any bank account, or held or invested in any manner, otherwise than in a Prepayment Event described in clause Blocked Account subject to a Blocked Account Agreement (or a DDA which is swept daily to such Blocked Account), the Administrative Agent shall be entitled to require the applicable Qualified Loan Party to close such bank account and have all funds therein transferred to a Blocked Account, and to cause all future deposits that were previously made or required to be made to such bank account to be made to a Blocked Account.
(f) (a) The Qualified Loan Parties respectively may close DDAs or Concentration Accounts and/or open new DDAs or new Concentration Accounts, subject to, in the case of any new Concentration Account, (i) the contemporaneous execution and delivery to the Administrative Agent of a Blocked Account Agreement consistent with the provisions of this Subsection 4.16 with respect to each such new Concentration Account or (ii) other arrangements reasonably satisfactory to the Administrative Agent and (b) as part of the definition Compliance Certificate to be delivered concurrently with the delivery of “Prepayment Event” for which financial statements and reports referred to in Subsections 7.1(a) and 7.1(b) the Borrower is permitted to apply such Net Proceeds as Representative will provide a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness list to the extent Administrative Agent of any new opened or acquired DDAs or Concentration Accounts during the preceding Fiscal Quarter.
(g) In the event that the applicable Refinanced Debt consists of unused Revolving Commitments a Qualified Loan Party acquires new demand deposit accounts or Other Revolving Commitments that have been terminated new concentration accounts in connection with an acquisition, the issuance Borrower Representative will procure that such Qualified Loan Party shall within 90 days of the date of such Refinancing Indebtedness, acquisition (vior such longer period as may be agreed by the Administrative Agent) cash held in any Deposit Account relating cause such new demand deposit accounts or new concentration accounts so acquired to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance comply with the applicable loan requirements of Subsection 4.16(b) (including, with respect to any new Concentration Account, by entering into a Blocked Account Agreement) or letter shall enter into other arrangements consistent with the provisions of credit documents this Subsection 4.16 and otherwise reasonably satisfactory to the Administrative Agent with respect to any new Concentration Account or DDA that, in either case, is to become a Blocked Account.
(viiih) cash held in any Deposit The Core Concentration Account of the Loan Parties which is shall at all times be under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit AccountsAdministrative Agent. The Borrower Representative, on behalf of each Qualified Loan Party, hereby acknowledges and agrees that, except to the extent otherwise provided in the Guarantee and Collateral Agreement, the ABL/Term Loan Intercreditor Agreement, any Junior Lien Intercreditor Agreement or any Other Intercreditor Agreement, as applicable, (x) such Qualified Loan Party has no right of withdrawal from the Core Concentration Account, (y) the funds on deposit in the Core Concentration Account shall at all times continue to be collateral security for all of the Obligations of the Qualified Loan Parties hereunder and under the other Loan Documents, and (z) the funds on deposit in the Core Concentration Account shall be applied as provided in this Agreement and the ABL/Term Loan Intercreditor Agreement (and any other applicable intercreditor agreement). In the event that, notwithstanding the provisions of this Subsection 4.16, any Qualified Loan Party receives or otherwise has dominion and control of any proceeds or collections required to be transferred to the Core Concentration Account pursuant to Subsection 4.16(c), such proceeds and collections shall be held in trust by such Qualified Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand Qualified Loan Party’s other funds or deposited in any bank account of such Qualified Loan Party (other than for any bank account by which such Qualified Loan Party received or acquired dominion or control over such proceeds and collections or with any funds in such bank account) and shall promptly be deposited into the Core Concentration Account or dealt with in such other fashion as such Qualified Loan Party may be instructed by the Administrative Agent.
(i) So long as no Dominion Event has occurred and is continuing, the Qualified Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(j) Any amounts held or received in the Core Concentration Account (including all interest and other earnings with respect hereto, if any) at any time (x) when all of the purposes described monetary obligations due and owing hereunder and under the other Loan Documents have been satisfied or (y) all Dominion Events have been cured or waived, shall (subject in the case of clause (iix) to the provisions of the applicable intercreditor agreement), be remitted to the operating bank account of the applicable Qualified Loan Party.
(iv)k) Notwithstanding anything herein to the contrary, (v) the Loan Parties shall be deemed to be in compliance with the requirements set forth in this Subsection 4.16 during the initial 90 day period commencing on the Closing Date to the extent that the arrangements described above are established and effective not later than the date that is 90 days following the Closing Date or (vii) above)such later date as the Administrative Agent, in its sole discretion, may agree.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loans) are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) On or prior to the Effective Date or such later date as the Agent may agree:
(A) deliver to the Agent copies of notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process form attached hereto as Exhibit E which have been executed on behalf of inter-account transferssuch Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed in the Perfection Certificate (collectively, the “Credit Card Processors”); and
(B) enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with each case as a result of Blocked Account Bank covering the ordinary course operations of deposit accounts set forth on Schedule 6.01(m)(i)(B) (collectively, the Loan Parties, “Blocked Accounts”).
(ii) cash necessary for The Loan Parties shall ACH or wire transfer daily (or with respect to DDAs that have historically not been swept daily (and other DDAs with the consent of the Agent, not to be unreasonably withheld), periodically, consistent with past practices) (and whether or not there are then any outstanding Obligations and whether or not a Cash Dominion Event then exists) to a Blocked Account all amounts on deposit in each DDA of such Loan Party, other than DDAs that are Excluded Accounts; provided that such covenant shall not apply to (i) any minimum balance as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained or (ii) if greater, any amounts maintained by the Loan Parties in such DDAs (and other DDAs with the consent of the Agent, not to satisfy the current liabilities incurred by such Loan Parties be unreasonably withheld) in the ordinary course of their businesses business consistent with past practices). The Loan Parties shall ACH or wire transfer daily to a Blocked Account all payments due from credit card processors and without acceleration other proceeds of any of the satisfaction Collateral. All funds in each DDA and Blocked Account (other than Excluded Accounts) shall be conclusively presumed to be Collateral and proceeds of such current liabilities, Collateral and the Agent and the Lenders shall have no duty to inquire as to the source of the amounts on deposit in any DDA or Blocked Account.
