Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account; (v) the then entire ledger balance of each Blocked Account; and (vi) the net proceeds of all credit card charges. (b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.
Appears in 4 contracts
Samples: Credit and Guaranty Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc), Credit Agreement (Douglas Dynamics, Inc)
Cash Management. (a) The Credit Parties shall deliverParent Borrower, the other Borrowers and each Loan Party shall, along with the Administrative Agent and certain financial institutions selected by the Loan Parties, reasonably satisfactory to the Administrative Agent and located in the United States (the “Collection Banks”), enter into within 90 days after the Closing Date (or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for such longer period as the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Administrative Agent may reasonably require agree), and thereafter maintain, separate Account Control Agreements with respect to all deposit accounts (other than Exempt Accounts). Each Loan Party shall (x) instruct all Account Debtors of such Loan Party (other than any Governmental Entity) to remit all payments to the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Collection Bank (or to remit such payments to the applicable Collection Bank by electronic settlement) with respect to all Accounts of such Account Debtor which remittances shall be collected by the applicable Collection Bank and deposited in connection the applicable Controlled Account of the applicable Loan Party and (y) (i) instruct each Account Debtor with respect to Governmental Entity Accounts to remit all payments from such Blocked Account Debtor to a concentration or deposit account that is used solely to collect Governmental Entity Accounts and that is not subject to an Account Control Agreement (each such Blocked account, a “Government Receivables Account”) and (ii) deposit or cause all proceeds deposited in any Government Receivables Account Agreementsto be deposited promptly, and in any event no later than the first Business Day after its receipt of such proceeds, in a concentration account which is a Controlled Account. Other All amounts received by any Loan Party and any Collection Bank, in respect of any Account, in addition to all other cash received from any other source (other than Excluded Deposit Accountscash and Cash Equivalents maintained in Exempt Accounts or otherwise by Loan Parties not to exceed $5,000,000 in the aggregate at any time), no Credit Party shall establish promptly upon receipt be deposited or swept into a Controlled Account. The Loan Parties may close deposit accounts at any Deposit Accounts after Collection Bank and/or open new deposit accounts, subject (in the Closing Date, unless case of opening any new deposit account) to the contemporaneous (or such Borrower or Guarantor (longer period as applicablethe Administrative Agent may reasonably agree) has complied in full execution and delivery to the Administrative Agent of an Account Control Agreement consistent with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (2.19 and until the Collateral Agent notifies such Blocked Account Bank otherwise reasonably satisfactory to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesAdministrative Agent.
(b) The Collection Account So long as no Dominion Period then exists in respect of which the Administrative Agent has delivered notice thereof as contemplated by the definition thereof, the Loan Parties shall at be permitted to withdraw cash and Cash Equivalents from Controlled Accounts to be used for working capital and general corporate purposes. If a Dominion Period exists and the Administrative Agent has delivered notice thereof as contemplated by the definition thereof, all times be collected amounts held in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 Controlled Accounts shall be applied as provided in this AgreementSection 2.19(c).
(c) Each Account Control Agreement relating to a Controlled Account shall (unless otherwise reasonably agreed by the Administrative Agent) include provisions that allow, during any Dominion Period if the Administrative Agent so elects, for all collected amounts held in such Controlled Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to one or more accounts maintained with the Administrative Agent (each, an “Agent Deposit Account”). In Subject to the event thatterms of the respective Collateral Document, notwithstanding during any Dominion Period, all amounts received in an Agent Deposit Account shall be applied (and allocated) by the provisions Administrative Agent on a daily basis in the following order: (i) first, (A) if so elected by the Administrative Agent, to the payment (on a ratable basis) of any outstanding fees and expenses actually due and payable to the Administrative Agent under any of the Loan Documents and (B) to repay or prepay outstanding Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Section 2.01(d); (ii) second, to the extent all amounts referred to in preceding clause (i) have been paid in full, (A) if so elected by the applicable Issuing Bank or the Swing Line Lender, to pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Bank and the Swing Line Lender under any of the Loan Documents and (B) to repay all outstanding unpaid LC Disbursements and Swing Line Exposure and all interest thereon; (iii) third, to the extent all amounts referred to in preceding clauses (i) and (ii) have been paid in full, (A) to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Revolving Credit Loans and (B) if so elected by the applicable Secured Party, to pay all accrued and unpaid fees actually due and payable to the Administrative Agent, the Issuing Banks, the Swing Line Lender, and the Lenders under any of the Loan Documents with respect to the Revolving Credit Loans; (iv) fourth, to the extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in full, to repay (on a ratable basis) the outstanding principal of Revolving Credit Loans (whether or not then due and payable); (v) fifth, to the extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in full, to the Cash Collateralization (on a ratable basis) of all LC Exposure in accordance with Section 2.03(j); (vi) sixth, to the extent all amounts referred to in preceding clauses (i) through (v), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding Obligations then due and payable to the Administrative Agent and the Lenders under any of the Loan Documents with respect to the Revolving Credit Loans; and (vii) seventh, to the extent all amounts referred to in preceding clauses (i) through (vi) inclusive, have been paid in full and so long as no Specified Event of Default then exists, to be returned to the applicable Borrowers for such Borrowers’ own account.
(d) Subject to the terms and conditions of Sections 10.04 and 10.05, all costs and expenses to effect the foregoing (including reasonable legal fees and disbursements of counsel) shall be paid by the Loan Parties.
(e) The Administrative Agent agrees that immediately upon the termination of the Dominion Period it shall stop transferring amounts from the Controlled Accounts to accounts maintained with the Administrative Agent pursuant to this Section 5.152.19, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections the Loan Parties shall be held permitted to withdraw cash and Cash Equivalents from Controlled Accounts to be used for working capital and general corporate purposes.
(f) Notwithstanding the foregoing, until the later of (x) nine (9) months after the date hereof (or such later date as may be agreed to by the Administrative Agent in trust by such Credit Party for its Permitted Discretion) and (y) thirty (30) days after the Collateral Agentdate on which the Specified Post-Closing Undertaking is satisfied in accordance with Section 6.18, Account Control Agreements shall not be commingled with required for the deposit accounts of any of such Credit Party’s other funds or deposited in any account of such Credit 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 Credit Party may be instructed by the Collateral AgentBeta Entity.
Appears in 3 contracts
Samples: Abl Credit Agreement (Option Care Health, Inc.), Abl Credit Agreement (Option Care Health, Inc.), Abl Credit Agreement (Option Care Health, Inc.)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and delivershall, and shall cause each Guarantor to execute its Restricted Subsidiaries to:
(a) maintain its primary cash management and deliver, such agreements and documents as Collateral Agent may reasonably require in connection treasury business with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit SunTrust Bank or a Permitted Third Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collections, including, without limitation, the following:
all deposit accounts, disbursement accounts, investment accounts and lockbox accounts (other than (i) all available cash receipts from zero-balance accounts for the sale purpose of Inventory managing local disbursements, (ii) payroll, withholding and other assetsfiduciary accounts, and (iii) xxxxx cash account with aggregate balances not to exceed $250,000, 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 Borrower and each of its Restricted 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;
(iib) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsdeposit promptly, and in any event no later than ten (10) Business Days after the date of receipt thereof, all cash, checks, drafts or other cash similar items of payment relating to or constituting payments received by a Credit Party from any Person or from any source or on account made in respect of any sale or and all accounts and other transaction or event;
(iv) Collateral into Controlled Accounts, in each case except for cash and Permitted Investments the then contents aggregate value of each Deposit Account;
(v) the then entire ledger balance of each Blocked Accountwhich does not exceed $500,000 at any time; and
(vic) at any time after the net occurrence and during the continuance of an Event of Default, at the request of the Required Lenders, the Borrower will, and will cause each other Loan Party to, cause all payments constituting proceeds of all credit card charges.
(b) The Collection Account shall at all times accounts or other Collateral to be directed into lockbox accounts under agreements in form and substance reasonably satisfactory to the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Administrative Agent.
Appears in 3 contracts
Samples: Credit Agreement, Credit Agreement (Landmark Infrastructure Partners LP), Credit Agreement (Landmark Infrastructure Partners LP)
Cash Management. (a) The Credit Cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require”); provided that, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted 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), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral 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 Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Sequential Brands Group, Inc.), Amendment and Restatement Agreement (Sequential Brands Group, Inc.)
Cash Management. (a) The Credit Cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent or any Lender may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) GSO Entities with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account ”); provided that so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted to maintain up to $1,000,000 in the aggregate in any disbursement accounts which are not held by Bank of America (such account(s), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent) at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent). The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral AgentBoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement), shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) 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 (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent) may agree in connection with the realization on the Collateral.
(e) Upon the request of the Agent (at the direction of the Required Lenders), 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.
Appears in 2 contracts
Samples: Credit Agreement (Sequential Brands Group, Inc.), Credit Agreement (Singer Madeline Holdings, Inc.)
Cash Management. (a) The Credit Cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent or any Lender may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) GSO Entities with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require”); provided that, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted to maintain up to $1,000,000 in the aggregate in any disbursement accounts which are not held by Bank of America (such account(s), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent) at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent). The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral AgentFirst Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement), shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) 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 (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent) may agree in connection with the realization on the Collateral.
(e) Upon the request of the Agent (at the direction of the Required Lenders), 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.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Sequential Brands Group, Inc.), Second Lien Credit Agreement (Sequential Brands Group, Inc.)
Cash Management. (a) The Credit Parties Prior to the Amendment No. 4 Effective Date:
(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 deliver, or cause be required to be delivered, transferred via ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit AccountsAccount. Each Blocked Account Agreement shall require, after notice from the Collateral Administrative Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after of the occurrence of an Account Control Event) a Cash Dominion Event (and until the Collateral Administrative Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if that such Account Control 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 collection concentration account maintained by the Collateral Administrative Agent at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Concentration Account”), of all cash receipts and collectionscollections of the Loan Parties, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit AccountDDA;
(viv) the then entire ledger balance of each Blocked Account; and
(viv) the net proceeds of all credit card charges.
(bc) During the continuance of a Cash Dominion Event, the Loan Parties shall provide the Administrative Agent with an accounting of the contents of the Blocked Accounts and the Concentration Account, which shall identify, to the satisfaction of the Administrative Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting, the Administrative Agent agrees to promptly remit to the agent under the Term Loan Facility the proceeds of the Term Priority Collateral received by the Administrative Agent.
(d) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Administrative Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection 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 this AgreementSection 8.03. In the event that, notwithstanding the provisions of this Section 5.156.13, any Credit 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 Credit Loan Party for the Collateral Administrative Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Administrative Agent.
(e) The Borrowers shall not be required to enter into Blocked Account Agreements or other control agreements in respect of any DDA that does not at any time have an average daily balance for any 30 day period in excess of $250,000; provided that the aggregate average daily balance for any 30 day period in all DDAs of the Borrowers that are excluded pursuant to this clause (e) shall not exceed $2,500,000 at any time.
Appears in 2 contracts
Samples: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)
Cash Management. (a) The On or prior to the Closing Date:
(i) deliver to the Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent 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 duly authorizedsatisfactory 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 by to each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute depository institution listed on Schedule 5.21(a).
(b) From and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless 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 Borrower 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 receipts from the Disposition of Inventory and other assets other than Term Loan Priority Collateral (whether or Guarantor not constituting Collateral) ;
(as applicableiv) has complied in full with the provisions all proceeds of this Section 5.15(aAccounts; and
(v) with respect to such Deposit Accounts. 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.
(c) Each Blocked Account Agreement shall require, after require upon notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will notice shall be delivered only be given after the occurrence and during the continuance of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control a 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 collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Xxxxx Fargo (the “Collection Concentration Account”), of all cash receipts and collectionscollections received by each Loan Party from all sources (the “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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked AccountAccount (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
(viiii) 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 net proceeds 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 credit card chargesReceipts and Collections to another Blocked Account, as opposed to the Concentration Account.
(bd) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit 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, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, and (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit Obligations. During a Cash Dominion Event, in the Collection Account shall be applied as provided in this Agreement. In the event that, that notwithstanding the provisions of this Section 5.156.13, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(e) Upon the request of the Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(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 and delivered to each depository institution listed on Schedule 5.21(a).
(g) Upon receipt of any proceeds of Term Loan Priority Collateral, the Loan Parties shall, on the date of such receipt, deposit such proceeds into the Term Loan Priority Account.
Appears in 2 contracts
Samples: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Cash Management. (a) The Credit Cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require”); provided that, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted 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), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts; provided that, the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral 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 Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 2 contracts
Samples: First Lien Credit Agreement (Sequential Brands Group, Inc.), First Lien Credit Agreement (Sequential Brands Group, Inc.)
Cash Management. (a) 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 delivered to such Loan Party’s Credit Card Processors listed on Schedule 5.21(b).
(b) The Credit Loan Parties shall deliver, ACH or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed wire transfer (i) no less frequently than weekly (and delivered by each bank where a Deposit Account for the benefit of whether or not there are then any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicableoutstanding Obligations) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank all available amounts on deposit in each DDA used by any Store or other retail location or otherwise for the receipt of proceeds of Accounts or other Collateral from customers and other obligors (which the Collateral Agent agrees will only be given after the occurrence of shall not include any Excluded DDA, so that funds in an Account Control Event) (and until the Collateral Agent notifies such Excluded DDA are not sent to a Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedAccount), the ACH or wire transfer (ii) no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all payments due from Credit Card Issuers and Credit Card Processors, and (iii) no less frequently than daily (and whether or not there are then any outstanding Obligations) all amounts on deposit in a Blocked Account to the collection account maintained 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 Collateral Agent at JPMorgan Chase depository bank.
(c) Each Blocked Account Agreement as to a Blocked Account shall require that the applicable Blocked Account Bank, N.A. (after notice by Administrative Agent to the “Collection Account”)applicable Blocked Account Bank, of transfer no less frequently than daily to the Agent Payment Account all cash receipts and collectionsavailable amounts on deposit in the Blocked Account subject to such Blocked Account Agreement, including, without limitation, including the following:
: (i) all available cash receipts from the sale of Inventory and other assets;
assets (whether or not constituting Collateral); (ii) all proceeds of collections of Accounts;
; (iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each , including any Prepayment Event, provided, that, Administrative Agent shall only send such notice to a Blocked Account; and
(vi) the net proceeds of all credit card chargesAccount Bank with respect to a Blocked Account at any time a Cash Dominion Event shall exist.
(bd) The Collection Blocked Account Agreement as to the Concentration Account shall at all times be in require that the nameapplicable Blocked Account Bank, and under after notice by Administrative Agent to the sole dominion and control of applicable Blocked Account Bank, transfer no less frequently than daily to the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit Parties have no right of withdrawal from the Collection Agent Payment Account, (ii) the all 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 Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Agent Payment Account shall be applied to the Obligations as provided in accordance with this Agreement. In the event that, notwithstanding the provisions of this Section 5.156.13, any Credit 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 Credit Loan Party for the Collateral Administrative Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection a Blocked Account or the Concentration Account, or if there then exists a Cash Dominion Event, dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral 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 2 contracts
Samples: Credit Agreement (Destination Maternity Corp), Credit Agreement (Destination Maternity Corp)
Cash Management. (a) The On or prior to the Closing Date:
(i) deliver to the Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent 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 duly authorizedsatisfactory in form and substance to the Agent and Lenders with each Blocked Account Bank (collectively, the “Blocked Accounts”); and
(iii) at the request of the Agent or Lenders, 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 by to each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute depository institution listed on Schedule 5.21(a).
(b) From and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall requireLoan Parties shall, after notice from following the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated)Revolving Credit Termination Date, the ACH or wire transfer no less frequently than daily 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 receipts from the Disposition of Inventory and other assets other than Term Loan Priority Collateral (whether or not there are then constituting Collateral);
(iv) all proceeds of Accounts; and
(c) all Net Proceeds, and all other cash payments received by a Loan Party from any outstanding ObligationsPerson 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 require upon notice from Agent following the Revolving Credit Termination Date, 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 than daily to the collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Concentration Account”), of all cash receipts and collectionscollections received by each Loan Party from all sources (the “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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked AccountAccount (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
(viiii) the net other cash amounts received by any Loan Party from any other source, on account of any type of transaction or 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 Agent);
(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, 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 all credit card chargesReceipts and Collections to another Blocked Account, as opposed to the Concentration Account.
(be) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit 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 Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, and (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit Obligations. During a Cash Dominion Event, in the Collection Account shall be applied as provided in this Agreement. In the event that, that notwithstanding the provisions of this Section 5.15, 6.13 any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(f) Upon receipt of any proceeds of Term Loan Priority Collateral, the Loan Parties shall, on the date of such receipt, deposit such proceeds in the Term Loan Priority Account.
(g) Upon the request of the Lenders, 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 deposit accounts to ensure the proper transfer of funds as set forth above.
Appears in 2 contracts
Samples: Credit Agreement (Pacific Sunwear of California Inc), Credit Agreement (Pacific Sunwear of California Inc)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or wire transfer no less frequently than daily to a Blocked Account all amounts on deposit in each DDA (and whether or net of any minimum balance, not there are then any outstanding Obligations) to exceed $2,500.00, as may be required to be kept in the collection account maintained subject DDA by the Collateral Agent depository institution at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collections, including, without limitation, the following:
(iwhich such DDA is maintained) all available cash receipts from the sale of Inventory and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Party due from any Person or from any source or on account of any sale or other transaction or event;
(iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesprocessors.
(b) After the occurrence and during the continuance of a Cash Dominion Event, cause the ACH or wire transfer by the Loan Parties to a concentration account in respect of which a Blocked Account Agreement has been executed (the “U.S. Concentration Account”), no less frequently than daily, all cash receipts and collections received by each applicable Loan Party from all sources.
