Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to: (a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and (c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 3 contracts
Samples: Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp), Revolving Credit Agreement (Fox Factory Holding Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the date 90 days (which amount of time may be extended by the Administrative Agent in its sole discretion) after the Closing Date (or, in the case of Cortz, Inc., the Amendment No. 1 Effective Date):
(i) deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit M 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 5.24(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form and substance reasonably satisfactory to the Administrative Agent, with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) 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) of all proceeds therefrom to a Blocked Account. Each Blocked Account Agreement shall require, after notice from the Administrative Agent to a Blocked Account Bank of the occurrence of a Cash Dominion Event (and until the Administrative Agent notifies such Blocked Account Bank that such Cash Dominion Event has terminated), 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 Administrative Agent at Bank of America, N.A. (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections of the Loan Parties, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) any accounts with amounts on deposit that do not exceed $100,000all proceeds of collections of Accounts;
(iii) the then contents of each DDA;
(iv) the then entire ledger balance of each Blocked Account; and
(v) the net proceeds of all credit card charges.
(c) During the continuance of a Cash Dominion Event, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral account, provide the Administrative Agent with all cash, checks and other similar items of payment in such account securing payment an accounting of the Obligationscontents of the Blocked Accounts and the Concentration Account, and in which shall identify, to the Borrowers and each satisfaction of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf 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 (x) the contents of the Secured PartiesBlocked Accounts, perfected either automatically and (y) such accounting, the Administrative Agent agrees to promptly remit to the agent under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Term Facility the proceeds of the Term Loan Priority Collateral received by the Administrative Agent.
(bd) 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, (ii) the funds on deposit promptlyin 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 first, applied ratably to the L/C Borrowings and the Swing Line Loans, second, applied ratably to the outstanding Revolving Credit Loans, and, third, if an Event of Default shall have occurred and be continuing, used to Cash Collateralize the remaining L/C Obligations and fourth, (to the extent any amount is remaining) used in the operations of the Loan Parties; provided, that after an acceleration of the Obligations such proceeds shall be applied as provided in Section 8.03. In the event that, notwithstanding the provisions of this Section 6.17, 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 event no account of such Loan Party and shall, not later than 10 the Business Days Day after the date of receipt thereof, all cash, checks, drafts be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(e) The Borrowers shall not be required to enter into Blocked Account Agreements or other similar items of payment relating to or constituting payments made control agreements in respect of any and all accounts and other Collateral into Controlled Accounts, DDA that does not at any time have an average daily balance for any 30 day period in each case except for cash and Permitted Investments excess of $250,000; provided that the aggregate value average daily balance for any 30 day period in all DDAs of which does the Borrowers that are excluded pursuant to this clause (e) shall not exceed $500,000 2,500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 3 contracts
Samples: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the Lender copies of notifications (each, a “Credit Card Notification”) reasonably satisfactory in form and maintained solely for substance to the purpose Lender which have been executed on behalf of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation such Loan Party and other compensation delivered to such Loan Party’s credit card clearinghouses and benefits processors listed on Schedule 5.21(b) to employees and other fiduciary accounts, and the Disclosure Schedule; and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Lender with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) Prior to the occurrence of a Cash Dominion Event, 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 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 each DDA (net of any minimum balance, not to exceed $2,500, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained) and all accounts payments due from credit card processors and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andcredit card issuers.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, (i) 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 DDA (net of any minimum balance, not to exceed $2,500, 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 credit card processors and credit card issuers and (ii) cause the ACH or wire transfer to the collection account maintained by the Lender at Bank of America (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(ii) all cash received or paid to or for the account of any Person not in the ordinary course of business, including tax refunds, pension plan reversions, indemnity payments and any purchase price adjustments;
(iii) all proceeds of collections of Accounts;
(iv) 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;
(v) the then contents of each DDA (net of any minimum balance, not to exceed $2,500, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(vi) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank).
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe Lender. 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) during the continuance of a Cash Dominion Event, the funds on deposit in the Collection Account shall be applied to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the Lender, 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 Lender.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toLender, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentLender 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 (Citi Trends Inc), Credit Agreement (Citi Trends Inc), Credit Agreement (Citi Trends Inc)
Cash Management. The Borrowers 7.1.10.1 On or prior to the Closing Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(ai) maintain deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”), each in form and substance reasonably satisfactory to the Administrative Agent, 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 5.1.17.1; and
(ii) enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Administrative Agent with each Blocked Account Bank on terms consistent with the provisions of Section 7.1.10.3 hereof (collectively, the “Blocked Accounts”).
7.1.10.2 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 in excess of $2,500 on deposit in each such DDA and all payments due from credit card processors.
7.1.10.3 Each Blocked Account Agreement shall require after the occurrence of a Trigger Event Election or 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 the concentration account maintained at PNC or, with respect to the Canadian Borrower and its Subsidiaries, to the concentration account maintained at PNC Canada (each, as further described in a certain confidential side letter of even date herewith, a “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payrollInventory (including without limitation, payroll taxes, withholding taxes, xxxxxxx’x compensation proceeds of credit card charges) and other compensation and benefits to employees and other fiduciary accounts, and assets (whether or not constituting Collateral);
(ii) any accounts with amounts on deposit that do not exceed $100,000, all proceeds of which the Loan Parties may maintain without restriction) (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 collections of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account AgreementsAccounts;
(biii) deposit promptly, all Net Proceeds and in all other cash payments received by a Loan Party from any event no later than 10 Business Days after the date Person or from any source or on account of receipt thereof, all cash, checks, drafts any sale or other similar items transaction or event;
(iv) the then contents of payment relating to or constituting payments made in respect each DDA (net of any and all accounts and other Collateral into Controlled Accountsminimum balance, in each case except for cash and Permitted Investments the aggregate value of which does not to exceed $500,000 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 timeminimum 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
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 3 contracts
Samples: Revolving Credit Facility (Retail Ventures Inc), Revolving Credit Facility (DSW Inc.), Revolving Credit Facility (DSW Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all cash management 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 treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than payments due from credit card processors.
(i) accounts established After the occurrence and during the continuance of a Cash Dominion Event, cause the ACH or wire transfer by the Domestic Loan Parties to the concentration account maintained solely for at Bank of America or with another Domestic Lender reasonably satisfactory to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsAgent with whom a Blocked Account Agreement has been executed (the “U.S. Concentration Account”) , and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, cause the ACH or wire transfer by the Canadian Loan Parties to the concentration account maintained at Bank of America-Canada Branch or with another Canadian Lender reasonably satisfactory to the Agent with whom a Blocked Account Agreement has been executed (the “Canadian Concentration Account”), as applicable, in each case no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each applicable Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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 $10,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $10,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank).
(c) Each of the U.S. Concentration Account and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the U.S. Concentration Account or the Canadian Concentration Account, (ii) the funds on deposit in the U.S. Concentration Account shall at all times be collateral security for all of the Obligations and the funds on deposit in the Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities, (iii) the funds on deposit in the U.S. Concentration Account shall be applied to the Obligations as provided in this Agreement and (iv) the funds on deposit in the Canadian Concentration Account shall be applied to the Canadian Liabilities 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 U.S. Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agent.
(d) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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 (Restoration Hardware Holdings Inc), Credit Agreement (Restoration Hardware Holdings Inc), Credit Agreement (Restoration Hardware Holdings Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) enter into a blocked account agreement (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountBlocked Account Agreement”) satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptly, Each Credit Card Notification shall require the ACH or wire transfer no less frequently than each Business Day (and in whether or not there are then any event no later than 10 Business Days after the date outstanding Obligations) to a Blocked Account 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 $500,000 at any time; anddue from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an Event a Cash Dominion Event, the ACH or 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 DefaultAmerica (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 from any Person or from any source or on account of any sale or other transaction or event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed $5,000.00, 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 $10,000.00, 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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(e) or 8.03, as applicable, of 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 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 Concentration 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 Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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 2 contracts
Samples: Credit Agreement (Rue21, Inc.), Credit Agreement (Rue21, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date or such later dates specified in the Post-Closing Letter:
(ai) maintain deliver to the Administrative Agent (with respect to the Domestic Loan Parties) and the Canadian Agent (with respect to the Canadian Loan Parties) 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 with each Blocked Account Bank maintained by the Loan Parties as of the Closing Date with respect to each DDA specified by the Agents (other than payroll and other specific DDAs as may be acceptable to the Agents) established or maintained by any Loan Party as of the Closing Date with such Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) Subject to the terms of the Post-Closing Letter, the Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA (net of such minimum balance consistent with past practices, but not to exceed $200,000 in the aggregate for all DDAs in any event) and all payments received by any Loan Party from credit card processors.
(c) After the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent or the Canadian Agent, as applicable, to the Lead Borrower and the applicable Blocked Account Bank), the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) all cash management receipts and treasury business collections by the Loan Parties (other than Operating Cash, and Cash Equivalents being held in accordance with SunTrust Bank the terms of the proviso at the end of the definition of “Permitted Investments”), including, without limitation, the following:
(i) all available cash receipts of the Loan Parties from the sale of Inventory and other assets (other than Operating Cash);
(ii) all proceeds of collections of Accounts of the Loan Parties;
(iii) all other cash payments received by a Loan Party from any Person or a Permitted Third Party Bankfrom any source or on account of any sale or other transaction or event, including, without limitation, all Net Proceeds from any Prepayment Event;
(iv) the then cash balance of each DDA (net of any minimum balance, not to exceed $200,000 in the aggregate) for all DDAs combined;
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $200,000 in the aggregate) for all Blocked Accounts combined; and
(vi) the cash proceeds of all credit card charges received by any Loan Party.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Domestic Concentration Account or the Canadian Concentration Account, (ii) the funds on deposit accountsin each Domestic Concentration Account shall at all times be collateral security for the Secured Obligations (as defined in the Security Agreement), disbursement accounts(iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and (iv) the funds on deposit in the Domestic Concentration Account and the Canadian Concentration Account shall be applied as provided in Section 2.05 of this Agreement. In the event that, investment accounts notwithstanding the provisions of this Section 6.13, any Domestic Loan Party or Canadian Loan Party receives or otherwise has dominion and lockbox accounts control of any such proceeds or collections (other than Operating Cash, and Cash Equivalents being held in accordance with the terms of the proviso at the end of the definition of “Permitted Investments”) while a Cash Dominion Event Exists, such proceeds and collections shall be held in trust by such Domestic Loan Party for the Administrative Agent and by such Canadian Loan Party for the Canadian 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 Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent or the Canadian Agent, as applicable.
(e) Upon the request of the Administrative Agent, the Domestic 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. Upon the request of the Canadian Agent, the Canadian 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. So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts. Any amounts held or received in the Domestic Concentration Account at any time when no Cash Dominion Event exists or while no Loans are outstanding (except as provided in Section 8.02) shall be promptly remitted to an account of the Lead Borrower, or as the Lead Borrower may otherwise direct. Any amounts held or received in the Canadian Concentration Account at any time when no Cash Dominion Event exists or while no Loans are outstanding (except as provided in Section 8.02) shall be promptly remitted to an account of the Canadian Borrower or as the Canadian Borrower may otherwise direct.
(f) The Loan Parties shall not permit cash in an aggregate amount in excess of 10% of the aggregate of the Domestic Borrowing Base and the Canadian Borrowing Base, each as then in effect (other than (i) “store” cash, cash held in local, non-concentration deposit accounts, cash in transit between stores and depository accounts established and maintained solely for cash receipts from sales in the purpose process of funding payrollinter-account transfers, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsin each case as a result of the ordinary course operations of the Loan Parties, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which to the extent necessary for the Loan Parties may maintain to satisfy in the ordinary course of their business the current liabilities incurred by them in the ordinary course of their business and without restrictionacceleration of the satisfaction of such current liabilities) (each such to accumulate and be maintained in the deposit accountaccounts or Cash Equivalents of the Loan Parties; provided, disbursement accounthowever, investment account and lockbox account, a “Controlled Account”); each Controlled Account that the Loan Parties’ obligations under this Section 6.13(f) shall be a cash collateral account, with all cash, checks suspended if and other similar items of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(b) deposit promptly, and in any event for so long as there are 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative AgentLoans outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management Each Loan Party shall, within (x) 90 days in respect of any Concentration Account, and treasury business with SunTrust Bank (y) 120 days in respect of any other account, in each case, after the Closing Date (or a Permitted Third Party Banksuch longer period as the Administrative Agent may agree in its reasonable discretion (such consent not to be unreasonably withheld, includingdelayed or conditioned)), without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and in the case of any US Loan Party, require that all cash payments in respect of Accounts owed to such US Loan Party be remitted to a lockbox maintained solely for by any US Loan Party (the purpose “US Lockbox”) or a Material Account of funding payrollany US Loan Party, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) in the case of any accounts Canadian Loan Party, require that all cash payments of Accounts owed to any Canadian Loan Party be remitted to a lockbox maintained by any Canadian Loan Party (the “Canadian Lockbox” and, together with the US Lockbox, the “Lockboxes”) or a Material Account of any Canadian Loan Party, (iii) except as provided in Section 5.15(b), instruct the financial institution that maintains any US Lockbox to cause all amounts on deposit that do not exceed $100,000and available at the close of each Business Day in such Lockbox (net of any Required Minimum Balance), all of which the to be swept to one or more concentration deposit accounts maintained by any US Loan Parties may maintain without restriction) Party (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled US Concentration Account”) not less frequently than on a daily basis, (iv) except as provided in Section 5.15(b); , instruct the financial institution that maintains such Canadian Lockbox to cause all amounts on deposit and available at the close of each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment Business Day in such Lockbox (net of any Required Minimum Balance), to be swept to one or more concentration deposit accounts maintained by any Canadian Loan Party (each, a “Canadian Concentration Account” and, together with the US Concentration Account, the “Concentration Accounts”) not less frequently than on a daily basis; (v) enter into a blocked account securing payment of the Obligationsagreement (each, and a “Blocked Account Agreement”), in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien form reasonably satisfactory to the Administrative Agent, on behalf of with the Secured Partiesapplicable Loan Party, perfected either automatically under the UCC Administrative Agent and any financial institution with which such Loan Party maintains a Concentration Account or Material Account (with respect to Controlled Accounts at SunTrust Bankcollectively, the “Blocked Accounts”) or subject to Control Account Agreements;
and (bvi) deposit promptly, (or cause to be deposited) promptly (and in any event no later than 10 the first Business Days Day after receipt thereof) all collections on Accounts (including those sent directly by an Account Debtor) into a Blocked Account covered by a Blocked Account Agreement. From and after such 90th and the 120th day, respectively, after the date of receipt thereofClosing 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)), each Loan Party shall ensure that this Section 5.15(a) is satisfied at all cash, checks, drafts or other similar items of payment times.
(b) Each Blocked Account Agreement relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled AccountsBlocked Account shall require, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; and
(c) at any time after the occurrence delivery of notice of a Cash Dominion Period by the Administrative Agent to the Lead Borrower and during the continuance of an Event of Defaultother parties to such instrument or agreement (which the Administrative Agent may, at or upon the request of the Required LendersLenders 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 ledger balance of each Concentration Account and each other Blocked Account (net of such minimum balance, not to exceed $500,000 per account or $5,000,000 in the aggregate for all such accounts as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained (the “Required Minimum Balances”)), to an account maintained under the sole dominion and control of the 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 Section 2.18(b) or (c) are applicable, such amounts shall be applied in accordance with such Section 2.18(b) or (c), as applicable. In such event, each Loan Party agrees that it will not otherwise direct the proceeds of any Blocked Account.
(c) Provided that no Cash Dominion Period then exists, the Borrowers willLoan 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 will cause each other Loan Party toan Excluded Asset, cause all payments constituting proceeds such Deposit Account or Securities Account shall be subject to this Section 5.15), to the execution and delivery to the Administrative Agent of accounts a Blocked Account Agreement in respect of such newly opened Deposit Account or other Collateral to be directed into lockbox accounts under agreements in form Securities Account consistent with the provisions of this Section 5.15 and substance 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); 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 this Section 5.15 and otherwise reasonably satisfactory to the Administrative Agent 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 Specified Transaction, such Loan Party shall be required to enter into a Blocked Account Agreement with respect to such acquired Deposit Account or Securities Account within 120 days following the date of such Specified 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, (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 Sections 2.11(a)(iii), 2.18(b) or 2.18(c), as applicable, and, to the extent such funds constitute US Collateral, the ABL Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 5.15, 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 5.15(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 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 directly 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 5.15, each relevant Loan Party may direct, and shall have sole control over, the disposition of funds in the Blocked Accounts and Concentration Accounts.
Appears in 2 contracts
Samples: Abl Credit Agreement (Hayward Holdings, Inc.), Abl Credit Agreement (Hayward Holdings, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) Within the time periods set forth below:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established On or prior to thirty (30) days following the Closing Date, deliver to the Administrative Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits delivered to employees and other fiduciary accounts, and each depository institution listed on Schedule 5.21(a);
(ii) any accounts with amounts on deposit that do not exceed $100,000On or prior to the Closing Date, all deliver to the Administrative Agent copies of which the Loan Parties may maintain without restriction) notifications (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountCredit Card Notification”); each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment ) substantially in such account securing payment of the Obligations, and in form attached hereto as Exhibit G which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, 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
(iii) On or prior to the Secured PartiesClosing Date, perfected either automatically under enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the UCC Agents with each Blocked Account Bank (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;collectively, the “Blocked Accounts”).
(b) deposit promptly, The Loan Parties shall ACH or wire transfer no less frequently than Monday and in any event no later than 10 Business Days after the date Friday 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 Accountseach week (or, in each case except for cash case, on the next succeeding Business Day if any such Monday or Friday is not a Business Day) (or with such greater frequency as is necessary such that at no time is there a balance in any individual DDA in excess of $5,000), consistent with past practices (and Permitted Investments 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; provided that, upon the aggregate value occurrence of which does a Cash Dominion Event, 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 the then contents of each DDA (net of the sum of (A) any minimum balance, not to exceed $500,000 2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained, plus (B) other amounts received after 4:00 p.m. on any time; andday of an ACH or wire transfer).
(c) at any time Each Blocked Account Agreement (other than with respect to operating accounts) 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 concentration account maintained by the Collateral Agent at Xxxxx Fargo (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 (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 sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of the sum of (A) 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, plus (B) other amounts received after 4:00 p.m. on any day of an Event ACH or wire transfer));
(v) the then entire ledger balance of Defaulteach Blocked Account (net of the sum of (A) 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, plus (B) other amounts received after 4:00 p.m. on any day of an ACH or wire transfer); and
(vi) the proceeds of all credit card charges.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 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 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 Concentration 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 Required LendersAdministrative Agent, the Borrowers willLoan 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) Within ninety (90) days following the Closing Date, the Loan Parties shall have (i) closed all DDAs consisting of concentration accounts and all operating accounts maintained by the Loan Parties at The Huntington National Bank or any of its Affiliates, and will cause each other Loan Party to(ii) provided to the Administrative Agent, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent, evidence demonstrating the closure of such concentration accounts and operating accounts.
Appears in 2 contracts
Samples: Credit Agreement (Hamilton Beach Brands Holding Co), Credit Agreement (Nacco Industries Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for deliver to the purpose Administrative Agent copies of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and notifications (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountDDA Notification”); each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment ) substantially in such account securing payment of the Obligations, and in form attached hereto as Exhibit H which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, been executed on behalf of the Secured PartiesBorrower and delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent copies of notifications (each, perfected either automatically under a “Credit Card Notification”) substantially in the UCC form attached hereto as Exhibit I which have been executed on behalf of the Borrower and delivered to the Borrower’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”) satisfactory in form and substance to the Agents with respect to Controlled Accounts at SunTrust Bank) or subject to Control each Blocked Account Agreements;Bank (collectively, the “Blocked Accounts”).