(iii) Each Credit Card Notification shall be held by the Net Proceeds received in respect Agent until the occurrence of a Prepayment Event described in clause (a) or (b) Cash Dominion Event. After the occurrence and during the continuance of a Cash Dominion Event, the Agent may deliver such Credit Card Notifications to the applicable Credit Card Processors. Each Credit Card Notification shall instruct the applicable Credit Card Processor to follow the instructions of the definition of “Prepayment Event” for which Control Co-Collateral Agent with respect to all amounts as may become due from time to time from such Credit Card Processor to the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, applicable Loan Party.
(iv) Each Blocked Account Agreement shall permit the Agent, after the occurrence and during the continuance of a Cash Dominion Event, to require or cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the Agent’s Account, of all cash receipts and collections held in each applicable Blocked Account (net of any minimum balance, not to exceed CAN$10,000 (or such greater amount with the consent of the Agent, not to be unreasonably withheld), as may be required to be kept in the subject Blocked Account by the Blocked Account Bank), including, without limitation, the following:
(A) all available cash receipts from the sale of Inventory and other Collateral;
(B) all proceeds of Refinancing Indebtedness not yet applied collections of Credit Card Accounts Receivable;
(C) all proceeds from any casualty or other insured damage to, or any taking under power of eminent domain or by condemnation or similar proceeding of any Collateral; and
(D) all Net Proceeds from any equity issuance by any Loan Party or its Subsidiaries. The Borrower shall be deemed to Refinance have complied with the applicable Refinanced Debt in accordance with provisions of this clause (xiiv) if they cause the ACH or wire transfer daily of all funds which an Authorized Officer of the first proviso Borrower in good faith believes to be the amount deposited in the definition Blocked Accounts in excess of the term “Refinancing Indebtedness”, CAN$10,000 (or such greater amount as permitted above in this clause (iv)).
(v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent’s Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if Agent. The Loan Parties hereby acknowledge and agree that (i) the Collateral Agent has exclusive rights Loan Parties have no right of withdrawal from the Agent’s Account, (ii) the funds on deposit in the Agent’s Account shall at all times be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent’s Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.01(m), during the continuance of a Cash Dominion Event, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Agent, shall not be commingled with respect any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent. During the continuance of a Cash Dominion Event, the amounts deposited into the Agent’s Account shall be applied to the prepayment of the Obligations then outstanding; provided that upon payment in full of such Deposit Accounts. The outstanding Obligations, any remaining amounts will be released and transferred to a deposit account of the Loan Parties as the Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount direct and the existence of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand a Cash Dominion Event (other than for any as the result of the purposes described occurrence of an Event of Default) shall not, in clause and of itself, impair the right of the Borrower to Revolving Advances in accordance with the terms hereof.
(ii)vi) Upon the request of the Agent, (iv)the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, (v) or (vii) accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Samples: Credit Agreement (Sears Canada Inc.)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingWithin ninety (90) days after the Effective Date (or such later date as the Administrative Agent may agree in its sole discretion), the Borrower shall notLoan Parties shall, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including to the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in extent reasonably required by the Deposit Accounts of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: Administrative Agent:
(i) deliver to the Collateral Agent notifications (each, a “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales Credit Card Notification”) substantially in the process of inter-account transfers, in each case form attached hereto as a result Exhibit F which have been executed on behalf of the ordinary course operations of Borrower and addressed to the Loan Parties, Borrower’s credit card clearinghouses and processors listed in the Information Certificate; and
(ii) cash necessary for enter into a Blocked Account Agreement with each Blocked Account Bank with respect to each DDA (other than a DDA constituting an Excluded DDA) maintained with such Blocked Account Bank (such DDAs subject to Blocked Account Agreements, collectively, the “Blocked Accounts”). Such Blocked Account Agreement(s) may be entered into with Administrative Agent, Xxxxx Fargo Bank, National Association, any Lender, and/or another financial institution reasonably acceptable to the Agents. If any Loan Party is unable to obtain a Blocked Account Agreement as required herein, at the Collateral Agent’s option, such Loan Party shall be required to transfer to and maintain such account with the Collateral Agent or at another Blocked Account Bank.
(b) So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct the manner of disposition of funds in the DDAs and Blocked Accounts. Each Credit Card Notification shall require the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account or a Cash Dominion Event then is continuing) of all available cash receipts (the “Cash Receipts”) therein to satisfy a Blocked Account, and the current liabilities incurred by such Loan Parties shall cause the ACH or wire transfer of funds on deposit in DDAs (other than Excluded DDAs) to a Blocked Account (provided, that so long as no Cash Dominion Event is then continuing, the Loan Parties may transfer such funds in accordance with its customary practices in the ordinary course of their businesses business, such customary practices to include, without limitation, the amount of funds to be retained in each DDA and without acceleration not so transferred) (it being understood that, with respect to any transfers described in this sentence occurring during the period commencing on the Effective Date and ending on the date that is ninety (90) days following the Effective Date, the requirement shall be deemed to have been met if such transfers are made to any account that becomes a Blocked Account during such period in accordance with SECTION 2.18(a)(ii)). Any amounts held in the Bank of America Concentration Account (i) at any time when no Cash Dominion Event then exists and is continuing, or (ii) following Payment in Full, shall be remitted to a Blocked Account of the satisfaction Borrower as specified by the Borrower.
(c) Each Blocked Account Agreement (other than such agreement entered into with respect to the Bank of America Concentration Account) shall require, after the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent), and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the ACH or wire transfer on each Business Day (or such current liabilities, other frequency as the Administrative Agent may agree) (iiiand whether or not there is then an outstanding balance in the Loan Account) of all available Cash Receipts to the Bank of America Concentration Account from:
(A) the sale of Inventory;
(B) all proceeds of collections of Accounts (including without limitation, proceeds of credit card charges);
(C) all Net Proceeds received on account of any Prepayment Event; and
(D) the then contents of each Blocked Account (other than the Bank of America Concentration Account), provided that up to $3,500 may be maintained in respect overnight balances in any Blocked Account (other than the Bank of America Concentration Account).