(c) The Collection U.S. Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral ABL Agent or the Agent, and the Agent shall have “control” (as defined in and within the meaning of the UCC) over the U.S. Concentration Account at all times. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection U.S. Concentration Account, (ii) the funds on deposit in the Collection U.S. Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection U.S. Concentration Account shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, Agent and shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account U.S. Concentration Account, or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(d) Upon the request of the Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 2 contracts
Samples: Credit Agreement (Rh), Credit Agreement (Rh)
Cash Management. (a) As of the Agreement Date, all bank accounts, securities accounts, commodities accounts, and other investment accounts of the Credit Parties are listed on Schedule 6.15 and such Schedule designates which such accounts are deposit accounts.
(b) No Credit Party may (i) open any bank accounts (other than Excluded Accounts) unless on or before the date on which such bank accounts are opened such bank accounts become subject to a Controlled Account Agreement or (ii) maintain any bank accounts (other than Excluded Accounts) unless such bank accounts are at all times subject to a Controlled Account Agreement (such bank accounts, “Controlled Deposit Accounts”).
(c) The Credit Parties shall delivershall:
(i) establish and thereafter maintain, pursuant to an arrangement reasonably acceptable to the Administrative Agent one or cause more Controlled Deposit Accounts wherein collections, deposits, and other payments on or with respect to Collateral are to be deliveredtransferred, received or made (each, a “Collections Account”);
(ii) at all times direct all of their Account Debtors that make payments via wire transfer to Collateral Agent direct all wire transfers to a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for Collections Account; and
(iii) in the benefit of event that any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked at any time directly receive any remittances of any Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collections, including, without limitation, any checks, drafts, or other instruments), credit or merchant card collections, or other payments in respect of any Collateral or shall receive any other funds representing proceeds of the followingCollateral, promptly deposit the same into a Collections Account.
(d) During a Cash Dominion Period:
(i) The Administrative Agent shall have the right to notify any depositary bank with respect to any Collections Account or other Controlled Deposit Account that the Administrative Agent is exercising exclusive control with respect thereto and no Credit Party shall have any right to withdraw such amounts from any such Collections Account or Controlled Deposit Account. Each Credit Party hereby grants its power of attorney to SunTrust Bank (and each of its Affiliates providing the services described in this Section 6.15) to indorse in such Credit Party’s name all available tangible items of payment directed for deposit in a Controlled Deposit Account, Collections Account, or a lockbox and to submit such items for collection, with it being acknowledged and agreed that such power of attorney, being coupled with an interest, is irrevocable until the full and final payment in cash receipts from and performance of all Obligations and the sale termination of Inventory and other assetsthe Commitments;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation ProceedsOn each Business Day the Administrative Agent may, and all other cash payments received by a Credit Party from any Person or from any source or on account without further consent of any sale or other transaction or event;
(iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of Credit Party, withdraw all credit card charges.
(b) The Collection Account shall at all times be immediately available funds in the name, Collections Accounts and under apply the sole dominion and control of same against the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit Parties have no right of withdrawal from the Collection Account, (ii) the funds on deposit Obligations in the Collection Account shall at all times be collateral security manner provided for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent2.11.
Appears in 1 contract
Cash Management. (a) The On or prior to the Closing Date:
(i) deliver to the Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit J hereto which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent 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 duly authorizedsatisfactory in form and substance to the Agent with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) At the request of the Agent, the Loan Parties shall deliver to the Agent copies of notifications (each, a “DDA Notification”), substantially in the form as Exhibit I attached hereto or otherwise in form and substance reasonably satisfactory to the Agent, which have been executed on behalf of such Loan Party and delivered by to each bank where depository institution listed on Schedule 5.21(a).
(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 Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other (i) other than amounts in any Excluded Deposit AccountsAccount, no all amounts on deposit in each DDA that is not a Blocked Account (provided, however, that the Loan Parties shall be entitled to retain a balance not to exceed (a) $250,000.00 in any DDA or (b) $2,500,000.00 in the aggregate for all DDAs) and (ii) all payments due from all Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor Card Issuers and Credit Card Processors.
(as applicabled) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after require upon notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will notice shall be delivered only be given after the occurrence and during the continuance of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control a 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 collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Xxxxx Fargo (the “Collection Concentration Account”), of all cash receipts and collectionscollections 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 assetsassets (whether or not constituting Collateral), other than cash receipts retained by each Store in the ordinary course of business and consistent with past practices not to exceed $55,000 for any one Store individually and not to exceed $25,000,000 in the aggregate for all Stores;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Loan Party from any Person or from any source or on account of any sale Disposition or other transaction or event;
(iv) the then contents of each Deposit AccountDDA (provided, however, that the Loan Parties shall be entitled to retain a balance not to exceed (a) $250,000.00 in any DDA or (b) $2,500,000.00 in the aggregate for all DDAs);
(v) the then entire ledger balance of each Blocked AccountAccount (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); and
(vi) the net proceeds of all credit card charges.
(be) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Concentration Account shall be applied to the Obligations as provided in this Agreement. In At all times during a Cash Dominion Event, in the event that, notwithstanding the provisions of this Section 5.156.13, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(f) Upon the request of the Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Samples: Credit Agreement (KOHLS Corp)
Cash Management. (a) The Credit Parties Subject to Section 7.31, each Loan Party shall deliver, or cause to be delivered, to Collateral Agent enter into a Blocked Account Agreement duly authorized, executed and delivered by with respect to each bank where account listed on Schedule 6.13 which shall include all lockboxes and related lockbox accounts used for the collection of Accounts. Each Loan Party agrees that all invoices rendered and other requests made by any Loan Party for payment in respect of Accounts shall contain a Deposit written statement directing payment in respect of such Accounts to be paid to a Blocked Account Agreement in its name. At the request of the Agent, the Loan Parties shall cause bank statements and/or other reports from the Blocked Account Agreement 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. All remittances received by any Loan Party on account of Accounts, together with the proceeds of any other Collateral, shall be held as the Agent’s property, for its benefit and the benefit of any Credit the Secured Parties, by such Loan Party is maintainedas trustee of an express trust for Agent’s benefit and such Loan Party shall immediately deposit same in kind in a Blocked Account Agreement. Each Borrower shall further execute The Agent retains the right at all times after the occurrence and deliverduring the continuance of an Event of Default to notify Account Debtors that a Loan Party’s Accounts have been assigned to the Agent and to collect such Loan Party’s Accounts directly in its own name, or in the name of the Agent’s agent, and shall cause each Guarantor to execute charge the reasonable and deliverdocumented collection costs and expenses, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accountsincluding reasonable attorneys’ fees, no Credit Party shall establish any Deposit Accounts after to the Closing Date, unless such Borrower or Guarantor Loan Account.
(as applicableb) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent with respect to a Blocked Account Bank shall require that, during a Liquidity Event and upon instruction of the Agent (which the Collateral Agent agrees will only be given after the occurrence of an Account Control not to issue such instruction except during a Liquidity Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the Clearing Bank transfer all cash receipts and other collections by ACH or wire transfer no daily or less frequently than daily as permitted by the Agent (and whether or not there are then any outstanding Obligations) to the collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Royal Bank (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) . The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Concentration Account shall be applied as provided in this AgreementSection 7.29(c) below. In the event that, notwithstanding the provisions of this Section 5.157.29, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections described above, such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into a Blocked Account, or during a Liquidity Event, the Collection Account Concentration Account, or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(c) All funds received in the Concentration Account in immediately available funds shall be applied on a daily basis in accordance with Section 3.3(d) or be held as collateral security for the Obligations at the election of the Agent. All funds received in the Concentration Account that are not immediately available funds (checks, drafts and similar forms of payment) shall be deemed applied by Agent on account of the Obligations (subject to final payment of such items) in accordance with the foregoing sentence on the first Business Day after receipt by Agent of such items in Agent’s account. If as the result of such application of funds a credit balance exists in the Loan Account, such credit balance shall not accrue interest in favor of a Borrower but shall, so long as no Event of Default then exists, be disbursed to the Borrower or otherwise at the Borrower’s direction, upon the Borrower’s request. Upon and during the continuance of any Event of Default, the Agent may, at its option, offset such credit balance against any of the Obligations or hold such credit balance as Collateral for the Obligations.
(d) If sales of Inventory or Machinery & Equipment of a Loan Party are made or services are rendered for cash, such Loan Party shall promptly (and in any event within five (5) Business Days) deliver to the Agent or deposit into a Blocked Account the cash which the Loan Party receives.
(e) All payments in respect of the Obligations, including immediately available funds received by the Agent at a bank account designated by it, will be the Agent’s sole property for the benefit of the Secured Parties and will be credited to the Loan Account of the Loan Party (conditional upon final collection) after allowing one (1) Business Day for collection; provided, however, that such payments shall be deemed to be credited to the Loan Account of the Borrowers immediately upon receipt for purposes of (i) determining Excess Availability of the Borrowers, (ii) calculating the Unused Line Fee pursuant to Section 2.5, and (iii) calculating the amount of interest accrued thereon solely for purposes of determining the amount of interest to be distributed by the Agent to the Secured Parties (but not the amount of interest payable by the Loan Parties).
(f) The Loan Parties and the Agent acknowledge and agree that (i) the actions and proceedings contemplated by the Blocked Account Agreements (including any sweeps contemplated thereby) are instrumental to the operation of the cash management system that is required by this Agreement, (ii) any action or proceeding pursuant to the provisions of the Blocked Account Agreement (including sweeps contemplated thereby) shall not be considered as a realization on, or enforcement of, security or demand for payment under this Agreement but rather, among other things, following the issuance of an Activation Notice, a standing irrevocable direction by the Loan Parties to the Clearing Bank to thereafter transfer daily to the appropriate account of the Agent, all credit balances in the Blocked Accounts, and (iii) the Loan Parties agree to indemnify the Agent for amounts required to be paid to the Clearing Bank pursuant to the provisions of any Blocked Account Agreement, except to the extent resulting from the Agent’s gross negligence or wilful misconduct, and agree that any such sums paid by the Agent thereunder shall form part of the Obligations.
(g) With respect to each Blocked Account and each lock-box of a Loan Party maintained at Canadian Imperial Bank of Commerce or the Agent (as applicable), each Loan Party hereby acknowledges and agrees as follows:
(i) without limiting any rights of the Agent or the Secured Parties under any of the other Loan Documents or applicable law, Canadian Imperial Bank of Commerce or the Agent (as applicable) may offset and charge the Loan Parties’ other accounts maintained with Canadian Imperial Bank of Commerce or the Agent (as applicable) for any items deposited in such Blocked Account or lock-box, as the case may be, which are returned for any reason or otherwise not collected, and may offset and charge such other accounts of the relevant Loan Party for all service charges, fees, expenses and other items normally chargeable to such Blocked Account or lock-box, as applicable, including, but not limited to, the amount of items deposited in such Blocked Account or lock-box which are returned for any reason or otherwise not collected; and
(ii) each Loan Party agrees to pay all other fees and charges required to be paid with respect to such Blocked Account or lock-box as set forth in any other agreement entered into by the Loan Party and Canadian Imperial Bank of Commerce or the Agent (as applicable) with respect thereto.
Appears in 1 contract
Cash Management. Lessor Parties acknowledge that proceeds of the Accounts arising from the operation of the Facilities are initially paid to segregated bank deposit accounts in the names of each Subtenant and each Tenant other than SCC (acollectively, the “Tenant Bank Accounts”) The Credit but that the funds in such bank deposit accounts may be swept into a concentration account and commingled with funds of other Specified Tenants and Borrowers which are not Specified Tenants. In the event that written notice of an Enforcement Action is delivered hereunder by either of the Secured Parties, then as soon as practicable, but not to exceed two business days after the earlier of (i) transmission by the Agent to the Lessor Parties of written notification that the Agent is commencing Enforcement Action or (ii) receipt by the Agent from the Lessor Parties of written notification that the Lessor Parties are commencing Enforcement Action, the Agent shall deliver, or use its best efforts to cause the proceeds of the Tenant Bank Accounts to be deliveredsegregated at all times from the proceeds of accounts receivable of other Borrowers which are not Specified Tenants, it being acknowledged that despite the exercise of Agent’s best efforts, there may be de minimis inadvertent violations from time to time that Agent will promptly correct upon detection thereof. To facilitate collection of Account Collateral by Lessor Parties at a time when Lender Account Collateral and the Lender Debt remain outstanding, Lessor Parties hereby appoint the Agent as a Blocked non-fiduciary account agent (“Account Agreement duly authorized, executed and delivered by each bank where Agent”) to act as a Deposit Account for the benefit non- fiduciary collateral agent on behalf of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Lessor Parties with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from Collateral for the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence sole purpose of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request receiving payments of the Borrower Representative if such Account Control Event has terminated), the ACH Collateral into one or wire transfer no less frequently than daily more controlled or blocked accounts (and whether or not there are then any outstanding Obligations“Controlled Account”) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bankor over which the Agent maintains a control agreement, N.A. blocked account agreement or similar agreement (the “Collection AccountControl Agreement”), of all cash receipts and collectionsthe Account Agent hereby accepts such appointment. In accordance with Section 7(b) below, including, without limitation, the following:
any Account Collateral (iother than Lender Account Collateral) all available cash receipts from the sale of Inventory and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Party from any Person or from any source or on account Account Agent during the liquidation of any sale or other transaction or event;
Collateral upon the occurrence and during the continuance of an Event of Default under (iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (ias defined in) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections Agreement shall be held in trust by such and shall be promptly paid over to Lessor Parties. Until the earlier of the date (i) the Lender Debt is paid and satisfied in full in cash and the Lenders are no longer obligated to make advances under the Credit Party Agreement and the Credit Agreement has been terminated (or, if sooner, the date the Lessor Parties shall have paid the Specified Tenants’ Loan Obligations in accordance with Section 3(g)) and (ii) payment in full of all Lender Account Collateral (including all Account Collateral other than Excluded Collateral), (A) the Agent shall not with actual knowledge issue, or acquiesce in the issuance of, any direction to pay Account Collateral (other than Lender Account Collateral) to any Person other than the Lessor Parties or to any place or into any account other than a Controlled Account (provided that for the avoidance of doubt collections received in the “Commercial Blocked Account” and the “Government Blocked Account” may be disbursed into the “Disbursement Account” in accordance with the provisions of Section 2.10 of the Credit Agreement (and as such terms are defined in the Credit Agreement) as in effect as of the date hereof), (B) the Agent shall have the sole and exclusive right and authority to give instructions to, and to otherwise direct, the Account Agent with respect to the Lender Account Collateral, and (C) upon irrevocable written notice to the Agent and delivery of evidence reasonably acceptable to the Agent that any asset maintained in any Controlled Account constitutes Account Collateral other than Lender Account Collateral, Lessor Parties shall have the sole and exclusive right and authority to give instructions to, and to otherwise direct, the Account Agent with respect to all such Account Collateral (other than Lender Account Collateral), without further consent of any Specified Tenant, and Account Agent is hereby authorized to, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) the Lessor Parties, notwithstanding any conflicting or contrary instructions Account Agent receives from any Specified Tenant or any other Person). So long as the Specified Tenants shall lease or sublease the Leased Real Property from Lessor, from and after the earlier of the date (i) the Lender Debt is paid and satisfied in full in cash and the Lenders are no longer obligated to make advances under the Credit Agreement and the Credit Agreement has been terminated (or, if sooner, the date the Lessor Parties shall have paid the Specified Tenants’ Loan Obligations in accordance with Section 3(g)) and (ii) payment in full of all Lender Account Collateral (including all Account Collateral other than Excluded Collateral), the Account Agent, the Agent and Lessor Parties each hereby agree that if there are any other parties to the Control Agreements (other than Agent, Account Agent, Specified Tenants or their affiliates), the Agent shall use commercially reasonable efforts to give notice to such other parties that the Lessor Party designated by the Lessor Parties to the Agent is the successor Account Agent and, subject to the other terms and conditions in this Agreement and applicable law, such Lessor Party shall then have the sole and exclusive right and authority to give instructions to, and otherwise direct, the Account Agent with respect to all Account Collateral maintained in any Controlled Account (and Account Agent is hereby authorized to, without further inquiry, rely on and act in accordance with any instructions it receives from (or which purport to be from) such Lessor Party, notwithstanding any conflicting or contrary instructions Account Agent receives from any Specified Tenant or any other Person). Neither Agent nor Account Agent nor any of their respective officers, directors, employees, attorneys, agents, parents or affiliates (each a “Related Party”) will be liable to the Lessor Parties, any Specified Tenant or any other Person for liabilities, obligations, losses, damages, penalties, actions judgments, suits, claims, costs, expenses and disbursements of any kind or nature whatsoever as a result of or in connection with any Controlled Account (“Losses”). Lessor Parties agree to and shall promptly defend, protect, indemnify and hold harmless Agent, Account Agent and the other Related Parties from any and all Losses that may be imposed on incurred by, or asserted against Agent, Account Agent or any other Related Party solely to the extent arising from instructions or directions from Lessor Parties in respect of any Controlled Account, except to the extent such Losses, if any, result from the Agent’s, Account Agent’s or any Related Party’s gross negligence or willful misconduct as finally determined in a non-appealable judicial proceeding. In no event shall Agent, Account Agent or any other Related Party be liable for any special, indirect or consequential damages, and in no event shall Account Agent be liable for any losses or delays resulting from acts of God, war, terrorism, force majeure, computer malfunction, interruption of communication facilities, labor difficulties or other causes beyond Account Agent’s reasonable control. Account Agent shall have no responsibility to inquire as to the form, execution, sufficiency or validity of any notice or instructions received by it pursuant hereto nor to inquire as to the identity, authority or rights of the person or persons executing or delivering the same. Notwithstanding anything to the contrary contained in this Agreement, the Account Agent shall immediately cease all transfers of funds pursuant to this Section to Lessor Parties upon the filing or commencement of any bankruptcy, receivership, insolvency, reorganization, dissolution or liquidation proceedings by or against any Specified Tenant until Account Agent’s receipt of an appropriate order from a court of competent jurisdiction. In consideration of the services of Account Agent, the Specified Tenants agree to pay Account Agent’s standard fees and other standard charges for the Controlled Accounts (collectively, the “Account Charges”), together with the reasonable legal fees of the Account Agent paid or incurred by Account Agent in enforcing its rights and remedies under this Section 4, or in connection with defending any defense, cause or action, claim counterclaim, set-off or cross-claim based on any act or omission by the Account Agent with respect to this Section 4 or the Controlled Accounts (collectively, with the Account Charges, the “Charges”). Account Agent shall have and retain rights of set-off and banker’s liens arising in connection with Charges and fees, expenses and other amounts that the Specified Tenants are responsible to the Account Agent as provided in this Section. Notwithstanding any provision to the contrary contained elsewhere in this Agreement, the Account Agent shall not have any duty or responsibility except those expressly set forth in this Section 4, nor shall Account Agent have or be commingled deemed to have any fiduciary relationship with any of such Credit Party’s other funds the Lessor Parties, and no implied covenants, functions, responsibilities, duties, obligations or deposited in any account of such Credit Party and shall, not later than liabilities shall be read into this Agreement or otherwise exist against Account Agent. Account Agent may resign as Account Agent upon thirty (30) days’ written notice to the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral AgentLessor Parties.