(b) Each DDA Notification and 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 amounts on 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 each such 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 accounts and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require after the occurrence and during the continuance of an 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 Bank of DefaultAmerica (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 the Borrower from any Person or from any source or on account of any sale or other transaction or 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Borrower hereby acknowledges and agrees that (i) the Borrower has 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. In the event that, notwithstanding the provisions of this Section 6.13, the Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrower for the Administrative Agent, shall not be commingled with any of the Borrower’s other funds or deposited in any account of the Borrower 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 the Borrower may be instructed by the Administrative Agent.
(e) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Borrower shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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 2 contracts
Samples: Credit Agreement (Duckwall Alco Stores Inc), Credit Agreement (Duckwall Alco Stores Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date or such later dates specified in the Post-Closing Letter:
(ai) maintain deliver to the Administrative Agent (with respect to the Domestic Loan Parties) and the Canadian Agent (with respect to the Canadian Loan Parties) 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 with each Blocked Account Bank maintained by the Loan Parties as of the Closing Date with respect to each DDA specified by the Agents (other than payroll and other specific DDAs as may be acceptable to the Agents) established or maintained by any Loan Party as of the Closing Date with such Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) Subject to the terms of the Post-Closing Letter, the Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA (net of such minimum balance consistent with past practices, but not to exceed $200,000 in the aggregate for all DDAs in any event) and all payments received by any Loan Party from credit card processors.
(c) After the occurrence and during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Administrative Agent or the Canadian Agent, as applicable, to the Lead Borrower and the applicable Blocked Account Bank), the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) all cash management receipts and treasury business collections by the Loan Parties (other than Operating Cash, and Cash Equivalents being held in accordance with SunTrust Bank the terms of the proviso at the end of the definition of “Permitted Investments”), including, without limitation, the following:
(i) all available cash receipts of the Loan Parties from the sale of Inventory and other assets (other than Operating Cash);
(ii) all proceeds of collections of Accounts of the Loan Parties;
(iii) all other cash payments received by a Loan Party from any Person or a Permitted Third Party Bankfrom any source or on account of any sale or other transaction or event, including, without limitation, all Net Proceeds from any Prepayment Event;
(iv) the then cash balance of each DDA (net of any minimum balance, not to exceed $200,000 in the aggregate) for all DDAs combined;
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $200,000 in the aggregate) for all Blocked Accounts combined; and
(vi) the cash proceeds of all credit card charges received by any Loan Party.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Administrative Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Domestic Concentration Account or the Canadian Concentration Account, (ii) the funds on deposit accountsin each Domestic Concentration Account shall at all times be collateral security for the Secured Obligations (as defined in the Security Agreement), disbursement accounts(iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and (iv) the funds on deposit in the Domestic Concentration Account and the Canadian Concentration Account shall be applied as provided in Section 2.05 of this Agreement. In the event that, investment accounts notwithstanding the provisions of this Section 6.07, any Domestic Loan Party or Canadian Loan Party receives or otherwise has dominion and lockbox accounts control of any such proceeds or collections (other than Operating Cash, and Cash Equivalents being held in accordance with the terms of the proviso at the end of the definition of “Permitted Investments”) while a Cash Dominion Event Exists, such proceeds and collections shall be held in trust by such Domestic Loan Party for the Administrative Agent and by such Canadian Loan Party for the Canadian 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 Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent or the Canadian Agent, as applicable.
(e) Upon the request of the Administrative Agent, the Domestic 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. Upon the request of the Canadian Agent, the Canadian 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. So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts. Any amounts held or received in the Domestic Concentration Account at any time when no Cash Dominion Event exists or while no Loans are outstanding (except as provided in Section 8.02) shall be promptly remitted to an account of the Lead Borrower, or as the Lead Borrower may otherwise direct. Any amounts held or received in the Canadian Concentration Account at any time when no Cash Dominion Event exists or while no Loans are outstanding (except as provided in Section 8.02) shall be promptly remitted to an account of the Canadian Borrower or as the Canadian Borrower may otherwise direct.
(f) The Loan Parties shall not permit cash in an aggregate amount in excess of 10% of the aggregate of the Domestic Borrowing Base and the Canadian Borrowing Base, each as then in effect (other than (i) “store” cash, cash held in local, non-concentration deposit accounts, cash in transit between stores and depository accounts established and maintained solely for cash receipts from sales in the purpose process of funding payrollinter-account transfers, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsin each case as a result of the ordinary course operations of the Loan Parties, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which to the extent necessary for the Loan Parties may maintain to satisfy in the ordinary course of their business the current liabilities incurred by them in the ordinary course of their business and without restrictionacceleration of the satisfaction of such current liabilities) (each such to accumulate and be maintained in the deposit accountaccounts or Cash Equivalents of the Loan Parties; provided, disbursement accounthowever, investment account and lockbox account, a “Controlled Account”); each Controlled Account that the Loan Parties’ obligations under this Section 6.13(f) shall be a cash collateral account, with all cash, checks suspended if and other similar items of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(b) deposit promptly, and in any event for so long as there are 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative AgentLoans outstanding.
Appears in 2 contracts
Samples: Credit Agreement (Quiksilver Inc), Credit Agreement (Quiksilver Inc)
Cash Management. The Borrowers (a) On or prior to the Closing Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative AgentAgent a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank executed and delivered by the applicable Loan Party and such Blocked Account Bank (collectively, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an a Trigger Event of Default, at and notice from the request of Administrative Agent or the Required Lenders, the Borrowers willACH 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 Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed in the aggregate for all DDAs the amount equal to the Target Amount); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be directed kept in the subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in each Domestic Concentration Account shall at all times be collateral security for the Obligations, (iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and Foreign Liabilities and (iv) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Trigger Event exists, such proceeds and collections shall be held in trust by such Loan Party for the 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 lockbox the Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agents. Notwithstanding the foregoing, to the extent that no Obligations are outstanding any amounts deposited in the Domestic Concentration Account and the Canadian Concentration Account shall be disbursed by the Administrative Agent or Canadian Agent, as applicable to such depository accounts under agreements in form and substance satisfactory to as may be designated by the applicable Borrower.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agents 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 2 contracts
Samples: Credit Agreement (Sally Beauty Holdings, Inc.), Credit Agreement (Sally Beauty Holdings, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Effective Date:
(ai) maintain 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 clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) all amounts on deposit in each DDA (other than the Trust Account) and all payments received by any Loan Party from credit card processors to a Blocked Account.
(c) After the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Bank of America (the “Administrative Agent’s Account”) all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections by the Loan Parties, including, without limitation, the following:
(i) all deposit accountsavailable cash receipts from the sale of Inventory (including, disbursement accountswithout limitation, investment accounts proceeds of credit card charges) and lockbox accounts 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 sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (other than (i) accounts established and maintained solely for the purpose Trust Account), net of funding payrollany minimum balance, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits not to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,0002,500.00, all of as may be required to be kept in the subject DDA by the depository institution at which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any timeDDA is maintained; and
(cv) at the then entire ledger balance of each Blocked Account (other than the Trust Account), net of any time minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the applicable Blocked Account Bank. In the event that, notwithstanding the provisions of this Section 6.13(c), 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, 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 Administrative Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(d) Upon the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Administrative Agent with an Event accounting of Defaultthe contents of the Blocked Accounts and the Administrative Agent’s Account, which shall identify, to the reasonable satisfaction of the Administrative Agent, the proceeds from the Notes Priority Collateral which were deposited into a Blocked Account and swept to the Administrative Agent’s Account. Upon the receipt of (i) the contents of the Blocked Accounts, and (ii) such accounting, the Administrative Agent agrees to promptly remit to the Indenture Trustee the proceeds of the Notes Priority Collateral received by the Administrative Agent.
(e) The Administrative Agent’s 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 Administrative Agent’s Account, (ii) the funds on deposit in the Administrative Agent’s Account shall at all times be collateral security for all of the Obligations and (iii) after the occurrence and during the continuance of a Cash Dominion Event, the funds on deposit in the Administrative Agent’s Account shall be applied as provided in Sections 2.05(f) or 8.03, as applicable, of this Agreement.
(f) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory 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. So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts (other than the Administrative Agent’s Account). Any amounts held or received in the Administrative Agent’s Account at any time when no Cash Dominion Event exists shall be promptly remitted to an account of the Lead Borrower, or as the Lead Borrower may otherwise direct.
Appears in 2 contracts
Samples: Credit Agreement (Tops Markets Ii Corp), Credit Agreement (Tops Holding Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain all cash management deliver to the Administrative Agent 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 treasury business 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 satisfactory in form and substance to the Agents with SunTrust each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than wire transfer (i) accounts established prior to the occurrence and maintained solely for continuance of an Event of Default, periodically in accordance with past practices of the purpose of funding payrollLoan Parties, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsbut in no event less frequently than every fifth Business Day, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) at any time after upon the occurrence and during the continuance of an Event of Default, as frequently as requested by the Administrative Agent (and in each case whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit in each such DDA. 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 payments received from credit card processors.
(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 there are then any outstanding Obligations) to the concentration account maintained by the Collateral Agent at Bank of America (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 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 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 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 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 Concentration 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 Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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 2 contracts
Samples: Credit Agreement (Syms Corp), Credit Agreement (Syms Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the ninetieth day following the Closing Date (or such longer period as may be agreed by the Administrative Agent in its sole discretion):
(i) deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit J 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 6.13; and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”) substantially in the form attached as Exhibit K or such other form as reasonably acceptable to the Administrative Agent with respect to each Deposit Account of any Loan Party (other than Excluded Accounts) with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) 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) of all proceeds therefrom to a Blocked Account. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank of the occurrence of a Cash Dominion Event (and until the Collateral Agent notifies such Blocked Account Bank that such Cash Dominion Event has terminated), 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 JPMCB (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets of the Loan Parties;
(ii) any accounts with amounts on deposit that do not exceed $100,000, all proceeds of which the Loan Parties may maintain without restriction) (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 collections of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account AgreementsAccounts;
(biii) deposit promptlyall Net Cash Proceeds, and in all other cash payments received by a Loan Party from any event no later than 10 Business Days after the date Person or from any source or on account of receipt thereof, all cash, checks, drafts any sale or other similar items transaction or event;
(iv) the then contents of payment relating to or constituting payments made in respect each DDA;
(v) the then entire ledger balance 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 $500,000 at any timeBlocked Account; and
(vi) the net proceeds of all credit card charges.
(c) at any time after the occurrence and during During the continuance of a Cash Dominion Event, the Loan Parties shall provide the Collateral Agent with an Event of Default, at the request accounting of the Required Lenderscontents of the Blocked Accounts and the Concentration Account, which shall identify, to the satisfaction of the Collateral Agent, the Borrowers willproceeds 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 will cause each other Loan Party to(y) such accounting, cause all payments constituting the Collateral Agent agrees to promptly remit to the agent under the Term Facility the proceeds of accounts or other the Term Priority Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to received by the Administrative Agent.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 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 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 Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
Appears in 2 contracts
Samples: Credit Agreement (Container Store Group, Inc.), Credit Agreement (Container Store Group, Inc.)
Cash Management. The Borrowers Borrower shall, and shall cause its Domestic Subsidiaries to:
(a) establish and maintain all cash management of their domestic deposit and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any bank accounts with amounts on deposit the Administrative Agent or with other Lenders that do not exceed $100,000(together with the applicable Loan Party) have executed and delivered to the Administrative Agent Blocked Account Agreements, all of which in form and substance reasonably acceptable to the Loan Parties may maintain without restriction) Administrative Agent (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled Blocked Account”); provided, however, that (i) Frontstep and its Subsidiaries may maintain deposit and disbursement bank accounts that are not Blocked Accounts at any time prior to September 30, 2003, so long as (A) the aggregate balance maintained in such accounts does not exceed (x) $250,000 at any time on or before April 30, 2003 and (y) $100,000 thereafter, unless the Borrower eliminates such excess within five (5) Business Days of such occurrence and (B) the Borrower sweeps the funds in such accounts to a Blocked Account at least monthly; (ii) the Borrower may maintain its “User Conference Operating Account” in an account that is not a Blocked Account at any time prior to September 30, 2003, so long as (A) the balance maintained in such account does not exceed $250,000, unless the Borrower eliminates such excess within five (5) Business Days of such occurrence, and (iii) the Borrower and its Subsidiaries may maintain two bank accounts with Fleet Bank existing on the Closing Date that are not Blocked Accounts at any time prior to April 30, 2003, so long as (A) the aggregate balance maintained in such accounts does not exceed $100,000 at any time, unless the Borrower eliminates such excess within five (5) Business Days of such occurrence and (B) the Borrower sweeps the funds in such accounts to a Blocked Account at least monthly;
(b) each Controlled Blocked 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 Borrowers Borrower and each of their its Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreementsitself and Lenders;
(bc) deposit promptly, and in any event no later than 10 the first Business Days 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 and all accounts Accounts and other Collateral into Controlled Blocked Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; and
(cd) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers Borrower will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts Accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 2 contracts
Samples: Revolving Credit and Term Loan Agreement (Mapics Inc), Revolving Credit and Term Loan Agreement (Mapics Inc)
Cash Management. The Borrowers (a) On or prior to the Closing Date, each of the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the 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 maintained solely for the purpose delivered to each of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and such Loan Party’s Credit Card Processors which Credit Card Processors are listed on Schedule 5.25(b); and
(ii) any accounts enter into a Blocked Account Agreement in form and substance reasonably satisfactory to the Agent with amounts on deposit that do not exceed $100,000, all of each bank at which the Loan Parties may maintain without restriction) one or more Blocked Accounts are maintained (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountBlocked Account Bank”) covering such Blocked 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); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptly, The Loan Parties shall ACH or wire transfer no less frequently than daily (and in whether or not there are then any event no later than 10 Business Days after outstanding Obligations) to a Blocked Account subject to a Blocked Account Agreement all of the date of receipt thereof, all cash, checks, drafts or following (other similar items of payment relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled Accountsthan, in each case except for 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 Permitted Investments the aggregate value of which does other assets (whether or not exceed $500,000 at any timeconstituting Collateral); and
(civ) 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 all DDAs (other than any Excluded DDA or Retail DDA) at any time after time).
(c) The Loan Parties shall promptly (and, 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 deposit in each of the Retail DDAs to the extent that those amounts exceed: (i) $50,000 on deposit in any individual Retail DDA, or (ii) $5,000,000 on deposit in all Retail DDAs in the aggregate.
(d) Upon the occurrence and during the continuance of an a Cash Dominion Event and receipt of Defaultnotice from the Agent (and whether or not there are then any outstanding Obligations), in addition to the requirements set forth in clause (b) above:
(i) the Loan Parties shall ACH or wire transfer no less frequently than daily to a concentration account maintained by the Agent at Bank of America (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); and
(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 subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(e) The Collection Account shall at all times be under the sole dominion and control of the 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 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 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 depository accounts as may be designated by the Borrower.
(f) Upon the reasonable request of the Required LendersAgent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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 2 contracts
Samples: Credit Agreement (Vince Holding Corp.), Credit Agreement (Apparel Holding Corp.)
Cash Management. The Borrowers shall(a) Except as otherwise provided pursuant to Section 6.20, and shall cause its Domestic Subsidiaries toon or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for which shall promptly after the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Closing Date be delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Blocked 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptly, and The Borrowers shall use commercially reasonable efforts to cause the ACH or wire transfer of all payments due from credit card processors (whether or not there are then any outstanding Obligations) to be made to a Blocked Account with such frequency as is consistent with the Borrowers’ current business practices as in any event no later than 10 Business Days after effect on 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 $500,000 at any time; andClosing Date.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, the Collateral Agent may direct the Blocked Account Bank to ACH or wire transfer no less frequently than each Business Day (or with such other frequency as may be agreed to by the Collateral Agent in its sole discretion), whether or not there are then any outstanding Obligations, to the concentration account maintained by the Collateral Agent at Bank of America (the “Concentration Account”), 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 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 then contents of each DDA (net of any minimum balance, not to exceed $10,000.00, 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 $25,000.00, as may be required to be kept in the subject Blocked Account by the applicable Blocked Account Bank); and
(vi) the proceeds of all credit card charges.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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. 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 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 Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(e) The Loan Parties may maintain one or more 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. Notwithstanding anything in any Loan Document to the contrary, so long as no Event of DefaultDefault has occurred and is continuing, at no Exempt Accounts shall be subject to a Blocked Account Agreement or subject to the dominion and control of the Administrative Agent.
(f) Upon the request of the Required LendersAdministrative Agent during the existence of a Cash Dominion Event, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain all cash management At the Administrative Agent’s request, deliver to the Administrative Agent copies of notifications (each, an “Account Notification”) substantially in the form attached hereto as Exhibit J-1 which have been executed on behalf of such Loan Party and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts delivered to each depository institution listed on Schedule 5.21(a) (other than Bank of America, N.A. with respect to the BOA DDA);
(ii) At the Administrative Agent’s request, deliver to the Administrative Agent a copy of the notification (the “BOA DDA Notification”, and together with the Account Notifications, individually, a “DDA Notification” and collectively, the “DDA Notifications”) substantially in the form attached hereto as Exhibit J-2 which has been executed on behalf of such Loan Party and delivered to Bank of America, N.A., with respect to the BOA DDA;
(iii) deliver to the Administrative Agent 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 and delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(b) On or prior to the Closing Date, enter into a blocked account agreement (each, a “Blocked Account Agreement”) satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) With respect to each DDA, whether or not there are then any outstanding Obligations, each DDA Notification (other than the BOA DDA Notification) and Credit Card Notification shall require the ACH or wire transfer to a Blocked Account of all amounts on deposit in each such DDA and all payments due from credit card processors, which ACH or wire transfer shall occur no less frequently than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountstwice per week, and (ii) at any accounts with time that the then balance of such DDA exceeds $25,000.00, in each case, provided that immediately following any ACH or wire transfer required by this Section 6.13(c), the then balance of such DDA shall not exceed $5,000.00.
(d) With respect to the BOA DDA, whether or not there are then any outstanding Obligations, the BOA DDA Notification shall require the ACH or wire transfer to a Blocked Account of all amounts on deposit in the BOA DDA (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the BOA DDA by Bank of America, N.A.), which ACH or wire transfer shall occur no more frequently than daily.
(e) With respect to each Blocked Account, whether or not there are then any outstanding Obligations, each Blocked Account Agreement shall require the ACH or wire transfer to the concentration account maintained by the Collateral Agent at Xxxxx Fargo Bank (the “Concentration Account”) of all cash receipts and collections, which ACH or wire transfer shall occur no less frequently than (i) twice per week, and (ii) at any time that do the then balance of such Blocked Account exceeds $25,000.00, in each case, provided that immediately following any ACH or wire transfer required by this Section 6.13(c), the then balance of such Blocked Account shall not exceed $100,0005,000.00. For the purposes hereof, the term “cash receipts and collections” shall include, 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) other than Net IPO Proceeds, all Net Proceeds and all other cash payments received by a Loan Party from any Person or from any source or on account of which any sale or other transaction or event; and
(iv) the proceeds of all credit card charges.
(f) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 Collateral Agent, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(g) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf 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.