(d) After the occurrence and during the continuance of a Prepayment Event described Cash Dominion Event, the Loan Parties shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If, at any time after the occurrence and during the continuance of a Cash Dominion Event, any cash or cash equivalents consisting of proceeds of ABL Priority Collateral (other than Trust Funds that have been deposited in a Trust Fund DDA in accordance with clause (ah) below, except to the extent any excess proceeds are required to be deposited in the Bank of America Concentration Account pursuant to such clause (h)) owned by any Loan Party are deposited to any account, or held or invested in any manner, other than in a Blocked Account (bor a DDA which is swept daily to a Blocked Account), the Collateral 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, provided that up to $500,000 in the aggregate as to all DDAs may be maintained in overnight balances in such DDAs.
(e) The Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject, in the case of a Blocked Account, to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (it being understood and agreed that, with respect to any Blocked Account (x) acquired in connection with a Permitted Acquisition or an Investment permitted under clauses (p) and/or (q) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing IndebtednessPermitted Investment”, or (vy) cash proceeds of Refinancing Indebtedness to opened after the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing IndebtednessEffective Date, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which shall deliver to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent), duly executed by the applicable Loan Parties and Blocked Account Banks, within sixty (60) days (or such later date as the Administrative Agent may agree in its sole discretion) following the date of such Permitted Acquisition, such Investment or opening of such Blocked Account, as applicable). No Loan Party shall enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification is executed and delivered to the Collateral Agent.
(f) The Borrower may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrower for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(g) At all times after the occurrence and during the continuance of a Cash Dominion Event, the Bank of America Concentration Account shall be under the sole dominion and control of the Collateral Agent. Each Loan Party hereby acknowledges and agrees that, after the occurrence and during the continuance of a Cash Dominion Event, no Loan Party has any right of withdrawal from the Bank of America Concentration Account. The Blocked Account Agreement governing the Bank of America Concentration Account shall require, after the occurrence and during the continuance of a Cash Dominion Event and to the extent that any Obligations (other than any contingent indemnification Obligations for which no claim has then been asserted) are then outstanding, the transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available amounts to the Administrative Agent for application to the Obligations as provided in this Agreement. in accordance with SECTION 2.17(d) or, if an Event of Default shall have occurred and be continuing, SECTION 7.03. All funds on deposit in the Bank of America Concentration Account shall at all times continue to be collateral security for all of the Obligations. In the event that, notwithstanding the provisions of this SECTION 2.18, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections after the occurrence and during the continuance of a Cash Dominion Event, then except as otherwise provided under clause (d) above with respect to maintenance of up to $500,000 in the aggregate in overnight balances, such proceeds and collections shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(h) Notwithstanding anything to the contrary contained in this Section 2.18, the Borrower (i) may establish segregated DDAs into which Trust Funds may be deposited in the ordinary course of business and in accordance with the Borrower’s past practices (each such DDA, a “Trust Fund DDA”), and (ii) shall establish the Term Loan Priority Account (as defined in the Intercreditor Agreement) into which shall be deposited proceeds of the Term Priority Collateral in accordance with the Intercreditor Agreement. The Trust Funds so deposited shall not be swept to the Bank of America Concentration Account or applied to the Obligations but rather will be available for the specific purposes required for such Trust Funds. Any amounts in the DDAsThe proceeds of the Term Priority Collateral so deposited into the Term Loan Priority Account shall not be swept to the Bank of America Concentration Account or applied to the Obligations except to the extent provided in the Intercreditor Agreement. Any amounts in the Trust Fund DDAs and the Term Loan Priority Account shall continue to constitute Collateral and, after. After the occurrence and during the continuance of a Cash Dominion Event, suchthe excess proceeds deposited in the Trust Fund DDAs shall be deposited into the Bank of America Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent. To the extent any proceeds of the Term Priority Collateral are received by the Administrative Agent, the same shall be applied in accordance with the Intercreditor Agreement.
(i) 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 Bank of America Concentration Account on the Business Day on which deposited, provided that notice of such deposit is available to the Collateral Agent has exclusive rights by 2:00 p.m. on that Business Day;
(ii) Funds paid to the Administrative Agent other than by deposit to the Bank of withdrawal with respect America Concentration Account, shall be deemed to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive have been received on the Business Day period if the purpose when they are good and collected funds, provided that notice of such Borrowings payment is available to accumulate cash the Administrative Agent by 2:00 p.m. on hand that Business Day;
(other than for any iii) If notice of a deposit to the Bank of America Concentration Account or payment is not available to the Administrative Agent until after 2:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) On each Business Day, the Administrative Agent shall apply the then collected balance of the purposes described Bank of America Concentration Account (net of monthly fees charged, and of such impressed balances as may be required by Bank of America) in clause (ii), (iv), accordance with this SECTION 2.18; and
(v) If any item deposited to the Bank of America Concentration Account and credited to the Loan Account is dishonored or (vii) above)returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Loan Parties shall indemnify the Credit Parties against all claims and losses resulting from such dishonor or return.
Appears in 1 contract
Cash Management. At (a) Immediately upon the occurrence of any time any Revolving Loans Trigger Event (including any Other Revolving Loans) are outstandingCash Dominion), the Borrower Borrowers, upon the request of the Administrative Agent, shall notdeliver to the Administrative Agent a schedule of all DDAs, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including that to the proceeds knowledge of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Responsible Officers of the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of are maintained by the Loan Parties, which schedule includes, with respect to each depository (i) the name and address of such depository, (ii) the account name and number(s) maintained with such depository and (iii) a contact person at such depository.
(b) Within 90 days after the Fourth Restatement Effective Date (or, so long as no Trigger Event (Cash Dominion) has occurred, such longer period as the Administrative Agent may agree), each Loan Party shall enter into a blocked account agreement with any Blocked Account Bank (each, a “Blocked Account Agreement”) with respect to the DDAs of such Loan Parties existing as of the Fourth Restatement Effective Date (except with respect to any payroll, trust and tax withholding accounts, any Permitted Receivables DDA, and any “zero balance” disbursement account which is linked to or funded by (either directly or through one or more other DDAs or Deposit Accounts, each of which is a “zero balance” disbursement account) a DDA or other Deposit Account which is subject to a Blocked Account Agreement or unless expressly waived by the Administrative Agent) that are not currently subject to a Blocked Account Agreement in favor of the Administrative Agent, including such accounts listed on Schedule 2.19(b) attached hereto (collectively, the “Blocked Accounts”), which Blocked Account Agreement shall be reasonably satisfactory to the Administrative Agent (but in any event giving the Administrative Agent control (as such term is used in Article 9 of the Uniform Commercial Code) over such DDAs), with any Blocked Account Bank; provided that, if a Trigger Event (Cash Dominion) has occurred, then each Loan Party shall use commercially reasonable efforts to enter into such Blocked Account Agreements within 10 Business Days after the commencement of such event (or such longer period as the Administrative Agent may agree).