Appears in 1 contract
Samples: Intercreditor Agreement
Cash Management. (a) The Credit Parties Each Loan Party shall deliver, (i) instruct all Account Debtors of such Loan Party to remit all payments in respect of any Account on which such Account Debtor is obligated to a “P.O. Box” or cause “Lockbox Address” associated with a deposit account subject to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized(each, executed a “Payment Account”), which remittances shall be collected by the depository institution at which such “P.O. Box” or “Lockbox Address” is maintained and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliverdeposited in such Payment Account, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicableii) has complied in full with the provisions of this Section 5.15(a) except with respect to Excluded Accounts and the Operating Account, cause each deposit account held by such Deposit Accounts. Each Blocked Account Agreement shall requireLoan Party (including, after notice from the Collateral Agent without limitation, each Payment Account) to become subject to a Blocked Account Bank Agreement pursuant to which (which without limiting the Collateral Agent agrees will only terms thereof) all amounts on deposit and available at the close of each Business Day in such deposit account shall be given after the occurrence of swept to an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained designated by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts with such sweep instructions to be irrevocable unless otherwise agreed to by the Collateral Agent 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) cause the Operating Account to become subject to a Blocked Account Agreement pursuant to which (without limiting the terms thereof) the Collateral Agent may, upon the occurrence and during the continuance of an Event of Default, exercise full dominion over such account and sweep all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsfunds on deposit therein to the Collection Account. Without limiting the foregoing, and all amounts received by a Borrower or any of its Subsidiaries in respect of any deposit account (or by the depository institution at which such account is held), in addition to all other cash payments received by a Credit Party from any Person or from any source or on account other source, shall upon receipt be deposited into such deposit account. Each Loan Party agrees that it will not cause proceeds of any sale or other transaction or event;
(iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesdeposit accounts to be otherwise redirected.
(b) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.10(b).
(c) If any cash or cash equivalents owned by any Loan Party (other than (i) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party, (ii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries in an Excluded Account in the Ordinary Course of Business) are deposited to any account, or held or invested in any manner, otherwise than in a deposit account subject to a Blocked Account Agreement in compliance with Section 5.12(a), then the Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to an account subject to a Blocked Account Agreement in compliance with Section 5.12(a), and to cause all future deposits to be made to such account.
(d) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree agrees that (ix) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.- 91-
Appears in 1 contract
Samples: Credit Agreement (Independence Contract Drilling, Inc.)
Cash Management. (a) The Credit Holdings, the Borrowers and each other Loan Party shall, along with the Administrative Agent and certain financial institutions selected by the Loan Parties shall deliverthat are reasonably satisfactory to the Administrative Agent and located in the United States and Canada (the “Collection Banks”), enter into within 75 days after the Closing Date (or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for such longer period as the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Administrative Agent may reasonably require in connection agree), and thereafter maintain, separate Cash Management Control Agreements with respect to all deposit accounts and securities accounts of such Blocked Accounts and such Blocked Account AgreementsLoan Party (other than Exempt Accounts). Other than Excluded Deposit Accounts, no Credit Each Loan Party shall establish any Deposit Accounts after instruct all Account Debtors of such Loan Party to remit all payments to the Closing Date, unless applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Collection Bank (or to remit such Borrower or Guarantor (as applicable) has complied in full with payments to the provisions of this Section 5.15(aapplicable Collection Bank by electronic settlement) with respect to all Accounts of such Deposit Account Debtor which remittances shall be collected by the applicable Collection Bank and deposited in the applicable deposit account or securities account of the applicable Loan Party. All amounts received by any Loan Party and any Collection Bank, in respect of any Account, in addition to all other cash received from any other source (other than cash and Cash Equivalents maintained in Exempt Accounts or otherwise by Loan Parties not to exceed $4.5 million in the aggregate at any time), shall promptly upon receipt be deposited or swept into a Controlled Account. The Loan Parties shall instruct each Collection Bank for the applicable deposit accounts or securities accounts of such Loan Party (other than Exempt Accounts. Each Blocked Account Agreement shall require, after notice from ) that are not Controlled Accounts that the Collateral Agent funds on deposit and available at the close of each Business Day in such account should be swept to a Blocked Concentration Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) once every Business Day, subject to the collection account maintained procedures of such Collection Bank, such instructions to be irrevocable unless otherwise agreed to by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesAdministrative Agent.
(b) The Collection Account So long as no Dominion Period then exists, the Loan Parties shall at be permitted to withdraw cash and Cash Equivalents from Controlled Accounts to be used for working capital and general corporate purposes. If a Dominion Period exists, all times be collected amounts held in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 Controlled Accounts shall be applied as provided in Section 2.21(c).
(c) Each Cash Management Control Agreement relating to a Controlled Account shall (unless otherwise reasonably agreed by the Administrative Agent) include provisions that allow, during any Dominion Period, for all collected amounts held in such Controlled Account from and after the date requested by the Administrative Agent, to be sent by ACH or wire transfer or similar electronic transfer no less frequently than once per Business Day to one or more accounts maintained with the Administrative Agent (each, an “Administrative Agent Deposit Account”). Subject to the terms of the respective Security Document, during any Dominion Period, all amounts received in an Administrative Agent Deposit Account shall be applied (and allocated) by the Administrative Agent on a daily basis in the following order: (i) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent under any of the Loan Documents and to repay or prepay outstanding Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Section 2.1(c); (ii) second, to the extent all amounts referred to in preceding clause (i) have been paid in full, to pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Bank under any of the Loan Documents and to repay all outstanding unpaid LC Disbursements and all interest thereon; (iii) third, to the extent all amounts referred to in preceding clauses (i) and (ii) have been paid in full, to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Loans and all accrued and unpaid fees actually due and payable to the Administrative Agent, the Issuing Banks and the Lenders under any of the Loan Documents; (iv) fourth, to the extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in full, to repay (on a ratable basis) the outstanding principal of Revolving Credit Loans (whether or not then due and payable); (v) fifth, to the extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in full, to the cash collateralization (on a ratable basis) of all LC Exposure in accordance with Section 2.4(j); (vi) sixth, to the extent all amounts referred to in preceding clauses (i) through (v), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding Obligations then due and payable to the Administrative Agent, the Issuing Banks and the Lenders under any of the Loan Documents; and (vii) seventh, to the extent all amounts referred to in preceding clauses (i) through (vi), inclusive, have been paid in full and so long as no Specified Default then exists, to be returned to the Borrowers for the Borrowers’ own account. Notwithstanding the foregoing, in no event shall the cash collections from any Canadian Subsidiary be applied to any US Borrower Obligations.
(d) All costs and expenses to effect the foregoing (including reasonable legal fees and disbursements of counsel) shall be paid by the Loan Parties.
(e) Notwithstanding anything to the contrary in this Agreement. In Agreement or any Loan Document, to the event thatextent that any Borrower Group Member or counterparty to a Hedge Agreement is required to post any margin or collateral under a Hedge Agreement as a result of any regulatory requirement, notwithstanding swap clearing organization rule, or other similar regulation, rule, or requirement,
(i) A Borrower Group Member shall be permitted to make payments of such margin or collateral to the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control counterparty in satisfaction of any such proceeds regulation, rule, or collectionsrequirement; and
(ii) If any such counterparty posts any such margin or collateral with any Borrower Group Member, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, margin or collateral shall not be commingled with subject to any cash trap, cash sweep, or other cash management provision or restriction in any Loan Document, save and except any pledge or assignment of such Credit Party’s hedging agreement, with the express intention that the relevant Borrower Group Member shall be permitted to receive, return (including any return payment), or apply such margin or collateral in accordance with the relevant Hedge Agreement; provided, however, that such Borrower Group Member shall not use any such margin or collateral for any other funds or deposited purpose than in any account of such Credit Party and shall, not later than accordance with the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agentrelevant Hedge Agreement.
Appears in 1 contract
Samples: Abl Credit Agreement (Foundation Building Materials, Inc.)
Cash Management. (ai) The 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 Parties shall deliverCard Notification”), or cause 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, and (ii) other than with respect to Bank of Montreal (which shall be delivereddelivered on the Closing Date), on or prior to Collateral the date that is sixty (60) days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), enter into a Blocked Account Agreement duly authorized, executed and delivered by with each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank set forth on Schedule 6.12.
(which the Collateral Agent agrees will only be given after the occurrence of an Account Control Eventb) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), Cause 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 time 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 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, 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 Faxxx xr 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) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collectionscollections from all sources, including, without limitation, the following:: 110
(i) all available cash receipts from the sale of Inventory (including without limitation, proceeds of credit card charges) and other assetsassets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments net proceeds received by a Credit Loan Party from any Person or from any source or on account of any sale or other transaction or eventDisposition of ABL Priority Collateral;
(iv) the then contents of each Deposit Account;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 AccountAccount (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); and
(vi) the net All funds in each DDA and each Blocked Account shall be conclusively presumed to be Collateral and proceeds of all credit card chargesCollateral 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.
(bd) The Each Collection Account shall at all times during the continuance of a Cash Dominion Event be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) during the Credit continuance of a Cash Dominion Event, the Loan Parties have no right of withdrawal from the Collection AccountAccounts, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations 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 this AgreementSection 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collectionscollections while a Cash Dominion Event exists, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral 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 Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. (a) The Credit Parties Each Loan Party shall deliver, (i) instruct all Account Debtors of such Loan Party to remit all payments in respect of any Account on which such Account Debtor is obligated to a “P.O. Box” or cause “Lockbox Address” associated with a deposit account subject to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized(each, executed a “Payment Account”), which remittances shall be collected by the depository institution at which such “P.O. Box” or “Lockbox Address” is maintained and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliverdeposited in such Payment Account, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicableii) has complied in full with the provisions of this Section 5.15(a) except with respect to Excluded Accounts, cause each deposit account held by such Deposit Accounts. Each Blocked Account Agreement shall requireLoan Party (including, after notice from the Collateral Agent without limitation, each Payment Account) to become subject to a Blocked Account Bank Agreement pursuant to which (which without limiting the terms thereof) the Collateral Agent agrees will only be given after the occurrence of may, during a Cash Dominion Period, exercise full dominion over such account and sweep all funds on deposit therein to an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained designated by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received with such sweep instructions to be irrevocable unless otherwise agreed to by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Without limiting the foregoing, all amounts received by a Borrower or any of its Subsidiaries in respect of any deposit account (or by the depository institution at which such account is held), in addition to all other cash received from any other source, shall upon receipt be deposited into a Blocked Account. Each Loan Party agrees that it will not cause or permit proceeds of any deposit accounts to be directed to any account other than the Collection Account; provided that, so long as a Cash Dominion Period is not in effect, the Loan Parties hereby acknowledge and agree that (i) the Credit Parties have no right may redirect proceeds of withdrawal deposit accounts from the Collection Account, Account to another Blocked Account by providing the Administrative Agent and the applicable depository bank with five (ii5) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral AgentDays’ prior written notice.
Appears in 1 contract
Samples: Credit Agreement (Independence Contract Drilling, Inc.)
Cash Management. (a) The On or prior to the Closing Date (or such later date as may be permitted pursuant to Section 6.16):
(i) at the request of the Agent, deliver to the Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent such Loan Party’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.24(b); and
(ii) enter into a Blocked Account Agreement duly authorizedwith 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 by to each bank where a Deposit Account for depository institution listed on Schedule 5.24(a). Notwithstanding anything herein to the benefit of any Credit Party is maintained. Each Borrower shall further execute and delivercontrary, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a6.11(a) shall not apply to any deposit account that is acquired by a Loan Party in connection with respect a Permitted Business Acquisition permitted under this Agreement prior to the date that is forty-five (45) days (or such Deposit Accounts. Each Blocked Account Agreement shall requirelater date as may be consented to by the Agent, after notice from such consent not to be unreasonably withheld, conditioned or delayed) following the Collateral Agent to a Blocked Account Bank date of such Permitted Business Acquisition.
(which the Collateral Agent agrees will only be given b) From and after the occurrence of an Account Control Event) Closing Date (and until the Collateral Agent notifies or such Blocked Account Bank later date as may be permitted pursuant to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedSection 6.16), the Loan Parties shall ACH or wire transfer no less frequently than daily once per Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all of the collection following:
(i) all amounts on deposit in each DDA other than accounts created pursuant to clause (e) below (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);
(ii) all payments due from Credit Card Processors and Credit Card Issuers and proceeds of all credit card charges;
(iii) all cash receipts from the Disposition of Inventory and other assets (whether or not constituting Collateral, but subject to clause (e) below in the case of Term Priority Collateral);
(iv) all proceeds of Accounts; and
(v) subject, in each case, to compliance with the terms of the Intercreditor Agreement and clause (e) below, 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.
(c) Each Blocked Account Agreement shall require upon notice from the Agent which notice shall be delivered only after the occurrence and during the continuance of an Event of Default the ACH or wire transfer no less frequently than once per Business Day (and whether or not there are then any outstanding Obligations) to an account maintained by the Collateral Agent at JPMorgan Chase BankAgent, N.A. or, prior to the Discharge of ABL Obligations (as defined in the Intercreditor Agreement), the Revolving Agents, (the “Collection Concentration Account”), of all cash receipts and collectionscollections received by each Loan Party from all sources (the “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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked AccountAccount (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);
(ii) all amounts required to be deposited into the Blocked Accounts pursuant to clause (b) above; and
(viiii) subject, in each case, to compliance with the net terms of the Intercreditor Agreement, any other cash amounts received by any Loan Party from any other source, on account of any type of transaction or event; provided, however, that 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 once per Business Day (and whether or not there are then any outstanding Obligations) all Receipts and Collections to another Blocked Account, as opposed to the Concentration Account; provided, further, that Agent’s receipt of any proceeds of all credit card chargesABL Priority Collateral shall be subject to the terms of the Intercreditor Agreement, if applicable.
(bd) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit 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(e) or Section 9.04 of this Agreement, as applicable. The Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, and (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this AgreementObligations. In the event that, notwithstanding the provisions of this Section 5.156.11, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(e) The Loan Parties and their Subsidiaries shall, upon the written request of Agent, establish and thereafter maintain one or more deposit accounts, and enter into Blocked Account Agreements with respect thereto, for the deposit of identifiable proceeds of Term Priority Collateral, and, from and after the establishment of such deposit accounts, cause all identifiable proceeds of Term Priority Collateral to be deposit solely in such accounts promptly upon receipt of such proceeds. Upon the request of the Agent, after the occurrence and during the continuance of an Event of Default, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
(f) If the Agent does not require DDA Notifications to be delivered on the Closing Date in accordance with Section 6.11(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 and delivered to each depository institution listed on Schedule 5.23(a).
Appears in 1 contract
Cash Management. (a) On or prior to the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit H which have been executed on behalf of such Loan Party and delivered to such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”) satisfactory in form and substance to the Agents with each Blocked Account Bank (collectively, the “Blocked Accounts”). The Administrative Agent hereby acknowledges and agrees that, upon delivery of the Credit Parties Card Notifications and Blocked Account Agreements described on Schedule 6.13, the requirements of this Section 6.13(a), and the requirements set forth below in each of Sections 6.13(b) and 6.13(c), shall deliver, be deemed to have been satisfied.
(i) Each Credit Card Notification shall require the ACH or cause wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliverall payments due from credit card processors, and (ii) the Borrowers shall cause each Guarantor depository institution listed on Schedule 5.21(a) to execute cause the ACH or wire transfer no less frequently than daily (and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such whether or not there are then any outstanding Obligations) to a Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor of all amounts on deposit in each DDA.
(as applicablec) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence and during the continuance of an Account Control a Cash Dominion Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Xxxxx Fargo Bank (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit AccountDDA (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 AccountAccount (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 net proceeds of all credit card charges. Prior to the exercise of remedies provided for in Section 8.02 (or before the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section 8.02), subject to the terms of the Intercreditor Agreement, all amounts received in the Concentration Account from any source, including the Blocked Account Banks, shall be applied by the Administrative Agent in the order set forth in Section 2.05(e).
(bd) Concurrently with the delivery of the financial statements referred to in Section 6.01(b), the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts and the Concentration Account, which shall identify, to the reasonable satisfaction of the Collateral Agent, the proceeds from the Note Purchasers Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. In addition, the Loan Parties shall provide the Collateral Agent (i) with written notice of any Restricted Payment or other intercompany transfer to be made to any Loan Party by any Subsidiary located outside of the United States, in each case as otherwise permitted pursuant to Sections 7.06 or 7.18, respectively, of this Agreement, no less than five (5) days prior to the receipt thereof and (ii) with written confirmation (which shall include a fed reference number, if applicable) on the date of the receipt of any such Restricted Payment or other intercompany transfer. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting and/or written confirmation, the Collateral Agent agrees to promptly remit to the agent under the Note Purchase Facility the proceeds of the Note Purchasers Priority Collateral received by the Collateral Agent.
(e) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Concentration Account shall be applied as provided in this Agreement. .