(h) On or before the date that is ninety (90) days following the Closing Date, the Loan Parties shall cause all of their accounts, including operating, depository, disbursement, investment, and securities accounts, other than store-level DDAs, to be maintained with Xxxxx Fargo Bank; provided that the Loan Parties shall not be required to cause any account the contents of which are solely Net IPO Proceeds to be maintained with Xxxxx Fargo Bank (each such account, an “IPO Proceeds Account”) so long as any such IPO Proceeds Account constitutes a Permitted Investment of the Secured Partiestype specified in clause (t) of the definition of Permitted Investments.
(i) Provided that no Default or Event of Default shall have occurred or be continuing, perfected either automatically under the UCC (Collateral Agent shall not require any Loan Party to obtain a Blocked Account Agreement with respect to Controlled Accounts at SunTrust Bankany DDA into which the proceeds of any Collateral from two (2) or subject 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agentfewer Stores are deposited.
Appears in 1 contract
Samples: Credit Agreement (Metropark Usa Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) [On or]To the extent not previously delivered prior to the [Closing]Fourth Amendment Effective Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the Agent copies of notifications (each, a “Credit Card Notification”) reasonably satisfactory in form and maintained solely for substance to the purpose Agent, which have been executed on behalf of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation such Loan Party and other compensation delivered to such Loan Party’s credit card clearinghouses and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into an Account Control Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral accountBank (collectively, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to “Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Accounts”).
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Controlled Account all amounts on 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, cause the ACH or wire transfer to the collection account maintained by the Agent at Bank of America (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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;
(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); and
(v) the then entire ledger balance of each Controlled Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Controlled Account by the Controlled Account Bank).
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) during the continuance of a Cash Dominion Event, the funds on deposit in the Collection Account shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 0, 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 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent not less often than monthly, accurately setting forth all amounts deposited in each Controlled Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s Credit Card Issuers and other compensation and benefits to employees and other fiduciary accounts, and Credit Card Processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptlyAt the request of the Agent, and in any event no later than 10 Business Days after the date Loan Parties shall deliver to the Agent copies of receipt thereofnotifications (each, 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 Accountsa “DDA Notification”), in form and substance reasonably satisfactory to the Agent, which have been executed on behalf of such Loan Party and delivered to each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; anddepository institution listed on Schedule 5.21(a).
(c) at The Loan Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any time outstanding Obligations) to a Blocked Account all amounts on deposit in each DDA 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 an Event 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 Agent at Xxxxx Fargo (the “Concentration Account”), of Defaultall cash receipts and collections received by each Loan Party from all sources, 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 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;
(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.
(e) The Concentration Account shall at all times be under the sole dominion and control of the 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 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(f) Upon the reasonable request of the Required LendersAgent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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) maintain substantially all Cash Management Services, deposit accounts (including all Blocked Accounts and the Concentration Account) and securities and investment accounts of the Borrowers with Agent or any of its Affiliates (including, without limitation, Xxxxx Fargo Merchant Services), it being understood and agreed that the Loan Parties shall maintain through the term of this Agreement the Cash Management Services, deposit accounts and securities and investment accounts held by the Agent or any of its Affiliates as of the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Tilly's, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all cash management 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 treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than payments due from credit card processors.
(i) accounts established After the occurrence and during the continuance of a Cash Dominion Event, cause the ACH or wire transfer by the Domestic Loan Parties to the concentration account maintained solely for at Bank of America or with another Domestic Revolving Lender reasonably satisfactory to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsAgent with whom a Blocked Account Agreement has been executed (the “U.S. Concentration Account”) , and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, cause the ACH or wire transfer by the Canadian Loan Parties to the concentration account maintained at Bank of America-Canada Branch or with another Canadian Lender reasonably satisfactory to the Agent with whom a Blocked Account Agreement has been executed (the “Canadian Concentration Account”), as applicable, in each case no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each applicable Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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 $10,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $100,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank).
(c) Each of the U.S. Concentration Account and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the U.S. Concentration Account or the Canadian Concentration Account, (ii) the funds on deposit in the U.S. Concentration Account shall at all times be collateral security for all of the Obligations and the funds on deposit in the Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities, (iii) the funds on deposit in the U.S. Concentration Account shall be applied to the Obligations as provided in this Agreement and (iv) the funds on deposit in the Canadian Concentration Account shall be applied to the Canadian Liabilities 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 U.S. Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agent.
(d) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Rh)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the Agent copies of notifications (each, a “Credit Card Notification”) reasonably satisfactory in form and maintained solely for substance to the purpose Agent, which have been executed on behalf of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation such Loan Party and other compensation delivered to such Loan Party’s credit card clearinghouses and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into an Account Control Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral accountBank (collectively, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to “Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Accounts”).
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Controlled Account all amounts on 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, cause the ACH or wire transfer to the collection account maintained by the Agent at Bank of America (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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; DB1/ 97390493.6
(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); and
(v) the then entire ledger balance of each Controlled Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Controlled Account by the Controlled Account Bank).
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) during the continuance of a Cash Dominion Event, the funds on deposit in the Collection Account shall be applied to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent not less often than monthly, accurately setting forth all amounts deposited in each Controlled Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain To the extent not previously delivered prior to the Effective Date, (i) deliver to the Agent copies of notifications in the form of Exhibit G hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and substance to the 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 the Perfection Certificate with respect to which the Loan Parties have established credit card processing arrangements independent of SHC and its Subsidiaries, and (ii) 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 (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 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, cause the ACH or wire transfer to the collection account maintained by the Revolver Agent at Bank of America (for application to the Revolver Outstandings) (the “Revolver Collection Account”) (provided that, at any time after the repayment of all Revolver Outstandings pursuant to Section 2.05(d) of the Revolver Credit Agreement and to the extent an Event of Default has occurred and is continuing, the Loan Parties shall cause any remaining amounts to be transferred from the Revolver Collection Account or the Loan Parties’ operating account to such other account as directed by the Agent in its sole discretion (the “Term Collection Account” and, together with the Revolver Collection Account, the “Collection Accounts”), no less frequently than daily (and whether or not there are then any Revolver Outstanding or any outstanding Obligations), all cash management receipts and treasury business with SunTrust Bank or a Permitted Third collections received by each Loan Party Bankfrom all sources, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payrollInventory (including without limitation, payroll taxes, withholding taxes, xxxxxxx’x compensation proceeds of credit card charges) and other compensation and benefits to employees and other fiduciary accounts, and assets (whether or not constituting Collateral);
(ii) any accounts with amounts on deposit that do not exceed $100,000, all proceeds of which the Loan Parties may maintain without restriction) (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 collections of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account AgreementsAccounts;
(biii) deposit promptly, and in all Net Proceeds received by a Loan Party from any event no later than 10 Business Days after the date Person or from any source or on account of receipt thereof, all cash, checks, drafts any Disposition or other similar items transaction or event;
(iv) the then contents of payment relating to or constituting payments made in respect each DDA (net of any and all accounts and other Collateral into Controlled Accountsminimum balance, in each case except for cash and Permitted Investments the aggregate value of which does not to exceed $500,000 2,500.00, as may be required to be kept in the subject DDA by the depository institution at any timewhich such DDA is maintained); and
(cv) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $50,000.00, as may be required to be 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 be Collateral and proceeds of 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.
(d) The Revolver Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of the Revolver Agent and, after the after the occurrence and during the continuation of an Event of Default, the Term Collection Account shall be under the sole dominion and control of the Revolver Agent. The Loan Parties hereby acknowledge and agree that (i) during the continuance of a Cash Dominion Event, the Loan Parties shall have no right of withdrawal from the Revolver Collection Account (or, at any time after the occurrence and during the continuation of an Event of Default, the Term Collection Account), (ii) the funds on deposit in each Collection Account shall at all times be collateral security for all of the Obligations and (iii) after the occurrence and during the continuance of an Event of Default, at (A) unless the Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in each Collection Account shall be applied to the Obligations as provided in Section 2.05(d) hereof, and (B) if the Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in each Collection Account 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 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 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 applicable Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent or, as applicable, the Revolver 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 an Event of Default has occurred and is continuing and (2) if any Loan Party shall so request, unless an Event of Default has occurred and is continuing, the 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 DDA, provided such DDA is a Blocked Account.
(g) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Term Loan Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or before the date that is ninety (90) days following the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the Agent 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s Credit Card Issuers and other compensation and benefits to employees and other fiduciary accounts, and Credit Card Processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) The Loan Parties shall ACH or wire transfer no less frequently than weekly (or such longer time period as the Agent may agree) (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on 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 each DDA and all accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time Each Blocked Account Agreement shall require that upon notice from Agent which notice shall be delivered only after the occurrence and during the continuance of an 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 Agent at Xxxxx Fargo (the “Concentration Account”), of Defaultall cash receipts and collections received by each Loan Party from all sources, 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 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;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed $5,000, 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 $5,000, 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required LendersAgent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Zumiez Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On the Closing Date:
(ai) maintain enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, together with the Concentration Account, the “Blocked Accounts”); and
(ii) at the reasonable request of the Agent, deliver to the Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and delivered to each depository institution at which DDAs are located or held on Schedule 5.21(a).
(b) From and after the Closing Date, the Loan Parties shall ACH or wire transfer to a Blocked Account no less frequently than daily, whether or not there are then any outstanding Obligations, all of the following:
(i) all available 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);
(ii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iii) all proceeds of Accounts; and
(iv) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(c) Each Blocked Account Agreement (except for Blocked Account Agreements covering Excluded Disbursement Accounts or Corporate Accounts) shall require the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account controlled by the Agent at Bank of America, N.A. (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established the then available amounts 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);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in 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 Agent, the ACH or wire transfer no less frequently than daily (and maintained solely for whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the purpose Concentration Account.
(d) The Concentration Account shall at all times be under the sole dominion and control of funding payrollthe Agent and all funds therein shall be wired to an account specified by Agent no less frequently than daily. The Agent shall cause all funds received by it from the Concentration Account to be applied to the Obligations, payroll taxeswhich amounts shall be applied to the Obligations in the order proscribed in either Section 2.05(f) or Section 8.03 of this Agreement, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 reasonably instructed by the Agent.
(e) Upon the reasonable request of the Agent, the Loan Parties may maintain without restrictionshall 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) (each such deposit accountIf the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a) above, disbursement accountthen the Loan Parties shall, 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 upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence and during Closing Date, deliver to the continuance Agent copies of an Event of DefaultDDA Notifications, at the request which have been executed on behalf of the Required Lendersapplicable Loan Party and delivered to each depository institution listed on Schedule 5.21(a).
(g) From and after the Closing Date, the Borrowers willshall ACH or wire transfer to the Concentration Account all amounts on deposit in any Corporate Account (net of any minimum balance, and will cause each other Loan Party tonot to exceed $2,500.00 of book balance, cause all payments constituting proceeds as calculated in the ordinary course of accounts or other Collateral business, as may be required to be directed into lockbox accounts under agreements kept in form and substance satisfactory such Corporate Account by the depository institution at which such Corporate Account is maintained) from time to the Administrative Agenttime.
Appears in 1 contract
Samples: Credit Agreement (Kid Brands, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain 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 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 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 satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(i) Each Credit Card Notification and DDA 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 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 in excess of the minimum balance permitted in accordance with Section 6.13(c).
(c) Each Blocked Account Agreement shall require 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 Wxxxx Fargo Bank (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and benefits 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 then contents of each DDA (net of any minimum balance, not to employees and other fiduciary accountsexceed $1,500.00, 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 $1,500.00, 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.
(d) The Loan Parties shall provide the Collateral Agent (i) with written notice of any Restricted Payment, in each case as otherwise permitted pursuant to Section 7.06 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 accounts with amounts on deposit such Restricted Payment.
(e) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Loan Parties hereby acknowledge and agree that do not exceed $100,000(i) without limiting the provisions of Section 2.05(d), all of which the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 Collateral Agent, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(f) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 Loan Parties shall cause bank statements and/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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Iparty Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank On or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts prior to the Closing Date (other than or such later date as the Administrative Agent may agree in the Post Closing Agreement):
(i) accounts established 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 each applicable Loan Party and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any enter into a Blocked Account Agreement with each Blocked Account Bank (the accounts with amounts on deposit that do not exceed $100,000covered by such Blocked Account Agreements, all of which collectively, the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) The Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to an account of a Loan Party identified on Schedule 6.13 or otherwise to a Blocked Account all amounts on deposit promptlyand available at the close of each Business Day in each DDA (if any) (net of such minimum balance consistent with past practices, but not to exceed $15,000,000 in the aggregate for all DDAs and Blocked Accounts in any event), and in any event no later than 10 Business Days after all cash payments received by 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 $500,000 at any time; andLoan Parties from credit card processors.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event (and delivery of Defaultnotice thereof from the Administrative Agent to the Lead Borrower and the applicable Blocked Account Bank), the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once 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 request “Concentration Account”), all cash receipts and collections (other than Operating Cash), including, without limitation, the following (collectively and excluding Operating Cash, the “Cash Receipts”):
(i) all available cash receipts from the sale of Inventory and other assets (other than Operating Cash);
(ii) all proceeds of collections of Accounts;
(iii) the then contents of each DDA (other than Operating Cash);
(iv) all Net Proceeds from any Prepayment Event, and (other than Operating Cash) 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;
(v) the then entire available cash balance of each Blocked Account (other than Operating Cash); and
(vi) the cash proceeds of all credit card charges received by any Loan Party.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Required LendersCollateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, (ii) the Borrowers willfunds 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(h) or 8.03, and will cause each other as applicable, of this Agreement. In the event that, notwithstanding the provisions of this Section 6.13, any Loan Party toreceives or otherwise has dominion and control of any Cash Receipts, cause all payments constituting proceeds such Cash Receipts shall be held in trust by such Loan Party for the Collateral Agent, shall not be commingled with any of accounts 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 Collateral to fashion as such Loan Party may be directed into lockbox accounts under agreements in form and substance satisfactory to instructed by the Administrative Agent.
(e) So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts.
(f) Any amounts held or received in the Concentration Account at any time when no Cash Dominion Event exists shall be promptly remitted to an account of the Lead Borrower or as the Lead Borrower may otherwise direct.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain 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 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 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 satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(i) Each Credit Card Notification and DDA 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 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 in excess of the minimum balance permitted in accordance with Section 6.13(c).
(c) Each Blocked Account Agreement shall require 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 Bank (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and benefits 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 then contents of each DDA (net of any minimum balance, not to employees and other fiduciary accountsexceed $1,500.00, 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 $1,500.00, 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.
(d) The Loan Parties shall provide the Collateral Agent (i) with written notice of any Restricted Payment, in each case as otherwise permitted pursuant to Section 7.06 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 accounts with amounts on deposit such Restricted Payment.
(e) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Loan Parties hereby acknowledge and agree that do not exceed $100,000(i) without limiting the provisions of Section 2.05(d), all of which the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 Collateral Agent, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(f) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 Loan Parties shall cause bank statements and/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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Iparty Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the Closing Date enter into an Account Control Agreement satisfactory in form and substance to the Agent with each Controlled Account Bank (collectively, the “Controlled Accounts”).
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Controlled 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).
(c) cause the ACH or wire transfer to the collection account maintained by the Agent at Reference Bank (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash management receipts and treasury business with SunTrust Bank or a Permitted Third collections received by each Loan Party Bankfrom all sources, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payrollInventory (including without limitation, payroll taxes, withholding taxes, xxxxxxx’x compensation proceeds of credit card charges) and other compensation and benefits to employees and other fiduciary accounts, and assets (whether or not constituting Collateral);
(ii) any accounts with amounts on deposit that do not exceed $100,000, all proceeds of which the Loan Parties may maintain without restriction) (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 collections of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account AgreementsAccounts;
(biii) deposit promptlyall Net Proceeds, and in all other cash payments received by a Loan Party from any event no later than 10 Business Days after the date Person or from any source or on account of receipt thereof, all cash, checks, drafts any Disposition or other similar items of payment relating to transaction or constituting payments made event, including, without limitation, any Prepayment Event;
(iv) the contents then on deposit in respect each DDA (net of any and all accounts and other Collateral into Controlled Accountsminimum balance, in each case except for cash and Permitted Investments the aggregate value of which does not to exceed $500,000 2,500.00, as may be required to be kept in the subject DDA by the depository institution at any timewhich such DDA is maintained); and
(cv) the then entire ledger balance of each Controlled Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Controlled Account by the Controlled Account Bank).
(d) The Collection Account shall at all times be under the sole dominion and control of the 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 to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any time 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 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 occurrence and during Collection Account or dealt with in such other fashion as such Loan Party may be instructed by the continuance of an Event of Default, at Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent not less often than monthly, accurately setting forth all amounts deposited in each Controlled Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the Closing Date: Second 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 “DDA 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 each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent originals of 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, which shall be delivered by the Administrative Agent to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(ii) (iii) enter into a Blocked Account Agreement satisfactory in form and substance to the Agents 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.
(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 “ConcentrationCollection Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts (x) from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsInventory and, and (y) subject to the Intercreditor Agreement, from the sale of other assets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Cash Proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on deposit that do account of any sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then current contents of each DDA (net of any minimum balance, not to exceed $100,0002,500.00, 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 all credit card charges.
(d) The ConcentrationCollection Account shall at all times be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain without restrictionhave no right of withdrawal from the ConcentrationCollection Account, (ii) the funds on deposit in the ConcentrationCollection Account shall at all times be collateral security for all of the Obligations and (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the ConcentrationCollection Account shall be a cash collateral accountapplied as provided in this Agreement. In the event that, with all cashnotwithstanding the provisions of this Section 6.13, checks any Loan Party receives or otherwise has dominion and other similar items control of payment any such proceeds or collections, such proceeds and collections shall be held in trust by such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to Loan Party for the Administrative Agent, on behalf shall not be commingled with any of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) such Loan Party’s other funds or subject to Control Account Agreements;
(b) deposit promptly, and deposited in any event no account of such Loan Party and shall, not later than 10 the Business Days Day after the date of receipt thereof, all cash, checks, drafts be deposited into the ConcentrationCollection Account or dealt with in such 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 fashion as such Loan Party may be instructed by the aggregate value of which does not exceed $500,000 at any time; andAdministrative Agent.
(ce) at any time after the occurrence and during the continuance of an Event of Default, at Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory 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”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to each depository institution listed on Schedule 5.21(a).
(g) On or before February 28, 2013 (or such later date as the Administrative Agent may agree in its sole discretion), 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 sole discretion.
Appears in 1 contract
Samples: Credit Agreement (Sportsman's Warehouse Holdings, Inc.)
Cash Management. The (a) Within thirty (30) days of the occurrence of a breach by the Borrowers of SECTION 6.10 hereof which continues for five (5) consecutive Business Days, or immediately upon the occurrence of a Cash Dominion Event, the Borrowers, upon the request of any Agent, shall deliver to the Agents a schedule of all DDAs, that to the knowledge of the Responsible Officers of the Loan Parties, 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 shall, and shall cause its Domestic Subsidiaries to:
(ai) maintain within forty-five (45) days after the Closing Date (or such later date approved by the Agents), deliver 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) enter into a blocked account agreement (each, a “Blocked Account Agreement”) substantially in the form attached as Exhibit J 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 Closing Date are listed on Schedule 2.18(c)(ii) attached hereto; provided that the Blocked Account Agreement among the Canadian Agent, the Canadian Loan Parties and Canadian Imperial Bank of Commerce (or another Canadian chartered bank reasonably acceptable to the Canadian Agent and the Canadian Borrower, which shall act as a Blocked Account Bank in Canada) shall be delivered within forty-five (45) days after the Closing Date (or such later date approved by the Agents).