(c) Each Blocked Account Agreement entered into by a Loan Party shall require, during the continuance of a Trigger Event (Cash Dominion) (and delivery of notice thereof from the Collateral Agent), the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash necessary for receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account”)) to the Concentration Account, from:
(i) the sale of Inventory and other Collateral (whether or not constituting a Prepayment Event);
(ii) all proceeds of collections of Accounts (whether or not constituting a Prepayment Event);
(iii) all Net Cash Proceeds on account of any Prepayment Event;
(iv) each Blocked Account (including all cash deposited therein from each DDA) (including any Designated Funds which are on deposit in any Blocked Account). If, at any time during the continuance of a Trigger Event (Cash Dominion) (except with respect to any payroll, trust and tax withholding accounts, any Permitted Receivables DDA, and any “zero balance” disbursement account which is linked to or funded by (either directly or through one or more other DDAs or Deposit Accounts, each of which is a “zero balance” disbursement account) a DDA or other Deposit Account which is subject to a Blocked Account Agreement), any cash or Cash Equivalents owned by any Loan Party (other than Uncontrolled Cash) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement (or a DDA which is swept daily to a Blocked Account), the Collateral 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 Trigger Event (Cash Dominion), the Loan Parties to satisfy shall provide the current liabilities incurred by such Collateral Agent with an accounting of the contents of the Blocked Accounts.
(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, any Permitted Receivables DDA, and any “zero balance” disbursement account which is linked to or funded by (either directly or through one or more other DDAs or Deposit Accounts, each of which is a “zero balance” disbursement account) a DDA or other Deposit Account which is subject to a Blocked Account Agreement or unless expressly waived by the Administrative Agent) consistent with the provisions of this Section 2.19 and otherwise reasonably satisfactory to the Administrative Agent. The Loan Parties 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 Lead Borrower as to whether the Administrative Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained.
(e) The Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, business or as otherwise permitted hereunder.
(iiif) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Concentration Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent Agent. Each Borrower hereby acknowledges and agrees that (i) such Borrower has exclusive rights no right of withdrawal with respect 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 2.19, during the continuation of a Trigger Event (Cash Dominion), any Borrower receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower shall not borrow any Revolving Loans proceeds or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand collections (other than Uncontrolled Cash), such proceeds and collections shall be held in trust by such Borrower for the Collateral 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 Collateral Agent.
(g) 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.
(h) The Collateral Agent shall promptly (but in any event within five Business Days) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Trigger Event (Cash Dominion).
(i) 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, provided that such deposit is available to the Administrative Agent 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, New York 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 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, New York time, on that Business Day);
(iii) if a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) if any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such dishonor or return;
(v) all amounts received under this Section 2.19 shall be applied in the manner set forth in Section 8.04.
(j) During any Trigger Event Cure Period, unless and until the Lead Borrower has demonstrated that Consolidated Fixed Charge Coverage Ratio is at least 1.00 to 1.00 (determined on a consolidated twelve-month (or four-quarter, if applicable) basis as of the purposes described fiscal month end immediately preceding the commencement of such Trigger Event Cure Period for which financial statements are available (but in clause any event as of the most recent fiscal month ending at least 30 days prior to the commencement of such Trigger Event Cure Period)) by delivery to the Administrative Agent of the monthly financial statements required by Section 6.01(f) for the fiscal month specified above and the related Compliance Certificate, (i) the Borrowers shall not be permitted to request any Loans or the issuance of any Letters of Credit and (ii) Holdings, the Borrowers and their respective Restricted Subsidiaries shall not be permitted to (A) declare any Restricted Payment in the form of a dividend under Sections 7.06(h), (ivj), or (k), (vB) consummate any transaction described under Sections 7.02(d)(v), 7.02(j), 7.02(n), .06(h), 7.06(j), 7.06(k) or 7.12(a)(vi) (viiother than the payment of dividends which were not declared in violation of the preceding clause (A)), or (C) abovewithout the consent of the Administrative Agent, any transaction described under Section 7.05(f), 7.05(j) or 7.05(n).
Appears in 1 contract
Cash Management. At (i) Each Credit Party shall use commercially reasonable efforts to enter into control agreements (each, a “Blocked Account Agreement”) as soon as possible after the Restatement Effective Date and, in any time any Revolving Loans event, shall have actually entered into such Blocked Account Agreements within 120 days after the Restatement Effective Date (including any Other Revolving Loansor such later date approved by the Administrative Agent in its reasonable discretion), in a form reasonably satisfactory to the Administrative Agent, with the Administrative Agent and each other bank with which such Credit Party maintains a DDA located in the United States (other than an Excluded Account) are outstanding(collectively, the “Blocked Accounts”); and (ii) upon delivery of such Blocked Account Agreements referred to in clause (i), the Borrower shall notprovide a schedule of DDAs, indicating for each DDA if such DDA is required to be subject to a Blocked Account Agreement pursuant to the Credit Documents; provided that, if Blocked Account Agreements with respect to each Blocked Account are not delivered to the Administrative Agent within 120 days after the Restatement Effective Date, each Credit Party shall move any such Account to the Administrative Agent or another depositary, subject to a Blocked Account Agreement in favor of the Administrative Agent.
(b) The Borrower agrees that it will cause all proceeds of the ABL Priority Collateral (other than the Uncontrolled Cash and subject to clause (c) below) to be deposited into a Blocked Account.