(f) In the event that, notwithstanding after the provisions occurrence and during the continuance of this Section 5.15a Cash Dominion Event, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections described in Section 6.13(c), such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(g) Upon the request of the Administrative Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Samples: Credit Agreement (Childrens Place Retail Stores Inc)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute (i) instruct each depository institution for a deposit account to cause all amounts on deposit and deliver, and shall cause available at the close of each Guarantor Business Day in such deposit account to execute and deliverbe swept to one of the Borrowers’ concentration accounts no less frequently than on a daily basis, such agreements and documents as instructions to be irrevocable unless otherwise agreed to by the Collateral Agent may reasonably require in connection with such Blocked Accounts and such Agent, (ii) enter into Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Agreements with respect to all concentration accounts and such Deposit Accountsother accounts as may be requested by the Agents from time to time, and (iii) instruct all Account Debtors of the Borrowers to remit all payments of all Trade Accounts of such Account Debtor (other than Trade Accounts for which payment is to be made to Factor under the Factoring Agreement subject to the Assignment of Factoring Proceeds Agreement) to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable deposit account, which remittances shall be collected by the Clearing Bank and deposited in the applicable deposit account. All amounts received by a Borrower or any of its Subsidiaries and any Clearing Bank in respect of any deposit account, in addition to all other cash received from any other source, shall upon receipt be deposited into a deposit account. Each Loan Party agrees that it will not cause proceeds of such deposit accounts to be otherwise redirected.
(b) Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or require wire transfer no less frequently than daily once per Business Day (unless the Commitments have been terminated and whether the Obligations hereunder and under the other Loan Documents have been paid in full or cash collateralized in accordance with the terms of this Agreement), of all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Blocked Account net of such minimum balance (not there are then to exceed $10,000 per account), if any, required by the bank at which such Blocked Account is maintained to (i) a concentration account subject to a Blocked Account Agreement, or (ii) with respect to funds in any outstanding Obligations) such concentration account, to the collection an account maintained by with the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”). Each Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(c) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.11(b).
(d) If, of all any cash receipts and collections, including, without limitation, the following:
or cash equivalents owned by any Loan Party (other than (i) all available de minimis cash receipts or cash equivalents from the sale of Inventory and other assets;
time to time inadvertently misapplied by any Loan Party, (ii) all proceeds of collections of Accounts;
funds in any deposit account the amounts in which are solely swept into any Blocked Account, (iii) all Net Asset Sale Proceeds any funds which are held by any Borrower and Net Insurance/Condemnation Proceedsany of their respective Subsidiaries on behalf of any customer in the ordinary course of business, and all other cash payments received by a Credit Party from any Person or from any source or on account of any sale or other transaction or event;
(iv) funds in any deposit account constituting proceeds of the then contents of each Deposit Account;
(vTerm Loan Priority Collateral) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement, the then entire ledger balance of each Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account; and
(vi) the net proceeds of , and to cause all credit card chargesfuture deposits to be made to a Blocked Account.
(be) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree that agrees that, except to the extent otherwise provided in the Security Agreements (ix) the Credit Parties have such Loan Party has no right of withdrawal from the Collection Account, (iiy) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Loan Parties hereunder and under the other Loan Documents, and (iiiz) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.155.13, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
Appears in 1 contract
Cash Management. (a) The On or prior to the Effective Date:
(i) deliver to the Lender copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit E which have been executed on behalf of the Borrower and delivered to be delivered, to Collateral Agent the Borrower’s Credit Card Issuers and Credit Card Processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement duly authorizedsatisfactory in form and substance to the Lender with each Blocked Account Bank (collectively, the “Blocked Accounts”).
(b) At the request of the Lender, the Borrower shall deliver to the Lender copies of notifications (each, a “DDA Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of the Borrower and delivered by to each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each depository institution listed on Schedule 5.21(a).
(c) The Borrower shall further execute ACH or wire transfer no less frequently than daily (and deliver, and shall cause each Guarantor whether or not there are then any outstanding Obligations) to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such a Blocked Account Agreements. Other than Excluded Deposit Accounts, no all amounts on deposit in each DDA and all payments due from Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor Card Issuers and Credit Card Processors.
(as applicabled) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after require upon notice from the Collateral Agent to a Blocked Account Bank (Lender, which the Collateral Agent agrees will notice shall be delivered only be given after the occurrence and during the continuance of an Account Control a Cash Dominion Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection concentration account maintained by the Collateral Agent Lender at JPMorgan Chase Bank, N.A. Wxxxx Fargo (the “Collection Concentration Account”), of all cash receipts and collectionscollections received by the Borrower from all sources, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other assetsassets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Party the Borrower from any Person or from any source or on account of any sale Disposition or other transaction or event, including, without limitation, any Prepayment Event;
(iv) the then contents of each Deposit AccountDDA (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 AccountAccount (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 net proceeds of all credit card charges.
(be) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral AgentLender. The Credit Parties Borrower hereby acknowledge acknowledges and agree agrees that (i) the Credit Parties have Borrower has no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Concentration Account shall be applied to the Obligations as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.156.13, any Credit Party the Borrower receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Party the Borrower for the Collateral AgentLender, shall not be commingled with any of such Credit Partythe Borrower’s other funds or deposited in any account of such Credit Party the Borrower and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Party the Borrower may be instructed by the Collateral AgentLender.
(f) Upon the request of the Lender, the Borrower shall cause bank statements and/or other reports to be delivered to the Lender not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Samples: Credit Agreement (Bluefly Inc)
Cash Management. (a) The Credit Parties shall deliverWithin thirty (30) days of the occurrence of a Specified Default, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for immediately upon the benefit occurrence of any Credit Party is maintained. Each Borrower other Cash Dominion Event, the Borrowers, upon the written request of any Agent, shall further execute and deliverdeliver to the Agents a schedule of all DDAs, and shall cause each Guarantor that to execute and deliverthe knowledge of the Responsible Officers of the Loan Parties, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accountsare maintained by the Loan Parties, no Credit Party shall establish any Deposit Accounts after the Closing Datewhich Schedule includes, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to each depository (i) the name and address of such Deposit depository; (ii) the account number(s) maintained with such depository; and (iii) a contact person at such depository.
(b) Schedule 2.18(b) describes, as of the Third Amendment Effective Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card charges for sales by such Loan Party.
(c) On or prior to the Third Amendment Effective Date, to the extent not previously delivered, each Loan Party shall:
(i) deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit G which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Agents, with any Blocked Account Bank, including, without limitation, with respect to the deposit accounts listed on Schedule 2.18(c) (collectively, the “Blocked Accounts. ”).
(d) Each Credit Card Notification and Blocked Account Agreement shall require, after during the continuance of a Cash Dominion Event (and delivery of notice thereof from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedAgent), the ACH or wire transfer no less frequently than daily on each Business Day (and whether or not there are is then any an outstanding Obligationsbalance in the Loan Account) of all available cash receipts (the “Cash Receipts”) to the collection concentration account maintained by the Collateral Administrative Agent at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Concentration Account”), of all cash receipts and collections, including, without limitation, the followingfrom:
(i) all available cash receipts from the sale of Inventory and other assetsCollateral (other than, until the Term Loan Financing Facility is repaid in full, Term Loan Priority Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Party from any Person or from any source or on account of any sale or other transaction or event[reserved];
(iv) the then contents of each Deposit Account;Blocked Account (including all cash deposited therein from each DDA); and
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net cash proceeds of all credit card charges.
(be) If, at any time during the continuance of a Cash Dominion Event, any cash or cash equivalents owned by any Loan Party (other than any cash or cash equivalents held in or credited to Excluded Accounts) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account that is subject to a Blocked Account Agreement or an Excluded Account, the Collateral Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account which is subject to a Blocked Account Agreement. In addition to the foregoing, during the continuance of a Cash Dominion Event, the Loan Parties shall, upon the reasonable written request of the Collateral Agent, provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the reasonable satisfaction of the Collateral Agent, the proceeds from the Term 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 Blocked Accounts, and (y) such accounting, the Collateral Agent agrees, to the extent required by the Intercreditor Agreement, to promptly remit to the agent under the Term Loan Financing Facility the proceeds of the Term Loan Priority Collateral received by the Administrative Agent.
(f) The Collection Loan Parties may close DDAs or Blocked Accounts and/or open new DDAs or Blocked Accounts, subject, in the case of new DDAs or Blocked Accounts, to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (except with respect to any Excluded Accounts or unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent. The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account that is not an Excluded Account, and the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent.
(g) The Borrowers may also maintain one or more disbursement accounts (the “Disbursement Accounts”) to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) During the continuance of a Cash Dominion Event, the Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Borrower hereby acknowledge acknowledges and agree agrees that during the continuance of a Cash Dominion Event, (i) the Credit Parties have such Borrower has no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times continue to be collateral security for all of the Obligations Obligations, and (iii) the funds on deposit in the Collection Concentration Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15SECTION 2.18, during the continuation of a Cash Dominion Event, any Credit Party 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 Credit Party Borrower for the Collateral Agent, shall not be commingled with any of such Credit PartyBorrower’s other funds or deposited in any account of such Credit Party Borrower and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Party Borrower may be instructed by the Collateral Agent.
(i) Any amounts received in the Concentration Account at any time when all of the Obligations then due have been and remain fully repaid shall be remitted to the operating account of the Borrowers maintained with the Administrative Agent.
(j) The Collateral Agent shall promptly (but in any event within one Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(k) The following shall apply to deposits and payments under and pursuant to this Agreement:
(i) Funds shall be deemed to have been deposited to the Concentration Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(ii) Funds paid to the Administrative Agent, other than by deposit to the Concentration Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that such payment is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that if the Obligations or are being paid in full, by 2:00 p.m. on that Business Day);
(iii) If a deposit to the Concentration Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the then next Business Day;
(iv) If any item deposited to the Concentration Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such dishonor or return;
(v) All amounts received under this SECTION 2.18 shall be applied in the manner set forth in Section 2.17(f) and in the priority set forth in Section 7.03.
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliverMid-Holdings, or cause to be deliveredthe Borrowers and each other Loan Party shall, to along with the Collateral Agent and certain financial institutions selected by the Loan Parties, reasonably satisfactory to the Collateral Agent and located in a Blocked Account Agreement duly authorizedSpecified Qualified Jurisdiction (the “Collection Banks”), executed and delivered by each bank where a Deposit Account for enter into within 75 days after the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, Closing Date (or such agreements and documents longer period as the Collateral Agent may reasonably require in connection agree), and thereafter maintain, separate Cash Management Control Agreements with such Blocked Accounts and such Blocked Account Agreementsrespect to all deposit accounts (other than Exempt Accounts). Other than Excluded Deposit Accounts, no Credit Each Loan Party shall establish any Deposit Accounts after instruct all Account Debtors of such Loan Party to remit all payments to the Closing Date, unless applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Collection Bank (or to remit such Borrower or Guarantor (as applicable) has complied in full with payments to the provisions of this Section 5.15(aapplicable Collection Bank by electronic settlement) with respect to all Accounts of such Deposit AccountsAccount Debtor which remittances shall be collected by the applicable Collection Bank and deposited in the applicable deposit account of the applicable Loan Party. All amounts received by any Loan Party and any Collection Bank, in respect of any Account, in addition to all other cash received from any other source (other than cash and Cash Equivalents maintained in Exempt Accounts or otherwise by Loan Parties not to exceed $2.5 million in the aggregate at any time), shall promptly upon receipt be deposited or swept into a Controlled Account.
(b) So long as no Dominion Period then exists, the Loan Parties shall be permitted to withdraw cash and Cash Equivalents from Controlled Accounts to be used for working capital and general corporate purposes. If a Dominion Period exists, all collected amounts held in the Controlled Accounts shall be applied as provided in Section 2.24(c).
(c) Each Blocked Account Cash Management Control Agreement shall require, after notice from the Collateral Agent relating to a Blocked Controlled Account Bank shall (which unless otherwise reasonably agreed by the Collateral Agent agrees will only be given Administrative Agent) include provisions that allow, during any Dominion Period, for all collected amounts held in such Controlled Account from and after the occurrence of an Account Control Event) (and until date requested by the Collateral Agent notifies such Blocked Account Bank Administrative Agent, to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the sent by ACH or wire transfer or similar electronic transfer no less frequently than daily once per Business Day to one or more accounts maintained with the Administrative Agent (each, an “Administrative Agent Deposit Account”). Subject to the terms of the respective Security Document, during any Dominion Period, all amounts received in an Administrative Agent Deposit Account shall be applied (and allocated) by the Administrative Agent on a daily basis in the following order: (i) first, to the payment (on a ratable basis) of any outstanding expenses actually due and payable to the Administrative Agent and the Collateral Agent under any of the Loan Documents and to repay or prepay outstanding Loans advanced by the Administrative Agent on behalf of the Lenders pursuant to Section 2.4(d); (ii) second, to the extent all amounts referred to in preceding clause (i) have been paid in full, to pay (on a ratable basis) all outstanding expenses actually due and payable to each Issuing Bank under any of the Loan Documents and to repay all outstanding unpaid LC Disbursements and all interest thereon; (iii) third, to the extent all amounts referred to in preceding clauses (i) and (ii) have been paid in full, to pay (on a ratable basis) all accrued and unpaid interest actually due and payable on the Loans and all accrued and unpaid fees actually due and payable to the Agents, the Issuing Banks and the Lenders under any of the Loan Documents; (iv) fourth, to the extent all amounts referred to in preceding clauses (i) through (iii), inclusive, have been paid in full, to repay (on a ratable basis) the outstanding principal of Revolving Credit Loans of each Revolving Credit Facility (whether or not there are then any outstanding Obligationsdue and payable); (v) fifth, to the collection account maintained by extent all amounts referred to in preceding clauses (i) through (iv), inclusive, have been paid in full, to the cash collateralization (on a ratable basis) of all LC Exposure in accordance with Section 2.7(j); (vi) sixth, to the extent all amounts referred to in preceding clauses (i) through (v), inclusive, have been paid in full, to pay (on a ratable basis) all other outstanding Obligations then due and payable to the Administrative Agent, the Collateral Agent at JPMorgan Chase Bankand the Lenders under any of the Loan Documents; and (vii) seventh, N.A. to the extent all amounts referred to in preceding clauses (the “Collection Account”i) through (vi), inclusive, have been paid in full and so long as no Specified Default then exists, to be returned to the Borrowers for the Borrowers’ own account.
(d) Each English Loan Party shall provide to the Collateral Agent within 25 days of all cash receipts the date of this Agreement (or, if later, the date on which it becomes an English Loan Party) an executed but undated book debts and collectionsaccount charge (a “Pre-executed Charge”) which the Collateral Agent shall hold on the terms of this Section 2.24. There shall be no obligation for the relevant English Loan Party to deliver any further documents or evidence under or in connection with the Pre-executed Charge including, without limitation, any corporate resolutions (other than for information purposes only), or other formalities, certificates, legal opinions or other conditions precedent. The Pre-executed Charge shall follow substantially the same form as the English Debenture and shall not contain any more onerous representations or undertakings (other than in relation to delivery of notices and procurement of acknowledgments, as applicable) than the English Debenture and shall otherwise be consistent with the provisions of the other Loan Documents (including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory Guarantee and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesCollateral Agreement).
(be) The Collection Account Upon the commencement of a Dominion Period, each English Loan Party shall at all times be enter into a book debts and account charge in substantially the name, and under the sole dominion and control form of the Pre-executed Charge (save for any amendments requested by the Collateral Agent. The Credit Parties hereby acknowledge Agent (acting reasonably) and agree that (iarising solely as a result of a change of law) to provide fixed security and full cash dominion with respect to each Controlled Account and any related Accounts in which the Credit Parties have no right of withdrawal from relevant English Loan Party has an interest for the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all duration of the Obligations and relevant Dominion Period.
(iiif) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding that any English Loan Party fails or refuses to comply with its obligations under Section 2.24(e) within two Business Days of being provided with an execution version of the provisions form of this negotiated charge pursuant to Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust 2.24(e) above by such Credit Party for the Collateral Agent, the Collateral Agent is authorized by such English Loan Party to date any Pre-executed Charge (which shall be deemed delivered by such English Loan Party on that date).
(g) Upon the termination of any Dominion Period, at the request of the relevant English Loan Party, the Collateral Agent shall promptly provide a customary deed of release of the book debts and account charge entered into in accordance with Section 2.24(e) above, or any Pre-executed Charge dated and delivered in accordance with Section 2.24(f) above, provided that, in respect of that English Loan Party, the relevant Dominion Period shall not terminate until such English Loan Party has provided a further Pre-executed Charge (which shall follow the same form as the existing Pre-executed Charge) to the Collateral Agent for use following the commencement of any further Dominion Period.
(h) All costs and expenses to effect the foregoing (including reasonable legal fees and disbursements of counsel) shall be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit 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 Credit Party may be instructed paid by the Collateral AgentLoan Parties.
Appears in 1 contract
Cash Management. (a) The Credit 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 First Lien Agent in their reasonable discretion), cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent or any Lender may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) GSO Entities with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require”); provided that, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted to maintain up to $1,000,000 in the aggregate in any disbursement accounts which are not held by Bank of America (such account(s), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent) at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent). The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral AgentFirst Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement), shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral First Lien Agent (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) 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 (or after Discharge of the First Lien Obligations (as defined in the First Lien Intercreditor Agreement) the Agent) may agree in connection with the realization on the Collateral.