(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 receipts (the “Cash Receipts”) (other than amounts not to exceed $75,000,000 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 management and treasury business with SunTrust Bank 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 Permitted Third Cash Dominion Event, any cash or cash equivalents owned by any Loan Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established an amount of up to $75,000,000 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 and maintained solely for the purpose of funding (iii) payroll, payroll taxestrust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law) are deposited to any account, withholding taxesor held or invested in any manner, xxxxxxx’x compensation 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 Agent or the Canadian 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.
(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 Administrative Agent or the Canadian Agent, as applicable, of appropriate Blocked Account Agreements (unless expressly waived by the Administrative Agent or the Canadian Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Agents and, if applicable, the Canadian 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. Unless consented to in writing by the Agents and, if applicable, the Canadian Agent, the Borrowers shall not enter into any agreements with credit card processors other compensation than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and benefits delivered to employees the Administrative Agent or the Canadian Agent, as applicable.
(g) The Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and other fiduciary accountspayments (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 Borrower hereby acknowledges and agrees that (i) such Borrower 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 (iiiii) any accounts with amounts the funds on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (in each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Concentration Account shall be a cash collateral accountapplied as provided in this Agreement. In the event that, notwithstanding the provisions of this SECTION 2.18, any Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Borrower for the Administrative Agent or the Canadian Agent, as applicable, shall not be commingled with all cash, checks any of such Borrower’s other funds or deposited in any account of such Borrower and other similar items of payment shall promptly be deposited into the applicable Concentration Account or dealt with in such account securing payment other fashion as such Borrower may be instructed by the Administrative Agent 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 ObligationsObligations 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 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 the Borrowers and each of their Subsidiaries shall have granted a first priority Lien deposited, provided that such deposit is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m., Boston time, on behalf of that Business Day (except that if the Secured PartiesObligations or Canadian Liabilities are being paid in full, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreementsby 2:00 p.m. Boston time, on that Business Day);
(bii) 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory Funds paid to the Administrative Agent 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 payment is available to the Administrative Agent or the Canadian Agent, as applicable, by 4:00 p.m., Boston time, on that Business Day (except that if the Obligations or Canadian Liabilities are being paid in full, by 2:00 p.m. Boston time, 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.), Boston time, on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m., Boston time, 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 such return is rightful or timely, the Administrative Agent or the Canadian Agent, as applicable, shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the applicable Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such dishonor or return.
Appears in 1 contract
Samples: Credit Agreement (Toys R Us Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and Reserved;
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative Agent, Agent an agreement (a “Credit Card Agreement” substantially in the form attached hereto as Exhibit H which has 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
(iii) enter into a Blocked Account Agreement satisfactory in form and substance to the Secured PartiesAgents with each Blocked Account Bank (collectively, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each such DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require after the occurrence and during the continuance of an 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 Bank of DefaultAmerica (the “Concentration Account”), of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(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 then contents of each DDA (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank), provided that after the occurrence and during the continuance of a Cash Dominion Event, the aggregate amount of all balances maintained in all DDAs and Blocked Accounts shall not exceed $500,000.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 this Agreement. In the event that, notwithstanding the provisions of this Section 6.11, 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 Concentration 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 Required Lenders, the Borrowers will, and will cause each other Loan Party toAdministrative Agent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Wet Seal Inc)
Cash Management. The Borrowers Borrower shall, and shall cause its Domestic Subsidiaries to:
(a) except for the Permitted External Accounts disclosed pursuant to Section 4.18, maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party BankLender, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) zero-balance accounts established and maintained solely for the purpose of funding managing local disbursements, payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, and the RBC 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 Borrowers each Loan Party and each of their its Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured PartiesLender, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust BankLender) or subject to Control Account Agreements;
(b) [Reserved];
(c) deposit promptly, and in any event no later than 10 ten (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 Accounts and other Collateral collateral into a Controlled AccountsAccount, in each case except for cash and Permitted Investments permitted pursuant to Section 7.4 of this Agreement, the aggregate value of which does not exceed $500,000 250,000 at any time; and
(cd) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toLxxxxx, cause all payments constituting proceeds of accounts Accounts or other Collateral collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to Lender.
(e) Notwithstanding the Administrative Agentforegoing, Borrower and its Subsidiaries shall have a period of one hundred and fifty (150) days from the Closing Date to comply with Section 5.9(a), and after such one hundred and fifty (150) period, the Borrower covenants and agrees that, at no point shall the aggregate balance in all Permitted External Accounts exceed $1,500,000.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Third Restatement Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) 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 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an Event a Cash Dominion Event, cause the ACH or wire transfer to the concentration account maintained by the Agent at Bank of DefaultAmerica (the “Concentration Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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) Net Proceeds received by a Loan Party on account of any Delayed Draw Term Loans (as defined in the Term Loan Credit Agreement).
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Kirkland's, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Effective Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptly, Each Credit Card Notification shall require the ACH or wire transfer no less frequently than each Business Day (and in whether or not there are then any event no later than 10 Business Days after the date outstanding Obligations) to a Blocked Account 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 $500,000 at any time; anddue from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an Event a Cash Dominion Event, the ACH or 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 DefaultAmerica (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 from any Person or from any source or on account of any sale or other transaction or event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed $5,000.00, 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 $10,000.00, 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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(e) or 8.03, as applicable, of 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 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 Concentration 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 Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Rue21, Inc.)
Cash Management. The Borrowers (a) On or prior to the ThirdFifth Amendment Effective Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative AgentAgent a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank executed and delivered by the applicable Loan Party and such Blocked Account Bank (collectively, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an a Trigger Event of Default, at and notice from the request of Administrative Agent or the Required Lenders, the Borrowers willACH 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 Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed in the aggregate for all DDAs the amount equal to the Target Amount); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be directed kept in the subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in each Domestic Concentration Account shall at all times be collateral security for the Obligations, (iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and (iv) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Trigger Event exists, such proceeds and collections shall be held in trust by such Loan Party for the 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 lockbox the Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agents. Notwithstanding the foregoing, to the extent that no Obligations are outstanding any amounts deposited in the Domestic Concentration Account and the Canadian Concentration Account shall be disbursed by the Administrative Agent or Canadian Agent, as applicable to such depository accounts under agreements in form and substance satisfactory to as may be designated by the applicable Borrower.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agents 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the Closing Date (or, in the case of clause (a)(ii) below, within the time period specified in Section 6.20):
(i) 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 clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) all amounts on deposit in each DDA (other than the Trust Account) and all payments received by any Loan Party from credit card processors (i) prior to the establishment of the Blocked Accounts in accordance with the terms of Section 6.20(d), to one or more accounts maintained by the Loan Parties at a Blocked Account Bank, and (ii) upon the establishment of the Blocked Accounts in accordance with the terms of Section 6.20(d), to a Blocked Account.
(c) After the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Bank of America (the “Administrative Agent’s Account”) all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections by the Loan Parties, including, without limitation, the following:
(i) all deposit accountsavailable cash receipts from the sale of Inventory (including, disbursement accountswithout limitation, investment accounts proceeds of credit card charges) and lockbox accounts 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 sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (other than (i) accounts established and maintained solely for the purpose Trust Account), net of funding payrollany minimum balance, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits not to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,0002,500.00, all of as may be required to be kept in the subject DDA by the depository institution at which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any timeDDA is maintained; and
(cv) at the then entire ledger balance of each Blocked Account (other than the Trust Account), net of any time minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the applicable Blocked Account Bank. In the event that, notwithstanding the provisions of this Section 6.13(c), 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, 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 Administrative Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(d) Upon the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Administrative Agent with an Event accounting of Defaultthe contents of the Blocked Accounts and the Administrative Agent’s Account, which shall identify, to the satisfaction of the Administrative Agent, the proceeds from the Notes Priority Collateral which were deposited into a Blocked Account and swept to the Administrative Agent’s Account. Upon the receipt of (i) the contents of the Blocked Accounts, and (ii) such accounting, the Administrative Agent agrees to promptly remit to the Indenture Trustee the proceeds of the Notes Priority Collateral received by the Administrative Agent.
(e) The Administrative Agent’s 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 Administrative Agent’s Account, (ii) the funds on deposit in the Administrative Agent’s Account shall at all times be collateral security for all of the Obligations and (iii) after the occurrence and during the continuance of a Cash Dominion Event, the funds on deposit in the Administrative Agent’s Account shall be applied as provided in Sections 2.05(f) or 8.03, as applicable, of this Agreement.
(f) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory 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. So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts (other than the Administrative Agent’s Account). Any amounts held or received in the Administrative Agent’s Account at any time when no Cash Dominion Event exists shall be promptly remitted to an account of the Lead Borrower, or as the Lead Borrower may otherwise direct.
Appears in 1 contract
Samples: Credit Agreement (Tops PT, LLC)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain 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) (with evidence of such delivery received by Agent).
(b) Within ninety (90) days after the Closing Date (or such later date as Agent may agree), enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) Whether or not a Cash Dominion Event has occurred and is continuing, the Loan Parties shall (i) ACH or wire transfer, with such frequency as is consistent with their respective business practices in effect on the Closing Date or as otherwise agreed to by the Agent (and whether or not there are then any outstanding Obligations) to a Blocked Account or the Concentration Account, all amounts on deposit and available in each DDA (net of any minimum balance as may be required to be kept in such DDA by the depository institution at which such DDA is maintained provided, that, during a Cash Dominion Event, such minimum balance shall not exceed the greater of $10,000 individually or the minimum balance required by any applicable Blocked Account Bank, but in any event not more than $500,000 in the aggregate), (ii) cause (A) all cash management receipts, all collections of Accounts and treasury business with SunTrust Bank or a Permitted Third Party Bankall other proceeds of the sales of Inventory and other Collateral, including, without limitation, 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 to be deposited into a Blocked Account, and (iii) cause all funds in each Blocked Account and payments due from all Credit Card Issuers and Credit Card Processors to be forwarded with such frequency as is consistent with their respective business practices in effect on the Closing Date (which Borrowers acknowledge is on a daily basis on each Business Day) or as otherwise agreed to by the Agent, to a deposit accountsaccount maintained by Borrowers at Bank of America (the “Sub-Concentration Account”), disbursement accountsand in the case of the Sub-Concentration Account transferred to the deposit account at Xxxxx -103- Fargo established to receive funds from the Sub-Concentration Account ( the “Master Concentration Account”, investment accounts and lockbox accounts together with the Sub-Concentration Account, the “Concentration Accounts”) which is subject to a Blocked Account Agreement.
(d) At any time that a Cash Dominion Event exists, after delivery of a notice thereof from the Agent (at Agent’s option or at the request of the Required Lenders) to the applicable Blocked Account Bank), the Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day all funds in such Master Concentration Account and any other Blocked Account to the Agent Payment Account.
(e) Each Blocked Account Agreement with respect to a DDA (other than the Concentration Accounts) shall require all amounts to be transferred to either the Sub-Concentration Account or the Master Concentration Account (i) accounts established and maintained solely for in the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 case of the Obligations, and in which Sub-Concentration Account to the Borrowers Master Concentration Account) and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (Blocked Account Agreement with respect to Controlled Accounts at SunTrust Bank) or subject to Control a Concentration 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 shall require that upon notice from Agent which does not exceed $500,000 at any time; and
(c) at any time notice shall be delivered only after the occurrence and during the continuance of an 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 Payment Account of Defaultall cash receipts and collections received by each Loan Party from all sources, 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 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 the issuance of any Indebtedness or Equity Interests;
(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.
(f) The Concentration Accounts shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in the Concentration Accounts shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Accounts 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Master Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent. -104-
(g) Upon the request of the Required LendersAgent, the Borrowers willLoan 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.
(h) So long as no Cash Dominion Event has occurred and will cause each other is continuing, Loan Parties may add or replace a DDA or Blocked Account Bank provided, that, no later than thirty (30) days after the time of the opening of such DDA, the applicable Loan Party toand such applicable Blocked Account Bank shall have executed and delivered to Agent a Blocked Account Agreement (including any acknowledgement and agreement of the Blocked Account Bank or securities intermediary with respect thereto). Notwithstanding the foregoing, cause all payments constituting proceeds Borrowers may not establish a new Concentration Account after the date hereof, without prior notice to Agent and delivery of accounts a Blocked Account Agreement, contemporaneously with the opening of such Concentration Account.
(i) So long as no Cash Dominion Event has occurred and is continuing, Loan Parties may add or other Collateral replace Credit Card Processors and Credit Card Issuers and shall upon such addition or replacement provide to be directed Agent no later than fifteen (15) days after the time of entering into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agentsuch new arrangements, applicable Credit Card Notifications.
Appears in 1 contract
Samples: Credit Agreement (Chicos Fas Inc)
Cash Management. The Borrowers shall, (c) Upon and shall cause its Domestic Subsidiaries toto the extent requested by the Agent:
(ai) maintain 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 -87- 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 Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”); and
(iii) at the request of the Agent, deliver to the 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 delivered to each depository institution listed on Schedule 5.21(a).
(d) From and after the Closing Date, 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 of the following:
(i) 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);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets other than Term Loan Priority Collateral (whether or not constituting Collateral) ;
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(e) Each Blocked Account Agreement shall require 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 Agent at Xxxxx Fargo (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established 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);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in its sole discretion, permit the Loan Parties to have one or more “intermediate” Blocked Account Agreements, whereby such agreements would provide the ACH or wire transfer no less frequently than daily (and maintained solely for whether or not there are then any -88- outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the purpose Concentration Account.
(f) The Concentration Account shall at all times be under the sole dominion and control of funding payrollthe Agent. The Agent shall cause all funds on deposit in the Concentration Account to be applied in the order proscribed in either Section 2.05(f) or Section 8.03 of this Agreement, payroll taxes, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(g) Upon the request of the Agent, the Loan Parties may maintain without restrictionshall 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.
(h) (each such deposit accountIf the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a) above, disbursement accountthen the Loan Parties shall, 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 upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence Closing Date, deliver to the Agent copies of DDA Notifications, which have been executed on behalf of the applicable Loan Party and during delivered to each depository institution listed on Schedule 5.21(a).
(i) Notwithstanding anything to the continuance contrary contained herein, to the extent practicable, the Loan Parties shall, upon receipt of an Event any identifiable proceeds of DefaultTerm Loan Priority Collateral, at deposit (by ACH or wire transfer) such proceeds directly into the Term Loan Priority Account. However, the Agent, Credit Parties, and Loan Parties acknowledge and agree that it may not be practicable to deposit all proceeds of Term Loan Priority Collateral directly into the Term Loan Priority Account in all instances. As such, the Agent agrees that, upon the written request of the Required LendersTerm Agent to the Agent (which shall be delivered no more frequently than bi-weekly), the Borrowers willAgent shall, from time to time, conduct a “true-up” analysis with the Term Agent to determine the amount of identifiable proceeds of Term Loan Priority Collateral that have been deposited, or otherwise transferred, into a Blocked Account (and not yet credited or transferred to the Term Agent), which analysis shall be conducted based on written disclosures and other reports provided to the Agent and Term Agent by the Loan Parties and/or Consultants. The Agent shall work in good faith with the Term Agent to come to an agreement as to such amounts (the “Agreed Amounts”). With respect to all Agreed Amounts, the Agent shall (i) first setoff against any amounts that would otherwise be reimbursable to the Agent by the Term Agent pursuant to Section 12(b)(ii) of the Interim Financing Order, or Final Financing Order, as applicable, and will cause each other (ii) with respect to any remaining amounts, so long as the conditions specified in Sections 4.02(b), (c), (e) and (f) shall have been satisfied, make a Committed Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Borrowers for such Agreed Amounts, which the Borrowers irrevocably direct the Agent to fund into the Term Loan Priority Account; provided, that, in furtherance of the foregoing, the Loan Parties shall, promptly following direction by the Term Agent, deliver the Request for Credit Extension contemplated by this sentence required pursuant to Section 4.02(c); provided, further, that the Loan Parties shall be expressly obligated to (i) assist the Agent and the Term Agent (including, if applicable, by engaging with Consultants and communicating the findings thereof to the Agent and Term Agent) and (ii) provide such written disclosures, calculations and other reports reasonably requested by the Agent and Term Agent that are necessary to determine the Agreed Amounts.
(j) Notwithstanding anything to the contrary herein, during the period between the Closing Date and payment in full of the Total Outstandings (as such term is defined in the Pre-Petition Credit Agreement), all funds on deposit in the Concentration Account shall be applied to the Pre-Petition Obligations.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Pacific Sunwear of California Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the day which is ninety (90) days following the Effective Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), cause all cash management Deposit Accounts that are concentration and treasury business controlled disbursement accounts of the Loan Parties to be maintained with SunTrust Bank or a Permitted Third Party Bankof America pursuant to such documentation as the Agent may reasonably request, including, without limitation, all deposit accounts, disbursement accounts, investment accounts a Blocked Account Agreement satisfactory in form and lockbox accounts (other than (i) accounts established and maintained solely for substance to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits Agent with respect to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit accountDeposit Account (collectively, disbursement account, investment account and lockbox account, a the “Controlled AccountBlocked Accounts”); each Controlled Account provided that, so long as no Cash Control Event has occurred and is continuing, the Borrower shall be a cash collateral accountpermitted to maintain up to $1,000,000 in the aggregate in any disbursement account(s) which are not held by Bank of America (such account(s), with all cash, checks and the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other similar items of payment control agreements shall be required in such account securing payment respect of the ObligationsExcluded Accounts, and provided that the aggregate amount on deposit in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to Excluded Accounts does not exceed the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;amounts set forth above.
(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 $500,000 at any time; and
(c) at any time after After the occurrence and during the continuance of an Event a Cash Control Event, cause the ACH or wire transfer to the collection account maintained by the Agent at Bank of DefaultAmerica (the “Collection Account”), no less frequently than daily, all cash receipts and collections received by each Loan Party from all sources, whether or not constituting Collateral, including, without limitation, the then entire ledger balance of each Blocked Account, Excluded Account or any other Deposit Account of the Loan Parties (in each case, net of any minimum balance, not to exceed $2,500.00 per account, as may be required to be kept in the subject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(c) The Collection Account shall at all times be under the sole dominion and control of the 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) during the continuance of a Cash Control Event, the funds on deposit in the Collection Account shall be applied to the repayment of the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(d) Without limiting the provisions of this Section 6.12, during the continuance of a Cash Control Event, the Borrower shall maintain a minimum cash balance at all times of not less than $5,000,000 in a Blocked Account. Such amounts shall be used solely for such purposes as the Agent may agree in connection with the realization on the Collateral.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: First Lien Credit Agreement (Sequential Brands Group, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain 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 on, 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
(ii) 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) Upon the request of the Administrative Agent, 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, such date be delivered to each depository institution listed on Schedule 5.21(a);
(c) 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(d).
(d) Each Blocked Account Agreement shall require during a Cash Control Period 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 Bank (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on account of any sale 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 $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 all credit card charges.
(e) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which 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 Control Period, 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 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 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 without restrictionone or more deposit accounts (the “Exempt Accounts”) (each 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 accountExempt Accounts. Notwithstanding anything in any Loan Document to the contrary, disbursement accountso long as no Event of Default has occurred and is continuing, investment account and lockbox account, a “Controlled Account”); each Controlled Account no Exempt Accounts shall be subject to a cash collateral account, with all cash, checks Blocked Account Agreement or subject to the dominion and other similar items control of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(bg) 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at Upon the request of the Required LendersAdministrative Agent during a Cash Control Period, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Nicole Crafts LLC)
Cash Management. The Borrowers shall(a) On or prior to the Closing Date, enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent for each of its deposit accounts maintained at each Blocked Account Bank other than Excluded Deposit Accounts (collectively, together with the Concentration Account, the “Blocked Accounts”).