(c) Each Blocked Account Agreement of a Credit Party shall require (only during the continuance of a Cash Dominion Period and following delivery of notice of the commencement thereof from the Administrative Agent to the Borrower and the account bank party to such instrument or agreement; provided that such notice shall not permit any Subsidiary Loan Party tobe delivered earlier than two Business Days following the start of a Cash Dominion Period), permit the ACH or wire transfer no less frequently than once per Business Day (but without limit on frequency if the Maturity Date shall have actually occurred), of all available cash on hand (balances and cash receipts, including the proceeds then contents or then entire ledger balance of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess each Blocked Account (net of $200,000,000 such minimum balance as may be required to accumulate and be maintained in the Deposit Accounts subject Blocked Account by the bank at which such Blocked Account is maintained and other than any Uncontrolled Cash), to one or more accounts maintained by the Administrative Agent (the “Payment Accounts”). Subject to the terms of the Loan PartiesABL Intercreditor Agreement, provided, that, for purposes hereof, “cash on hand” all amounts received in a Payment Account or such other account shall exclude be applied (and allocated) by the following: Administrative Agent in accordance with Section 11.13 (except (A) pursuant to clause (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents thereof and (viiiB) cash held in any Deposit Account of the Loan Parties which is under the sole dominion to Secured Cash Management Obligations and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) aboveSecured Hedge Obligations).
Appears in 1 contract
Samples: Abl Credit Agreement (Academy Sports & Outdoors, Inc.)
Cash Management. Notwithstanding anything to the contrary in the Loan Documents, including but not limited to that certain Side Letter dated as of August 15, 2012, by and among Lender, Borrower and Guarantor, in the event the Property does not maintain a DCR (as defined below) of at least 1.0 as of August 31, 2020, Borrower and Lender shall enter into a Clearing Account Agreement and a Cash Management Agreement, each in form and substance acceptable to Lender, no later than September 30, 2020, pursuant to which Borrower shall cause all Rents to be remitted directly to an account (the “Clearing Account”) established with a bank acceptable to Lender in its sole discretion (the “Deposit Bank”), provided that, as of the date of this Agreement, U.S. Bank National Association is an acceptable Deposit Bank; and the failure to satisfy such requirements by September 30, 2020 shall be an Event of Default under the Loan Documents, provided that, in the event that such requirements cannot be satisfied with reasonable due diligence by September 30, 2020, such failure shall not constitute an Event of Termination under this Agreement so long as Borrower diligently works to remedy the same for such additional period of time, if any, as reasonably determined by Lender. The Deposit Bank shall also be a party to the Clearing Account Agreement and, subject to the terms of this Section, Lender shall have sole dominion and control over, and a perfected security interest in, the Clearing Account. At any time any Revolving Loans Lender’s option and direction, all funds in the Clearing Account shall be transferred to an account designated by Lender (the “Cash Management Account”), at an institution designated by Lender (the “Cash Management Depository”), or at Lender’s option and direction, Lender may designate the Deposit Bank as the Cash Management Depository and may also designate the Clearing Account as the Cash Management Account. Lender shall apply the funds in the Cash Management Account, on the applicable due date thereof, as follows:
(a) first, as estimated by Lender, an amount (when paid monthly) necessary to accumulate sufficient funds to pay all real estate taxes and insurance premiums for the Property when due, to be held by Lender pursuant to Section 1.04 of the Security Instrument;
(b) second, to Lender to pay debt service and other amounts due under the Loan (including principal, interest and late payment charges);
(c) third, to monthly payments to Borrower in an amount sufficient to pay operating expenses and management fees of the Property in accordance with the Annual Budget (as defined below) and approved by Lender;
(d) fourth, funds due to Borrower in an amount sufficient to pay all extraordinary monthly expenses of the Property approved by Lender; and
(e) fifth, all excess cash flow shall remain in the Cash Management Account, as additional collateral for the Loan. For purposes of this Section, “DCR” shall mean, for any Other Revolving Loans) are outstandingperiod, a fraction, the Borrower numerator of which shall notequal the projected net operating income of the Property for such period, and the denominator of which shall not permit any Subsidiary equal the aggregate of the principal and interest for such period with respect to the indebtedness due pursuant to the Loan Party toDocuments based on a thirty (30) year amortization. Such calculation shall be as determined by Lender. Upon written request from Borrower and provided no Event of Default exists and no Event of Termination has occurred, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained amounts in the Deposit Accounts of the Loan PartiesCash Management Account shall, providedin Lender’s reasonable discretion and at Lender’s direction, that, be disbursed to Borrower from time to time to pay or reimburse Borrower for purposes hereof, “cash on hand” shall exclude the followingoperating expenses: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in pursuant to Section 7(c) above which were unpaid because of previously insufficient revenue generation at the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan PartiesProperty, (ii) cash necessary for the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in excess of those set forth in the ordinary course of their businesses and without acceleration of the satisfaction of such current liabilitiesAnnual Budget, or (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness that are capital expenditures and leasing expenses not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso otherwise included in the definition Annual Budget. Upon written request from Borrower and provided no Event of Default exists and no Event of Termination has occurred, in the term “Refinancing Indebtedness”event the Property obtains a DCR of at least 1.3 at any time on or after September 1, (v) cash proceeds of Refinancing Indebtedness 2020, Borrower thereafter shall no longer be required to cause all Rents to be remitted directly to the extent that Clearing Account, and all amounts in the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated Cash Management Account shall be returned by Lender to Borrower. Borrower shall pay all actual out-of-pocket fees and expenses incurred by Lender in connection with the issuance Clearing Account and the Cash Management Account, including, without limitation, actual out-of-pocket attorneys’ fees and expenses. Borrower shall also pay all fees and charges of such Refinancing Indebtedness, (vi) cash held the Deposit Bank and of the Cash Management Depository in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance connection with the applicable loan or letter Clearing Account and the Cash Management Account, including without limitation, any fees of credit documents Deposit Bank and (viii) cash held in any Deposit Account of the Loan Parties which is under Cash Management Depository for maintaining the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)applicable account.
Appears in 1 contract
Samples: Forbearance Agreement (Pennsylvania Real Estate Investment Trust)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) Annexed hereto as SCHEDULE 5.14(a) is a schedule of all DDAs that are outstanding, the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of by the Loan Parties, providedwhich schedule shall include, that, for purposes hereof, “cash on hand” shall exclude the following: with respect to each depository (i) “store” cashthe name and address of such depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Annexed hereto as SCHEDULE 5.14(b) is a list describing all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.
(c) Annexed hereto as SCHEDULE 5.14(c) is a list describing all payors of the third party insurance provider accounts from which a Loan Party receives payments of Eligible Third Party Insurance Provider Account Receivables.