(e) Upon the request of the Agent (at the direction of the Required Lenders), 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.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Sequential Brands Group, Inc.)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute (i) instruct each depository institution for a deposit account to cause all amounts on deposit and deliver, and shall cause available at the close of each Guarantor Business Day in such deposit account to execute and deliverbe swept to one of the Borrowers’ concentration accounts no less frequently than on a daily basis, such agreements and documents as instructions to be irrevocable unless otherwise agreed to by the Collateral Agent may reasonably require in connection with such Blocked Accounts and such Agent, (ii) enter into Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Agreements with respect to all concentration accounts and such Deposit Accountsother accounts as may be requested by the Agents from time to time, and (iii) instruct all Account Debtors of the Borrowers to remit all payments of all Trade Accounts of such Account Debtor (other than Trade Accounts for which payment is to be made to Factor under the Factoring Agreement subject to the Assignment of Factoring Proceeds Agreement) to the applicable “P.O. Boxes” or “Lockbox Addresses” with respect to the applicable deposit account, which remittances shall be collected by the Clearing Bank and deposited in the applicable deposit account. All amounts received by a Borrower or any of its Subsidiaries and any Clearing Bank in respect of any deposit account, in addition to all other cash received from any other source, shall upon receipt be deposited into a deposit account. Each Loan Party agrees that it will not cause proceeds of such deposit accounts to be otherwise redirected.
(b) Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or require wire transfer no less frequently than daily once per Business Day (unless the Commitments have been terminated and whether the Obligations hereunder and under the other Loan Documents have been paid in full or cash collateralized in accordance with the terms of this Agreement), of all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Blocked Account net of such minimum balance (not there are then to exceed $10,000 per account), if any, required by the bank at which such Blocked Account is maintained to (i) a concentration account subject to a Blocked Account Agreement, or (ii) with respect to funds in any outstanding Obligations) such concentration account, to the collection an account maintained by with the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”). Each Loan Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(c) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.11(b).
(d) If, of all any cash receipts and collections, including, without limitation, the following:
or cash equivalents owned by any Loan Party (other than (i) all available de minimis cash receipts or cash equivalents from the sale of Inventory and other assets;
time to time inadvertently misapplied by any Loan Party, (ii) all proceeds of collections of Accounts;
funds in any deposit account the amounts in which are solely swept into any Blocked Account and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement, the Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsfunds therein transferred to a Blocked Account, and to cause all other cash payments received by future deposits to be made to a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(be) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree that agrees that, except to the extent otherwise provided in the Security Agreements (ix) the Credit Parties have such Loan Party has no right of withdrawal from the Collection Account, (iiy) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Loan Parties hereunder and under the other Loan Documents, and (iiiz) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.155.13, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
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Cash Management. (ai) The 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 Parties shall deliverCard Notification”), or cause 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, and (ii) other than with respect to Bank of Montreal (which shall be delivereddelivered on the Closing Date), on or prior to Collateral the date that is sixty (60) days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), enter into a Blocked Account Agreement duly authorized, executed and delivered by with each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank set forth on Schedule 6.12.
(which the Collateral Agent agrees will only be given after the occurrence of an Account Control Eventb) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), Cause 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 time 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 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, 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 Xxxxx 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) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collectionscollections 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 assetsassets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments net proceeds received by a Credit Loan Party from any Person or from any source or on account of any sale or other transaction or eventDisposition of ABL Priority Collateral;
(iv) the then contents of each Deposit Account;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 AccountAccount (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); and
(vi) the net All funds in each DDA and each Blocked Account shall be conclusively presumed to be Collateral and proceeds of all credit card chargesCollateral 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.
(bd) The Each Collection Account shall at all times during the continuance of a Cash Dominion Event be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) during the Credit continuance of a Cash Dominion Event, the Loan Parties have no right of withdrawal from the Collection AccountAccounts, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations 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 this AgreementSection 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collectionscollections while a Cash Dominion Event exists, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral 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 Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
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Cash Management. (a) The Credit Parties On or prior to the Closing Date, the Borrower shall deliver(i) establish and maintain cash management services of a type and on terms satisfactory to the Administrative Agent at one or more of the banks set forth on Schedule 2.15(a) (each a “Cash Management Bank”), and shall request in writing and otherwise take such reasonable steps to ensure that all of its Account Debtors forward payment of the amounts owed by them directly to such Cash Management Bank, and (ii) deposit or cause to be delivereddeposited promptly, and in any event no later than the first Business Day after the date of receipt thereof, all Collections (including those sent directly by Account Debtors to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each Cash Management Bank) into a bank where account in the Administrative Agent’s name (a Deposit Account for “Cash Management Account”) at one of the benefit of any Credit Party is maintainedCash Management Banks. Each The Borrower shall further execute establish and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require maintain a concentration account in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. its name (the “Collection Concentration Account”), of all cash receipts and collections, including, without limitation, ) at the following:
bank or banks which shall be designated as the concentration account bank for the Borrower on Schedule 2.15(a) (ithe “Concentration Account Bank”) all available cash receipts from which bank shall be satisfactory to the sale of Inventory and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesAdministrative Agent.
(b) The Collection Each Cash Management Bank and the Concentration Account Bank shall at all times be establish and maintain Cash Management Agreements with the Administrative Agent and the Borrower or any Guarantor, in the name, form and under the sole dominion and control of the Collateral substance acceptable to Agent. The Credit Parties hereby acknowledge and agree Each such Cash Management Agreement shall provide, among other things, that (i) all items of payment deposited in such Cash Management Account and the Credit Parties have no right of withdrawal from Concentration Account and proceeds thereof are held by such Cash Management Bank or the Collection AccountConcentration Account Bank, as the case may be, as agent or bailee-in-possession for the Administrative Agent, (ii) the funds on deposit in Cash Management Bank and the Collection Concentration Account shall at all times be collateral security Bank have no rights of setoff or recoupment or any other claim against the applicable Cash Management Account or Concentration Account, other than for all payment of its service fees and other charges directly related to the Obligations administration of such Cash Management Account or Concentration Account and for returned checks or other items of payment, (iii) (A) with respect to each Cash Management Bank, such bank agrees, to forward immediately all amounts in each Cash Management Account to the funds on deposit Concentration Account Bank and to cause daily sweeps from such Cash Management Account into the Concentration Account, and (B) with respect to the Concentration Account Bank, such bank agrees from and after a receipt of a notice (an “Activation Notice”) from the Administrative Agent (which Activation Notice may be given by the Administrative Agent at any time at which a Default or an Event of Default shall have occurred and is continuing), to immediately forward all amounts received in the Collection Concentration Account to the Payment Office; provided, however, that the Administrative Agent reserves the right in its sole discretion, to require that Collections representing amounts attributable to trust fund taxes or Hydrocarbon interests of third Persons be segregated by the Cash Management Banks and held in a separate account (it being the intent of the Administrative Agent, to the extent it has sufficient information to do so, to so segregate trust fund taxes or Hydrocarbon interests of third Persons, and avoid the deposit of such funds into the Payment Office), and (iv) prior to the receipt by the Concentration Account Bank of an Activation Notice, all amounts in the Concentration Account may be transferred to and used by the Borrower in the ordinary course of business. From and after the date the Administrative Agent has delivered an Activation Notice to any Cash Management Bank with respect to any Cash Management Account(s), the Borrower shall not accumulate or maintain cash in disbursement or payroll accounts as of any date of determination in excess of checks outstanding against such accounts as of that date and amounts necessary to meet minimum balance requirements.
(c) So long as no Default or Event of Default has occurred and is continuing, the Borrower may amend Schedule 2.15(a) to add or replace a Cash Management Bank, Cash Management Account, Concentration Account Bank or Concentration Account; provided, however, that (i) such prospective Cash Management Bank or Concentration Account Bank shall be satisfactory to the Administrative Agent and the Administrative Agent shall have consented in writing in advance to the opening of such Cash Management Account or Concentration Account with the prospective Cash Management Bank or Concentration Account Bank, and (ii) prior to the time of the opening of such Cash Management Account or Concentration Account, the Borrower and Guarantors and such prospective Cash Management Bank or Concentration Account Bank shall have executed and delivered to the Administrative Agent a Cash Management Agreement. The Borrower shall close any of its Cash Management Accounts or Concentration Account (and establish replacement cash management accounts in accordance with the foregoing sentence) promptly and in any event within 30 days of notice from the Administrative Agent that the creditworthiness of any Cash Management Bank or Concentration Account Bank is no longer acceptable in the Administrative Agent’s reasonable judgment, or as promptly as practicable and in any event within 60 days of notice from Agent that the operating performance, funds transfer, or availability procedures or performance of the Cash Management Bank with respect to Cash Management Accounts, Concentration Account Bank with respect to the Concentration Account or the Administrative Agent’s liability under any Cash Management Agreement with such Cash Management Bank or the Concentration Account Bank is no longer acceptable in the Administrative Agent’s reasonable judgment.
(d) The Cash Management Accounts and the Concentration Account shall be applied as provided in this Agreement. In the event thatcash collateral accounts, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with all Collections in such other fashion as such Credit Party may be instructed by accounts securing payment of the Collateral Obligations, and in which the Borrower and each Guarantor is hereby deemed to have granted a Lien to the Administrative Agent.
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Cash Management. (a) The Each Borrower and other Credit Parties Party, as applicable, shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by (i) instruct each bank where depository institution for a Deposit Account for to cause all amounts on deposit and available at the benefit close of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor Business Day in such Deposit Account to execute and deliverbe swept to one of the Borrowers’ concentration accounts no less frequently than on a daily basis, such agreements and documents as Collateral Agent may reasonably require in connection instructions to be irrevocable unless otherwise agreed to by the Administrative Agent, (ii) enter into Control Agreements with such Blocked respect to all Deposit Accounts and such Blocked Account Agreements. Other other accounts as may be requested by the Administrative Agent from time to time (other than those with an average daily balance of less than $1,000 per account and then only for a period of not to exceed 90 days, within which time a Control Agreement will be entered into with respect thereto or constituting Excluded Deposit AccountsCollateral), no and (iii) instruct all Customers of the Credit Party shall establish any Deposit Accounts after Parties to remit all payments of all Receivables of such Customer to the Closing Date, unless such Borrower applicable “P.O. Boxes” or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) “Lockbox Addresses” with respect to such the applicable Deposit AccountsAccount, which remittances shall be collected by the Clearing Bank and deposited in the applicable Deposit Account and in the case of electronic payments (including ACH and wire transfers) to the Deposit Account into which the Clearing Bank deposits collected funds. All amounts received by a Borrower or any of its Subsidiaries and any Clearing Bank in respect of any Deposit Account, in addition to all other cash received from any other source, shall upon receipt be deposited into a Deposit Account. Each Blocked Account Credit Party agrees that it will not cause proceeds of such deposit accounts to be otherwise redirected.
(b) Each Control Agreement shall require, after notice from the Collateral Agent to during a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated)Cash Dominion Period, the ACH or wire transfer no less frequently than daily once per Business Day (unless the Revolving Credit Commitments have been terminated and whether the Obligations hereunder and under the other Loan Documents have been paid in full or cash collateralized in accordance with the terms of this Agreement), of all available cash balances and cash receipts, including the then contents or then entire ledger balance of each Blocked Account net of such minimum balance (not there are then to exceed $10,000 per account), if any, required by the bank at which such Blocked Account is maintained to (i) a concentration account subject to a Control Agreement, or (ii) with respect to funds in any outstanding Obligations) such concentration account, to the collection an account maintained by with the Collateral Administrative Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”). Each Credit Party agrees that it will not cause proceeds of any Blocked Account to be otherwise redirected.
(c) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.4(b).
(d) If, of all at any time during a Cash Dominion Period, any cash receipts and collections, including, without limitation, the following:
or Cash Equivalents owned by any Credit Party (other than (i) all available de minimis cash receipts or Cash Equivalents from the sale of Inventory and other assets;
time to time inadvertently misapplied by any Credit Party, (ii) all proceeds of collections of Accounts;
funds in any Deposit Account the amounts in which are solely swept into any Blocked Account and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business) are deposited to any account, or held or invested in any manner, CREDIT AGREEMENT AMONG CIT FINANCE LLC, THE LENDERS, BROADVIEW NETWORKS HOLDINGS, AND CERTAIN SUBSIDIARIES otherwise than in a Blocked Account subject to a Control Agreement, the Administrative Agent shall be entitled to require the applicable Credit Party to close such account and have all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsfunds therein transferred to a Blocked Account, and to cause all other cash payments received by future deposits to be made to a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(be) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Administrative Agent. The Each Credit Parties Party hereby acknowledge acknowledges and agree that agrees that, except to the extent otherwise provided in the Security Documents (ix) the such Credit Parties have Party has no right of withdrawal from the Collection Account, (iiy) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Credit Parties hereunder and under the other Loan Documents, and (iiiz) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.158.14, any Credit Party receives or otherwise has dominion and control of any such proceeds or collectionscollections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Administrative Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Administrative Agent.
(f) So long as no Cash Dominion Period exists, the Credit Parties may direct, and shall have the sole control over, the manner of disposition of funds in the Blocked Accounts.
Appears in 1 contract
Cash Management. (a) The Within 90 days after the Closing Date or such longer period as the Administrative Agent may reasonably agree, the Loan Parties shall:
(i) deliver to the Administrative Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent such Loan Party’s credit card clearinghouses and Credit Card Processors listed on Schedule 5.20(b); and
(ii) enter into a Blocked Account Agreement duly authorizedreasonably satisfactory in form and substance to the Agents with respect to each DDA maintained with any Blocked Account Bank (collectively, executed the “Blocked Accounts”); provided that Blocked Accounts shall not include (i) deposit accounts specifically and delivered by each bank where a Deposit Account exclusively used for payroll, payroll taxes and other employee wage and benefit payments to or for the benefit of any Credit Loan Party’s salaried employees, (ii) any zero balance account, (iii) any Store Account maintained at a bank at which the Loan Parties maintain fewer than 25 Store Accounts, (iv) accounts solely used for cash deposits subject to Permitted Encumbrances, and (v) any deposit account or lockbox specifically and exclusively for the receipt by the Loan Parties of Medicare Accounts or Medicaid Accounts, provided that such deposit accounts are under the control of a Loan Party and such Loan Party has directed payments from those accounts to the Blocked Accounts.
(b) Deposit all cash proceeds from sales of Inventory in every form, including, without limitation, cash and checks from each Store (other than Medicare Accounts and Medicaid Accounts) into the Store Account of such Loan Party used solely for such purpose in accordance with the then current practices of such Loan Party, but in any event no less frequently than once every three (3) Business Days; provided that each Store may retain in such Store funds of up to an average of $40,000 immediately after each deposit of funds from such Store into the applicable Store Account. All collected funds on deposit in the Store Accounts (including Store Accounts described in clause (iv) of Section 6.12(a)(ii)) shall be sent by wire transfer or other electronic funds transfer on each Business Day to the Blocked Accounts, except nominal amounts which are required to be maintained in such Store Accounts under the terms of such Loan Party’s arrangements with the bank at which such Store Accounts are maintained (which amounts, together with all amounts held at the retail store locations and not yet deposited in the Store Accounts, shall not in the aggregate exceed $25,000,000; (provided that such amount shall be permanently reduced each time a retail store of any Loan Party is maintained. Each Borrower shall further execute closed or sold by $40,000 and deliverincreased by $40,000 each time a store is opened or acquired pursuant to any Permitted Acquisition) at any one time, except to the extent from time to time additional amounts may be held in Stores or the Store Accounts on Saturday, Sunday or other days where the applicable depository bank is closed, which additional amounts are to be, and shall cause each Guarantor be, transferred on the next Business Day to execute the Blocked Accounts) and deliver, such agreements and documents except as Collateral the Administrative Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after otherwise agree.
(c) On or prior to the Closing Date, unless such Borrower establish and maintain a separate lockbox and deposit account into which the Loan Parties shall promptly deposit, and shall direct each Fiscal Intermediary or Guarantor (as applicable) has complied other Third Party Payor in full accordance with the provisions applicable Medicare and Medicaid regulations to directly remit, all payments in respect of this Section 5.15(aany Medicare Accounts or Medicaid Accounts. Such separate lockboxes and deposit accounts shall only be used for purposes of receiving payments in respect of Medicare Accounts and Medicaid Accounts and shall be under the sole control of the applicable Loan Party; provided that (i) with respect the Loan Parties shall authorize, direct and instruct the depository banks at which such separate lockboxes and deposit accounts are maintained to remit by federal funds wire transfer all funds received or deposited into such deposit accounts amounts on deposit in such accounts on a daily basis to one of the Blocked Accounts, which instructions by Loan Parties to such Deposit Accounts. banks may only be changed after not less than three (3) Business Days’ prior written notice to such banks and the Administrative Agent and (ii) any change in such instructions without the prior written consent of the Administrative Agent shall be an Event of Default hereunder.
(d) Subject to exceptions for Stores and Store Accounts in clause (b) and Medicare Accounts and Medicaid Accounts in clause (c) above, ACH or wire transfer no less frequently than once every Business Day (and whether or not there are then any outstanding Obligations) to a Blocked Account all proceeds of Accounts or other Collateral, including all proceeds from sales of Inventory, all amounts payable to each Borrower from Credit Card Issuers and Credit Card Processors and all other proceeds of Collateral.
(e) Each Blocked Account Agreement shall requirerequire that, after the Blocked Account Bank’s receipt of written notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence and during the continuance of an Account Control a Dominion Trigger Event) (and until , the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), shall effectuate the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection concentration account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. Bank of America (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each funds in such Blocked Account; and
(vi) the net proceeds of all credit card charges.
(bf) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreementpursuant to Section 8.03 on a daily basis after the occurrence and during the continuation of a Dominion Trigger Event. In the event that, notwithstanding the provisions of this Section 5.156.12, any Credit 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 Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral Agent.
(g) Upon the request of the Administrative Agent after the occurrence and during the continuance of a Dominion Trigger Event, cause bank statements and/or other reports to be delivered to the Administrative Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Samples: Asset Based Revolving Credit Agreement (Albertsons Companies, Inc.)
Cash Management. (a) The Credit Parties shall deliver, On or cause prior to the date 90 days (which amount of time may be delivered, to Collateral extended by the Administrative Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts its sole discretion) after the Closing Date:
(i) deliver to the Administrative Agent copies of notifications (each, unless a "Credit Card Notification") substantially in the form attached hereto as Exhibit M which have been executed on behalf of such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect Loan Party and delivered to such Deposit 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 Collateral Administrative Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after of the occurrence of an Account Control Event) a Cash Dominion Event (and until the Collateral Administrative Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if that such Account Control 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 collection concentration account maintained by the Collateral Administrative Agent at JPMorgan Chase BankBank of America, N.A. (the “Collection "Concentration Account”"), of all cash receipts and collectionscollections of the Loan Parties, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit AccountDDA;
(viv) the then entire ledger balance of each Blocked Account; and
(viv) the net proceeds of all credit card charges.