(b) At the request of the Agent, deliver to the Agent 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 and delivered to each depository institution listed on Schedule 5.20.
(c) From and after the Closing Date, the Loan Parties shall cause its Domestic Subsidiaries toACH or wire transfer no less frequently than every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all of the following:
(ai) maintain all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(ii) all proceeds of Accounts; and
(iii) all amounts in each Excluded Deposit Account in excess of $20,000; and
(iv) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(d) Each Blocked Account Agreement shall wire transfer no less frequently than every Business Day (and whether or not there are then any outstanding Obligations) to the concentration account controlled by the Agent at Sterling National Bank (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (c) above; and
(iii) any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or event; provided, however, the Agent may, in 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 Agent, the ACH or wire transfer no less frequently than every Business Day (and maintained solely for whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the purpose Concentration Account.
(e) The Concentration Account shall at all times be under the sole dominion and control of funding payrollthe Agent and all funds therein shall be wired to an account specified by Agent no less frequently than every Business Day. The Agent shall cause all funds received (i) by 2:00 p.m. on any Business Day to be applied to the Obligations on the following Business Day and (ii) after 2:00 p.m. on any Business Day to be applied to the Obligations on the second Business Day following such receipt, payroll taxeswhich amounts shall be applied to the Obligations in the order proscribed in either Section or Section of this Agreement, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which the Obligations. In the event that, notwithstanding the provisions of this Section , 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 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 Agent.
(f) Upon the request of the Agent, the Loan Parties may maintain without restrictionshall 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.
(g) (each such deposit accountIf the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(b) above, disbursement accountthen the Loan Parties shall, 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 upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence and during Closing Date, deliver to the continuance Agent copies of an Event of DefaultDDA Notifications, at the request which have been executed on behalf of the Required Lenders, the Borrowers will, and will cause each other applicable Loan Party to, cause all payments constituting proceeds of accounts or other Collateral and delivered to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenteach depository institution listed on Schedule 5.20.
Appears in 1 contract
Cash Management. The Borrowers (a) On or prior to the First Amendment Effective Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative AgentAgent a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank executed and delivered by the applicable Loan Party and such Blocked Account Bank (collectively, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an a Trigger Event of Default, at and notice from the request of Administrative Agent or the Required Lenders, the Borrowers willACH 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 Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed in the aggregate for all DDAs the amount equal to the Target Amount); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be directed kept in the subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in each Domestic Concentration Account shall at all times be collateral security for the Obligations, (iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and Foreign Liabilities and (iv) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Trigger Event exists, such proceeds and collections shall be held in trust by such Loan Party for the 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 lockbox the Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agents. Notwithstanding the foregoing, to the extent that no Obligations are outstanding any amounts deposited in the Domestic Concentration Account and the Canadian Concentration Account shall be disbursed by the Administrative Agent or Canadian Agent, as applicable to such depository accounts under agreements in form and substance satisfactory to as may be designated by the applicable Borrower.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agents 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain deliver to the Agent 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 reasonably satisfactory in form and substance to the Agent with each Blocked Account Bank; and
(iii) at the request of the Agent, deliver to the Agent 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 and delivered to each depository institution listed on Schedule 5.21(a).
(b) From and after the Closing Date, the Loan Parties shall cause to be sent via ACH or wire transfer no less frequently than daily (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 $7,500, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; andPrepayment Event.
(c) at any time 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 there are then any outstanding Obligations) to the concentration account controlled by the Agent at Xxxxx Fargo Bank, National Association (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 $7,500, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in 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 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 there are then any outstanding Obligations) 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 Agent and after the occurrence and during the continuance of a Cash Dominion Event, all funds therein shall be wired to an Event account specified by Agent no less frequently than daily. The Agent shall cause all funds on deposit in the 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(f) or Section 8.03 of Defaultthis Agreement, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the written 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 and provide the Agent with “view-only” access to each of the Loan Parties bank accounts identified by the Agent.
(f) If the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a) above, then the Loan Parties shall, upon the request of the Required LendersAgent at any time after the Closing Date, deliver to the Borrowers willAgent copies of DDA Notifications, and will cause each other which have been executed on behalf of the applicable Loan Party to, cause all payments constituting proceeds of accounts or other Collateral and delivered to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenteach depository institution listed on Schedule 5.21(a).
Appears in 1 contract
Samples: Credit Agreement (Cache Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Third Restatement Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) 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 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 each DDA (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained) and all accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an Event a Cash Dominion Event, cause the ACH or wire transfer to the concentration account maintained by the Agent at Bank of DefaultAmerica (the “Concentration Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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 $5,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $5,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank).
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Kirkland's, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank No later than sixty (60) days after the Closing Date (or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than such later date as the Administrative Agent shall agree in its sole discretion):
(i) accounts established deliver to the Administrative Agent copies of 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 maintained solely for 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 with each Blocked Account Bank (collectively, the purpose “Blocked Accounts”).
(b) Whether or not a Triggering Event has occurred and is continuing, the Loan Parties shall (i) ACH or wire transfer, with such frequency as is consistent with their respective practices in effect on the Closing Date, (and whether or not there are then any outstanding Obligations) to a Blocked Account all amounts on deposit and available in each such DDA (net of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits any minimum balance as may be required to employees and other fiduciary accounts, be kept in such DDA by the depository institution at which such DDA is maintained) and (ii) any accounts with amounts on deposit that do not exceed $100,000, cause all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, payments due from credit card processors to be forwarded to a “Controlled Blocked 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and.
(c) at any time after After the occurrence and during the continuance of an a Triggering Event (and delivery of Defaultnotice thereof from the Administrative Agent to the Borrower and the applicable Blocked Account Bank), the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once 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 request “Concentration Account”), of all cash receipts, all collections of Accounts and all other proceeds of the Required LendersCollateral, the Borrowers willincluding, without limitation, (i) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenttransaction or event, including, without limitation, any Prepayment Event.
Appears in 1 contract
Samples: Credit Agreement (Foot Locker Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain 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 satisfactory in form and substance to the Agents 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.
(c) Each Blocked Account Agreement shall require 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 “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and 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 accounts with amounts Person or from any source or on deposit that do account of any sale 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 $100,0002,500.00, 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 Collateral Agent, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(e) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 Loan Parties shall cause bank statements and/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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management To the extent not previously delivered prior to the Effective Date, deliver to the Agent copies of notifications in the form of Exhibit H hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and treasury business substance to the 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 the Perfection Certificate with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts respect to which the Loan Parties have established credit card processing arrangements independent of SHC and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsits Subsidiaries, and (ii) any accounts enter into a Blocked Account Agreement with amounts each Blocked Account Bank set forth on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Schedule 6.12.
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Loan Agreement Obligations) to a Blocked Account all amounts on 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 each DDA (net of 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 accounts payments received from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash Credit Card Processors and Permitted Investments from SHC and its Subsidiaries pursuant to the aggregate value of which does not exceed $500,000 at any time; andSeparation Agreements.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, 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 “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Loan Agreement Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds received by a Loan Party from any Person or from any source or on account of any Disposition or other transaction or 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); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $50,000.00, as may be required to be 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 be Collateral and proceeds of 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.
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) 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(e) hereof, and (B) if 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 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 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 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 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 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 DDA, provided such DDA is a Blocked Account.
(g) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain 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) (with evidence of such delivery received by Agent).
(b) Within ninety (90) days after the Closing Date (or such later date as Agent may agree), enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) Whether or not a Cash Dominion Event has occurred and is continuing, the Loan Parties shall (i) ACH or wire transfer, with such frequency as is consistent with their respective business practices in effect on the Closing Date or as otherwise agreed to by the Agent (and whether or not there are then any outstanding Obligations) to a Blocked Account or the Concentration Account, all amounts on deposit and available in each DDA (net of any minimum balance as may be required to be kept in such DDA by the depository institution at which such DDA is maintained provided, that, during a Cash Dominion Event, such minimum balance shall not exceed the greater of $10,000 individually or the minimum balance required by any applicable Blocked Account Bank, but in any event not more than $500,000 in the aggregate), (ii) cause (A) all cash management receipts, all collections of Accounts and treasury business with SunTrust Bank or a Permitted Third Party Bankall other proceeds of the sales of Inventory and other Collateral, including, without limitation, 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 to be deposited into a Blocked Account, and (iii) cause all funds in each Blocked Account and payments due from all Credit Card Issuers and Credit Card Processors to be forwarded with such frequency as is consistent with their respective business practices in effect on the Closing Date (which Borrowers acknowledge is on a daily basis on each Business Day) or as otherwise agreed to by the Agent, to a deposit accountsaccount maintained by Borrowers at Bank of America (the “Sub-Concentration Account”), disbursement accountsand in the case of the Sub-Concentration Account transferred to the deposit account at Xxxxx Fargo established to receive funds from the Sub-Concentration Account ( the “Master Concentration Account”, investment accounts and lockbox accounts together with the Sub-Concentration Account, the “Concentration Accounts”) which is subject to a Blocked Account Agreement.
(d) At any time that a Cash Dominion Event exists, after delivery of a notice thereof from the Agent (at Agent’s option or at the request of the Required Lenders) to the applicable Blocked Account Bank), the Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day all funds in such Master Concentration Account and any other Blocked Account to the Agent Payment Account.
(e) Each Blocked Account Agreement with respect to a DDA (other than the Concentration Accounts) shall require all amounts to be transferred to either the Sub-Concentration Account or the Master Concentration Account (i) accounts established and maintained solely for in the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 case of the Obligations, and in which Sub-Concentration Account to the Borrowers Master Concentration Account) and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (Blocked Account Agreement with respect to Controlled Accounts at SunTrust Bank) or subject to Control a Concentration 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 shall require that upon notice from Agent which does not exceed $500,000 at any time; and
(c) at any time notice shall be delivered only after the occurrence and during the continuance of an 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 Payment Account of Defaultall cash receipts and collections received by each Loan Party from all sources, 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 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 the issuance of any Indebtedness or Equity Interests; (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.
(f) The Concentration Accounts shall at all times be under the sole dominion and control of the Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in the Concentration Accounts shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Concentration Accounts 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Master Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Agent.
(g) Upon the request of the Required LendersAgent, the Borrowers willLoan 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.
(h) So long as no Cash Dominion Event has occurred and will cause each other is continuing, Loan Parties may add or replace a DDA or Blocked Account Bank provided, that, no later than thirty (30) days after the time of the opening of such DDA, the applicable Loan Party toand such applicable Blocked Account Bank shall have executed and delivered to Agent a Blocked Account Agreement (including any acknowledgement and agreement of the Blocked Account Bank or securities intermediary with respect thereto). Notwithstanding the foregoing, cause all payments constituting proceeds Borrowers may not establish a new Concentration Account after the date hereof, without
(i) So long as no Cash Dominion Event has occurred and is continuing, Loan Parties may add or replace Credit Card Processors and Credit Card Issuers and shall upon such addition or replacement provide to Agent no later than fifteen (15) days after the time of accounts or other Collateral to be directed entering into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agentsuch new arrangements, applicable Credit Card Notifications.
Appears in 1 contract
Samples: Credit Agreement (Chico's Fas, Inc.)
Cash Management. The Borrowers (a) On or prior to the Third Amendment Effective Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative AgentAgent a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank executed and delivered by the applicable Loan Party and such Blocked Account Bank (collectively, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an a Trigger Event of Default, at and notice from the request of Administrative Agent or the Required Lenders, the Borrowers willACH 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 Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed in the aggregate for all DDAs the amount equal to the Target Amount); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be directed kept in the subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in each Domestic Concentration Account shall at all times be collateral security for the Obligations, (iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and (iv) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Trigger Event exists, such proceeds and collections shall be held in trust by such Loan Party for the 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 lockbox the Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agents. Notwithstanding the foregoing, to the extent that no Obligations are outstanding any amounts deposited in the Domestic Concentration Account and the Canadian Concentration Account shall be disbursed by the Administrative Agent or Canadian Agent, as applicable to such depository accounts under agreements in form and substance satisfactory to as may be designated by the applicable Borrower.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agents 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain deliver to the Agent 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);
(ii) enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with each Blocked Account Bank; and
(iii) at the request of the Agent, deliver to the Agent 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 and 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 to a Blocked Account no less frequently than daily, whether or not there are then any outstanding Obligations, all of the following:
(i) 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);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(c) Each Blocked Account Agreement shall require the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account controlled by the Agent at Wxxxx Fargo Bank, National Association (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established 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);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in 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 Agent, the ACH or wire transfer no less frequently than daily (and maintained solely whether or not there are then any outstanding Obligations) 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 Agent and all funds therein shall be wired to an account specified by Agent no less frequently than daily for application to the purpose Obligations in accordance with the immediately following sentence. The Agent shall cause all funds received by it from the Concentration Account to be applied to the Obligations, which amounts shall be applied to the Obligations in the order proscribed in either Section 2.05(f) or Section 8.03 of funding payrollthis Agreement, payroll taxes, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which the Obligations. Subject to the immediately following sentence, 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent. So long as no Default or Event of Default shall have occurred and be continuing, there are no outstanding Obligations (other than Obligations with respect to Letters of Credit that have been Cash Collateralized in accordance with Section 2.03(g)) and all Letters of Credit have been Cash Collateralized in accordance with the terms hereof, the Agent shall cause all funds in the Concentration Account to be transferred to an account controlled by the Borrowers.
(e) Upon the request of the Agent, the Loan Parties may maintain without restrictionshall 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) (each such deposit accountIf the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a) above, disbursement accountthen the Loan Parties shall, 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 upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence and during Closing Date, deliver to the continuance Agent copies of an Event of DefaultDDA Notifications, at the request which have been executed on behalf of the Required Lenders, the Borrowers will, and will cause each other applicable Loan Party to, cause all payments constituting proceeds of accounts or other Collateral and delivered to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenteach depository institution listed on Schedule 5.21(a).
Appears in 1 contract
Samples: Credit Agreement (Bluefly Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, together with the Concentration Account, the “Blocked Accounts”); and
(ii) at the reasonable request of the Agent, deliver to the Agent copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and delivered to each depository institution listed on Schedule 5.21.
(b) From and after the Closing Date, the Loan Parties shall cause to be sent via ACH or wire transfer no less frequently than daily (with respect to cash maintained in the United States) or weekly (with respect to cash maintained in Canada) (and, in each case, 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 $2,500.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(ii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iii) all proceeds of Accounts; and
(iv) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(c) Each Blocked Account Agreement shall require the ACH or wire transfer no less frequently than daily (with respect to cash maintained in the United States) or weekly (with respect to cash maintained in Canada) (and whether or not there are then any outstanding Obligations) to the concentration account controlled by the Agent at Xxxxx Fargo Bank, National Association (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established 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);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event;
(iv) provided, however, the Agent may, in 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 Agent, the ACH or wire transfer no less frequently than daily (and maintained solely for whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the purpose Concentration Account.
(d) The Concentration Account shall at all times be under the sole dominion and control of funding payrollthe Agent and all funds therein shall be wired to an account specified by Agent no less frequently than daily. The Agent shall cause all funds on deposit in the Concentration Account to be applied to the Obligations, payroll taxeswhich amounts shall be applied to the Obligations in the order proscribed in either Section 2.04(f) or Section 8.03 of this Agreement, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 a Blocked Account or the Concentration Account or dealt with in such other fashion as such Loan Party may be reasonably instructed by the Agent.
(e) The Loan Parties shall cause screen shots of the bank accounts located in Hong Kong and Mexico of the Loan Parties may maintain without restriction) (each such deposit accountand their Subsidiaries to be delivered to the Agent not less often than weekly, 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 upon the reasonable request of the ObligationsAgent, and in which the Borrowers and each of their Subsidiaries Loan Parties shall have granted a first priority Lien cause bank statements and/or other reports to be delivered to the Administrative AgentAgent 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) If the Agent does not require DDA Notifications to be delivered on behalf the Closing Date in accordance with Section 6.13(a) above, then the Loan Parties shall, upon the request of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence and during Closing Date, deliver to the continuance Agent copies of an Event of DefaultDDA Notifications, at the request which have been executed on behalf of the Required Lenders, the Borrowers will, and will cause each other applicable Loan Party to, cause all payments constituting proceeds of accounts or other Collateral and delivered to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenteach depository institution listed on Schedule 5.21.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management On or prior to the Restatement Effective Date, deliver to the Administrative Agent copies of 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 treasury business with SunTrust Bank delivered to such Loan Party’s Credit Card Processors listed on Schedule 5.21(b).
(b) The Loan Parties shall ACH or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than wire transfer (i) accounts established no less frequently than weekly (and maintained solely whether or not there are then any outstanding Obligations) to a Blocked Account all available amounts on deposit in each DDA used by any Store or other retail location or otherwise for the purpose receipt of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation proceeds of Accounts or other Collateral from customers and other compensation obligors (which shall not include any Excluded DDA, so that funds in an Excluded DDA are not sent to a Blocked Account), (ii) no less frequently than daily (and benefits whether or not there are then any outstanding Obligations) to employees a Blocked Account all payments due from Credit Card Issuers and other fiduciary accounts5048719.15048719.6 137 Credit Card Processors, and (iiiii) no less frequently than daily (and whether or not there are then any accounts with outstanding Obligations) all amounts on deposit in a Blocked Account to the Concentration Account; provided, that, the available amounts from any DDA shall only be required to be transferred if the available amount on deposit in such DDA on such day is greater than $2,500, as may be required to be kept in the subject DDA by the depository bank.
(c) Each Blocked Account Agreement as to a Blocked Account shall require that do the applicable Blocked Account Bank, after notice by Administrative Agent to the applicable Blocked Account Bank, transfer no less frequently than daily to the Agent Payment Account all available amounts on deposit in the Blocked Account subject to such Blocked Account Agreement, including the following: (i) all available cash receipts from the sale of Inventory and other assets (whether or not exceed $100,000constituting 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 any Prepayment Event, provided, that, Administrative Agent shall only send such notice to a Blocked Account Bank with respect to a Blocked Account at any time a Cash Dominion Event shall exist.
(d) The Blocked Account Agreement as to the Concentration Account shall require that the applicable Blocked Account Bank, after notice by Administrative Agent to the applicable Blocked Account Bank, transfer no less frequently than daily to the Agent Payment Account, all of which funds on deposit therein, provided, that, Administrative Agent shall only send such notice to a Blocked Account Bank with respect to a Concentration Account at any time a Cash Dominion Event shall exist.
(e) All funds received in the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Agent Payment Account shall be a cash collateral accountapplied to the Obligations as provided in accordance with this Agreement. In the event that, with all cashnotwithstanding the provisions of this Section 6.13, checks any Loan Party receives or otherwise has dominion and other similar items control of payment any such proceeds or collections, such proceeds and collections shall be held in trust by such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to Loan Party for the Administrative Agent, on behalf shall not be commingled with any of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) such Loan Party’s other funds or subject to Control Account Agreements;
(b) deposit promptly, and deposited in any event no account of such Loan Party and shall, not later than 10 the Business Days Day after the date of receipt thereof, all cashbe deposited into a Blocked Account or the Concentration Account, checksor if there then exists a Cash Dominion Event, drafts or dealt with in such 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other fashion as such Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to may be directed into lockbox accounts under agreements in form and substance satisfactory to instructed by the Administrative Agent.