(d) Within ninety (90) days after the Effective Date (or such longer time as the Administrative Agent may, cash in transit between stores and local Deposit Accounts and cash receipts from sales its sole discretion, agree in writing), each Loan Party shall:
(i) deliver to the Administrative Agent notifications (each, a "CREDIT CARD NOTIFICATION") substantially in the process form attached hereto as EXHIBIT K which have been executed on behalf of inter-account transferssuch Loan Party and addressed to such Loan Party's credit card clearinghouses and processors;
(ii) deliver to the Administrative Agent notifications, (each, an "INSURANCE PROVIDER NOTIFICATION") substantially in each case the form attached as EXHIBIT L which have been executed on behalf of such Loan Party and addressed to such Loan Party's payors of third party insurance providers accounts;
(iii) enter into a result of Blocked Account Agreement substantially in the ordinary course operations form attached as EXHIBIT M (or in such other form reasonably acceptable to the Administrative Agent) with the banks with which such Borrower maintains accounts into which the DDAs are concentrated (collectively, the "BLOCKED ACCOUNTS") listed on SCHEDULE 5.14(d)(iii) attached hereto; and
(iv) deliver to the Administrative Agent a notification, (the "Coinstar Notification") substantially in the form attached as Exhibit N which has been executed on behalf of the Loan PartiesParties and addressed to Coinstar, Inc. 104
(e) At the request of the Administrative Agent (which request shall not be made prior to the date that is forty-five (45) days after the Effective Date), each Loan Party shall deliver to the Administrative Agent notifications (each, a "DDA NOTIFICATION") substantially in the form attached as EXHIBIT O which have been executed on behalf of each Loan Party to each depository institution with which any DDA is maintained.
(f) Each DDA Notification, Credit Card Notification, Insurance Provider Notification and Blocked Account Agreement and the Coinstar Notification shall require, after the occurrence and during the continuance of a Triggering Event, the Loan Parties shall promptly and in any event within two Business Days, cause the ACH or wire transfer on each Business Day (and whether or not there is then an outstanding balance in the Loan Account) of all available cash receipts (the "CASH RECEIPTS") to the concentration account maintained by the Administrative Agent at Bank of America (the "AGENT'S ACCOUNT") from:
(i) the sale of Inventory and other Collateral;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash necessary for payments received by a Loan Party from any Person or from any source or on account of any Prepayment Event (provided that the prepayment obligations under this Section 5.14 shall be limited to Prepayment Events relating to Revolving Lender Priority Collateral until the Junior Secured Facilities are in full) or other transaction or event;
(iv) the then contents of each DDA;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the proceeds of all credit card charges.
(g) Upon the occurrence of a Triggering Event, the Borrowers shall accurately report to the Administrative Agent all amounts deposited in the Blocked Accounts to ensure the proper transfer of funds as set forth above. If, at any time after the occurrence of a Triggering Event, any cash or cash equivalents owned by any Loan Party that constitutes Collateral are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a 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.
(h) 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 consistent with the provisions of this Section Cash Management. and otherwise satisfactory to the Administrative Agent. Unless consented to in writing by the Administrative Agent, the Loan Parties shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to satisfy the current liabilities incurred Administrative Agent. 105
(i) The Borrowers may also maintain one or more disbursement accounts (the "DISBURSEMENT ACCOUNTS") to be used by such Loan Parties the Borrowers for disbursements and payments (including payroll) in the ordinary course of their businesses and without acceleration business or as otherwise permitted hereunder. The only Disbursement Accounts as of the satisfaction of such current liabilities, (iii) the Net Proceeds received in respect of a Prepayment Event Effective Date are those described in clause SCHEDULE 5.14(i).
(aj) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit The Agent's Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to shall at all times be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the Collateral Agent if the Collateral Agent Administrative Agent. Each Loan Party hereby acknowledges and agrees that (i) such Loan Party has exclusive rights no right of withdrawal with respect from the Agent's Account, (ii) the funds on deposit in the Agent's Account shall at all times continue to be collateral security for all of the Obligations, and (iii) the funds on deposit in the Agent's Account shall be applied as provided in Section 2.11(m) or Section 7.03 of this Agreement, as applicable. In the event that, notwithstanding the provisions of this Section 5.14, any Loan Party receives or otherwise has dominion and control of any such Deposit Accounts. The Borrower proceeds or collections, such proceeds and collections shall be held in trust by such Loan Party for the Administrative Agent, shall not borrow be commingled with any Revolving Loans of such Loan Party's other funds or Other Revolving Loans deposited in an aggregate principal any account of such Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Agent's Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(k) Any amounts received in the Agent's Account at any time when all of the Obligations have been and remain fully repaid shall be remitted to the Borrowers, if and as the Company may request.
(l) 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 Agent's Account on the Business Day on which deposited, provided that notice of such deposit is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;
(ii) Funds paid to the Administrative Agent other than by deposit to the Agent's Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that notice of such payment is available to the Administrative Agent by 12:00 noon, Boston, Massachusetts time, on that Business Day;
(iii) If notice of a deposit to a Agent's Account or payment is not available to the Administrative Agent until after 12:00 noon, Boston, Massachusetts time, on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m., Boston, Massachusetts time, on the then next Business Day;
(iv) If any item deposited to the Agent's Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of more than $100,000,000 over any three consecutive Business Day period if such item to the purpose of Loan Account and the Borrowers shall indemnify the Administrative Agent and the Lenders against all claims and losses resulting from such Borrowings is to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) dishonor or (vii) above)return.
Appears in 1 contract
Samples: Credit Agreement (Great Atlantic & Pacific Tea Co Inc)
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstanding, Comply in all respects with Section 6.13 of the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts of the Loan PartiesAgreement, provided, thathowever, for purposes hereofthat if the Revolving Loan Facility is terminated, “cash on hand” shall exclude contemporaneously with or within five (5) Business Days after the following: termination of the Revolving Loan Facility, the Loan Parties shall:
(i) deliver to the Lender true, correct, and complete copies of notifications (each, a “store” cashCredit Card Notification”) in form and substance reasonably satisfactory to the Lender which have been executed on behalf of such Loan Party and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors as of such date; and
(ii) deliver to the Lender true, correct, and complete copies of each Blocked Account Agreement executed on behalf of such Loan Party with each Blocked Account Bank (collectively, the “Blocked Accounts”) pursuant to the Revolving Loan Agreement; and
(iii) deliver to the Lender true, correct, and complete copies of notifications (each, a “DDA Notification”) in form and substance reasonably satisfactory to the Lender which have been executed on behalf of such Loan Party and delivered to each depository institution with which the Borrowers have one or more DDAs as of such date.