(bc) During the continuance of a Cash Dominion Event, the Loan Parties shall provide the Administrative Agent with an accounting of the contents of the Blocked Accounts and the Concentration Account, which shall identify, to the satisfaction of the Administrative Agent, the proceeds from the Term Loan Priority Collateral which were deposited into a Blocked Account and swept to the Concentration Account. Upon the receipt of (x) the contents of the Blocked Accounts, and (y) such accounting, the Administrative Agent agrees to promptly remit to the agent under the Term Facility the proceeds of the Term Loan Priority Collateral received by the Administrative Agent.
(d) The Collection Concentration Account shall at all times be in the name, and under the sole dominion and control of the Collateral Administrative Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.and
Appears in 1 contract
Samples: Credit Agreement (Leslie's, Inc.)
Cash Management. (a) The Credit Parties Subject to clauses (c) and (d) below, the Proceeds of the Accounts (including any Medicaid Supplemental Payments) of a Loan Party received from any Account Debtor or other Person obligated to make a payment with respect thereto shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a paid into any Approved Deposit Account for or Collection Deposit Account as required by clause (b) below; provided, however, that proceeds of the benefit Accounts (including Program Accounts) may be paid into Deposit Accounts that are neither an Approved Deposit Account nor a Collection Deposit Account, so long as the amount of Proceeds contained in all such Deposit Accounts does not exceed $10,000,000 in the aggregate at the end of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesBusiness Day.
(b) The Collection Account Each Loan Party shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit Parties have no right instruct each Account Debtor or other Person obligated to make a payment to any of withdrawal from the them (x) under any Account (other than Program Accounts) to make payment, or to continue to make payment, to an Approved Deposit Account or a Collection AccountDeposit Account and (y) under any Program Account to make payment, or to continue to make payment, to a Collection Deposit Account and (ii) the funds on deposit in an Approved Deposit Account or a Collection Deposit Account, as applicable, promptly upon receipt all Proceeds of such Accounts received by any Loan Party from any other Person; provided, however, that, at any time (including after the Collection Account shall at all times be collateral security for all occurrence and during the continuance of an Event of Default, and including after the Obligations and exercise by the Administrative Agent of its remedies provided under the Loan Documents), any amount identified (iiiwith reasonably detailed written support) to the funds on deposit Administrative Agent as (x) an “account” or “payment intangible” (as defined in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives UCC) or otherwise has dominion and control (y) Proceeds of any such proceeds “account” or collections, such proceeds and collections shall “payment intangible” (as defined in the UCC) in each case not constituting Proceeds of any Account (as defined herein) or “payment intangible” (as defined in the UCC) pertaining to any AMENDED AND RESTATED CREDIT AGREEMENT XXXXX HEALTHCARE CORPORATION Account (as defined herein) will be held promptly (an in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not no event later than the two Business Day Days after receipt thereof, be deposited into the Collection such written support is delivered) distributed to any Deposit Account or dealt with in such other fashion as such Credit Party may be instructed directed by the Collateral AgentBorrower or the Administrative Agent as requested by the Borrower, as applicable.
Appears in 1 contract
Cash Management. (a) The Credit Cause all Deposit Accounts that are concentration and controlled disbursement accounts of the Loan Parties shall deliver, or cause to be deliveredmaintained with Bank of America pursuant to such documentation as the Agent or any Lender may reasonably request, to Collateral Agent including, without limitation, a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) KKR Representative with respect to each such Deposit Account (collectively, the “Blocked Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account ”); provided that so long as no Cash Control Event has terminatedoccurred and is continuing, the Borrower shall be permitted to maintain up to $1,000,000 in the aggregate in any disbursement accounts which are not held by Bank of America (such account(s), the “Excluded Accounts”); it being understood that no Blocked Account Control Agreements or other control agreements shall be required in respect of the Excluded Accounts, provided that the aggregate amount on deposit in the Excluded Accounts does not exceed the amounts set forth above.
(b) After the occurrence and during the continuance of a Cash Control Event, cause the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent) at JPMorgan Chase Bank, N.A. Bank of America (the “Collection Account”), of no less frequently than daily, all cash receipts and collectionscollections received by each Loan Party from all sources, whether or not constituting Collateral, 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
, Excluded Account or any other Deposit Account of the Loan Parties (vi) 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 net proceeds of all credit card chargessubject Blocked Account or other Deposit Account by the applicable Blocked Account Bank or depository).
(bc) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent). The Credit Loan Parties hereby acknowledge and agree that (i) the Credit 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral AgentBoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement), shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral BoA Agent (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) 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 (or after Discharge of the BoA Facility Obligations (as defined in the Intercreditor Agreement) the Agent) may agree in connection with the realization on the Collateral.
(e) Upon the request of the Agent (at the direction of the Required Lenders), 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.
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliverWithin 30 days of the occurrence of a Specified Default that is continuing, or cause immediately upon the occurrence of any other Cash Dominion Event, the Borrowers, upon the request of the Administrative Agent, shall deliver to be the Administrative Agent 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, as of the Third Restatement Date, all arrangements to which any Loan Party is a party with respect to the payment to such Loan Party of the proceeds of all credit card and debit card charges for sales by such Loan Party.
(c) To the extent not previously delivered, each Loan Party shall:
(i) on or prior to the 30th day after the Third Restatement Date or such later date as the Administrative Agent shall agree in writing, deliver to the Collateral Agent notifications (each, a “Credit Card Notification”) substantially in the form attached hereto as Exhibit F which have been executed on behalf of such Loan Party and addressed to such Loan Party’s credit card and debit card clearinghouses and processors listed on Schedule 2.18(b); and
(ii) on or prior to the 90th day after the Third Restatement Date or such later date as the Administrative Agent shall agree in writing, enter into a blocked account agreement (each, a “Blocked Account Agreement”), reasonably satisfactory to the Administrative Agent, with any Blocked Account Bank, including, without limitation, with respect to the DDAs in which material amounts (as reasonably determined by the Administrative Agent in its Permitted Discretion) of funds of any of the Loan Parties from one or more DDAs are concentrated (excluding, for the avoidance of doubt, (x) the Designated Account, (y) payroll, trust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law, and (z) unless an Event of Default is then continuing, any xxxxx cash accounts funded in the ordinary course of business, the deposits in which do not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree)) (including those DDAs existing on the Third Restatement Date and listed on Schedule 2.18(c) attached hereto, collectively, the “Material DDAs” and, to the extent, subject to a Blocked Account Agreement duly authorizedAgreement, executed collectively, the “Blocked Accounts”).
(d) Each Credit Card Notification and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement entered into by a Loan Party shall require, require (after delivery of notice to the Blocked Account Bank from the Collateral Agent to a Blocked Account Bank (which notice may (or shall at the direction of the Required Lenders) only be given by the Collateral Agent agrees will only be given after during the occurrence continuance of an Account Control a Cash Dominion Event)) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or wire transfer no less frequently than daily on each Business Day (and whether or not there are is then any an outstanding Obligationsbalance in the Loan Account) of all available cash receipts (the “Cash Receipts”) (other than Uncontrolled Cash which may be deposited into a segregated DDA which the Lead Borrower designates in writing to the Administrative Agent as being the “Uncontrolled Cash Account” (the “Designated Account”)) to the collection account maintained by the Collateral Administrative Agent at JPMorgan Chase Bank, N.A. Xxxxx Fargo (the “Collection Account”), of all cash receipts and collections, including, without limitation, the followingfrom:
(i) all available cash receipts from the sale of Inventory and other assetsCollateral (whether or not constituting a Prepayment Event, but excluding, until the Term Loan Facility is repaid in full, any Term Priority Collateral);
(ii) all proceeds of collections of AccountsAccounts (whether or not constituting a Prepayment Event);
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Party from any Person or from any source or on account of any sale or Prepayment Event (other transaction or eventthan, until the Term Loan Facility is repaid in full, a Prepayment Event arising in connection with the Term Priority Collateral);
(iv) each Blocked Account (including all cash deposited therein from each DDA, net of any minimum balance not to exceed $5,000 per account (or such greater amount as the then contents of each Deposit Account;Administrative Agent may agree in its Permitted Discretion) as may be required to be kept in such DDA by the institution at which such DDA is maintained to the extent set forth in the applicable Blocked Account Agreement); and
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net cash proceeds of all credit card and debit card charges. If, at any time during the continuance of a Cash Dominion Event, any cash or Cash Equivalents owned by any Loan Party (other than (i) amounts on deposit in the Designated Account, which funds, shall not be funded from, or when withdrawn from the Designated Account, shall not be replenished by, funds constituting proceeds of Collateral so long as such Cash Dominion Event continues, (ii) xxxxx cash accounts funded in the ordinary course of business, the deposits in which shall not aggregate more than $25,000,000 or exceed $5,000,000 with respect to any one account (or in each case, such greater amounts to which the Administrative Agent may agree) and (iii) payroll, trust and tax withholding accounts funded in the ordinary course of business and required by Applicable Law) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account (or a DDA which is swept daily to a Blocked Account), then (a) the Borrowers shall cause all funds in such accounts or so held or so invested to be transferred with such frequency as may be reasonably required by the Administrative Agent to a Blocked Account (or a DDA which is swept daily to a Blocked Account) or (b) the Collateral Agent may require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and all future deposits made to a Blocked Account. In addition to the foregoing, during the continuance of a Cash Dominion Event, the Loan Parties shall provide the Collateral Agent with an accounting of the contents of the Blocked Accounts, which shall identify, to the reasonable satisfaction of the Collateral Agent, the proceeds from the Term Priority Collateral which were deposited into a Blocked Account and swept to the Collection Account. Upon the receipt of (x) the contents of the Blocked Accounts and (y) such accounting, the Collateral Agent agrees to promptly remit to the agent under the Term Loan Facility the proceeds of the Term Priority Collateral received by the Administrative Agent.
(be) [Reserved].
(f) The Loan Parties may close Material DDAs or Blocked Accounts and/or open new Material DDAs or Blocked Accounts, subject to the execution and delivery to the Collateral Agent of appropriate Blocked Account Agreements (unless expressly waived by the Collateral Agent) consistent with the provisions of this SECTION 2.18 and otherwise reasonably satisfactory to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Blocked Account Agreement with respect to any Material DDA acquired by a Loan Party in connection with a Permitted Acquisition or other Permitted Investment until the date that is 90 days (or such later date as the Administrative Agent may agree in its discretion) after the consummation of such Permitted Acquisition or other Permitted Investment). The Loan Parties shall furnish the Collateral Agent with prior written notice of their intention to open or close a Blocked Account, and in the case of the opening of a new account, the Collateral Agent shall promptly notify the Lead Borrower as to whether the Collateral Agent shall require a Blocked Account Agreement with the Person with whom such account will be maintained. Unless consented to in writing by the Collateral Agent, the Borrowers shall not enter into any agreements with credit card or debit card processors other than the ones expressly contemplated herein unless contemporaneously therewith, a Credit Card Notification, is executed and delivered to the Collateral Agent (provided that, the Loan Parties shall not be required to deliver a Credit Card Notification with respect to the credit card or debit card processors of any Loan Party acquired in a Permitted Acquisition or other Permitted Investment until the date that is 90 days (or such later date as the Administrative Agent may agree in its discretion) after the consummation of such Permitted Acquisition or other Permitted Investment).
(g) The Borrowers may also maintain one or more disbursement accounts, which shall not be subject to Blocked Account Agreements, to be used by the Borrowers for disbursements and payments (including payroll) in the ordinary course of business or as otherwise permitted hereunder.
(h) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Borrower hereby acknowledge acknowledges and agree agrees that (i) the Credit Parties have such Borrower has no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15SECTION 2.18, during the continuation of a Cash Dominion Event, any Credit Party 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 Credit Party Borrower for the Collateral Agent, shall not be commingled with any of such Credit PartyBorrower’s other funds or deposited in any account of such Credit Party Borrower and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Party Borrower may be instructed by the Collateral Agent.
(i) Any amounts received in the Collection Account at any time when all of the Obligations then due have been and remain fully repaid shall be remitted to the operating account of the Borrowers maintained with the Administrative Agent.
(j) The Collateral Agent shall promptly (but in any event within one Business Day) furnish written notice to each Person with whom a Blocked Account is maintained of any termination of a Cash Dominion Event.
(k) The following shall apply to deposits and payments under and pursuant to this Agreement, subject to SECTION 2.18(i):
(i) funds shall be deemed to have been deposited to the Collection Account on the Business Day on which deposited, provided that such deposit is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that, if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(ii) funds paid to the Administrative Agent, other than by deposit to the Collection Account, shall be deemed to have been received on the Business Day when they are good and collected funds, provided that such payment is available to the Administrative Agent by 4:00 p.m. on that Business Day (except that, if the Obligations are being paid in full, by 2:00 p.m. on that Business Day);
(iii) if a deposit to the Collection Account or payment is not available to the Administrative Agent until after 4:00 p.m. on a Business Day, such deposit or payment shall be deemed to have been made at 9:00 a.m. on the next Business Day;
(iv) if any item deposited to the Collection Account and credited to the Loan Account is dishonored or returned unpaid for any reason, whether or not such return is rightful or timely, the Administrative Agent shall have the right to reverse such credit and charge the amount of such item to the applicable Loan Account and the Borrowers shall indemnify the Secured Parties against all out-of-pocket claims and losses resulting from such dishonor or return; and
(v) all amounts received under this SECTION 2.18 shall be applied in the manner set forth in SECTION 7.04.
Appears in 1 contract
Cash Management. (a) The Credit Parties Each Loan Party shall deliver, (i) instruct all Account Debtors of such Loan Party to remit all payments in respect of any Account on which such Account Debtor is obligated to a “P.O. Box” or cause “Lockbox Address” associated with a deposit account subject to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized(each, executed a “Payment Account”), which remittances shall be collected by the depository institution at which such “P.O. Box” or “Lockbox Address” is maintained and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliverdeposited in such Payment Account, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicableii) has complied in full with the provisions of this Section 5.15(a) except with respect to Excluded Accounts, cause each deposit account held by such Deposit Accounts. Each Blocked Account Agreement shall requireLoan Party (including, after notice from the Collateral Agent without limitation, each Payment Account) to become subject to a Blocked Account Bank Agreement pursuant to which (which without limiting the terms thereof) the Collateral Agent agrees will only be given after the occurrence of may, during a Cash Dominion Period, exercise full dominion over such account and sweep all funds on deposit therein to an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained designated by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), with such sweep instructions to be irrevocable unless otherwise agreed to by the Collateral Agent. Without limiting the foregoing, all amounts received by a Borrower or any of all cash receipts and collectionsits Subsidiaries in respect of any deposit account (or by the depository institution at which such account is held), 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and in addition to all other cash payments received by a Credit Party from any Person other source, shall upon receipt be deposited into a Blocked Account. Each Loan Party agrees that it will not cause or from any source or on account permit proceeds of any sale or deposit accounts to be directed to any account other transaction or event;
(iv) than the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Collection Account; and
(vi) provided that, so long as a Cash Dominion Period is not in effect, the net Loan Parties may redirect proceeds of all credit card chargesdeposit accounts from the Collection Account to another Blocked Account by providing the Administrative Agent and the applicable depository bank with five (5) Business Days’ prior written notice.
(b) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.10(b), except as an Agent may otherwise be directed by binding order issued by a court of competent jurisdiction.
(c) If any cash or cash equivalents owned by any Loan Party (other than (i) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party, (ii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries in an Excluded Account in the Ordinary Course of Business) are deposited to any account, or held or invested in any manner, otherwise than in a deposit account subject to a Blocked Account Agreement in compliance with Section 5.12(a), then Exhibit A to FirstFourth Amendment #37466145 the Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to an account subject to a Blocked Account Agreement in compliance with Section 5.12(a), and to cause all future deposits to be made to such account.
(d) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree agrees that (ix) the Credit Parties have such Loan Party has no right of withdrawal from the Collection Account, (iiy) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Loan Parties hereunder and under the other Loan Documents, and (iiiz) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.155.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Independence Contract Drilling, Inc.)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintainedmaintained (provided that Blocked Account Agreements in respect of Deposit Accounts in existence on the Restatement Effective Date shall be delivered no later than the date required by Section 5.12(a)). Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Restatement Effective Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Douglas Dynamics, Inc)
Cash Management. (a) The Credit Parties Each Loan Party shall deliver, (i) instruct all Account Debtors of such Loan Party to remit all payments in respect of any Account on which such Account Debtor is obligated to a “P.O. Box” or cause “Lockbox Address” associated with a deposit account subject to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized(each, executed a “Payment Account”), which remittances shall be collected by the depository institution at which such “P.O. Box” or “Lockbox Address” is maintained and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliverdeposited in such Payment Account, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicableii) has complied in full with the provisions of this Section 5.15(a) except with respect to Excluded Accounts, cause each deposit account held by such Deposit Accounts. Each Blocked Account Agreement shall requireLoan Party (including, after notice from the Collateral Agent without limitation, each Payment Account) to become subject to a Blocked Account Bank Agreement pursuant to which (which without limiting the terms thereof) the Collateral Agent agrees will only be given after the occurrence of may, during a Cash Dominion Period, exercise full dominion over such account and sweep all funds on deposit therein to an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained designated by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), with such sweep instructions to be irrevocable unless otherwise agreed to by the Collateral Agent. Without limiting the foregoing, all amounts received by a Borrower or any of all cash receipts and collectionsits Subsidiaries in respect of any deposit account (or by the depository institution at which such account is held), 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and in addition to all other cash payments received by a Credit Party from any Person other source, shall upon receipt be deposited into a Blocked Account. Each Loan Party agrees that it will not cause or from any source or on account permit proceeds of any sale or deposit accounts to be directed to any account other transaction or event;
(iv) than the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Collection Account; and
(vi) provided that, so long as a Cash Dominion Period is not in effect, the net Loan Parties may redirect proceeds of all credit card chargesdeposit accounts from the Collection Account to another Blocked Account by providing the Administrative Agent and the applicable depository bank with five (5) Business Days’ prior written notice.