(f) Upon the written 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.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain PriorTo the extent not delivered prior to the Amendment No. 47 Effective Date, within ninety (90) days after the Amendment No. 7 Effective Date (or such longer period as the Administrative Agent may agree):
(i) [reserved]; and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), in form and substance reasonably satisfactory to the Administrative Agent, with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) All credit card proceeds shall be required to be transferred via ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account. Each Blocked Account Agreement shall require, after notice from the Administrative Agent to a Blocked Account Bank of the occurrence of a Cash Dominion Event (and until the Administrative Agent notifies such Blocked Account Bank that such Cash Dominion Event has terminated), 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 Administrative Agent at Bank of America (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections of the Loan Parties, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) any accounts with amounts on deposit that do not exceed $100,000all proceeds of collections of Accounts;
(iii) the then contents of each DDA;
(iv) the then entire ledger balance of each Blocked Account; and
(v) the net proceeds of all credit card charges.
(c) During the continuance of a Cash Dominion Event, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral account, provide the Administrative Agent with all cash, checks and other similar items of payment in such account securing payment an accounting of the Obligationscontents of the Blocked Accounts and the Concentration Account, and in which shall identify, to the Borrowers and each satisfaction of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf 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 Secured PartiesBlocked Accounts, perfected either automatically and (y) such accounting, the Administrative Agent agrees to promptly remit to the agent under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Term Loan Facility the proceeds of the Term Priority Collateral received by the Administrative Agent.
(bd) 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, (ii) the funds on deposit promptlyin 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 first, applied ratably to the L/C Obligations and the Swing Line Loans, second, applied ratably to the outstanding Revolving Credit Loans, and, third, if an Event of Default shall have occurred and be continuing, used to Cash Collateralize the remaining L/C Obligations and fourth, (to the extent any amount is remaining) used in the operations of the Loan Parties; provided, that after an acceleration of the Obligations such proceeds shall be applied as provided in Section 8.034. 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 - 104 - 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 event no account of such Loan Party and shall, not later than 10 the Business Days Day after the date of receipt thereof, all cash, checks, drafts be deposited into the Concentration Account or dealt with in such other fashion as such Loan Party may be instructed by the Administrative Agent.
(e) The Borrowers shall not be required to enter into Blocked Account Agreements or other similar items of payment relating to or constituting payments made control agreements in respect of any and all accounts and other Collateral into Controlled Accounts, DDA that does not at any time have an average daily balance for any 30 day period in each case except for cash and Permitted Investments excess of $250,000; provided that the aggregate value average daily balance for any 30 day period in all DDAs of which does the Borrowers that are excluded pursuant to this clause (e) shall not exceed $500,000 2,500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Leslie's, Inc.)
Cash Management. The Borrowers shall(a) On or prior to the Closing Date, enter into a Blocked Account Agreement (as defined below) reasonably satisfactory in form and shall cause its Domestic Subsidiaries tosubstance to the Agents with U.S. Bank National Association with respect to the Borrower’s master concentration account at such bank.
(b) Not later than 60 days after the Closing Date:
(i) deliver to the Administrative Agent 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 and 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 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
(iii) except as set forth in clause (a) maintain above, enter into a blocked account agreement (each, a “Blocked Account Agreement”) reasonably satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) Each DDA Notification and 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 amounts on deposit in each such DDA and all payments due from credit card processors.
(d) Each Blocked Account Agreement shall require 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 concentration account maintained by the Administrative Agent at Bank of America (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on deposit that do account of any sale or other transaction or event;
(iv) the then collected contents of each DDA (net of any minimum balance, not to exceed $100,0005,000.00, 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 collected balance of each Blocked Account (net of any minimum balance, not to exceed $10,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank); and
(vi) the net proceeds of all credit card charges.
(e) The Concentration Account shall at all times be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 described above, such proceeds and collections shall be held in trust by such Loan Party for the Agents, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Administrative Agent.
(f) Upon the reasonable request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf the Loan Parties shall establish lockboxes and related lockbox accounts for the collection of Accounts and shall cause bank statements and/or other reports to be delivered to the Secured PartiesAdministrative Agent not less often than monthly, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(b) deposit promptly, and in any event no later than 10 Business Days after the date of receipt thereof, accurately setting forth 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, amounts deposited in each case except for cash and Permitted Investments Blocked Account to ensure the aggregate value proper transfer of which does not exceed $500,000 at any time; and
(c) at any time after funds as set forth above. Notwithstanding the occurrence and during the continuance of an Event of Default, at the request of the Required Lendersforegoing, the Borrowers will, Administrative Agent acknowledges and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into agrees that the Borrower’s lockbox accounts under agreements in form and substance satisfactory arrangements with LaSalle Bank National Association existing on the Closing Date are acceptable to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Nash Finch Co)
Cash Management. The Borrowers shall(a) On or prior to the Closing Date, enter into a Blocked Account Agreement (as defined below) reasonably satisfactory in form and shall cause its Domestic Subsidiaries tosubstance to the Agents with U.S. Bank National Association with respect to the Borrowers’ master concentration account at such bank.
(b) Not later than seventy-five (75) days after the Closing Date:
(i) deliver to the Administrative Agent 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 and 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 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
(iii) except as set forth in clause (a) maintain above, enter into a blocked account agreement (each, a “Blocked Account Agreement”) reasonably satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) Each DDA Notification and 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 amounts on deposit in each such DDA and all payments due from Credit Card Processors.
(d) Each Blocked Account Agreement shall require 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 concentration account maintained by the Administrative Agent at Wxxxx Fargo (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on deposit that do account of any sale or other transaction or event;
(iv) the then collected contents of each DDA (net of any minimum balance, not to exceed $100,0005,000.00, 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 collected balance of each Blocked Account (net of any minimum balance, not to exceed $10,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank); and
(vi) the net proceeds of all credit card charges.
(e) The Concentration Account shall at all times be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied 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 described above, such proceeds and collections shall be held in trust by such Loan Party for the Agents, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Administrative Agent.
(f) Upon the reasonable request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf the Loan Parties shall establish lockboxes and related lockbox accounts for the collection of Accounts and shall cause bank statements and/or other reports to be delivered to the Secured PartiesAdministrative Agent not less often than monthly, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(b) deposit promptly, and in any event no later than 10 Business Days after the date of receipt thereof, accurately setting forth 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, amounts deposited in each case except for cash and Permitted Investments Blocked Account to ensure the aggregate value proper transfer of which does not exceed $500,000 at any time; and
(c) at any time after funds as set forth above. Notwithstanding the occurrence and during the continuance of an Event of Default, at the request of the Required Lendersforegoing, the Borrowers willAdministrative Agent acknowledges and agrees that the Borrowers’ lockbox arrangements with Bank of America, N.A. and will cause each other Loan Party to, cause all payments constituting proceeds Bank of accounts or other Collateral Montreal existing on the Closing Date are acceptable to the Administrative Agent and any lockbox arrangement with any Lender shall be directed into lockbox accounts under agreements in form and substance satisfactory acceptable to the Administrative Agent.
Appears in 1 contract
Samples: Credit Agreement (Nash Finch Co)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank On or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts prior to the Closing Date (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each or 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to later date as the Administrative Agent, in its sole discretion, may agree in writing 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 I which have been executed on behalf of such Loan Party and delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Secured PartiesAdministrative Agent copies of notifications (each, perfected either automatically under a “Credit Card Notification”) substantially in the UCC form attached hereto as Exhibit J 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
(iii) enter into a Blocked Account Agreement satisfactory in form and substance to the Agents with respect to Controlled Accounts at SunTrust Bank) or subject to Control each Blocked Account Agreements;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 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 each such DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an Event a Liquidity 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 Administrative Agent at Bank of DefaultAmerica (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 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 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 applicable Blocked Account Bank); and
(vi) the proceeds of all credit card charges.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 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 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.
(e) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain [Reserved].
(b) Within 90 days after the Original Closing Date (or such longer period as the Collateral Agent may agree in writing), enter into a Blocked Account Agreement satisfactory in form and substance to the Collateral Agent with each Blocked Account Bank with respect to each DDA maintained with such Blocked Account Bank (collectively, the “Blocked Accounts”).
(c) During a Cash Dominion Trigger Period, cause the ACH or wire transfer to the concentration account maintained by the Collateral Agent at Xxxxx Fargo or any other bank that the Collateral Agent may reasonably agree (the “Concentration Account”), no less frequently than daily or, in the case of clauses (iv) and (v) below, the ACTIVE 61134624v18 129 morning of the Business Day following the Business Day on which the balance in any DDA referred to therein exceeds $50,000 (and whether or not there are then any outstanding ABL Obligations), all cash management receipts and treasury business with SunTrust Bank or a Permitted Third collections received by each Loan Party Bankfrom all sources, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payrollInventory (including without limitation, payroll taxes, withholding taxes, xxxxxxx’x compensation proceeds of credit card charges) and other compensation and benefits to employees and other fiduciary accounts, and assets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all net cash proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on deposit that do account of any Disposition or other transaction or event; and
(iv) the then contents and entire ledger balance of each DDA (net of any minimum balance, not to exceed $100,00050,000, as the Borrower may be required to be kept in the subject DDA by the depository institution or securities intermediate at which such DDA is maintained).
(d) The Concentration Account shall at all times during a Cash Dominion Trigger Period be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties may maintain have no right of withdrawal from the Concentration Account, without restrictionthe consent of the Collateral Agent, (ii) the funds on deposit in the Concentration Account shall at all times be collateral security for all of the ABL Obligations, (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral account, with all cash, checks applied to the ABL Obligations as provided in this Agreement and other similar items of (iv) any funds remaining on deposit in the Concentration Account after payment in such account securing payment full of the Obligations, ABL Obligations that are then due and in which the Borrowers and each of their Subsidiaries payable shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC be promptly (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(b) deposit promptly, and in any event no not later than 10 the next Business Days Day after the date receipt thereof) remitted to the Loan Parties to be used for any purpose not inconsistent with this Agreement. In the event that, notwithstanding the provisions of this Section 6.18, 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, 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 following the receipt thereof, all cash, checks, drafts be deposited into the Concentration Account or dealt with in such other similar items of payment relating to or constituting payments made in respect of any and all accounts and other fashion as such Loan Party may be instructed by the Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andAgent.
(ce) at any time after the occurrence and during the continuance of an Event of Default, at Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toCollateral Agent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentCollateral 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
Samples: Abl Credit Agreement (GMS Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) The Loan Parties shall, at all times, maintain all cash management arrangements and treasury business with SunTrust Bank procedures reasonably satisfactory to Agent; provided that no later than 60 days after the Closing Date (or a such longer period as the Agent may agree in its Permitted Third Party BankDiscretion), including, without limitation, all deposit the Borrower and the other Loan Parties will maintain their primary concentration and collection accounts, their primary disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary operating accounts, and (ii) any accounts their primary treasury management services with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) Agent or subject to Control Account Agreements;its affiliates.
(b) deposit promptlyEach of the Loan Parties shall:
(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 H which have been executed on behalf of such Loan Party and in any event no later than 10 Business Days after the date delivered to each 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 such Loan Party’s Credit Card Processors which does not exceed $500,000 at any timeCredit 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 are maintained (each, a “Blocked Account Bank”) covering such Blocked 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);
(iv) all other proceeds of Collateral; and
(v) 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 all DDAs (other than any Excluded DDA or Retail DDA) at any time after time).
(d) The Loan Parties shall promptly (and, 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 deposit in each of the Retail DDAs to the extent that those amounts exceed: (i) $75,000 on deposit in any individual Retail DDA, or (ii) $4,000,000 on deposit in all Retail DDAs in the aggregate.
(e) Upon the occurrence and during the continuance of an a Cash Dominion Event and receipt of Defaultnotice 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 a concentration account maintained by the Agent at Bank of America (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); and
(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 subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which 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 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 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 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 depository accounts as may be designated by the Borrower.
(g) Upon the reasonable request of the Required LendersAgent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the day which is ninety (90) days following the Closing Date (or such longer period as may be agreed to by the Agent in its reasonable discretion), cause all cash management Deposit Accounts that are concentration and treasury business controlled disbursement accounts of the Loan Parties to be maintained with SunTrust Bank or a Permitted Third Party Bankof America pursuant to such documentation as the Agent may reasonably request, including, without limitation, all deposit accountsa Blocked Account Agreement satisfactory in form and substance to the Agent with respect to each such Deposit Account (collectively, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely the “Blocked Accounts”); provided that the Borrower shall be permitted to maintain for the purpose nine (9) month period immediately following the Closing Date, up to $1,500,000 in the aggregate in any disbursement account(s) which are not held by Bank of funding payrollAmerica (such account(s), payroll taxesthe “Excluded Accounts”); it being understood that (x) no later than December 26, withholding taxes2013, xxxxxxx’x compensation and a Blocked Account Control agreement shall be required in respect to the Excluded Accounts (including, for the avoidance of doubt, those Deposit Accounts described in clause (z) of this proviso), (y) prior to December 26, 2013, no Blocked Account Control Agreement or other compensation and benefits to employees and other fiduciary accountscontrol agreement shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts at any time does not exceed $1,500,000, and (iiz) any accounts with amounts on deposit that do and after December 26, 2013 the amount in all Deposit Accounts located outside of the United States shall not exceed $100,000, all of which 500,000 in the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;aggregate.
(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 $500,000 at any time; and
(c) at any time after After the occurrence and during the continuance of an Event of Default, cause the ACH or wire transfer to the collection account maintained by the First Lien Agent at Bank of America (the “Collection Account”), no less frequently than daily, all cash receipts and collections received by each Loan Party from all sources, whether or not constituting Collateral, including, without limitation, the then entire ledger balance of each Blocked Account or any other Deposit Account of the Loan Parties (in each case, net of any minimum balance, not to exceed $2,500.00 per account, as may be required to be kept in the subject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(c) The Collection Account shall at all times be under the sole dominion and control of the First Lien 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) during the continuance of an Event of Default, the funds on deposit in the Collection Account shall be applied to the repayment of the Obligations as provided in this Agreement subject to the First Lien Intercreditor 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(d) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Second Lien Term Loan Agreement (Sequential Brands Group, Inc.)
Cash Management. The Borrowers Each Loan Party shall, and each Loan Party shall cause its Domestic Subsidiaries to:
(a) commencing with the date that is sixty (60) days after the Closing Date (or such later date as the Administrative Agent agrees in its sole discretion), and at all times thereafter, maintain all cash management and treasury business with SunTrust Truist Bank or a Permitted Third Party Bank, including, without limitation, including all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) zero-balance accounts established and maintained solely for the purpose of funding managing local disbursements, payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, accounts and (ii) any accounts account that has a balance (or which holds assets with amounts on deposit that do not exceed a fair market value) less than $50,000, in any individual instance, and $100,000, when taken together with the account balances (or aggregate amount of the fair market value of assets) of all of which the Loan Parties may maintain without restrictionother accounts that are not maintained with Truist Bank) (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 Borrowers Loan Parties and each of their the Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Truist Bank) or subject to Control Account Agreements);
(b) deposit promptly, and in any event no later than 10 ten (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 $500,000 100,000 at any time;
(i) promptly, and in any event no later than five (5) Business Days after the Closing Date, execute and deliver one or more restricted account control agreements (or such other agreements with respect to restricted accounts or products in the Administrative Agent’s sole discretion) with respect to the Restricted Accounts and (ii) maintain at least $11,700,000 in the aggregate in the Restricted Accounts at all times until the prepayment required by Section 3.5(e) is made; provided that such aggregate amount required to be maintained in the Restricted Accounts under this Section 7.11(c) shall be reduced by (A) $350,000 in the event the Beckley Hyundai Acquisition is consummated on or prior to the date that is 45 days after the Closing Date (or if such day is not a Business Day, the next succeeding Business Day), (B) $500,000 in the event the Xxxxxxx Subaru Acquisition is consummated on or prior to the date that is 45 days after the Closing Date (or if such day is not a Business Day, the next succeeding Business Day) and (C) $850,000 in the event the Xxxxxxx Dealership Acquisition and the Xxxxxxx Real Property Acquisition are consummated on or prior to the date that is 45 days after the Closing Date (or if such day is not a Business Day, the next succeeding Business Day); and, to the extent that the funds in the Restricted Accounts exceed the amount required to be maintained in the Restricted Accounts under this Section 7.11(c) after giving effect to any reduction pursuant to the preceding clauses (A) – (C), the Administrative Agent shall cause such excess funds to be returned to the Borrowers promptly after any such reduction; and
(cd) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers Loan Parties will, and will cause each of the other Loan Party Parties to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or before the date that is 120 days following the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established deliver to the Agent copies of notifications (each, a “Credit Card Notification”) reasonably satisfactory in form and maintained solely for substance to the purpose Agent, which have been executed on behalf of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation such Loan Party and other compensation delivered to such Loan Party’s credit card clearinghouses and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into an Account Control Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled Account shall be a cash collateral accountBank (collectively, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to “Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Accounts”).
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Controlled Account all amounts on 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, cause the ACH or wire transfer to the collection account maintained by the Agent at Citizens Bank (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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;
(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); and
(v) the then entire ledger balance of each Controlled Account (net of any minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Controlled Account by the Controlled Account Bank).
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) during the continuance of a Cash Dominion Event, the funds on deposit in the Collection Account shall be applied to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent not less often than monthly, accurately setting forth all amounts deposited in each Controlled Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management Each Loan Party shall, within (x) ninety (90) days in respect of any Concentration Account, and treasury business with SunTrust Bank (y) one hundred twenty (120) days in respect of any other account, in each case, after the Closing Date (or a Permitted Third Party Banksuch longer period as the Administrative Agent may agree in its reasonable discretion (such consent not to be unreasonably withheld, includingdelayed or conditioned)), without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and in the case of any US Loan Party, require that all cash payments in respect of Accounts owed to such US Loan Party be remitted to a lockbox maintained solely for by any US Loan Party (the purpose “US Lockbox”) or a Material Account of funding payrollany US Loan Party, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) in the case of any accounts Canadian Loan Party, require that all cash payments of Accounts owed to any Canadian Loan Party be remitted to a lockbox maintained by any Canadian Loan Party (the “Canadian Lockbox” and, together with the US Lockbox, the “Lockboxes”) or a Material Account of any Canadian Loan Party, (iii) except as provided in Section 5.15(b), instruct the financial institution that maintains any US Lockbox to cause all amounts on deposit that do not exceed $100,000and available at the close of each Business Day in such Lockbox (net of any Required Minimum Balance), all of which the to be swept to one or more concentration deposit accounts maintained by any US Loan Parties may maintain without restriction) Party (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled US Concentration Account”) not less frequently than on a daily basis, (iv) except as provided in Section 5.15(b); , instruct the financial institution that maintains such Canadian Lockbox to cause all amounts on deposit and available at the close of each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment Business Day in such Lockbox (net of any Required Minimum Balance), to be swept to one or more concentration deposit accounts maintained by any Canadian Loan Party (each, a “Canadian Concentration Account” and, together with the US Concentration Account, the “Concentration Accounts”) not less frequently than on a daily basis; (v) enter into a blocked account securing payment of the Obligationsagreement (each, and a “Blocked Account Agreement”), in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien 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, Lockbox or Material Account (collectively, the “Blocked Accounts”) establishing the Administrative Agent’s contol over and valid and perfected Lien on behalf of the Secured Parties, perfected either automatically under the UCC such account and (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(bvi) deposit promptly, (or cause to be deposited) promptly (and in any event no later than 10 the first Business Days Day after receipt thereof) all collections on Accounts (including those sent directly by an Account Debtor) into a Blocked Account covered by a Blocked Account Agreement. From and after such 90th and the 120th day, respectively, after the date of receipt thereofClosing 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)), each Loan Party shall ensure that this Section 5.15(a) is satisfied at all cash, checks, drafts or other similar items of payment times.