(b) If the Revolving Loan Facility is terminated, the Loan Parties shall continue to maintain cash in transit between stores management arrangements, reporting, and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, remittance in each case as a result pursuant to and in accordance with the terms of Section 6.13 of the ordinary course operations Revolving Loan Agreement as in effect immediately prior to such termination, except that the Borrowers shall not be required to ACH or wire transfer to Lender, except as otherwise provided in this Agreement or unless an Event of Default has occurred and is continuing, the Loan Partiesfollowing:
(i) amounts on deposit in its DDAs, payments from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(ii) cash necessary for receipts from the Loan Parties to satisfy the current liabilities incurred by such Loan Parties Disposition of Inventory and other assets (whether or not constituting Collateral) (other than cash kept in Stores in the ordinary course of their businesses and without acceleration of business consistent with the satisfaction of such current liabilities, Borrowers’ policies as in effect on the Closing Date); and
(iii) the proceeds of Accounts, Net Proceeds Proceeds, or other cash payments received in respect by a Loan Party from any Person or from any source or on account of a Prepayment Event described in clause (a) any Disposition or (b) of the definition of “other transaction or event, including, without limitation, any Prepayment Event” for .
(c) Each Blocked Account Agreement shall require that if the Revolving Loan Facility is terminated, upon notice from Lender, which notice shall be delivered only after the Borrower is permitted occurrence and during the continuance of an Event of Default, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to apply the concentration account maintained by the Lender (such Net Proceeds account, the “Concentration Account”), of all cash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), including, without limitation, the following:
(i) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso may be kept in the definition of subject Blocked Account under the term “Refinancing Indebtedness”, Borrowers’ policies as in effect on the Closing Date);
(vii) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral all amounts required to be deposited into the Blocked Accounts pursuant to Section 2.05(jclause (b) above; and
(iii) any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or otherwise to cash collateralize letters of credit event; provided, however, the Lender may, in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of its sole discretion, permit the Loan Parties to maintain one or more “intermediate” Blocked Account Agreements, pursuant to the terms of which, upon notice from the Lender to the blocked account bank (which notice shall be delivered only after the occurrence and during the continuance of a Cash Dominion Event), the ACH or wire transfer of all Receipts and Collections to another Blocked Account (as distinguished from the Concentration Account) shall be effective (irrespective of whether any Obligations are then outstanding) no less frequently than daily.
(d) If the Revolving Loan Facility is under terminated, the sole Concentration Account shall at all times be subject to a control agreement in favor of the Lender. The Loan Parties hereby acknowledge and agree that, if the Revolving Loan Facility is terminated and an Event of Default has occurred and is continuing, (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the Obligations hereunder and of the Obligations (as defined in the Revolving Credit Agreement), and (iii) to the extent determined by the Lender, the funds on deposit in the Concentration Account shall be applied to the Obligations. In the event that, notwithstanding the provisions of this Section 6.13, if the Revolving Loan Facility is terminated and an Event of Default has occurred and is continuing, any Loan Party receives or otherwise has dominion and control of any such cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal with respect to such Deposit Accounts. The Borrower Lender, shall not borrow be commingled with any Revolving Loans of such Loan Party’s other funds or Other Revolving Loans deposited in an aggregate principal amount any account of more such Loan Party and shall, not later than $100,000,000 over any three consecutive the Business Day period if after receipt thereof, be deposited into the purpose of Concentration Account or dealt with in such Borrowings other fashion as such Loan Party may be instructed by the Lender.
(e) If the Revolving Loan Facility is to accumulate cash on hand terminated, contemporaneously with or within five (other than for any 5) Business Days after the termination of the purposes described Revolving Loan Facility, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Lender not less often than monthly, accurately setting forth all amounts deposited in clause (ii), (iv), (v) or (vii) each Blocked Account to ensure the proper transfer of funds as set forth above).
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) are outstandingNo Loan Party shall establish or maintain a Deposit Account or a Securities Account that is not subject to a Control Agreement; provided, that no Excluded Account shall be required to be subject to a Control Agreement; provided, further, that, the Borrower Loan Parties shall nothave forty (40) days after the date hereof (other than the Sear’s Top Parent and Buddy’s Top Parent and their respective Subsidiaries, which will have twenty days after the date hereof) (or, in each case, with respect to Deposit Accounts or Securities Accounts opened or acquired after the Closing Date, sixty (60) days after the date of such opening or acquisition) (or, in each case, such later date to which Collateral Agent may otherwise agree) to cause a Deposit Account or Securities Account to become subject to a Control Agreement so long as no Cash or securities being held in a Deposit Account or Securities Account subject to a Control Agreement is transferred to any such new Deposit Account or Securities Account prior to such new Deposit Account or Securities Account becoming subject to a Control Agreement. The Loan Parties shall transfer no less frequently than daily (other than days that are not Business Days for the applicable bank) (or, solely with respect to AF Top Parent and its Subsidiaries, weekly) to a Deposit Account subject to a Control Agreement all payments received from all Credit Card Issuers and Credit Card Processors (other than to the extent such payments are received directly into a Deposit Account subject to a Control Agreement).
(b) [Reserved].
(c) Subject to the Intercreditor Agreement, each Control Agreement shall provide that the applicable depositary bank or securities intermediary will comply with any instructions originated by the applicable GACP Facility Agent or the Collateral Agent directing the disposition of funds in the applicable deposit account or securities account without further consent by the Loan Party; provided that the Collateral Agent shall not permit issue such instructions except during the continuance of an Event of Default; provided, further, that notwithstanding the foregoing, the Collateral Agent shall not issue such instructions under any Subsidiary Loan Party toControl Agreement in respect of a Deposit Account or Securities Account owned or maintained by Global Parent or Liberty/Revolution Top Parent except during the continuance of an Specified Event of Default; (provided that, permit cash on hand unless Collateral Agent otherwise agrees, such Control Agreements shall provide that the Collateral Agent’s instructions shall automatically be deemed to have been issued upon an Event of Default under Sections 8.01(f) or (including g)).