(b) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.10(b), except as an Agent may otherwise be directed by binding order issued by a court of competent jurisdiction.
(c) If any cash or cash equivalents owned by any Loan Party (other than (i) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party, (ii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries in an Excluded Account in the Ordinary Course of Business) are deposited to any account, or held or invested in any manner, otherwise than in a deposit account subject to a Blocked Account Agreement in compliance with Section 5.12(a), then the Collateral Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to an account subject to a Blocked Account Agreement in compliance with Section 5.12(a), and to cause all future deposits to be made to such account.
(d) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree agrees that (ix) the Credit Parties have such Loan Party has no right of withdrawal from the Collection Account, (iiy) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Loan Parties hereunder and under the other Loan Documents, and (iiiz) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.155.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds or collectionscollections required to be transferred to the Collection Account, such proceeds and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, shall promptly be deposited into the Collection Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
Appears in 1 contract
Samples: Credit Agreement (Independence Contract Drilling, Inc.)
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintainedmaintained (provided that Blocked Account Agreements in respect of Deposit Accounts in existence on the Restatement Effective Date shall be delivered no later than the date required by Section 5.12(a)). Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Restatement Effective Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collections, including, without limitation, including 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Douglas Dynamics, Inc)
Cash Management. (a) The Unless a Cash Management Event shall have occurred, the Credit Parties shall deliverbe permitted to receive directly for their own account all payments or other remittances of Accounts of the Credit Parties and other proceeds of the Collateral. Upon the occurrence of a Cash Management Event, the Agent may in its sole discretion give to the Credit Parties and the Depository Banks (as defined hereinafter) a written payment direction notice (a "Payment Direction Notice") (which notice in the case of an Event of Default described in SECTION 9.1(f) shall be deemed given to the Credit Parties without any further act by the Agent or cause to be deliveredany Lender) directing that (x) the Credit Parties, to Collateral Agent individually or through the Borrower, each (A) establish and maintain a Blocked Account Agreement duly authorizedwith financial institutions, executed including First Union, selected by the Company and delivered approved by each bank where a Deposit Account for the benefit Agent (the "Depository Banks") and (B) instruct all account debtors on the Accounts of any of the Credit Party is maintained. Each Borrower shall further execute Parties or which owe other obligations to any of the Credit Parties to remit all payments to its respective Depository Bank and deliver, and shall cause each Guarantor to execute and deliver, (y) all such agreements and documents as Collateral Agent may reasonably require in connection with such payments or other remittances received by the Depository Bank be deposited into the Blocked Accounts and such pursuant to the terms of the Blocked Account Agreements. Other than Excluded Deposit AccountsEach Credit Party, no Credit Party individually or through the Borrower, the Agent and each Depository Bank shall establish any Deposit Accounts after enter into three party agreements in the Closing Date, unless such Borrower or Guarantor form of EXHIBIT 3.16(a) hereto (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each "Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedAgreements"), the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bankproviding, N.A. (the “Collection Account”)among other things, of all cash receipts and collections, including, without limitation, for the following:
(i) all available cash receipts from The Borrowers, individually or through the sale Company, will open and establish for the benefit of Inventory and other assets;the Agent on behalf of the Lenders an account at each Depository Bank (each a "Blocked Account"). Notwithstanding the foregoing, in lieu of establishing a Blocked Account with First Union, the First Union Account will serve as the Credit Parties' Blocked Account with First Union.
(ii) All receipts received by the Depository Banks shall be remitted daily to the appropriate Blocked Account or the First Union Account, as applicable. Upon the terms and subject to the conditions set forth in the Blocked Account Agreements, all proceeds of collections of Accounts;amounts held in the Blocked Accounts with Depository Banks other than First Union shall be deposited daily into the First Union Account.
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation ProceedsAll good funds deposited into the First Union Account on any Business Day shall be applied by the Agent on such Business Day to the payment of the Credit Party Obligations. All amounts received directly by the Credit Parties from any account debtor, and in addition to all other cash payments received by a Credit Party from any Person or other source including but not limited to proceeds from any source or on account of any sale or other transaction or event;
(iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the nameasset sales and judgments, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such the Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party Parties and shall, not later than the Business Day after receipt thereof, be promptly deposited into the Collection applicable Blocked Account or dealt with in such other fashion as such or, if made by wire transfer, directly to the First Union Account.
(iv) All funds deposited into the First Union Account shall immediately become the property of the Agent and each of the Credit Party may be instructed Parties shall obtain the agreement by the Collateral AgentDepository Banks to waive any offset rights against the funds so deposited. The Agent assumes no responsibility for the blocked account arrangements, including without limitation, any claim of accord and satisfaction or release with respect to deposits accepted by the Depository Banks thereunder.
(v) The Credit Parties may close Blocked Accounts and/or open new Blocked Accounts with the prior written consent of the Agent and subject to prior execution and delivery to the Agent of Blocked Account Agreements consistent with the provisions of this SECTION 3.16(a) and in form and substance satisfactory to the Agent and its counsel.
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliver, [Reserved].
(b) Within 90 days after the Original Closing Date (or cause to be delivered, to such longer period as the Collateral Agent may agree in writing), enter into a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by each bank where a Deposit Account for substance to the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such each Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Bank with respect to each DDA maintained with such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which collectively, the Collateral Agent agrees will only be given after the occurrence of an Account Control Event“Blocked Accounts”).
(c) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated)During a Cash Dominion Trigger Period, cause the ACH or wire transfer to the concentration account maintained by the Collateral Agent at Wxxxx 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 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) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collectionscollections 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 assetsassets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsnet cash proceeds, and all other cash payments received by a Credit Loan Party from any Person or from any source or on account of any sale Disposition or other transaction or event;; and
(iv) the then contents of each Deposit Account;
(v) the then and entire ledger balance of each Blocked Account; and
DDA (vi) net of any minimum balance, not to exceed $50,000, as the net proceeds of all credit card chargesBorrower may be required to be kept in the subject DDA by the depository institution or securities intermediate at which such DDA is maintained).
(bd) The Collection Concentration Account shall at all times during a Cash Dominion Trigger Period be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) the Credit Loan Parties have no right of withdrawal from the Collection Concentration Account, without the consent of the Collateral Agent, (ii) the funds on deposit in the Collection Concentration Account shall at all times be collateral security for all of the Obligations and ABL Obligations, (iii) the funds on deposit in the Collection Concentration Account shall be applied to the ABL Obligations as provided in this Agreement and (iv) any funds remaining on deposit in the Concentration Account after payment in full of the ABL Obligations that are then due and payable shall be promptly (and in any event not later than the next Business Day after the 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 5.156.18, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collections, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after following the receipt thereof, be deposited into the Collection Concentration Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(e) Upon the request of the Collateral Agent, cause bank statements and/or other reports to be delivered to the Collateral 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. (a) The Credit Parties shall deliver, On or cause prior to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless 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 Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect Loan Party and delivered to such Deposit Accounts. Each Blocked Account Agreement Loan Party’s Credit Card Processors listed on Schedule 5.21(b).
(b) The Loan Parties shall require, after notice from the Collateral Agent ACH or wire transfer (i) no less frequently than weekly (and whether or not there are then any outstanding Obligations) to a Blocked Account Bank all available amounts on deposit in each DDA used by any Store or other retail location or otherwise for the receipt of proceeds of Accounts or other Collateral from customers and other obligors (which the Collateral Agent agrees will only be given after the occurrence of shall not include any Excluded DDA, so that funds in an Account Control Event) (and until the Collateral Agent notifies such Excluded DDA are not sent to a Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedAccount), the ACH or wire transfer (ii) no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Blocked Account all payments due from Credit Card Issuers and Credit Card Processors, and (iii) no less frequently than daily (and whether or not there are then any outstanding Obligations) all amounts on deposit in a Blocked Account to the collection account maintained 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 Collateral Agent at JPMorgan Chase depository bank.
(c) Each Blocked Account Agreement as to a Blocked Account shall require that the applicable Blocked Account Bank, N.A. (after notice by Administrative Agent to the “Collection Account”)applicable Blocked Account Bank, of transfer no less frequently than daily to the Agent Payment Account all cash receipts and collectionsavailable amounts on deposit in the Blocked Account subject to such Blocked Account Agreement, including, without limitation, including the following:
: (i) all available cash receipts from the sale of Inventory and other assets;
assets (whether or not constituting Collateral); (ii) all proceeds of collections of Accounts;
; (iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each , including any Prepayment Event, provided, that, Administrative Agent shall only send such notice to a Blocked Account; and
(vi) the net proceeds of all credit card chargesAccount Bank with respect to a Blocked Account at any time a Cash Dominion Event shall exist.
(bd) The Collection Blocked Account Agreement as to the Concentration Account shall at all times be in require that the nameapplicable Blocked Account Bank, and under after notice by Administrative Agent to the sole dominion and control of applicable Blocked Account Bank, transfer no less frequently than daily to the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit Parties have no right of withdrawal from the Collection Agent Payment Account, (ii) the all 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 Collection Account shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Agent Payment Account shall be applied to the Obligations as provided in accordance with this Agreement. In the event that, notwithstanding the provisions of this Section 5.156.13, any Credit 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 Credit Loan Party for the Collateral Administrative Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection a Blocked Account or the Concentration Account, or if there then exists a Cash Dominion Event, dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral 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. Subject to the terms of the Intercreditor Agreement:
(a) The Credit At all times during a Cash Dominion Period, the Loan Parties shall delivercause the ABL Agent, or cause to be deliveredin a manner consistent with any Control Agreement, to Collateral Agent take all actions with respect to a Blocked Account Agreement duly authorizedCash Dominion Period (as defined in the ABL Loan Documents), executed including, without limitation, issuing an Activation Instruction (as defined in the ABL Loan Documents) and delivered by each bank where requiring the Loan Parties to ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to a Deposit Account for the benefit that is subject to a Control Agreement in favor of any Agent all amounts on deposit in each DDA and all payments received from all Credit Party is maintained. Card Issuers and Credit Card Processors.
(b) Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Control Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated)following Agent’s notice, the ACH or wire transfer no less frequently than daily (and whether or not there are then any outstanding Obligations) to the collection a concentration account maintained designated by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”)Agent, of all cash receipts and collectionscollections received by each Loan Party from all sources, including, without limitation, the following:
: (i) all available cash receipts (x) from the sale of Inventory Inventory, and (y) subject to the Intercreditor Agreement, from the sale of other assets;
assets (whether or not constituting Collateral); (ii) all proceeds of collections of Accounts;
; (iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Cash Proceeds, and all other cash payments received by a Credit Loan Party from any Person or from any source or on account of any sale Disposition or other transaction or event;
, (iv) the then contents of each Deposit Account;
DDA; and (v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(bc) The Collection Upon the reasonable 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 Deposit Account subject to a Control Agreement to ensure the proper transfer of funds as set forth above.
(d) Within ninety (90) days (or such later date as the Agent may agree to in its sole discretion) of the Closing Date, the Loan Parties shall at have established the Term Loan Priority Account (subject to a Control Agreement in favor of the Agent).
(e) Subject to clause (d) above, all times proceeds of Term Priority Collateral shall be in remitted to the nameTerm Loan Priority Account.
(f) After the Discharge of ABL Obligations, and under the sole dominion and control all proceeds of the Collateral shall be deposited in the Term Loan Priority Account or as otherwise agreed to by the Agent. .
(g) The Credit Parties hereby Agent and the Lenders acknowledge and agree that the Control Agreements executed and delivered to the Agent on the Closing Date satisfy the requirements set forth in clause (ib) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agentabove.
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute (i) instruct each depository institution for a deposit account to cause all amounts on deposit and deliveravailable at the close of each Business Day in such deposit account to be swept to one of the Borrowers' concentration accounts no less frequently than on a daily basis, such instructions to be irrevocable unless otherwise agreed to by the Agent, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such (ii) enter into Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Agreements with respect to all deposit accounts. All amounts received by a Borrower or any of its Subsidiaries and any Clearing Bank in respect of any deposit account, in addition to all other cash received from any other source, shall upon receipt be deposited into a deposit account. Each Loan Party agrees that it will not cause proceeds of such Deposit Accounts. deposit accounts to be otherwise redirected.
(b) Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the ACH or require wire transfer transfers no less frequently than daily once per Business Day (unless the Commitments have been terminated and whether or not there are then any outstanding Obligations) to the collection account maintained by Obligations hereunder and under the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”other Loan Documents have been paid in full), of all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory balances and other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedscash receipts, and all other cash payments received by a Credit Party from any Person or from any source or on account of any sale or other transaction or event;
(iv) including the then contents of each Deposit Account;
(v) the or then entire ledger balance of each Blocked Account net of such minimum balance (not to exceed $10,000 per account), if any, required by the bank at which such Blocked Account is maintained to an account maintained with the Agent (the "Collection Account; and
(vi) the net "). Each Loan Party agrees that it will not cause proceeds of all credit card chargesany Blocked Account to be otherwise redirected.
(bc) All collected amounts received in the Collection Account shall be distributed and applied on a daily basis in accordance with Section 2.12(b).
(d) If any cash or cash equivalents owned by any Loan Party (other than (i) de minimis cash or cash equivalents from time to time inadvertently misapplied by any Loan Party, (ii) funds in any deposit account the amounts in which are solely swept into any Blocked Account and (iii) any funds which are held by any Borrower and any of their respective Subsidiaries on behalf of any customer in the ordinary course of business) are deposited to any account, or held or invested in any manner, otherwise than in a Blocked Account subject to a Blocked Account Agreement, the Agent shall be entitled to require the applicable Loan Party to close such account and have all funds therein transferred to a Blocked Account, and to cause all future deposits to be made to a Blocked Account.
(e) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties Each Loan Party hereby acknowledge acknowledges and agree that agrees that, except to the extent otherwise provided in the Security Agreements (i) the Credit Parties have such Loan Party has no right of withdrawal from the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times continue to be collateral security for all of the Obligations obligations of the Loan Parties hereunder and under the other Loan Documents, and (iii) the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agent.this
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliver, or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and delivershall, and shall cause each Guarantor to execute and deliverSubsidiary Loan Party to, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after maintain the Closing Date, unless such Borrower or Guarantor cash management systems described below:
(as applicablea) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of Maintain all cash receipts management and collectionstreasury business with SunTrust Bank or a Permitted Third Party Bank, including, without limitation, the following:
all deposit accounts, disbursement accounts, investment accounts and lockbox accounts, other than Excluded Accounts (i) all available cash receipts from the sale of Inventory each such deposit account, disbursement account, investment account and lockbox account, other assets;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceedsthan any Excluded Account, and all other cash payments received by a Credit 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 Deposit “Controlled Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges”).
(b) The Collection Each Controlled Account shall (i) be a cash collateral account, with all cash, checks and other similar items of payment in such account securing payment of the Obligations, and in which the Borrower and each of its Subsidiaries shall have granted a first priority Lien (subject to non-consensual Liens arising by operation of law and Section 7.2(b)) to the Administrative Agent, on behalf of the Secured Parties, and (ii) be subject to an Account Control Agreement.
(c) Subject to Section 5.11(e), deposit promptly, and in any event no later than five (5) 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, checks, drafts, other similar payment items and Cash Equivalents the aggregate value of which does not exceed $3,000,000 at any time.
(d) At any time after the occurrence and during the continuance of an Event of Default and at all times be in subject to the namePriming/Existing Lien Intercreditor Agreement, at the request of the Required Lenders, the Borrower 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 reasonably satisfactory to the sole dominion and control of Administrative Agent.
(e) For each deposit account into which the Collateral Borrower or any Subsidiary Loan Party receives payments from Federal/State Health Care Program Account Debtors (a “Government Receivables Account”), the Borrower or such Subsidiary Loan Party shall enter into an agreement (a “Government Receivables Account Agreement”) with the Permitted Third Party Bank at which such Government Receivables Account is located, in such form as may be reasonably approved by the Administrative Agent. The Credit Parties hereby acknowledge and agree , which agreement shall provide that (i) the Credit Parties have no right of withdrawal from the Collection Account, (ii) the all 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 deposited into such Government Receivables Account shall be applied transferred promptly (but in any event within one (1) Business Day of deposit) to a Controlled Account of the Borrower or such Subsidiary Loan Party. Neither the Borrower nor any Subsidiary Loan Party shall terminate or modify a Government Receivables Account Agreement without the approval of the Administrative Agent, which approval (or non-approval, as provided in this Agreement. In the event that, notwithstanding case may be) shall be communicated to the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control Borrower by the Administrative Agent within five (5) Business Days of any such proceeds or collections, such proceeds request for approval and collections shall be held in trust by such Credit Party for the Collateral Agent, which approval shall not be commingled unreasonably withheld, conditioned or delayed.
(f) The Borrower shall maintain the LX Xxxx Collateral Account at SunTrust Bank in accordance with any of such Credit Party’s other funds or deposited in any account of such Credit 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 Credit Party may be instructed by the Collateral AgentSection 2.22(k).
Appears in 1 contract
Samples: Credit Agreement (BioScrip, Inc.)