(b) Each Blocked Account Agreement relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled AccountsBlocked Account shall require, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; and
(c) at any time after the occurrence delivery of notice by the Administrative Agent to the Lead Borrower and during the continuance of an Event of Defaultdeposit bank or securities intermediary party to such instrument or agreement (which the Administrative Agent may, at or upon the request of the Required LendersLenders 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 ledger balance of each Concentration Account and each other Blocked Account (net of such minimum balance, not to exceed $500,000 per account or $5,000,000 in the aggregate for all such accounts as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained (the “Required Minimum Balances”)), to an account maintained under the sole dominion and control of the 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 Section 2.18(b) or (c) are applicable, such amounts shall be applied in accordance with such Section 2.18(b) or (c), as applicable. In such event, each Loan Party agrees that it will not otherwise direct the proceeds of any Blocked Account.
(c) Provided that no Cash Dominion Period then exists, the Borrowers willLoan 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 will cause each other Loan Party toan Excluded Asset, cause all payments constituting proceeds such Deposit Account or Securities Account shall be subject to this Section 5.15), to the execution and delivery to the Administrative Agent of accounts a Blocked Account Agreement in respect of such newly opened Deposit Account or other Collateral to be directed into lockbox accounts under agreements in form Securities Account consistent with the provisions of this Section 5.15 and substance otherwise reasonably satisfactory to the Administrative Agent within ninety (90) days of the opening thereof (or such longer period as the Administrative Agent 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 this Section 5.15 and otherwise reasonably satisfactory to the Administrative Agent 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 Specified Transaction, such Loan Party shall be required to enter into a Blocked Account Agreement with respect to such acquired Deposit Account or Securities Account within one hundred twenty (120) days following the date of such Specified 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, (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 Sections 2.11(a)(iii), 2.18(b) or 2.18(c), as applicable, and, to the extent such funds constitute US Collateral, the ABL Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 5.15, 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 5.15(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 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 directly 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 5.15, each relevant Loan Party may direct, and shall have sole control over, the disposition of funds in the Blocked Accounts and Concentration 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 applicable ABL Intercreditor Agreement) be remitted to an account of the applicable Loan Party (or if requested by any Loan Party, to the Lead Borrower on 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 its 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 (acting in good faith) may, within thirty (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 (5) 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 (a) 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 Agent 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 5.15(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 (c) as 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 in accordance with Section 2.18(b) or (c) as applicable) following its receipt of a Trust Fund Certificate.
Appears in 1 contract
Cash Management. The Borrowers (a) On or prior to the Effective Date, the Loan Parties shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien deliver to the Administrative AgentAgent a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank executed and delivered by the applicable Loan Party and such Blocked Account Bank (collectively, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;“Blocked Accounts”).
(b) 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 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 each DDA 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 $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, after the occurrence and during the continuance of an a Trigger Event of Default, at and notice from the request of Administrative Agent or the Required Lenders, the Borrowers willACH 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 Administrative Agent at Bank of America (the “Domestic Concentration Account”) (in the case of any Domestic Loan Party) or maintained by the Canadian Agent at Bank of America-Canada Branch (the “Canadian Concentration Account”) (in the case of any Canadian Loan Party) of all cash receipts and collections, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and will cause each all other cash payments received by a Loan Party to, cause all payments constituting proceeds from any Person or from any source or on account of accounts any sale or other Collateral transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (net of any minimum balance, not to exceed in the aggregate for all DDAs the amount equal to the Target Amount); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500, as may be required to be directed kept in the subject Blocked Account by the Blocked Account Bank). The Loan Parties shall undertake all action which may be necessary to effectuate the foregoing ACH and wire transfers as and when required hereunder.
(d) The Domestic Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent, and the Canadian Concentration Account shall at all times be under the sole dominion and control of the Canadian Agent. The Loan Parties hereby acknowledge and agree that (i) the Loan Parties have no right of withdrawal from the Concentration Accounts, (ii) the funds on deposit in each Domestic Concentration Account shall at all times be collateral security for the Obligations, (iii) the funds on deposit in each Canadian Concentration Account shall at all times be collateral security for all of the Canadian Liabilities and Foreign Liabilities and (iv) the funds on deposit in the Concentration Accounts shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 6.12, any Loan Party receives or otherwise has dominion and control of any such proceeds or collections while a Trigger Event exists, such proceeds and collections shall be held in trust by such Loan Party for the 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 lockbox the Domestic Concentration Account or the Canadian Concentration Account, as applicable, or dealt with in such other fashion as such Loan Party may be instructed by the Agents. Notwithstanding the foregoing, to the extent that no Obligations are outstanding any amounts deposited in the Domestic Concentration Account and the Canadian Concentration Account shall be disbursed by the Administrative Agent or Canadian Agent, as applicable to such depository accounts under agreements in form and substance satisfactory to as may be designated by the applicable Borrower.
(e) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agents 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Effective Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) enter into a blocked account agreement (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountBlocked Account Agreement”) satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptly, Each Credit Card Notification shall require the ACH or wire transfer no less frequently than daily (and in whether or not there are then any event no later than 10 Business Days after the date outstanding Obligations) to a Blocked Account 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 $500,000 at any time; anddue from credit card processors.
(c) at any time Each Blocked Account Agreement shall require, and the Loan Parties shall cause, after the occurrence and during the continuance of an Event 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 Bank of DefaultAmerica (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 from any Person or from any source or on account of any sale or other transaction or 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral 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 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 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 Concentration 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 Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Cost Plus Inc/Ca/)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established On the Closing Date (as such time period may be extended by the Agent in its sole discretion), deliver to the Agent copies of notifications in the form of Exhibit G hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and maintained solely for substance to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Agent which have been executed by the applicable Loan Parties and other compensation delivered to such Loan Party’s Credit Card Issuers and benefits to employees and other fiduciary accountsCredit Card Processors listed in the Perfection Certificate, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (than with respect to Controlled Accounts at SunTrust BankBank of Montreal (which shall be delivered on the Closing Date), on or prior to the date that is sixty (60) or subject to Control days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), enter into a Blocked Account Agreements;Agreement with each Blocked Account Bank set forth on Schedule 6.12.
(b) deposit promptlyCause the 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 such Inlet Accounts at any time outstanding), and as to additional DDAs that are not Blocked Accounts, weekly (provided that the Loan Parties shall not maintain an amount greater than $50,000 in the aggregate at any event no later than 10 Business Days after the date of receipt thereoftime in such additional DDAs that are not Blocked Accounts) (and in each case, whether or not there are then any outstanding Obligations) to a Blocked Account all cash, checks, drafts or other similar items of payment relating to or constituting payments made amounts on deposit in respect each DDA net of 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 accounts payments received from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash Credit Card Processors and Permitted Investments from SHC and its Subsidiaries pursuant to the aggregate value of which does not exceed $500,000 at any time; andSeparation Agreements.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, subject to the Intercreditor Agreement with respect to Term Loan Priority Accounts (as defined therein), upon the request from the Agent, cause the ACH or wire transfer to the collection account maintained by the Agent at Wells Xxxxx or with another financial institution acceptable to the Agent in its sole discretion (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding 9656966v810314033v12 Obligations), all cash receipts and collections from all sources, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all net proceeds received by a Loan Party from any Person or from any source or on account of any Disposition of ABL Priority Collateral;
(iv) the then contents of each DDA (other than, so long as the Term Facility is in effect, Term Loan Priority Accounts) (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
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $50,000.00, as may be required to be 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 be Collateral and proceeds of 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.
(d) Each Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations, and (iii) during the continuance of a Cash Dominion Event, (A) unless the Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in the Collection Account shall be applied to the Obligations as provided in Section 2.05(e) hereof, and (B) if the 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 dominion and control of any such 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 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 Agent.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor (or no later than such later date as may be agreed to by the Agent), the Loan Parties shall deliver to the Agent a Credit Card Notification as set forth in Section 6.12(a) hereof with respect to such agreement.
(f) The Agent agrees that (1) it shall (i) 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 (ii) upon the termination of a Cash Dominion Event, if the 9656966v810314033v12 Agent has previously delivered a notice to such person to modify the transfer of funds, direct the applicable Credit Card Issuer or Credit Card Processor to transfer any proceeds to the DDA immediately prior to the Cash Dominion Event (or such other DDA as the Lead Borrower directs) and (2) if any Loan Party shall so request, unless a Cash Dominion Event has occurred and is continuing, the 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 DDA, provided such DDA is a Blocked Account.
(g) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Lands' End, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for deliver to the purpose Administrative Agent copies of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and notifications (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled AccountDDA Notification”); each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment ) substantially in such account securing payment of the Obligations, and in form attached hereto as Exhibit H which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, been executed on behalf of the Secured PartiesBorrower and delivered to each depository institution listed on Schedule 5.21(a);
(ii) deliver to the Administrative Agent copies of notifications (each, perfected either automatically under a “Credit Card Notification”) substantially in the UCC form attached hereto as Exhibit I which have been executed on behalf of the Borrower and delivered to the Borrower’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(iii) enter into a blocked account agreement (each, a “Blocked Account Agreement”) satisfactory in form and substance to the Agents with respect to Controlled Accounts at SunTrust Bank) or subject to Control each Blocked Account Agreements;Bank (collectively, the “Blocked Accounts”).
(b) Each DDA Notification and 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 amounts on 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 each such 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 accounts and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andpayments due from credit card processors.
(c) at any time Each Blocked Account Agreement shall require after the occurrence and during the continuance of an 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 Wxxxx Fargo (the “Concentration Account”), of Defaultall 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 the Borrower from any Person or from any source or on account of any sale or other transaction or 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.
(d) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Borrower hereby acknowledges and agrees that (i) the Borrower has 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. In the event that, notwithstanding the provisions of this Section 6.13, the Borrower receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by the Borrower for the Administrative Agent, shall not be commingled with any of the Borrower’s other funds or deposited in any account of the Borrower 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 the Borrower may be instructed by the Administrative Agent.
(e) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Borrower shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) Unless previously delivered in connection with the Existing Credit Agreement:
(ai) maintain Promptly, upon the request of the Administrative Agent, 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 delivered to each depository institution listed on Schedule 5.21(a);
(ii) On 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 clearinghouses and processors listed on Schedule 5.21(b); and
(iii) On or prior to the Closing Date, enter into a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(i) Each Credit Card Notification and DDA 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 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 in excess of the minimum balance permitted in accordance with Section 6.13(c).
(c) Each Blocked Account Agreement shall require 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 Bank (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than the following:
(i) accounts established and maintained solely for all available cash receipts from the purpose sale of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Inventory and other compensation and benefits to employees and other fiduciary accounts, and assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds, and all other cash payments received by a Loan Party from any accounts with amounts Person or from any source or on deposit that do account of any sale 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 $100,0002,500.00, 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.
(d) [Intentionally Omitted].
(e) The Concentration Account shall at all times be under the sole dominion and control of which the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) without limiting the provisions of Section 2.05(e), the Loan Parties may maintain without restrictionhave 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 (each such iii) the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied as provided in Section 2.05(f). 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 Collateral Agent, shall not be commingled with all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(f) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 Loan Parties shall cause bank statements and/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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(ai) maintain at the request of the Agent, deliver to the Agent 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 the applicable Credit Card Issuer or Credit Card Processor, if applicable, and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b);
(ii) at the request of the Agent, enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, together with the Concentration Account, the “Blocked Accounts”); and
(iii) at the request of the Agent, deliver to the Agent 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 and delivered to each depository institution listed on Schedule 5.21(a) other than with respect to: (1) any Excluded Accounts, and (2) such other accounts as reflected on Schedule 5.21(a).
(b) From and after the Closing Date, the Loan Parties shall cause to be sent via ACH or wire transfer no less frequently than daily (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 other than with respect to any Excluded Accounts (net of any minimum balance, not to exceed $2,500.00 or such higher amount as set forth on Schedule 5.21(a), as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, any Prepayment Event.
(c) Each Blocked Account Agreement shall require the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the concentration account controlled by the Agent at a depository bank reasonably acceptable to Agent (the “Concentration Account”), of all deposit accountscash receipts and collections received by each Loan Party from all sources (the “Receipts and Collections”), disbursement accountsincluding, investment accounts and lockbox accounts (other than without limitation, the following:
(i) accounts established then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $2,500.00 or such higher amount as set forth on Schedule 5.21(a), as may be required to be kept in the subject Blocked Account by the Blocked Account Bank);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in 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 Agent, the ACH or wire transfer no less frequently than daily (and maintained solely for whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the purpose Concentration Account.
(d) The Concentration Account shall at all times be under the sole dominion and control of funding payrollthe Agent and all funds therein shall be wired to an account specified by Agent no less frequently than daily. The Agent shall cause all funds on deposit in the Concentration Account to be applied to the Obligations, payroll taxeswhich amounts shall be applied to the Obligations in the order proscribed in either Section 2.05(e) or Section 8.03 of this Agreement, withholding taxes, xxxxxxx’x compensation as applicable. The Loan Parties hereby acknowledge and other compensation and benefits to employees and other fiduciary accountsagree that (i) the Loan Parties have no right of withdrawal from the Concentration Account, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Agent, the Loan Parties may maintain without restrictionshall 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) (each such deposit accountIf the Agent does not require Credit Card Notifications, disbursement accountBlocked Account Agreements or DDA Notifications to be delivered on or prior to the Closing Date in accordance with Section 6.13(a) above, investment account and lockbox accountthen the Loan Parties shall, 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 upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) Agent at any time after the occurrence and Closing Date, deliver to the Agent copies of such Credit Card Notifications, Blocked Account Agreements or DDA Notifications, as the case may be, in each case satisfying the requirements of Section 6.13(a).
(g) [Reserved]
(h) [Reserved]
(i) Subject to Section 8.03, during the continuance of an Event of Defaultperiod between the Closing Date and the Final Order Entry Date, at all funds on deposit in the request Concentration Account shall be applied to the Pre-Petition Obligations (in the order set forth in Section 8.03 of the Required Lenders, Pre-Petition Credit Agreement) until the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements Pre- Petition Obligations are paid in form and substance satisfactory to the Administrative Agentfull.
Appears in 1 contract
Samples: Debt Agreement
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(i) Unless previously delivered in connection with the Existing Credit Agreement:
(aA) maintain Promptly, upon the request of the Administrative Agent, 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 delivered to each depository institution listed on Schedule 5.21(a);
(B) On 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 clearinghouses and processors listed on Schedule 5.21(b); and
(C) On or prior to the Closing Date, enter into a Blocked Account Agreement satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(ii) (i) Each Credit Card Notification and DDA 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 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 in excess of the minimum balance permitted in accordance with Section VI.M(c).
(iii) Each Blocked Account Agreement shall require 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 Bank (the “Concentration Account”), of all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections, including, without limitation, the following:
(A) all deposit accounts, disbursement accounts, investment accounts available cash receipts from the sale of Inventory and lockbox accounts other assets (other than Term Loan Priority Collateral);
(B) all proceeds of collections of Accounts;
(C) 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 (other than any proceeds of Term Loan Priority Collateral, which shall be directed to the Term Loan Priority Account subject to a Blocked Account Agreement satisfactory to the Agents);
(D) 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);
(E) 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
(F) the proceeds of all credit card charges.
(iv) Upon receipt of any proceeds of Term Loan Priority Collateral, the Loan Parties shall deposit such proceeds in the Term Loan Priority Account to the extent required pursuant to the Term Loan Agreement.
(v) The Concentration Account shall at all times be under the sole dominion and control of the Collateral Agent. The Loan Parties hereby acknowledge and agree that (i) accounts established and maintained solely for without limiting the purpose provisions of funding payrollSection II.E(v), payroll taxesthe Loan Parties have no right of withdrawal from the Concentration Account, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts the funds on deposit that do not exceed $100,000, in the Concentration Account shall at all times be collateral security for all of which the Loan Parties may maintain without restrictionObligations and (iii) (each such the funds on deposit account, disbursement account, investment account and lockbox account, a “Controlled Account”); each Controlled in the Concentration Account shall be a cash collateral accountapplied as provided in Section II.E(vi). In the event that, notwithstanding the provisions of this Section VI.M, 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 all cashany of such Loan Party’s other funds or deposited in any account of such Loan Party and shall, checks and other similar items of payment not later than the Business Day after receipt thereof, be deposited into the Concentration Account or dealt with in such account securing payment other fashion as such Loan Party may be instructed by the Collateral Agent.
(vi) Upon the request of the Obligations, and in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 Loan Parties shall cause bank statements and/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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established On the Closing Date (as such time period may be extended by the Agent in its sole discretion), deliver to the Agent copies of notifications in the form of Exhibit G hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and maintained solely for substance to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation Agent which have been executed by the applicable Loan Parties and other compensation delivered to such Loan Party’s Credit Card Issuers and benefits to employees and other fiduciary accountsCredit Card Processors listed in the Perfection Certificate, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (than with respect to Controlled Accounts at SunTrust BankBank of Montreal (which shall be delivered on the Closing Date), on or prior to the date that is sixty (60) or subject to Control days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), enter into a Blocked Account Agreements;Agreement with each Blocked Account Bank set forth on Schedule 6.12.
(b) deposit promptlyCause the 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 such Inlet Accounts at any time outstanding), and as to additional DDAs that are not Blocked Accounts, weekly (provided that the Loan Parties shall not maintain an amount greater than $50,000 in the aggregate at any event no later than 10 Business Days after the date of receipt thereoftime in such additional DDAs that are not Blocked Accounts) (and in each case, whether or not there are then any outstanding Obligations) to a Blocked Account all cash, checks, drafts or other similar items of payment relating to or constituting payments made amounts on deposit in respect each DDA net of 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 accounts payments received from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, subject to the Intercreditor Agreement with respect to Term Loan Priority Accounts (as defined therein), upon the request from the Agent, cause the ACH or wire transfer to the collection account maintained by the Agent at Wxxxx Fargo or with another financial institution acceptable to the Agent in its sole discretion (the “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections from all sources, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all net proceeds received by a Loan Party from any Person or from any source or on account of any Disposition of ABL Priority Collateral;
(iv) the then contents of each DDA (other than, so long as the Term Facility is in effect, Term Loan Priority Accounts) (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
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $50,000.00, as may be required to be 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 be Collateral and proceeds of 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.
(d) Each Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations, and (iii) during the continuance of a Cash Dominion Event, (A) unless the Obligations have been accelerated pursuant to Section 8.02 hereof, the funds on deposit in the Collection Account shall be applied to the Obligations as provided in Section 2.05(e) hereof, and (B) if the 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 dominion and control of any such 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 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 Agent.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor (or no later than such later date as may be agreed to by the Agent), the Loan Parties shall deliver to the Agent a Credit Card Notification as set forth in Section 6.12(a) hereof with respect to such agreement.
(f) The Agent agrees that (1) it shall (i) 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 (ii) upon the termination of a Cash Dominion Event, if the Agent has previously delivered a notice to such person to modify the transfer of funds, direct the applicable Credit Card Issuer or Credit Card Processor to transfer any proceeds to the DDA immediately prior to the Cash Dominion Event (or such other DDA as the Lead Borrower directs) and (2) if any Loan Party shall so request, unless a Cash Dominion Event has occurred and is continuing, the 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 DDA, provided such DDA is a Blocked Account.
(g) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Lands' End, Inc.)
Cash Management. The Borrowers shall(a) As soon as possible, and shall cause its Domestic Subsidiaries toin any event within sixty (60) days of the Closing Date:
(ai) maintain 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 the applicable Credit Card Issuer or Credit Card Processor 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 Agent with each Blocked Account Bank (individually, each a “Blocked Account”, and collectively, the “Blocked Accounts”); and
(iii) at the request of the Agent, deliver to the 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 delivered to each depository institution listed on Schedule 5.21(a) (except for notifications regarding Excluded Deposit Accounts).