(d) To the proceeds extent not previously delivered prior to the Closing Date, deliver to Collateral Agent within twenty (20) calendar days after the Closing Date (or such longer period as agreed to by Collateral Agent) copies of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained notifications in the Deposit Accounts form of Exhibit I hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and substance to Collateral Agent which have been executed by the applicable Loan Parties and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed in Schedule 6.17 with respect to which the Loan Parties have established credit card processing arrangements; provided that, notwithstanding the foregoing, with respect to any multi-party credit card processing arrangements or credit card processing arrangements entered into by any predecessors in interest to the Loan Parties, provided, that, for purposes hereof, “cash on hand” shall exclude the following: (i) “store” cash, cash in transit between stores and local Deposit Accounts and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary for the Loan Parties shall be required to satisfy use commercially reasonable efforts to ensure the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration of the satisfaction delivery of such current liabilitiesCredit Card Notifications as promptly as reasonably practicable following the Closing Date.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor, (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or (b) of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real property, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(j) or otherwise to cash collateralize letters of credit in accordance with the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of the Loan Parties which is under the sole dominion and control of the shall deliver to Collateral Agent if the a Credit Card Notification as set forth in Section 6.17(d) hereof.
(f) Collateral Agent agrees that (1) it shall not direct any Credit Card Issuer or Credit Card Processor to transfer any proceeds pursuant to any Credit Card Notification unless an Event of Default has exclusive rights occurred and is continuing and (2) if any Loan Party shall so request, unless an Event of withdrawal with respect Default has occurred and is continuing, Collateral Agent shall countersign any notification, request, order or direction from such Loan Party to any Credit Card Issuer or Credit Card Processor directing payments from such Credit Card Issuer or Credit Card Processor to be made to a new or different Deposit Account, provided such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings Account is subject to accumulate cash on hand (other than for any of the purposes described in clause (ii), (iv), (v) or (vii) above)a Control Agreement.
Appears in 1 contract
Cash Management. At any time any Revolving Loans (including any Other Revolving Loansa) Annexed hereto as Schedule 5.12(a)(i) is a schedule of all DDAs that are outstanding, maintained by the Borrower shall not, and shall not permit any Subsidiary Loan Party to, permit cash on hand (including the proceeds of any Revolving Loan and any Other Revolving Loans) in an aggregate amount in excess of $200,000,000 to accumulate and be maintained in the Deposit Accounts Parties as of the Loan PartiesClosing Date, providedwhich schedule shall include, that, for purposes hereof, “cash on hand” shall exclude with respect to each depository as of the following: Closing Date (i) “store” cash, cash in transit between stores the name and local Deposit Accounts address of such depository; and cash receipts from sales in the process of inter-account transfers, in each case as a result of the ordinary course operations of the Loan Parties, (ii) cash necessary the account number(s) maintained with such depository, and (iii) whether such DDA constitutes an Excluded Account and the basis for making such determination. Attached hereto as Schedule 5.12(a)(ii) is a schedule of all lock boxes that are maintained by the Loan Parties to satisfy the current liabilities incurred by such Loan Parties in the ordinary course of their businesses and without acceleration as of the satisfaction of such current liabilities, Closing Date (iii) the Net Proceeds received in respect of a Prepayment Event described in clause (a) or “Lock Boxes”).
(b) As soon as practicable and in no event more than sixty (60) days following the Closing Date (which period may be extended by the ABL Agent under the ABL Agreement with the approval of the definition of “Prepayment Event” for which the Borrower is permitted to apply such Net Proceeds as a reinvestment to acquire real propertyAdministrative Agent, equipment or other tangible assets pursuant to Section 2.11(c) or any equivalent provision under any Additional Senior Debt Document, (iv) cash proceeds of Refinancing Indebtedness not yet applied to Refinance the applicable Refinanced Debt in accordance with clause (xi) of the first proviso in the definition of the term “Refinancing Indebtedness”, (v) cash proceeds of Refinancing Indebtedness to the extent that the applicable Refinanced Debt consists of unused Revolving Commitments or Other Revolving Commitments that have been terminated in connection with the issuance of such Refinancing Indebtedness, (vi) cash held in any Deposit Account relating to any Securitization or Factoring Transaction, (vii) cash collateral required to be deposited pursuant to Section 2.05(junreasonably withheld, conditioned or delayed) or otherwise to cash collateralize letters of credit in accordance with (the applicable loan or letter of credit documents and (viii) cash held in any Deposit Account of “Cash Control Implementation Date”), the Loan Parties shall enter into (i) an Account Control Agreement with the banks with which is under the sole dominion and control of the Collateral Agent if the Collateral Agent has exclusive rights of withdrawal any Loan Party maintains DDAs, with respect to such Deposit Accounts. The Borrower shall not borrow any Revolving Loans or Other Revolving Loans in an aggregate principal amount of more than $100,000,000 over any three consecutive Business Day period if the purpose of such Borrowings is to accumulate cash on hand each DDA (other than for any Excluded Accounts or Disbursement Accounts) (collectively, the “Controlled DDA Accounts”) and (ii) a Lock Box Agreement with the banks with which any Loan Party maintains a Lock Box, with respect to each Lock Box (collectively, the “Controlled Lock Box Accounts”).
(c) If, at any time from and after the Cash Control Implementation Date, any cash or cash equivalents owned by any Loan Party that constitutes Collateral are deposited to any DDA, securities account or Lock Box Account, or held or invested in any manner, other than in a Controlled Account (or a Disbursement Account or an Excluded Account), the Administrative Agent (with the consent of the purposes ABL Agent) may require the applicable Loan Party to close such account and have all funds therein transferred to a Controlled Account, and all future deposits made to a Controlled Account (other than with respect to cash on deposit in an Excluded Account or Disbursement Account).
(d) The Loan Parties may close DDAs or Controlled Accounts and/or open new DDAs or Controlled Accounts, subject to the execution and delivery to the ABL Agent and the Administrative Agent of appropriate Account Control Agreements or Lock Box Agreements, as applicable, consistent with the provisions of this Section 5.12 and otherwise reasonably satisfactory to the ABL Agent and the Administrative Agent.
(e) The only Disbursement Accounts as of the Closing Date are as described in clause (ii), (iv), (v) or (vii) aboveSchedule 5.12(e).
Appears in 1 contract
Samples: Credit Agreement (Eastman Kodak Co)