Cash Management. (a) The Credit Within sixty (60) days after the Closing Date (or such later date as the Administrative Agent agrees to in writing in its sole discretion), the ABL Loan Parties will establish and thereafter maintain their primary depository, treasury account and cash management relationship with the Administrative Agent or its Affiliates; provided, for avoidance of doubt, that primary shall deliver, not be construed to mean “exclusive”. No Loan Party shall establish or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where maintain a Deposit Account for or a Securities Account that is not subject to a Control Agreement; provided, that no Excluded Account shall be required to be subject to a Control Agreement; provided, further, that the benefit of any Credit Party is maintained. Each Borrower Loan Parties shall further execute and deliverhave sixty (60) days after the Closing Date (or, and shall cause in each Guarantor case, with respect to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts or Securities Accounts opened or acquired after the Closing Date, unless sixty (60) days after the date of such Borrower opening or Guarantor acquisition) (as applicableor, in each case, such later date to which the Administrative Agent may otherwise agree) has complied in full with the provisions of this Section 5.15(a) with respect to such cause a Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent or Securities Account to become subject to a Blocked Control Agreement. Within sixty (60) days after the Closing Date (or such later date to which the Administrative Agent may otherwise agree), and at all times thereafter, all payments received by the Loan Parties from Account Bank Debtors (including, for avoidance of doubt, customers under Rental Agreements), Credit Card Issuers and Credit Card Processors shall be received directly into a Controlled Account (which Controlled Account, in the Collateral Agent agrees will only case of any such payment received by or on behalf of any ABL Loan Party, shall be given a Controlled Account that is owned by an ABL Loan Party). Within sixty (60) days after the occurrence of an Account Control Event) Closing Date (and until the Collateral Agent notifies or such Blocked Account Bank later date to the contrary (which the Collateral Administrative Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminatedmay otherwise agree), and at all times thereafter, all other collections and the ACH or wire transfer proceeds of any other Collateral shall be transferred no less frequently than daily (other than days that are not business days for the applicable bank) (or, solely with respect to AF Holdings and whether or not there are then any outstanding Obligations) its Subsidiaries to the collection account maintained by extent the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), aggregate amount of all cash receipts such collections and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other assets;
(ii) all proceeds of AF Holdings and its Subsidiaries does not exceed $2,500,000, weekly) to, or otherwise maintained in, a Controlled Account (which Controlled Account, in the case of any such collections or proceeds of Accounts;
(iii) Collateral of any ABL Loan Party, shall be a Controlled Account that is owned by an ABL Loan Party). The Administrative Agent retains the right at all Net Asset Sale Proceeds times after the occurrence and Net Insurance/Condemnation Proceedsduring the continuance of an Event of Default to notify Account Debtors that the Loan Parties’ Accounts have been assigned to Administrative Agent and to collect the Loan Parties’ Accounts directly in its own name, or in the name of the Administrative Agent’s agent, and all other cash payments received by a Credit Party from any Person or from any source or on account of any sale or other transaction or event;
(iv) to charge the then contents of each Deposit Account;
(v) reasonable and documented collection costs and expenses, including reasonable and documented out-of-pocket attorneys’ fees, to the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card chargesLoan Parties.
(b) The Collection Account shall If at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control close of any Business Day, the amount standing to the credit of any Local Deposit Account exceeds the product of $25,000 and the amount of store locations using such proceeds or collectionsaccount as a Local Deposit Account (or, from January 1 through April 30 of any calendar year, the product of $100,000 and such proceeds and collections shall be held in trust by such Credit number of store locations), then the related Liberty Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the following Business Day after receipt thereofDay, cause the amount of such excess to be deposited into transferred to a Deposit Account that is subject to a Control Agreement. If the Collection average daily amount standing to the credit of any Local Deposit Account or dealt with exceeds 120% of the maximum amount permitted to be maintained in such account pursuant to the preceding sentence for any period of 10 consecutive days, the applicable Liberty Party will promptly so notify the Administrative Agent. Upon receipt of any such notice, the Administrative Agent may designate such Deposit Account as not constituting a Local Deposit Account, and the applicable Liberty Party will cause such Deposit Account to be subject to a Control Agreement within 90 days of receipt of such notice.
(c) Subject to the Intercreditor Agreement, each Control Agreement shall provide that the applicable depositary bank or securities intermediary will comply with any instructions originated by the Administrative Agent or the Term Agent, as applicable, directing the disposition of funds in the applicable deposit account or securities account without further consent by the applicable Loan Party; provided that the Administrative Agent shall not issue such instructions except during the continuance of a Cash Dominion Trigger Period (provided that, unless the Administrative Agent otherwise agrees, if the applicable depository bank or securities intermediary shall agree, such Control Agreements shall provide that the Administrative Agent’s instructions shall automatically be deemed to have been issued upon an Event of Default under Sections 8.01(f) or (g)). During the continuance of a Cash Dominion Trigger Period, the Administrative Agent may (and at the direction of either Initial Lender, shall) require that all cash held in any Controlled Account be swept on a daily basis to be applied by the Administrative Agent to repay outstanding Loans, Unreimbursed Amounts in respect of Letters of Credit, other fashion amounts then due and payable, and, if an Event of Default exists, to cash collateralize any other outstanding L/C Obligations in an amount equal to the Minimum Collateral Amount with respect thereto.
(d) To the extent not previously delivered prior to the Closing Date, the Loan Parties shall deliver to Administrative Agent within thirty (30) days after the Closing Date (or such longer period as agreed to by Administrative Agent) copies of notifications in the form of Exhibit I hereto (each, a “Credit Card Notification”), or otherwise reasonably satisfactory in form and substance to Administrative Agent which have been executed by the applicable Loan Parties and delivered to such Loan Party’s Credit Card Issuers and Credit Card Processors listed in Schedule 6.17 with respect to which the Loan Parties have established credit card processing arrangements; provided that, notwithstanding the foregoing, with respect to any multi-party credit card processing arrangements or credit card processing arrangements entered into by any predecessors in interest to the Loan Parties, the Loan Parties shall be required to use commercially reasonable efforts to ensure the delivery of such Credit Party may Card Notifications as promptly as reasonably practicable following the Closing Date; provided, further, that any Credit Card Notifications substantially in the form of the Credit Card Notifications with respect to the Existing Indebtedness (with appropriate modifications to refer to this Agreement and the Administrative Agent) are expressly deemed to be instructed reasonably satisfactory in form and substance to the Administrative Agent.
(e) Upon entering into any agreements with any new Credit Card Issuer or Credit Card Processor, the Loan Parties shall deliver to Administrative Agent a Credit Card Notification as set forth in Section 6.17(d) hereof within thirty (30) days after the entry into such agreements (or such longer period as agreed to by the Collateral Administrative Agent).
(f) Administrative 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 Trigger Period has occurred and is continuing and (2) if any Loan Party shall so request, unless a Cash Dominion Trigger Period has occurred and is continuing, Administrative Agent shall countersign any notification, request, order or direction from such Loan Party to any Credit Card Issuer or Credit Card Processor directing payments from such Credit Card Issuer or Credit Card Processor to be made to a new or different Deposit Account, provided such Deposit Account is subject to a Control Agreement (which Deposit Account, in the case of any such payment to be received by or on behalf of any ABL Loan Party, shall be a Deposit Account that is owned by an ABL Loan Party).
Appears in 1 contract
Cash Management. (a) The Credit Parties shall deliverParent Borrower, the other Borrowers and each Loan Party shall, along with the Administrative Agent and certain financial institutions selected by the Loan Parties, reasonably satisfactory to the Administrative Agent and located in the United States (the “Collection Banks”), enter into within 90 days after the Closing Date (or cause to be delivered, to Collateral Agent a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for such longer period as the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Administrative Agent may reasonably require agree), and thereafter maintain, separate Account Control Agreements with respect to all deposit accounts (other than Exempt Accounts). Each Loan Party shall (x) instruct all Account Debtors of such Loan Party (other than any Governmental Entity) to remit all payments to the applicable “P.O. Boxes” or “Lockbox Addresses” of the applicable Collection Bank (or to remit such payments to the applicable Collection Bank by electronic settlement) with respect to all Accounts of such Account Debtor which remittances shall be collected by the applicable Collection Bank and deposited in connection the applicable Controlled Account of the applicable Loan Party and (y)
(i) instruct each Account Debtor with respect to Governmental Entity Accounts to remit all payments from such Blocked Account Debtor to a concentration or deposit account that is used solely to collect Governmental Entity Accounts and that is not subject to an Account Control Agreement (each such Blocked account, a “Government Receivables Account”) and (ii) deposit or cause all proceeds deposited in any Government Receivables Account Agreementsto be deposited promptly, and in any event no later than the first Business Day after its receipt of such proceeds, in a concentration account which is a Controlled Account. Other All amounts received by any Loan Party and any Collection Bank, in respect of any Account, in addition to all other cash received from any other source (other than Excluded Deposit Accountscash and Cash Equivalents maintained in Exempt Accounts or otherwise by Loan Parties not to exceed $5,000,000 in the aggregate at any time), no Credit Party shall establish promptly upon receipt be deposited or swept into a Controlled Account. The Loan Parties may close deposit accounts at any Deposit Accounts after Collection Bank and/or open new deposit accounts, subject (in the Closing Date, unless case of opening any new deposit account) to the contemporaneous (or such Borrower or Guarantor (longer period as applicablethe Administrative Agent may reasonably agree) has complied in full execution and delivery to the Administrative Agent of an Account Control Agreement consistent with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (2.19 and until the Collateral Agent notifies such Blocked Account Bank otherwise reasonably satisfactory to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge and agree that (i) the Credit 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 as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control of any such proceeds or collections, such proceeds and collections shall be held in trust by such Credit Party for the Collateral Agent, shall not be commingled with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Administrative Agent.
Appears in 1 contract
Cash Management. (a) The On or prior to the Closing Date:
(i) deliver to the Agent copies of notifications (each, a “Credit Parties shall deliver, or cause Card Notification”) substantially in the form attached hereto as Exhibit D which have been executed on behalf of such Loan Party and delivered to be delivered, to Collateral Agent such Loan Party’s credit card clearinghouses and processors listed on Schedule 5.21(b); and
(ii) enter into a Blocked Account Agreement duly authorized, executed satisfactory in form and delivered by substance to the Agent with each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) Bank with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies Accounts maintained with such Blocked Account Bank to as the contrary Agent may reasonably require.
(which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), the 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 DDA (net of any minimum balance, not to exceed $2,500.00, as may be required to be maintained in such DDA pursuant to the collection account requirements of the depository institution at which such DDA is maintained by and other than in respect of the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”Specified DDAs), of which amounts shall include all cash receipts and collections, including, without limitation, the following:
(i) all available cash receipts from the sale of Inventory and other assetsassets (whether or not constituting Collateral), other than, to the extent no Event of Default is then continuing, such cash proceeds received on account of a Permitted Disposition;
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit Loan Party from any Person or from any source or on account of any sale or other transaction or event;event (other than, to the extent no Event of Default is then continuing, a Permitted Disposition); and
(iv) the then contents of each Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(bc) Each Blocked Account Agreement shall require, after the furnishing of notice by the Agent to the applicable Blocked Account Bank (which notice may be given by the Agent solely upon the occurrence and during the continuance of an Event of Default), that the Loan Parties shall not be entitled to access the Blocked Accounts or direct the disposition of any balance of funds then maintained in such Blocked Accounts and that the applicable Blocked Account Bank shall follow solely the instructions of the Agent with respect to such Blocked Accounts and the disposition of funds then maintained therein.
(d) The Collection Account shall at all times be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) from and after the Credit furnishing of notice by the Agent to the applicable Blocked Account Bank in accordance with Section 6.13(c), the Loan Parties have no right of withdrawal from the Collection any Blocked Account, (ii) the funds on deposit in the Collection Account Blocked Accounts shall at all times be collateral security for all of the Obligations and (iii) the funds on deposit in the Collection Account Blocked Accounts shall be applied as provided in this Agreement. In Without limiting the event that, notwithstanding the other provisions of this Section 5.156.13, after the occurrence and during the continuance of an Event of Default, in the event that any Credit 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 Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit Loan Party and shall, not later than the Business Day after receipt thereof, be deposited into the Collection a Blocked Account or dealt with in such other fashion as such Credit Loan Party may be instructed by the Collateral Agent.
(e) Upon the request of the Agent, the Loan Parties shall cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in each Blocked Account to ensure the proper transfer of funds as set forth above.
Appears in 1 contract
Cash Management. (ai) The 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 Parties shall deliverCard Notification”), or cause 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, and (ii) other than with respect to Bank of Montreal (which shall be delivereddelivered on the Closing Date), on or prior to Collateral the date that is sixty (60) days following the Closing Date (as such time period may be extended by the Agent in its sole discretion), enter into a Blocked Account Agreement duly authorized, executed and delivered by with each bank where a Deposit Account for the benefit of any Credit Party is maintained. Each Borrower shall further execute and deliver, and shall cause each Guarantor to execute and deliver, such agreements and documents as Collateral Agent may reasonably require in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank set forth on Schedule 6.12.
(which the Collateral Agent agrees will only be given after the occurrence of an Account Control Eventb) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control Event has terminated), Cause 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 time 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 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, 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) to the collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection Account”), of all cash receipts and collectionscollections 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 assetsassets (whether or not constituting Collateral);
(ii) all proceeds of collections of Accounts;
(iii) all Net Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments net proceeds received by a Credit Loan Party from any Person or from any source or on account of any sale or other transaction or eventDisposition of ABL Priority Collateral;
(iv) the then contents of each Deposit Account;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 AccountAccount (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); and
(vi) the net All funds in each DDA and each Blocked Account shall be conclusively presumed to be Collateral and proceeds of all credit card chargesCollateral 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.
(bd) The Each Collection Account shall at all times during the continuance of a Cash Dominion Event be in the name, and under the sole dominion and control of the Collateral Agent. The Credit Loan Parties hereby acknowledge and agree that (i) during the Credit continuance of a Cash Dominion Event, the Loan Parties have no right of withdrawal from the Collection AccountAccounts, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all of the Obligations 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 this AgreementSection 2.05I 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 5.156.12, any Credit Loan Party receives or otherwise has dominion and control of any such proceeds cash receipts or collectionscollections while a Cash Dominion Event exists, such proceeds receipts and collections shall be held in trust by such Credit Loan Party for the Collateral Agent, shall not be commingled with any of such Credit Loan Party’s other funds or deposited in any account of such Credit 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 Credit Loan Party may be instructed by the Collateral 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 Agent, cause bank statements and/or other reports to be delivered to the Agent not less often than monthly, accurately setting forth all amounts deposited in 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. (a) The Credit Parties Until the Agent notifies the Borrowers to the contrary, each Borrower shall delivermake collection of all Accounts and other Collateral for the Agent, shall receive all payments as the Agent's trustee, and shall immediately deliver all payments in their original form duly endorsed in blank into a Payment Account established for the account of such Borrower at a Clearing Bank acceptable to the Agent, subject to a Blocked Account Agreement. On or cause prior to be deliveredthe date hereof, the Borrowers shall establish a lock-box service for collections of Accounts at a Clearing Bank acceptable to Collateral the Agent and subject to a Blocked Account Agreement duly authorized, executed and delivered by each bank where a Deposit Account for other documentation acceptable to the benefit of any Credit Party is maintainedAgent. Each Borrower shall further execute and deliverinstruct all Account Debtors to make all payments directly to the address established for such service. If, notwithstanding such instructions, any Borrower receives any proceeds of Accounts, it shall receive such payments as the Agent's trustee, and shall cause each Guarantor immediately deliver such payments to execute the Agent in their original form duly endorsed in blank or deposit them into a Payment Account, as the Agent may direct. All amounts that shall be deposited into such Payment Account shall be under the control of the Agent and deliverthe Agent shall be authorized to provide instructions to the applicable Clearing Bank with respect thereto. Notwithstanding the foregoing, except during a Cash Sweep Period, the Borrowers shall have the right to withdraw funds from, and otherwise exercise authority with respect to, such agreements and documents Payment Account. During a Cash Sweep Period, except as Collateral Agent may reasonably require otherwise specifically provided herein, amounts deposited in connection with such Blocked Accounts and such Blocked Account Agreements. Other than Excluded Deposit Accounts, no Credit Party shall establish any Deposit Accounts after the Closing Date, unless such Borrower or Guarantor (as applicable) has complied in full with the provisions of this Section 5.15(a) with respect to such Deposit Accounts. Each Blocked Account Agreement shall require, after notice from the Collateral Agent to a Blocked Account Bank (which the Collateral Agent agrees will only be given after the occurrence of an Account Control Event) (and until the Collateral Agent notifies such Blocked Account Bank to the contrary (which the Collateral Agent agrees will be given promptly after the written request of the Borrower Representative if such Account Control 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 collection account maintained by the Collateral Agent at JPMorgan Chase Bank, N.A. (the “Collection 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 Asset Sale Proceeds and Net Insurance/Condemnation Proceeds, and all other cash payments received by a Credit 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 Deposit Account;
(v) the then entire ledger balance of each Blocked Account; and
(vi) the net proceeds of all credit card charges.
(b) The Collection Payment Account shall at all times immediately be in the name, and under the sole exclusive dominion and control of the Collateral Agent. The Credit Parties hereby acknowledge , on behalf of itself and agree that (i) the Credit Parties Lenders, pursuant to the terms of the applicable Blocked Account Agreement and, as provided in the applicable Blocked Account Agreement, the Borrowers shall have no right of withdrawal from to withdraw such amounts or otherwise exercise authority with respect to such Payment Account without the Collection Account, (ii) the funds on deposit in the Collection Account shall at all times be collateral security for all consent of the Obligations Required Lenders. From and (iii) after the funds on deposit in the Collection Account shall be applied as provided in this Agreement. In the event that, notwithstanding the provisions of this Section 5.15, any Credit Party receives or otherwise has dominion and control termination of any such proceeds or collectionsCash Sweep Period, such proceeds the Agent shall so notify the applicable Clearing Bank and collections the Borrowers shall be held in trust by such Credit Party for have the Collateral Agentright to withdraw funds from, shall not be commingled and exercise authority with any of such Credit Party’s other funds or deposited in any account of such Credit Party and shallrespect to, not later than the Business Day after receipt thereof, be deposited into the Collection Account or dealt with in such other fashion as such Credit Party may be instructed by the Collateral Agentapplicable Payment Account.
Appears in 1 contract
Samples: Credit Agreement (Salton Inc)