(b) From and after the Closing Date, 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 of the following:
(i) all amounts on deposit in each DDA, other than Excluded Deposit Accounts, (net of any minimum balance, not to exceed $50,000, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash management receipts from the Disposition of Inventory and treasury business with SunTrust Bank other assets (whether or not constituting Collateral);
(iv) all proceeds of Accounts; and
(v) all Net Proceeds, and all other cash payments received by a Permitted Third Loan Party Bankfrom any Person or from any source or on account of any Disposition or other transaction or event, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; andPrepayment Event.
(c) at any time Each Blocked Account Agreement shall require upon notice from Agent which notice shall be delivered only after the occurrence and during the continuance of an a Cash Dominion Event (it being understood that the relevant Loan Party shall have unrestricted access to each Blocked Account except after the occurrence and during the continuance of Defaulta 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 Agent at Xxxxx Fargo (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 $50,000, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (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 event; provided, however, the Agent may, in 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 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 there are then any outstanding Obligations) 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 Agent. After the occurrence of a Cash Dominion Event which is continuing, the Agent shall cause all funds on deposit in the Concentration Account to be applied to the Obligations, which amounts shall be applied to the Obligations in the order proscribed in either Section 2.05(f) 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 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required LendersAgent, the Borrowers willLoan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, and will cause accurately setting forth all amounts deposited in each other Blocked Account to ensure the proper transfer of funds as set forth above.
(f) If the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.13(a) above, then the Loan Parties shall, upon the request of the Agent at any time after the Closing Date, deliver to the Agent copies of DDA Notifications, which have been executed on behalf of the applicable Loan Party to, cause all payments constituting proceeds of accounts or other Collateral and delivered to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agenteach depository institution listed on Schedule 5.21(a).
Appears in 1 contract
Samples: Credit Agreement (Petsmart Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank On or a Permitted Third Party Bankprior to the date which is sixty (60) days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts deliver to the Agent copies of notifications in the form of Exhibit H hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and substance to the 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 the Perfection Certificate with respect to which the Loan Parties have established credit card processing arrangements independent of SHC and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsits Subsidiaries, and (ii) any accounts enter into a Blocked Account Agreement with amounts each Blocked Account Bank set forth on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;Schedule 6.12.
(b) ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Loan Agreement Obligations) to a Blocked Account all amounts on 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 each DDA (net of 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 accounts payments received from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash Credit Card Processors and Permitted Investments from SHC and its Subsidiaries pursuant to the aggregate value of which does not exceed $500,000 at any time; andSeparation Agreements.
(c) at any time after After the occurrence and during the continuance of an a Cash Dominion Event, 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 “Collection Account”), no less frequently than daily (and whether or not there are then any outstanding Loan Agreement Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(ii) all proceeds of collections of Accounts;
(iii) all Net Proceeds received by a Loan Party from any Person or from any source or on account of any Disposition or other transaction or 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); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $50,000.00, as may be required to be 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 be Collateral and proceeds of 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.
(d) The Collection Account shall at all times during the continuance of a Cash Dominion Event be under the sole dominion and control of Defaultthe 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 Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) 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(e) hereof, and (B) if 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 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 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 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 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 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 DDA, provided such DDA is a Blocked Account.
(g) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Sears Hometown & Outlet Stores, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Third Restatement Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) 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 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an Event a Cash Dominion Event, cause the ACH or wire transfer to the concentration account maintained by the Agent at Bank of DefaultAmerica (the “Concentration Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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); and
(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).
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Kirkland's, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Effective Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) 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 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 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 accounts and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andpayments due from credit card processors.
(c) at any time after After the occurrence and during the continuance of an Event a Cash Dominion Event, cause the ACH or wire transfer to the concentration account maintained by the Agent at Bank of DefaultAmerica (the “Concentration Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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); and
(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).
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Kirkland's, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Closing Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s Credit Card Issuers and other compensation and benefits to employees and other fiduciary accounts, and Credit Card Processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement reasonably satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) deposit promptlyAt the request of the Agent, and in any event no later than 10 Business Days after the date Loan Parties shall deliver to the Agent copies of receipt thereofnotifications (each, 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 Accountsa “DDA Notification”), in form and substance reasonably satisfactory to the Agent, which have been executed on behalf of such Loan Party and delivered to each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; anddepository institution listed on Schedule 5.21(a).
(c) at The Loan Parties shall ACH or wire transfer no less frequently than daily (and whether or not there are then any time outstanding Obligations) to a Blocked Account all amounts on deposit in each DDA 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 an Event 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 Agent at Xxxxx Fargo (the “Concentration Account”), of Defaultall cash receipts and collections received by each Loan Party from all sources, 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 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;
(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.
(e) The Concentration Account shall at all times be under the sole dominion and control of the 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 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(f) Upon the reasonable request of the Required LendersAgent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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) Maintain substantially all Cash Management Services, deposit accounts (including all Blocked Accounts and the Concentration Account) and securities and investment accounts of the Borrowers with Agent or any of its Affiliates (including, without limitation, Xxxxx Fargo Merchant Services), it being understood and agreed that the Loan Parties shall maintain through the term of this Agreement the Cash Management Services, deposit accounts and securities and investment accounts held by the Agent or any of its Affiliates as of the Closing Date.
Appears in 1 contract
Samples: Credit Agreement (Tilly's, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Second Restatement Date:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established 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 maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation delivered to such Loan Party’s credit card clearinghouses and other compensation and benefits to employees and other fiduciary accounts, and processors listed on Schedule 5.21(b); and
(ii) any accounts enter into a Blocked Account Agreement satisfactory in form and substance to the Agent with amounts on deposit that do not exceed $100,000each Blocked Account Bank (collectively, all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountBlocked Accounts”); 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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;.
(b) 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 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 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 accounts payments due from all Credit Card Issuers and other Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; andCredit Card Processors.
(c) at any time after After the occurrence and during the continuance of an Event a Cash Dominion Event, cause the ACH or wire transfer to the concentration account maintained by the Agent at Bank of DefaultAmerica (the “Concentration Account”), no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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); and
(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).
(d) The Concentration Account shall at all times be under the sole dominion and control of the 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 to the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(e) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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
Samples: Credit Agreement (Kirkland's, Inc)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management Each Loan Party shall, within (x) ninety (90) days in respect of any Concentration Account, and treasury business with SunTrust Bank (y) one hundred twenty (120) days in respect of any other account, in each case, after the Closing Date (or a Permitted Third Party Banksuch longer period as the Administrative Agent may agree in its reasonable discretion (such consent not to be unreasonably withheld, includingdelayed or conditioned)), without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and in the case of any US Loan Party, require that all cash payments in respect of Accounts owed to such US Loan Party be remitted to a lockbox maintained solely for by any US Loan Party (the purpose “US Lockbox”) or a Material Account of funding payrollany US Loan Party, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) in the case of any accounts Canadian Loan Party, require that all cash payments of Accounts owed to any Canadian Loan Party be remitted to a lockbox maintained by any Canadian Loan Party (the “Canadian Lockbox” and, together with the US Lockbox, the “Lockboxes”) or a Material Account of any Canadian Loan Party, (iii) except as provided in Section 5.15(b), instruct the financial institution that maintains any US Lockbox to cause all amounts on deposit that do not exceed $100,000and available at the close of each Business Day in such Lockbox (net of any Required Minimum Balance), all of which the to be swept to one or more concentration deposit accounts maintained by any US Loan Parties may maintain without restriction) Party (each such deposit account, disbursement account, investment account and lockbox accounteach, a “Controlled US Concentration Account”) not less frequently than on a daily basis, (iv) except as provided in Section 5.15(b); , instruct the financial institution that maintains such Canadian Lockbox to cause all amounts on deposit and available at the close of each Controlled Account shall be a cash collateral account, with all cash, checks and other similar items of payment Business Day in such Lockbox (net of any Required Minimum Balance), to be swept to one or more concentration deposit accounts maintained by any Canadian Loan Party -162- (each, a “Canadian Concentration Account” and, together with the US Concentration Account, the “Concentration Accounts”) not less frequently than on a daily basis; (v) enter into a blocked account securing payment of the Obligationsagreement (each, and a “Blocked Account Agreement”), in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien 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, Lockbox or Material Account (collectively, the “Blocked Accounts”) establishing the Administrative Agent’s contolcontrol over and valid and perfected Lien on behalf of the Secured Parties, perfected either automatically under the UCC such account and (with respect to Controlled Accounts at SunTrust Bank) or subject to Control Account Agreements;
(bvi) deposit promptly, (or cause to be deposited) promptly (and in any event no later than 10 the first Business Days Day after receipt thereof) all collections on Accounts (including those sent directly by an Account Debtor) into a Blocked Account covered by a Blocked Account Agreement. From and after such 90th and the 120th day, respectively, after the date of receipt thereofClosing 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)), each Loan Party shall ensure that this Section 5.15(a) is satisfied at all cash, checks, drafts or other similar items of payment times.
(b) Each Blocked Account Agreement relating to or constituting payments made in respect of any and all accounts and other Collateral into Controlled AccountsBlocked Account shall require, in each case except for cash and Permitted Investments the aggregate value of which does not exceed $500,000 at any time; and
(c) at any time after the occurrence delivery of notice by the Administrative Agent to the Lead Borrower and during the continuance of an Event of Defaultdeposit bank or securities intermediary party to such instrument or agreement (which the Administrative Agent may, at or upon the request of the Required LendersLenders 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 ledger balance of each Concentration Account and each other Blocked Account (net of such minimum balance, not to exceed $500,000 per account or $5,000,000 in the aggregate for all such accounts as may be required to be maintained in the subject Blocked Account by the bank at which such Blocked Account is maintained (the “Required Minimum Balances”)), to an account maintained under the sole dominion and control of the 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 Section 2.18(b) or (c) are applicable, such amounts shall be applied in accordance with such Section 2.18(b) or (c), as applicable. In such event, each Loan Party agrees that it will not otherwise direct the proceeds of any Blocked Account.
(c) Provided that no Cash Dominion Period then exists, the Borrowers willLoan 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 will cause each other Loan Party toan Excluded Asset, cause all payments constituting proceeds such Deposit Account or Securities Account shall be subject to this Section 5.15), to the execution and delivery to the Administrative Agent of accounts a Blocked Account Agreement in respect of such newly opened Deposit Account or other Collateral to be directed into lockbox accounts under agreements in form Securities Account consistent with the provisions of this Section 5.15 and substance otherwise reasonably satisfactory to the Administrative Agent within ninety (90) days of the opening thereof (or such longer period as the Administrative Agent 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 -163- with the provisions of this Section 5.15 and otherwise reasonably satisfactory to the Administrative Agent 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 Specified Transaction, such Loan Party shall be required to enter into a Blocked Account Agreement with respect to such acquired Deposit Account or Securities Account within one hundred twenty (120) days following the date of such Specified 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, (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 Sections 2.11(a)(iii), 2.18(b) or 2.18(c), as applicable, and, to the extent such funds constitute US Collateral, the ABL Intercreditor Agreement. In the event that, notwithstanding the provisions of this Section 5.15, 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 5.15(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 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 directly 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 5.15, each relevant Loan Party may direct, and shall have sole control over, the disposition of funds in the Blocked Accounts and Concentration 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 applicable ABL Intercreditor Agreement) be remitted to an account of the applicable Loan Party (or if requested by any Loan Party, to the Lead Borrower on 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 its 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 (acting in good faith) may, within thirty (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 (5) 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 (a) 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 Agent 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 5.15(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 (c) as 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 in accordance with Section 2.18(b) or (c) as applicable) following its receipt of a Trust Fund Certificate.
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Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all cash management 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 treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than payments due from credit card processors.
(i) accounts established After the occurrence and during the continuance of a Cash Dominion Event, cause the ACH or wire transfer by the Domestic Loan Parties to the concentration account maintained solely for at Bank of America or with another Domestic Revolving Lender reasonably satisfactory to the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accountsAgent with whom a Blocked Account Agreement has been executed (the “U.S. Concentration Account”) , and (ii) any accounts with amounts on deposit that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, cause the ACH or wire transfer by the Canadian Loan Parties to the concentration account maintained at the request Bank of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts America-Canada Branch or other Collateral to be directed into lockbox accounts under agreements in form and substance with another Canadian Lender reasonably satisfactory to the Administrative AgentAgent with whom a Blocked Account Agreement has been executed (the “Canadian Concentration Account”), as applicable, in each case no less frequently than daily (and whether or not there are then any outstanding Obligations), all cash receipts and collections received by each applicable Loan Party from all sources, including, without limitation, the following:
(i) 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);
(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 $10,000.00, as may be required to be kept in the subject DDA by the depository institution at which such DDA is maintained); and
(v) the then entire ledger balance of each Blocked Account (net of any minimum balance, not to exceed $100,000.00, as may be required to be kept in the subject Blocked Account by the Blocked Account Bank).
Appears in 1 contract
Samples: Credit Agreement (Rh)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain On or prior to the day which is ninety (90) days following the Closing Date (or such longer period as may be agreed to by the Administrative Agent in its reasonable discretion), cause all cash management Deposit Accounts that are concentration and treasury business controlled disbursement accounts of the Loan Parties to be maintained with SunTrust Bank or a Permitted Third Party Bankof America pursuant to such documentation as the Agent may reasonably request, including, without limitation, all deposit accountsa Blocked Account Agreement satisfactory in form and substance to the Agent with respect to each such Deposit Account (collectively, disbursement accounts, investment accounts and lockbox accounts the “Blocked Accounts”); provided that the Borrower shall be permitted to maintain (other than (ix) accounts established and maintained solely for the purpose of funding payrollsix (6) month period immediately following the Closing Date, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits up to employees and other fiduciary accounts$1,500,000 in the aggregate, and (iiy) thereafter, up to $1,000,000 in the aggregate in any accounts with amounts on deposit that do disbursement account(s) which are not exceed $100,000held by Bank of America (such account(s), all of which the Loan Parties may maintain without restriction) (each such deposit account, disbursement account, investment account and lockbox account, a “Controlled AccountExcluded Accounts”); each Controlled it being understood that no Blocked Account Control Agreements or other control agreements shall be a cash collateral account, with all cash, checks and other similar items of payment required in such account securing payment respect of the ObligationsExcluded Accounts, and provided that the aggregate amount on deposit in which the Borrowers and each of their Subsidiaries shall have granted a first priority Lien to Excluded Accounts does not exceed the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC amounts set forth in clauses (with respect to Controlled Accounts at SunTrust Bankx) or subject to Control Account Agreements;(y) above, as applicable.
(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 $500,000 at any time; and
(c) at any time after After the occurrence and during the continuance of an Event of Default, cause the ACH or wire transfer to the collection account maintained by the Agent at Bank of America (the “Collection Account”), no less frequently than daily, all cash receipts and collections received by each Loan Party from all sources, whether or not constituting Collateral, including, without limitation, the then entire ledger balance of each Blocked Account or any other Deposit Account of the Loan Parties (in each case, net of any minimum balance, not to exceed $2,500.00 per account, as may be required to be kept in the subject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(c) The Collection Account shall at all times be under the sole dominion and control of the 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) during the continuance of an Event of Default, the funds on deposit in the Collection Account shall be applied to the repayment of the Obligations 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 cash receipts or collections, such receipts and collections shall be held in trust by such Loan Party for the 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 Agent.
(d) Upon the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party toAgent, cause all payments constituting proceeds of accounts or bank statements and/or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory delivered to the Administrative AgentAgent 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.
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Samples: First Lien Term Loan Agreement (Sequential Brands Group, Inc.)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to:
(a) maintain all cash management and treasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) accounts established and maintained solely for the purpose of funding payroll, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that that do not exceed $100,000, all of which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any time; and
(c) at any time after the occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrowers will, and will cause each other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance satisfactory to the Administrative Agent.
Appears in 1 contract
Samples: Revolving Credit and Term Loan Agreement (Fox Factory Holding Corp)
Cash Management. The Borrowers shall, and shall cause its Domestic Subsidiaries to(a) On or prior to the Effective Date:
(ai) maintain 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 clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) The Loan Parties shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) all amounts on deposit in each DDA (other than the Trust Account) and all payments received by any Loan Party from credit card processors to a Blocked Account.
(c) After the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties and each Blocked Account Bank shall ACH or wire transfer no less frequently than once each Business Day (and whether or not there are then any outstanding Obligations) to the concentration account maintained by the Administrative Agent at Bank of America (the “Administrative Agent’s Account”) all cash management receipts and treasury business with SunTrust Bank or a Permitted Third Party Bankcollections by the Loan Parties, including, without limitation, the following:
(i) all deposit accountsavailable cash receipts from the sale of Inventory (including, disbursement accountswithout limitation, investment accounts proceeds of credit card charges) and lockbox accounts 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 sale or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each DDA (other than (i) accounts established and maintained solely for the purpose Trust Account), net of funding payrollany minimum balance, payroll taxes, withholding taxes, xxxxxxx’x compensation and other compensation and benefits not to employees and other fiduciary accounts, and (ii) any accounts with amounts on deposit that do not exceed $100,0002,500.00, all of as may be required to be kept in the subject DDA by the depository institution at which the Loan Parties may maintain without restriction) (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 Borrowers and each of their Subsidiaries shall have granted a first priority Lien to the Administrative Agent, on behalf of the Secured Parties, perfected either automatically under the UCC (with respect to Controlled Accounts at SunTrust Bank) or subject 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 $500,000 at any timeDDA is maintained; and
(cv) at the then entire ledger balance of each Blocked Account (other than the Trust Account), net of any time minimum balance, not to exceed $2,500.00, as may be required to be kept in the subject Blocked Account by the applicable Blocked Account Bank. In the event that, notwithstanding the provisions of this Section 6.13(c), 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, 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 Administrative Agent’s Account or dealt with in such other fashion as such Loan Party may be instructed by the Collateral Agent.
(d) Upon the occurrence and during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Administrative Agent with an Event accounting of Defaultthe contents of the Blocked Accounts and the Administrative Agent’s Account, which shall identify, to the reasonable satisfaction of the Administrative Agent, the proceeds from the Notes Priority Collateral which were deposited into a Blocked Account and swept to the Administrative Agent’s Account. Upon the receipt of (i) the contents of the Blocked Accounts, and (ii) such accounting, the Administrative Agent agrees to promptly remit to the Indenture Trustee the proceeds of the Notes Priority Collateral received by the Administrative Agent.
(e) The Administrative Agent’s 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 Administrative Agent’s Account, (ii) the funds on deposit in the Administrative Agent’s Account shall at all times be collateral security for all of the Obligations and (iii) after the occurrence and during the continuance of a Cash Dominion Event, the funds on deposit in the Administrative Agent’s Account shall be applied as provided in Sections 2.05(g) or 8.03, as applicable, of this Agreement.
(f) Upon the request of the Required LendersAdministrative Agent, the Borrowers will, and will Loan Parties shall cause each bank statements and/or other Loan Party to, cause all payments constituting proceeds of accounts or other Collateral reports to be directed into lockbox accounts under agreements in form and substance satisfactory 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. So long as no Cash Dominion Event has occurred and is continuing, the Loan Parties may direct, and shall have sole control over, the manner of disposition of funds in the Blocked Accounts (other than the Administrative Agent’s Account). Any amounts held or received in the Administrative Agent’s Account at any time when no Cash Dominion Event exists shall be promptly remitted to an account of the Lead Borrower, or as the Lead Borrower may otherwise direct.
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